International Law?

From an international law perspective, there were, of course, a number of doctrinal and jurisdictional debates first ventilated by international tribunals at Nuremberg and Tokyo. That said, many of these same questions had been taken up proleptically at Versailles in 1919 by the Japanese delegation (this time on the winning side and including Mineitciro Adatci (later a judge and president of the Court at the Permanent Court of International Justice) to the Commission on the Responsibility of the Authors of the War who, in alliance with the Americans jurists, dissented from the Commission’s majority on a number of salient matters). The Japanese in 1919, for example recognized that in a loose sense, crimes had been committed (“during the course of the present war”) but were disinclined to accept the existence of any international law by which such crimes might be tried: “It may further be asked whether international law recognizes a penal law as applicable to those who are guilty.”Footnote ¹³ There may be guilt, the Japanese delegation seemed to be arguing, but was there law? This is a motif later to be found in Justice Pal’s account at Tokyo.

Finally, the Japanese delegation in 1919 made it clear that it was uncomfortable with the consequences of placing heads of state on trial (the American delegates spelled out more clearly that the doctrine of sovereign immunity was at stake) and that it had “scruples” about putting military commanders on trial “on the sole ground that they abstained from preventing, putting an end to, or repressing acts in violation of the laws and customs of war.”Footnote ¹⁴ This was a rejection of a command responsibility doctrine to be fully developed later at Tokyo and applied even more contentiously, at the Yamashita trial.Footnote ¹⁵

It is fascinating, then, just how many of the later doubts about war crimes trials and, in particular, the Tokyo Trial are found in these two pages written as an addendum to the Versailles meeting. And, as I have indicated elsewhere, what is most striking about these early Japanese reservations is that they “represent the scrupulous legalism of the victors not the special pleading of the vanquished.”Footnote ¹⁶

Just as the Versailles lawyers worried about the jurisdictional basis of any future trial, so, too, did the judges at Tokyo. Three positions predominated, according to Bass (pp. 345–46). The first, prevailing, view was that the jurisdictional legitimacy of the trial rested more or less entirely on its own Charter. This bootstrapping mirrored a similar maneuver at Nuremberg and did not satisfy all of the judges. A second approach (adopted by the French justice, Judge Bernard) was to find the authority of the court in some form of “universal conscience.” The third position—not entirely distinguishable—was found in an early, abandoned draft (a draft described by the then British lord chancellor as “a laughable document”) of William Webb’s where he elaborated, in a stylistically Grotian manner, a natural law justification for the trial.Footnote ¹⁷ The judges eventually chose in favor of parsimony with the result that references to natural law and conscience were conspicuously absent from the final judgement.

Bass describes all of this more familiar material in a useful fashion but, as I have said, the more valuable contribution of the book lies in its revisiting those aspects of the trials that have not before been made especially visible, including questions of race and memory (which I will turn to at the end) and in the renewed attention given to the familiar key figures at the trial as well as individuals such as the Chinese judge, Mei Ruo, one of a whole cast of people (others include George Kennan and Koichi Kido) who might previously have been regarded as minor characters.Footnote ¹⁸

Asked to nominate the two best-known features of the trial, international legal scholars, would probably refer to the dissenting (and separate) judgments (and especially the monumental dissent of the Indian judge, Justice Pal) and the decision to immunize the emperor.Footnote ¹⁹ Let me begin with the dissenters.

The Dissenters

In Sloan Wilson’s Man in the Grey Flannel Coat, a Judge Bernstein receives a message from an unhappy client, a Mr. Shultz, and turns to speak to a visitor in his office.

This is a fair expression of what has become a common experience in international criminal law. Hannah Arendt’s report on the Eichmann Trial is an emblematic text in this regard. More broadly, though, it has often been the case throughout history that retributive enthusiasm (in 1917 or 1945) gives way to a kind of sickness or at least a turning away from, or renunciation of, the idea of trial as a cure (or balm) for war and atrocity. So, Nazis are rehabilitated as respectable politicians or businessmen while A-Class criminals (Mamoru, Nobusuke) become cabinet ministers (in one case a prime minister). International law demands punishment but international diplomacy’s default position is impunity. We can hear the gears cranking already in relation to President Putin. The International Criminal Court’s indictment of the Russian leader—a vain (in both senses of that word) performance of justice—is very likely to be quietly set aside or ignored as some kind of peace deal is struck; international criminal law, always dependent on exigent alignments of force, is in danger of being left high and dry by a re-alignment of these same relations.

