Although it concluded more than 60 years ago, the Tokyo War Crimes Trial is
still a live issue today - in Japan as in the world at large.
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," said George Washington University associate
professor Mike Mochizuki, who participated in a March 23 seminar in Washington,
DC sponsored by the Sasakawa Peace Foundation USA and the Sigur Center 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," said Mochizuki.
"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," said Yuma Totani, assistant
professor at the University of Hawaii.
"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," said Yoshinobu Higurashi, professor at Kagoshima
University, "was to defend Japan by penalizing the militarists." This judicial
sleight of hand allowed the US to then ally with its former adversary during
the gathering Cold War.
It worked both ways, added 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," explained 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 said, "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," said Totani. "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," noted Cecil Uyehara, a retired US 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," said historian Alexis Dudden,
author of Troubled Apologies: Among Japan, Korea, and the United States.
"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," Dudden said.
John Feffer is co-director of Foreign Policy In Focus.
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