Politics, National Interest, and Legal Cultures at the Tokyo War Crimes Trial

A review essay on Transcultural Justice at the Tokyo TribunalThe Allied Struggle for Justice, 1946-48, ed. Kerstin von Lingen (Leiden:  Brill, 2018).

The International Military Tribunal for the Far East (IMTFE), or the Tokyo Trial as it is more widely known, has since its very inception in May 1946 been the country cousin to the more famous, and most scholars would argue more consequential, Nuremburg Trial.  Writing in Foreign Affairs in January 1947, Henry L. Stimson, who had served as President Roosevelt’s Secretary of War between 1940-45, was unequivocal in his assessment of the Nuremberg Trial as “a landmark in the history of international law.”  Sitting in judgment on the war criminals who had taken Nazi Germany and indeed the world to the brink of destruction, the judges representing the US, USSR, Britain, and France succeeded in advancing a number of principles that would become critical in shaping the international law around war crimes, wars of aggression, crimes against humanity, and genocide.  The movement that would in time lead to the establishment of a permanent International Criminal Court arose out of the deliberations at Nuremberg.

Maj.Ben Bruce Blakenley, defense counsel, addresses the court at the International War Crimes Tribunal for the Far East, Tokyo, on 14 May 1946. Source: http://mylib.nlc.cn/web/guest/djsp/picturelibrary?pictureLibrary.id=47433800F29E4EC9A363C8D2CBC23CA0

The Nuremberg Trial was not without its critics.  Some decried it as “victor’s justice”; others described the law under which the charges had been framed as ex post facto.  The Tokyo Trial, while subjected to similar criticisms, was if anything far more contentious.  The principal Nuremberg Trial was completed in slightly less than one year, but the Tokyo Trial dragged on for 30 months.  The Tribunal, comprised of eleven judges, one each from the eleven nations that represented the victors, could not reach unanimity on the charges that had been levelled at high-ranking Japanese politicians and army officers.  Three judges delivered dissenting judgments, none so devastating and wide-ranging in its scope as the voluminous opinion of Justice Radha Binod Pal who had previously served on the Calcutta High Court.  (The story of Justice Pal is dazzling and worthy of extended treatment; and I shall turn to it on a later occasion.) The Tribunal’s President, Sir William Webb of Australia, while agreeing with the majority on some points, nonetheless felt compelled to write his own opinion.

Justices Radha Binod Pal and Bert Rolling can be seen in the back row, on the extreme left.

The Tokyo Trial received little critical scrutiny outside Japan for at least three decades after the proceedings were brought to a close in 1948.  Though Webb had been of the view that the tribunal was “the greatest criminal court ever constituted,” and that he had played a role with “no equal in history, ancient or modern” (p. 55), the international legal and academic communities were evidently not of this mind.  For a number of reasons which do not require attention at this juncture, including the publication of the trial transcripts in English in 1981, a critical literature on the Tokyo Trial began to emerge in the 1980s.  The present edited volume, Transcultural Justice at the Tokyo Tribunal, makes however a wholly distinct if not always compelling contribution to the scholarly literature.  It is not a narrative history of the trial, nor does it mainly dissect the various legal opinions; rather, it is focused on the “national teams” that were despatched by eleven countries to conduct the proceedings, and it points to some of the considerations that helped shape what has not inaccurately been described as the world’s first “interracial and multilingual criminal trial” (p. 1).

The editor’s introduction describes the circumstances and legal protocols under which the Tokyo Tribunal came into existence and then proceeds to offer a summary of the contributions to the volume.  James B. Sedgwick, in the following chapter, argues that the acrimony which came to characterize the tribunal’s proceedings was pronounced from the outset since its President, William Webb, did not at all look kindly upon attempts by defense counsel to question the tribunal’s “jurisdiction, powers, and authorities” (p. 51), and throughout he remained largely intolerant of dissent—all the more so when it emanated from his fellow judges. A “Manufactured Majority” was crafted around the Anglo-American judges who adhered to common law principles, and who were joined by the Russian and Chinese judges who scarcely needed to be convinced of Japanese culpability.  The two principal dissenters, Justices Pal and B V A (“Bert”) Röling of the Netherlands, were perhaps not coincidentally seated next to each other in court.  Together, in concert with the French judge who endeavored to bring the court around to a “French civil law mindset”, they shaped “communities of dissent” (p. 42).  This dissent created, according to Sedgwick, an ambivalent if not “poisonous” legacy that still attaches to the Tokyo Tribunal. 

