A review essay on Transcultural Justice at the Tokyo Tribunal: The 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.
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.
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).
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.