Symposium: The Second World War in Asia: Justice Efforts, War Memory, and Reparations
The Tokyo Trial and its Legacy
by Professor Neil Boister, University of Canterbury, New Zealand
Published on 26 September 2022
Introduction
The Tokyo Judgment was handed down by majority on the 12th November 1948, nearly three quarters of a century ago. After the convictions were handed down, outside of Japan at least, the trial slowly submerged. Most commentators among the former Allies who had put on the trialand many Japanese shared the polemical view of the US historian Richard Minear that the trial was victor’s justice. In the last 15 years however, we have seen a flowering of scholarship about the trial, including Boister and Cryer’s The Tokyo International Military Tribunal: A Reappraisal (OUP, 2008). This scholarship has not in the main sought to justify the trial’s excesses but rather to try to reach a more nuanced understanding of what was the first major trial of international criminals in Asia. It is not clear though whether intellectual understanding of the trial has led to a greater public awareness of its complexities, the relative popularity of the Netflix mini-series Tokyo Trial notwithstanding.
Historical Legacy
What has intrigued scholars about the trial is the fact that the Allies tried 28 of Japan’s war time leaders chiefly for 36 counts of crimes against peace because of their involvement in orchestrating and executing Japan’s expansionist war in East Asia and the Pacific. Despite the fact that Japan, by signing the Instrument of Surrender on 2 September 1945, undertook to ‘carry out the provisions of the Potsdam Declaration in good faith’, the extent to which Japan as a nation was reconciled to the trial is uncertain. Though the Instrument of Surrender explicitly contemplated war crimes trials, Japanese defence counsel still complained that Japan had not anticipated prosecution of Japan’s leaders for crimes against peace. The eleven participating Allied states—the USSR, UK, US, China, France, the Netherlands, Canada, Australia, New Zealand, India and the Philippines—participated with varying degrees of enthusiasm. China, the Philippines and Australia appear to have felt most strongly justified in pursuing crimes against peace because they were either invaded or were strongly threatened with invasion. The US was exercised by the shock of defeat at Pearl Harbour and the Bataan Death March rather than the idea of condemning invasion per se. The European colonial powers were in a morally and legally weak position to engage in such a prosecution, while the USSR was also in an ambiguous position given its late entry into the war with Japan which seemed motivated by a land grab of Japanese territory, and India which was extracting herself from the fading British empire at the time.
It is difficult to conceive of a prosecution of broader historical scope than that set-in train by the Allied war leader’s declaration at Potsdam on 26 July 1945 to mete out ‘stern justice’ to ‘war criminals’. The allegations of crimes against peace were constructed by the prosecution as a fifteen-year long conspiracy. This made possible a trial of Japan and more specifically its foreign polices from around 1930 onwards. But the effectiveness of a prosecution which omitted the Emperor Hirohito, the head of state, has long been questioned, despite its real-politic rationalisation as preventing the breakdown of political order in Japan. Recent evidence has suggested that the dissenting Justices Webb and Bernard were correct in suspecting him of a strong role in the decisions to go to war (see their dissenting/separate Judgments here).
A prosecution of such a scale threw up technical hazards, chief of which was an overly ambitious indictment covering too many offences over too long a period, poor control of the evidence, and excessive reliance on documentary evidence, all of which resulted in an overly long and costly trial. The trial mechanism became increasingly inconvenient for the United States, the de facto occupying power of Japan since 1945 to 1952, whose emphasis shifted from retribution to rehabilitation of Japan amid the intensification of the Cold War rivalry with the Soviet Union. To some extent, the US view has reinforced the Japanese position, which was initially to defend the Japanese state by arguing that it acted in self-defence to secure itself against communism in China and later against Allied control of its oil supply. Japanese attitudes towards war responsibility in China vary considerably. Yuma Totani explored these attitudes at some length in The Tokyo War Crimes Trial: The Pursuit of Justice in the Wake of World War II (Harvard 2008), noting how they shifted from a generally positive view initially, to ultra-right-wing nationalists who denied atrocity and condemned the trial as victor’s justice, to academics who thought it was inadequate because it did not go far enough in seeking a reckoning. This lack of resolution has fed an unresolved tension with China which is growing in international relations significance. One of the more interesting institutional spin-offs of the trial is the Shanghai Jiao Tong University’s Centre for the Tokyo Trial Studies which has produced works like Cheng Zhaoqi’s A History of War Crimes Trials in Post 1945 Asia Pacific (Palgrave Macmillan 2019) partly in an effort to correct a semi-official Japanese bias against the trial. It recasts the trial as a victory for civilization and justice, and condemns the notion that the trial reflected victor’s justice.
