It was a long time ago and faraway. Or was it?
Three years after the atomic bombings of Hiroshima and Nagasaki had brought the war against Japan to a juddering end, the International Military Tribunal for the Far East concluded its work in Tokyo and sentenced seven of the highest category of indicted Japanese offenders to death for war crimes and crimes against humanity.
But the conflict between war and law which might have seemed so remote from our own times is tragically in play again as Russian aggression in Ukraine continues and the spiral of violence in Israel and Gaza which started with Hamas’s attacks on 7 October causes dreadful numbers of civilian deaths and casualties. Themes that were to the fore in Tokyo (and at Nuremberg before it) seventy-five years ago resonate once more across the decades: the nature of aggressive warfare, the right to self-defence, the obligation to limit civilian casualties and always to act in accordance with international humanitarian law. International courts are once again engaged in the tasks of upholding international legal norms and considering alleged offences against the laws of war.
Gary Bass’s “Judgement at Tokyo” is a monumental achievement. In a long, exhaustive and often painful account, he sets out the events that led to the trial, the controversies that attended its establishment and the proceedings and conclusions which followed. He casts his net wide and spins into life the geopolitical and colonial context before and during the war in East Asia. With careful but vivid prose he sets before the reader a rich cast of players in a drama which was controversial at the time and which still reverberates, not least in Japan and China.
There was no common start to the drama. For the United States, the war in East Asia began with the surprise Japanese attack in December 1941 on Pearl Harbour in Hawaii. For Nationalist China, it began after incursions into the province of Manchuria in 1931 followed by Japan’s full advance militarily in 1937 with horrific atrocities visited upon the local populations, most notoriously in Nanjing (the Nationalist capital). For the Soviet Union, it took the form of a late and opportunistic breach in 1945 of its neutrality treaty with Japan and a land grab in Japanese-occupied Manchuria and of islands at the northern end of the Japanese archipelago. For the French, British and Dutch, it was the assaults on their colonial territories in the region in the first half of 1942 with the Philippines (which suffered some of the most brutal Japanese atrocities) and Burma attacked in the same year. Further, South Australia and New Zealand were drawn into the conflict by attachment to the UK and by the encroaching threat posed by Japan to their own territories. Threading through all the events is an imperialist story of threatened European (and American) colonial empires, of a newly imposed Japanese imperium, with racist attitudes and claims informing both.
It is a tribute to Bass’s skills as chronicler and analyst that all these geopolitical and related strands are drawn together in a notably coherent account. Equally accomplished are his portraits of the key players in the drama. Above all in his depiction of General Douglas MacArthur, the overbearing US military supremo who ruled with little constraint from Washington over a ravaged and broken Japan. The dramatic counterpoint to MacArthur was Emperor Hirohito of Japan whose role and responsibility for the war was controversial but whose authority was seen by MacArthur as critical to the stabilisation and “modernisation” of a non-belligerent post-war Japan. MacArthur never wanted an international military tribunal preferring quickly delivered judgements by US military courts (as had been the pattern hitherto), but on this he was forced into line by the Truman administration. Reluctantly and with griping complaints from him thereafter, he established the International Military Tribunal for the Far East under a charter similar to that applied at Nuremberg.
But setting up the tribunal was only the beginning and many difficulties and complexities lay ahead. Agreeing on the judges – including Sir William Webb, the cantankerous presiding judge from Australia – and the team of prosecutors was not straightforward. At Nuremberg, they had all been drawn from the Allied countries who together had defeated Nazi Germany. At Tokyo, the character of the conflict and the geographical spread produced a more controversial pattern, not least as viewed from the colonial or ex-colonial territories in East Asia. There were thus no Malay or Indonesian judges to rule on atrocities committed against their populations but only British (and Commonwealth), Dutch and French judges alongside US and Soviet ones and two from the soon-to-be newly independent States of India and the Philippines and crucially one (a very influential one), Mei Ruao, from China. The tribunal was therefore predominantly a court constructed – like its predecessor at Nuremberg – in the image of the victors in the war, though not exclusively so.