Much more so than at Nuremberg, the possibilities of a clash of cultures of jurisprudence at Tokyo were ripe.  The chapters, taken collectively, purport to establish this though with mixed results, and as illustrations of what this edited volume seeks to accomplish, we may consider the contributions of the legal teams from Australia, China, and the Soviet Union.  The discussion of Australia’s contributions to the tribunal is focused overwhelmingly on Webb and the controversy surrounding his appointment as its President.  Webb had previously served as war crimes commissioner charged with documenting Japanese war crimes on several occasions from 1943-45, and had authored “three substantial war crimes reports” (p. 46).  There was thus concern that Webb would be predisposed towards viewing the Japanese suspects as guilty, and another Australian judge was voicing a view more generally held among the wider public that Webb’s appointment might do Australia “a great disservice” and hold the country up to “contemptuous ridicule” (p. 49).

Justices seated on the bench, 5 August 1946, in the back row. Sir William Webb, President of the Tribunal, is seated in the middle; in the far left is Justice Pal (India) and next to him is Justice Roling (The Netherlands). Source: National Archives, WPA-46-66828.

Anja Bihler’s essay on the legal team fielded by the Republic of China offers some analytical insights and is also useful as the author is able to draw upon a wealth of material in Chinese, very little of which if any has previously been known to scholars working primarily with English language materials.  What is most striking is the extent to which the Chinese judge, prosecutors, and the legal staff were all conversant in American legal culture.  Judge Mei Ru’ao earned his doctorate in law from the University of Chicago; the associate prosecutor, Xiang Zhejun, was a graduate of George Washington University Law School, and the head of the team of four advisors, Ni Zhengyu, received his legal training at Stanford.  They were part of an elite community of Chinese scholars knowledgeable about the Anglo-American common law tradition and reasonably fluent in English; however, if Judge Mei’s opinions may be deemed representative of the Chinese view, the Chinese team came with the expectation that each “national team” was there to speak for the interests of its own nation, rather than be engaged explicitly in the quest for truth.  Ni Zhengyu, we are informed, much later confessed that he was unable to understand “why the allied defence counsels were willing to place the Japanese defendants’ interest above their own national interest” (p. 89).  From this standpoint, the judges from China and the Philippines, two countries that had suffered grievously under Japanese occupation, were bound to convict the accused—even if the evidence against a particular defendant was not overwhelmingly compelling, or if the legal standard for conviction was found wanting.

The Soviet Union had hardly played a role in the Pacific theater of war until its invasion, less than three days after the atomic bombing of Hiroshima, of the Japanese puppet state of Manchuko after midnight on August 9, 1945.  This, coupled with its role as the part of the triumvirate of Allied powers that brought down the Nazi regime, entitled it to representation on the IMTFE, though Soviet leaders understood that the Americans, the principal vanquishers of the Japanese, were bound to take the leading role in the prosecution of the trial.  The Soviet judge, Ivan Zaryanov, who had been head of the Military Law Academy of the Red Army, had no knowledge of English and had to rely on interpreters; perforce, as a consequence, his on-the-spot interventions during the hearings were limited and rendered cumbersome by the necessity of having to transmit everything through written notes (p. 130).  Valentyna Polunina, in her assessment of the place of the Soviets in the Tokyo Tribunals, points to a number of interesting anomalies.  The Soviet leadership sought, not surprisingly, to control every facet of their delegation’s work:  thus, acting under orders, Judge Zaryanov sought to convey the opposition of his delegation to capital punishment, ostensibly on the grounds that it had been abolished in the Soviet Union, though Zaryanov himself had played a leading role in handing down “death sentences on a mass scale” during the infamous purge trials in the 1930s (p. 130).  Even as the Soviet Union collaborated with the Allied Powers at the tribunal, they persisted with the criticism that the tribunal’s Charter, based on the Anglo-American adversarial system, unnecessarily permitted “defence lawyers to protract the trial” (p. 135).

One strength of Transcultural Justice is doubtless the fact that it brings into the orbit of scholarly work on the Tokyo Trial material in languages such as Chinese, Japanese, and Russian.  Contributors have tapped into national and local archives and so broadened the scope of our understanding of how this unique transnational exercise in the administration of justice came into place.  The ethnographies, in varying detail, of the various legal teams represented in Tokyo furnish us some insights into national legal cultures. However, in various theoretical and historiographical respects, the volume falls short in posing some more fundamental questions that remain central to any inquiry into the Tokyo Trial.  How, if at all, did the Tokyo Trial embody cultures of jurisprudence that conflicted with each other considering that the tribunal was operating under the mandate of a charter framed in the template of Anglo-American legal culture?  And is it sufficient to speak of cultures of jurisprudence or might it also be productive to situate the national legal teams within the contours of national histories? It is enormously interesting, for instance, that the Chinese delegates are singled out for declaring that they were unable to understand why the allied defense counsel were unwilling to accept the notion that “national interest” was quite evidently the only legitimate consideration that each country’s legal team was enjoined to follow.  Is this meant to suggest that a certain realism, devoid of the imperative to follow the moral injunction, or even something such as ‘due process’ in the conduct of legal trials, is characteristic of Chinese thinking?

