Symposium: The Second World War in Asia: Justice Efforts, War Memory, and Reparations
Problems of Justice in the Post-War Allied War Crimes Trials of Japanese Suspects
by Professor Robert Cribb (Australian National University) and Professor Sandra Wilson (Murdoch University)
Published on 28 September 2022
After the Second World War in Asia finally ended in August 1945, the victorious Allied powers embarked on a program of reckoning with their defeated Japanese adversary. In the International Military Tribunal for the Far East (IMTFE), which ran from 1946 to 1948, Allied powers prosecuted Japanese civilian and military leaders for the twin crimes of waging aggressive war and issuing orders that had led to individual and mass brutalities against both prisoners of war and civilians in Japanese-occupied territories.
Alongside the IMTFE proceedings, seven Allied powers conducted their own trials within a loosely collaborative framework that had its origins in the wartime work of the United Nations War Crimes Commission (UNWCC). These trials, conducted by Australia, Nationalist China, France, the Netherlands Indies, the Philippines, the United Kingdom and the United States, ran according to separate national procedures, but to varying degrees the seven powers exchanged evidence and defendants and even accepted foreign judges on the bench of their courts. The Soviet Union and later the People’s Republic of China also ran war crimes trials of Japanese suspects, but did not co-operate with the other Allies in their judicial proceedings.
Around 5700 Japanese military personnel were brought before courts of the seven Allied powers listed above, in about fifty locations across the Asia-Pacific region. About 4600 were found guilty of at least one charge. Most received prison sentences; and around 920 were sentenced to death and executed. At first, the convicted war criminals were held in prisons across Asia, under the control of the sentencing power. By the end of 1953, the year after the San Francisco Peace Treaty that formally ended the war came into effect, all of those still in custody were held in Tokyo’s Sugamo Prison. Although Japanese authorities managed the prison after the treaty had restored Japanese sovereignty, control over the sentences-enforcement remained with the prosecuting powers. Over time, those powers reduced many of the sentences (in processes that paralleled treatment of German war criminals), and all surviving Japanese war criminals had been released by the end of 1958.
The Allies’ post-war trial project in Asia was driven by a crude desire to avenge the brutalities that Japanese soldiers had inflicted on those who came into their hands during the war. Simultaneously, the project had a righteous desire to establish and reinforce the principle that was also being laid down in the contemporaneous trials of Nazi perpetrators: that atrocity against prisoners of war and civilians in wartime could and would be punished in international tribunals. However, the endeavour in determining what might constitute justice in these circumstances faced three major problems.
First, the jurisdiction of the war crimes tribunals extended only to enemy subjects, that is, to Japanese people and to the inhabitants of Taiwan and Korea, which had been colonized by Japan in 1895 and 1910 respectively. Suspects brought to trial therefore had to be Japanese, Taiwanese or Korean. This restriction arose because international law concerning war crimes had emerged first as an exception to the so-called combatant’s privilege, that is, the right of soldiers to kill enemy soldiers and to destroy enemy property without being liable for charges of murder or theft. The use of barbaric weapons such as dum-dum bullets or perfidious tactics such as false surrender or the killing of prisoners were declared to be war crimes for which the victimized side could prosecute the perpetrators. When the UNWCC formally declared atrocities against civilians to be war crimes for which enemy soldiers could be prosecuted, they did not remove the assumption that the jurisdiction of military tribunals applied only to enemy soldiers.
The consequence of this restriction was that Allied soldiers could not be prosecuted by the IMTFE under international law for any of the actions—most notably prisoner-killing—with which Japanese soldiers could be charged. Still more serious, whereas Japanese soldiers could be prosecuted for brutality against the civilians of occupied territories committed in the course of counter-insurgency operations, Western colonial soldiers in Asia who were fighting nationalist revolutions, at around the same time or soon after, could not be held accountable under international law for torture or summary executions because their victims were deemed to be their own subjects. Besides, in the Allied war crimes trials, Japanese defendants were prohibited from raising in defence or mitigation any suggestion that Allied soldiers might have committed similar crimes, either in the same conflict or in other conflicts.