From the start, the tribunal was mired in arguments about the source of its judicial authority and the scope of international law in 1945. Bass draws out well, and in terms understandable to a layman (or at least to this reviewer), arcane arguments about the applicability of the 1907 Hague and subsequent conventions on required standards of humanity in war. He also teases out the applicability or not of the Kellogg-Briand Pact of 1928 whose signatories renounced war as an instrument of national policy whilst still asserting claims to self-defence. Amazingly and largely held back by the presiding judge, the tribunal did not articulate the basis for its jurisdiction until its concluding sessions in 1948 when it opted to do what it could have done much earlier, namely to cite the charter under which the tribunal had been appointed by MacArthur in 1946.
Leaving to one side the jurisdictional question for nearly two years, the judges sought in the meantime to establish the extent to which the Japanese military figures and politicians in the dock were guilty in international law of the offences for which they had been arraigned. The Americans (prodded insistently by MacArthur behind the scenes) were focussed principally on nailing senior Japanese figures for the attack on Pearl Harbour, defined as a criminal act of aggression. Legally this was not as simple as it appeared, especially for those such as the Dutch judge, Röling, alongside his Indian counterpart, Pal, who maintained that no such international legal norm had existed when Pearl Harbour was attacked. Many other judges were focussed rather more on sentencing those directly or indirectly responsible for human atrocities in their own countries. And here there were great practical difficulties, especially given the paucity of deployable evidence – much of which had been destroyed by the Japanese in the final days of the war, notably in China – and uncertainty as to where individual responsibility lay, whether with individual service personnel alone or with their senior commanders up to and including their military chiefs and political masters.
So where ultimately did the buck stop? It is around his consideration of responsibility that Bass walks a delicate and sensitive path. It is hard not to conclude that he views Emperor Hirohito as complicit in, if not directly responsible, for war crimes. But all the evidence he assembles from certain key diaries as well as transcripts of the tribunal proceedings tends to show how determined MacArthur and senior Japanese in and outside the dock were to protect the Emperor. Even those facing the prospect of being hanged twisted in the winds of cross-examination to avoid any incrimination of Hirohito. The Emperor himself and his immediate advisors played a clever game in which he acted in ways appealing to MacArthur (and many in Washington too) and showing how he was ready to diminish his own authority constitutionally whilst encouraging political and economic modernisation. All of this was much more about politics than law.
Indeed, politics was never far away. The judges routinely reported on backchannels to their governments. Some did so more egregiously than others, notably the Soviet judge – with skills well tuned by experience of Stalinist trials – who though versed in international law would not allow its niceties to mess up the desired outcome. Others reported despairingly of the ineptitude of the lead US prosecutor (very much a political appointee) and the inept oscillations of the presiding judge. The British judge, Lord Patrick, as well as the New Zealander sought despairingly to escape from the increasingly thankless task. Of the others, Röling lamented (to the frustration of officials in The Hague) what he saw as the lack of legal authority for some of their discussions whilst Pal kept his own counsel and eventually wrote a long dissenting opinion that risked undermining the tribunal’s very purpose and alienated his own Prime Minister as a consequence. For some judges, Pal especially, and for many surviving Japanese civilians as well as those in the dock, the shocking and indiscriminate impact of the atomic bombs dropped in the last days of the war on Hiroshima and Nagasaki called out for judgment too. It is not accidental, as Bass points out, that Allied prosecutors hedged themselves to avoid direct criticism of aerial bombardment by the Japanese elsewhere in East Asia. Seemingly they did so to avoid any argument claiming that Allied “precision bombing” of Japanese cities as well as the atomic bombings might also be judged in contravention of the laws of war.
In many ways as Bass subtly insinuates more than once, it is astonishing that the tribunal ever reached settled majority conclusions and judgements. But it did and by a relatively simple device, which was to align itself with the approach of the far less controversial proceedings and conclusions of the judgements at Nuremberg two years earlier. How far Tokyo was a tribunal led as much by considerations of politics as by established international law might be thought moot. Certainly the failure to achieve a unanimous final judgement and the dissenting opinion of the Indian judge in particular, left a trail along which Japanese nationalists over the years have sought to cast the Tokyo judgment as victors’ justice alone.
Another writer of a very different book, Ian Buruma in “Wages of Guilt” published thirty years ago, contrasts the exemplary way Germans faced up to their country’s Nazi past with the more muted and less explicit acknowledgement by Japan of its own wartime record. He articulates a sense, partly fuelled perhaps by the limitations of the Tokyo trial, of Germans recognising guilt but of Japanese feeling shame. Of course those are very different things.
Write to us with your comments to be considered for publication at letters@reaction.life