There are yet other considerations which certainly require further research and reflection. What did the Tokyo Trial have to contribute to the evolution of international law in comparison with the Nuremberg Trial?  The Nuremberg Principles would emerge from the trial of Nazi war criminals but the world has heard of no such principles emerging from the Tokyo Trial. So should one conclude that the Tokyo Trial was merely an adjunct to the Nuremberg Trial?  If the extant international law was ill-equipped to deal with the nature and extent of the crimes catalogued during the tribunal’s proceedings, what do we make of the inexperience of all the judges in international law that has long been assumed to be a shortcoming of the Tokyo Trial?  Building upon the contributions of Transcultural Justice, one hopes that subsequent research will delve deeper into the cultures of jurisprudence that informed the Tokyo Trial and the politics of international law.

This is a slightly expanded version of a piece first published in late Spring 2020 in newbooks.asia, an initiative of the International Institute of Asian Studies, Leiden.  For the original piece, click here.

10 thoughts on “Politics, National Interest, and Legal Cultures at the Tokyo War Crimes Trial

  1. When you say, “The Tribunal, comprised of eleven judges, one each from the eleven nations that represented the victors, could not reach unanimity on the charges that had been levelled at high-ranking Japanese politicians and army officers,” I automatically think about how unfair that seems. When you think of a jury in the modern day United States, it is a “jury of your peers” in the sense that they are randomly selected in order to maintain a lack of bias in the ruling. However, Japanese officials being judged by 11 judges, all from victorious nations, seems far from lack of bias. I understand that the judges could not be Japanese, but one would think (and hope) that the judges would maybe come from neutral nations.

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  2. Along the same thread as the previous comment, I wonder why there were not more “neutral” judges present. I believe that the criticism that the Tokyo Trials were simply victor’s justice is valid as it seems that the victorious countries such as the United States committed heinous acts of war as well but they were not put on trial. If the trials were truly in the name of morality and justice, should military leaders of the winning countries not also be held accountable? It seems that in this case (as in most cases), victory is equated with immunity. Why then, as the Chinese delegates pointed out, was there a refusal to admit that each country was acting out of its own personal interest (if it was already relatively obvious)? How can an American judge sit and lay claims as to what is moral or not when the United States dropped atomic bombs on Hiroshima and Nagasaki? In addition, I found it interesting that William Webb “remained largely intolerant of dissent—all the more so when it emanated from his fellow judges.” With each detail, it seems to me that the Tokyo Trials were not actually about due process or criminal justice, they were merely a way for various countries to punish Japan without much regard for criticism or dissent.

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  3. Hello, professor. I have some perspective for Tokyo Trial about its significance and influence. At first, The Tokyo Trial exposed Japan’s war crimes of aggression and left precious historical materials for historical research. The Tokyo Trial not only punished Japan’s main war criminals but also provided a large number of historical materials for the study of Japan’s modern history, especially the study of the history of foreign aggression. Secondly, the Tokyo trial has important international implications. It is obviously unsuitable and contrary to justice of mankind to apply the principle of legality of a crime and punishment which was originally applied to domestic law to the international war trial of Tokyo Trial, if we strictly adhere to the provisions of traditional international law. The Tokyo Trial made a significant contribution to the development of international law, especially international criminal law. There are two characteristics of the Tokyo Trial in international law. The first is to apply the traditional international law; the second is to improve or create new norms of international law in accordance with development of international law and the needs of The Times. What is more, The Tokyo Trial embodies the fairness and justice of the law. The Tokyo trial was relatively fair, which embodies the principle of justice of international law. The justice nature of the trial of Japanese war criminals is unshakable and unchallengeable.