The one-sidedness of the prosecutions gave rise to the powerful accusation that the trials constituted ‘victors’ justice’ rather than an impartial application of principles of just reckoning. In the Indonesian city of Makassar in 1946–47, a Netherlands Indies war crimes tribunal prosecuted dozens of Japanese defendants for war crimes at exactly the same time that a Dutch counter-insurgency commander, Raymond Westerling, was engaged in brutal operations against local nationalists, including mass executions.
A second acute problem in determining the culpability of Japanese defendants arose from the circumstances of the war. Industrialized Japan had been the main economic hub of eastern Asia before the war, but its economy was relatively small in comparison with those of the major Western powers. Japanese leaders had described their occupation of the former Western colonial territories in Southeast Asia as liberation from colonialism, but that liberation entailed separation from the Western markets upon which colonial economies had been constructed. Japan’s economy could not absorb the plantation and mining products that had been the mainstay of colonial economies. Nor could its factories deliver enough of the consumer and technical goods needed by the people of former colonial regions. During the war, economic exchange between Japan and its occupied territories and amongst those territories was further hampered by the growing intensity of Allied aircraft and submarine attacks on Japanese shipping. Hundreds of Japanese vessels were sunk, making it increasingly difficult to export raw materials from Southeast Asia or to import manufactured goods. Especially in the final year of the war, critical shortages of food, clothing, medicine, utensils and spare parts made life exceedingly difficult for everyone in Japanese-controlled regions. These economic circumstances were directly related to some of the war crimes committed by the Japanese military.
In the post-war trials, one of the most common charges against Japanese staff of camps holding prisoners of war and civilian internees was that they had deliberately or carelessly deprived detainees of food and medical care. Broadly speaking, Japan’s obligations under the 1907 Hague Convention on the Laws and Customs of War on Land required it to provide prisoners with the same conditions that it provided for its own troops. The Convention, however, had not anticipated the acute shortages that afflicted the Japanese empire in its final year of existence. Although in early judgments the Allied tribunals were inclined to hold Japanese defendants strictly responsible for a failure to adhere to peacetime standards of supply, and sometimes to impose harsh penalties, later they were more inclined to recognize the impossible circumstances that camp management had found itself in.
The third major problem faced by the tribunals lay in attributing responsibility for specific criminal acts to individual Japanese service personnel. In civilian life, most crimes involve a very small group of planners and perpetrators. Where larger groups of victims are concerned, legal systems sometimes invoke the problematic concepts of conspiracy and joint criminal enterprise as a way of bringing into the scope of prosecution those who were not directly involved in committing a crime.
Atrocities carried out by serving military personnel in wartime presented the problem of responsibility on a vast scale. The Imperial Japanese Army and Imperial Japanese Navy were legal organizations with the respectable task of defending the national interest. They were hierarchies in which general orders were issued from above, gradually becoming more specific as they proceeded from superior to subordinate. In its wartime deliberations, the UNWCC had been determined to avoid a situation in which only the most junior soldiers who actually carried out, for instance, illegal executions could be held to account. They were committed to reckoning also with those who had issued the orders and those who had failed to take steps to prevent their subordinates from committing atrocities. Neither conspiracy nor joint criminal enterprise were plausible legal means of distinguishing the proper adherence to superior orders that every military force demands from responsibility for specific atrocities. To deal with this issue, the tribunals developed the doctrine of command responsibility. Under this doctrine, officers could be held responsible for the actions of their troops, not only in obedience to direct orders but even in the absence of such orders, if the troops had acted in the belief that they were following official intentions.
In practice, however, command responsibility proved to be an uncertain legal doctrine. In the first and most celebrated trial invoking command responsibility, a U.S. tribunal brought down a guilty verdict on General Yamashita Tomoyuki for crimes committed by Japanese troops in Manila in February 1945, even though those troops had acted without his orders and he was located more than 200 km from the scene of the crimes. In other cases, prosecuting teams recognized the remoteness, incompetence or ignorance of commanders and declined to pursue them for crimes committed by their subordinates. The application of command responsibility, thus, was inconsistent at best.
These three problems—lack of universal coverage, disregard for context and the uncertain application of command responsibility—worked powerfully against the reputation of the Allied war crimes trials of Japanese military personnel, reinforcing a sense in the post-war period that justice had been applied unfairly against the losing side in the war in the Pacific.