The deliberations that took place in Tokyo after World War II, which led to 25 guilty verdicts and the execution of seven Japanese, helped shape the international law around war crimes.
The arguments made in the proceedings against Slobodan Milosevic and the instigators of the Rwanda genocide, as well as the recent indictment of the International Criminal Court against Sudanese leader Omar Hassan al-Bashir, can be traced back to the court discussions and decisions of more than half a century ago.
The Tokyo trial lives on not only through its precedents but also in the continuing controversy over its structure, purposes, and verdicts.
“There has continued to be a lively and often contentious debate in Japan about the trial and its implications,” says George Washington University associate professor Mike Mochizuki, who participated in a Mar. 23 seminar in Washington, DC sponsored by the Sasakawa Peace Foundation USA and the Sigur Centre Project on Memory and Reconciliation.
“You can find a couple books on the subject in Tokyo bookstores at any given time. The literature in the English language, in contrast, has been pretty thin until recently,” Mochizuki said.
This debate generally divides into two camps. “One side believes that, despite the various flaws of the Tokyo War Crimes Trial, it was essentially the judgment of civilization against Japan,” Mochizuki explains.
“Those on the opposite side of the debate believe that, although there may have been some good intentions on behalf of those who pushed the trial, it was essentially a case of victors’ justice,” Mochizuki said.
The prosecution at the trial, representing the 11 Allied victors, focused on proving that Japanese officials and high-ranking army officers committed widespread war crimes. To prove their case, the prosecution team relied on the doctrine of “command responsibility.”
“The Japanese government ordered the destruction of all military records that appeared incriminating, and this created an enormous difficulty for allied investigators to find evidence of criminal orders,” explains Yuma Totani, assistant professor at the University of Hawai’i.
“So they turned to command responsibility instead,’’ said Totani. ‘’The advantage of this doctrine was that it didn’t require proof of criminal orders. The prosecution had to prove three things: that war crimes were systematic or widespread; the accused knew that troops were committing atrocities; and the accused had power or authority to stop the crimes.”
In a majority decision, the court ruled in favor of the prosecution and convicted the 25 defendants of war crimes. Many Japanese, however, are more familiar with the dissenting opinion of the Indian judge, Radhabinod Pal, who acquitted the defendants on all counts.
“Justice Pal’s long, dissenting opinion,” Totani says, “is widely received in Japan as more authoritative than the majority judgment.”
The verdict distinguishes between individual and state responsibility. “One of the purposes of the trial,” argues Yoshinobu Higurashi, professor at Kagoshima University, “was to defend Japan by penalising the militarists.” This judicial sleight of hand allowed the U.S. to then ally with its former adversary during the gathering Cold War.
It worked both ways, adds Higurashi: “Japanese Prime Minister Shigeru Yoshida considered using the trial as a means for the purification and reconstruction of Japan and its cooperation with the United States.”
But this focus on individual rather than collective guilt also undercut one of the purposes of the trial, namely for Japanese people to acknowledge and take responsibility for what happened during the war.
“The criminality of the individuals allowed the public and the government to accept the judgment of the trials,” explains Higurashi. “The Japanese people felt that they’d been liberated as a result of the trial but didn’t feel individually responsible for the war itself.”
“As for the tribunals’ educational potential,” Totani says, “the proceedings had a minimal effect if at all on Japanese understanding of war responsibility.”
Daqing Yang, an associate professor at George Washington University, agrees that the tribunal evaded the question of state responsibility.
Yang wonders whether “other measures undertaken by occupation authorities — such as disbanding the military or writing the Japanese constitution — imply responsibility on the part of the Japanese state. Maybe the trial did not implant, as [Secretary of War Henry] Stimson intended, a sense of guilt among Japanese people. But these other measures may have accomplished that effect’’.
Some Japanese went further and dismissed the verdicts altogether as being simply justice imposed by the occupation authorities. “The victors protected themselves from any prosecution,” Totani observes. “This was a structural problem, one of the trial’s greatest weaknesses.”
According to this notion of “victors’ justice,” judgments concerning war crimes apply only to the weak and the defeated. “The rules from the Tokyo Trials about military aggression and crimes against peace will only be applied to small countries,” notes Cecil Uyehara, a retired State Department official who worked in the international prosecution section in 1946-47 as a supervisory translator during the trial.
“When Mai Lai occurred in Vietnam, nothing happened. We didn’t apply this justice in Iraq, at Abu Ghraib either,’’ Utehara said.
The Tokyo War Crimes Trial still has an impact in the region. It not only divides scholars, it also divides countries. When, for instance, the Japanese prime minister visits Yasukuni Shrine, which houses the spirits of several war criminals, other countries in the region such as China and South Korea lodge vehement protests.
Discussion of the tribunal can also serve as a springboard for regional reconciliation.
“Revisiting the Tokyo Tribunals would appear at first glance to be a really powerful way to build a new sense of East Asian communality — which all its leaders keep talking about — yet the problem remains that since Tokyo continues to sustain denial about the actual events of the war and obfuscate the question of war responsibility, this cannot happen,” explains historian Alexis Dudden.
Author of ‘Troubled Apologies: Among Japan, Korea, and the United States,’ Dudden said: ‘’Ironically, Japan, which would have the most to gain by taking the lead does the opposite by allowing its new voices of nationalist narration to run with the story, only further isolating Japan from the neighbors with which it shares the most ancient and recent history.”