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  4. Although the Tokyo War Crimes Trial identified and punished the wrongdoings of Japan, I agree that the trial was biased as it was predominantly steered by Anglo-American judges/influence. The legal culture, the language of the trial, and the majority of the judges were all favorable circumstances to the US and the minority dissents were disregarded. It is interesting how the judges from Russia and China all had a legal education/background from the US. Furthermore, agreeing with other students, it was somewhat hypocritical of the US to judge Japan and question their morality when the US dropped an atomic bomb on the country, Hiroshima and Nagasaki, that killed thousands of people. However, we can not ignore the fact that the Tokyo War Crimes and Nuremberg Trials played a significant role in the international community. It led to the establishment of the International Criminal Court (ICC), which still exists today and consists of almost all countries in the world. What is ironic though is that the US is not part of the ICC. Thus, considering a recent lecture by Professor Lal, the Tokyo War Crimes Trial exemplifies how nations only act on their self-interests.

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  5. My Personal view is similar to that of the first ones. As the article mentioned, “The Tribunal, comprised of eleven judges, one each from the eleven nations that represented the victors, ” I think the judges support from neutral countries, such this does not make it too personal to influence the trend of Tokyo war crimes trial. As Chinese, we learned many historical things during that period, and the hatred towards Japanese from before previous generations of Chinese is indescribable. The even U.S. had thrown the atomic bomb in Japan; it still didn’t make any difference for Chinese people. The court means fair, just, and law. If the judge is implicated with the case, it will not be fair and just.

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  6. The Tokyo Trial seems to me to not have greatly contributed anything more than what the Nuremberg Trial had already done with the International precedent set by the rulings given to the Nazis. In fact, the Tokoyo Trial appeared to be more biased in its rulings due to some of the tribunal members being the victims of the nation that had committed those atrocities. The representatives from China and the Philippines who had been brutally treated during the Japanese occupation had a strong inclination in ruling that any Japanese personnel who had been accused of war crimes as guilty before any evidence had been provided. Furthermore, the different factions within the tribunal made it more difficult to make rulings that were completely objective due to the grievance that some faced while others sought to use the trial as a way to assert their cultural jurisprudence over another.

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  7. Hello Professor. I was interested to read about how it was possible that the Tokyo Trials were conducted by judges from 11 nations, but were all based around an Anglo-American legal code. I feel that the judges did not need to be convinced of the culpability of the Japanese officials as they already saw themselves as victors despite the efforts of the opposing forces, hence the Tokyo trials were less about determining a standard for international law, rather they were to prove a point to the Japanese and others that their actions had consequences. I had read that the Nuremburg Charter’s reference to war crimes, crimes against humanity, and crimes against peace were copied nearly verbatim in the charter for the IMTFE, so the Tokyo Trials did not make as much of an impact on international crime tribunals as did the Nuremburg trials. With the United States providing the funding for the trials and serving as chief prosecutor, it was nearly impossible from the beginning to have an impartial trial. There was also only one prosecution team, so the Tokyo Trials were overall less of an effective example for how to settle international legal disputes than even the Nuremburg Trials, which also had its problems.

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  8. I also found it particularly interesting that Chinese legal delegates were critiqued for not understanding the common “national interest” that other countries’ legal counsel chose to prioritize in their decision-making processes. The reason for my fascination is that I considered China as a country which has a particularly strong sense of “national identity” due to the highly regulated communist ideology established and maintained within its personalistic regime structure. I am trying to think of reasons why this unexpected outcome may have been the case. Perhaps the Chinese define the term “national interest” in an and of itself on a different basis than other countries do? After all, other powers on the tribunal do seem to consider it in their best interest to interact with one another and allow for a melding of cultures, while China’s administration is notoriously more uptight. But such an argument falters when one considers that all of the Chinese legal counsel received some part of their higher education in America- how does that correspond to China’s “national interest”? This blog essay raised many questions which I will look into further.

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  9. The idea of bias in both the Tribunal and the Nuremburg Trials is interesting to think about, especially in the idea of ‘victors justice’. These ideas exist within a liminal state within fairness and unfairness. Ex post facto law is not only illegal in the American system, but can definitely be argued in terms of war crimes and atrocities post-war. Those who did the terrible things that got them into the Nuremburg trials knew the atrocities they committed out of hate were wrong, so allowing them to walk was not moral either. I believe there was bias in both sets of trial, but there was no mortality in allowing them to walk either. In reality, there is no fair situation to have these style of trial, because too many people are affected to free it of bias.
    -James Tomasek

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  10. I do think that the Tokyo War trials were biased. It seems that the countries involved were more interested in retribution than justice. The 11 countries that were represented for the most part had a desire to punish Japan for their doings in WWII. Furthermore, only three judges, one each from India, the Netherlands, and France dissented. But since the ruling was based on who held the majority, their opinions did not matter. The axiom might makes right applies here. The United States and its allies won the war, and now they were intent on making Japan pay.

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