Richard Wilson notes the scepticism about using international criminal trials to record history, first from the liberal legalist perspective that history is no concern of a trial concerned with criminal justice, and second the socio-legal perspective that such a trial is poorly equipped to do the writing of history properly. Nevertheless, the Tokyo trial while it exhibits many of the flaws of writing history in a criminal trial—including the manipulation of facts by opposing parties, the inadequacy of historical expertise, the counter-intuitive ways of discovering ‘facts’, the partiality of its truth-seeking, the mind-numbing nature of its forensic processes—still serves as a highly detailed record of executive action and atrocity, painfully constructed over two years of the taking of evidence with much of it uncontroverted. At a more granular level, the intellectual history of the trials has been thoroughly and most interestingly canvassed by works like Kerstin von Lingen’s Transcultural Justice at the Tokyo Tribunal (Brill, 2018).
A Legal Legacy
Of technical interest for international lawyers is whether the conviction of Japan’s military and civilian leaders was really made on the basis of command/superior responsibility for either giving the order for the commission of these offences or for failing to take steps to prevent their commission, or as David Cohen and Yuma Totani argue on the basis of a ‘government responsibility’ as a whole based on Japan’s undertakings under the 1929 Geneva and 1907 Hague Conventions .
However, the most significant legal legacy of the Tokyo trial is the simple fact of conviction of a prominent state’s leaders for crimes against peace. The importance of this conviction and its precarious legal foundations has been effectively analysed by Kirsten Sellars. International law students will be most familiar with the dissenting judgment of the Indian Judge Radhabinod Pal, a strikingly positivist analysis of the extant rules of international law at the time. His painstaking search for the positive source of the rule that individuals could be held individually criminally responsible for aggression proved fruitless. He also debunked the notion of a great rolling conspiracy from 1928-1945, bent on the common goal of expansion of the Japanese empire by force. Modern historians such as Marius Jantzen in The Making of Modern Japan (Harvard 2002) argue that this conspiracy was a construct by the majority judgment placing an artificial order on what was quite a chaotic series of events. Pal’s analysis could not disguise, however, his respect for the accused as the leaders of an Asian state who had attempted to free Asia from the yoke of European colonialism. His judgment can be read as one of the first major contributions to the debate in international law about the rights of colonised peoples to lawfully pursue self-determination through the use of force. However, critical scholars like Minear have tended to ignore the fact that in his judgment Pal uncritically accepted the defence’s case that the accused were not responsible for war crimes committed in the territories under Japanese control. Moreover, Pal ignored the fact that the Japanese freed the Indo-Chinese, Malaysians, Indonesians, Timorese etc. from the European colonial yoke only to impose their own. It is ironic that the recently assassinated Prime Minister Shinzo Abe venerated Pal, grist for those who accuse Japan of revisionism in regard to its war responsibility.
For other allied states with a stake in the Asian great game such as Australia, the trial must count as a disappointment, descending into bickering over its President Sir William Webb’s role, as recounted in Boister and Cryer. A former Chief Justice of Queensland, Webb was forceful figure who struggled to control the trial. He played almost no part in the Majority judgment, in which most of the law was written by the Scotsman Lord Patrick and most of the facts by the New Zealand judge Northcroft’s offsider, Captain Quentin Baxter. Yet Webb was a strong Catholic who had serious doubts about the legality of the crime against peace and conspiracy charges in international law, and produced his own draft judgment which is in many ways more interesting and of greater research value than the majority judgment.
Conclusion
To conclude, I would say that the Tokyo trial has been rescued from the dustbin of legal history not in order to be thrust at the victor or vanquished (although there is some political use of the trial currently going on), but because of its many parts, which makes it more interesting and relevant today than Nuremberg. For a broader view of the trial, one should go no further than the encyclopaedic efforts of David Cohen and Yuma Totani’s The Tokyo War Crimes Trial: Law, History and Jurisprudence (CUP 2018) which threads the needle by producing parallel legal and historical tracts of great detail, and expends much of its intellectual energy on the Webb draft judgment. It shows that the Tokyo Trial is the true antecedent to the modern international criminal tribunal’s potential struggle with crimes against peace, where identification of the villain and the victim is often more difficult than many assume, a lesson of pertinence for today.