It is clear from some of the dissenting judgements at Tokyo that the dissenting judges too were sick of justice or understood that war crimes trials are usually a projection of contingent legal power. This was particularly true of Justice Pal.

In Barry Hill’s magisterial, confounding and distinctive study of the intersections between Pal, Gandhi, and Tagore, he describes the image “haunting” Pal’s dissent:

These remain the questions that haunt international war crimes trials today. But how did Pal come to be the person formulating them in 1948? Bass gives us a sense of Pal’s life in Indian pre-war politics (anti-colonial, wary of Hindi nationalism, placatory, liberal) and his unusual judicial style (Röling reports that Pal would recite “Bangali love poems” during particularly gruesome testimony (p. 261)) but it would be hard to better Hill’s encapsulation of Pal’s multiple selves: “the international lawyer with so little trust in sovereignty … the post-colonialist who seems not to have belonged to the nationalist movement when it most needed him.”Footnote ²²

Pal famously acquitted all the Japanese defendants on the basis that the trial failed entirely to point to any legal norms that permitted the criminalization of defeated enemies. This was what Elizabeth Kopelman describes as his “positivism,” here understood as a noble refusal to countenance the discovery of principles and rules of international law that simply were not there in the first place. Pre-war international law was, for Pal, a wasteland as far as international criminal law was concerned. The category of crimes against humanity barely existed; war crimes law stricto sensu did not contemplate the international prosecution of individuals for violations of standards. But Pal, like William Webb the Australian presiding judge, was especially exercised by the criminalization of aggression. This had a retroactive ring to it. There was precious little in pre-war international law to suggest that states had been serious about establishing a crime of aggression (even Myron Cramer, the U.S. judge at the Tokyo Trial and Harvard Law graduate, had argued in 1944 that the idea of a crime of aggression possessed no standing under international law).Footnote ²³

Pal also stated famously—making a larger point—that “the historic causes of the war simply defy legal judgement.”Footnote ²⁴ Here he was very much reflecting the views of the Commission on the Authorship of the War. In its Majority Report, the Commission, anticipating Pal by twenty-seven years, warned that courts were wholly unsuitable as fora for determining the multiple and complex causes of war. This task, the Commission went on to say, was the business of historians and statespersons.Footnote ²⁵ But for Pal, the problem was exacerbated by his belief that “aggression” had been the policy of the colonial powers for nigh on five hundred years. Their criminalization of it now felt too convenient, hypocritical, an exercise in bad faith.Footnote ²⁶ In some respects then Pal was an early example of a Third World Approach to International Law and has been remembered as such by scholars from the Global South. He was certainly alone in understanding that the trial was taking place in what Bass calls “a chaotic background of rising anti-colonial nationalism in India, Indonesia, Vietnam and elsewhere” (p. 9).Footnote ²⁷ As Bass points out, the key difference between Nuremberg and Tokyo was that the war of aggression in Europe was carried out against sovereign states while the Japanese, for the most part, had invaded European colonial territories while adopting an (obviously self-serving) anti-colonial posture.

Pal, then, is a giant in the history of dissent in international law but Bass makes renewed claims for Justices Röling and Bernard as equally important figures.Footnote ²⁸ These dissenting judges took a not dissimilar line. Bernard, a self-styled natural lawyer, was an immunity-skeptic when it came to Hirohito, a due process advocate when it came to the absence of what he thought of as a fair defense and argued against the idea of commander responsibility in the strongest terms. As for Röling, it is now a commonplace of international criminal law scholarship to say that the field is riven with politics, even if it not always entirely apparent what this is supposed to mean. The Dutch dissenting judge—one of these protean, almost novelistic, figures the field throws up every so often—arrived in Tokyo having just completed a book on criminology and Macbeth.Footnote ²⁹ Mired perhaps in the bloody struggles of eleventh century Scottish history, he concluded that states had a “sovereign right” to begin wars and regarded aggression as a not readily adjudicated political crime for which there should be, at most, some form of political responsibility. The Japanese leaders could be imprisoned at the behest of MacArthur but prosecuting them for non-existent crimes was a category error.

This is a minority position in international politics these days but it was one shared by the Commission on Authorship in 1919 when it recommended that German aggression should be met with a political declaration rather than trial, and it was the position of George Kennan who arrived in Tokyo to discuss with Macarthur the post-war settlement and who worried not that the trials would be unfair but that they would be too fair. Kennan, after observing the trial at close range, saw that it might backfire on the Allies by provoking sympathy for the Japanese defendants. War crimes trials, he averred, ought to be run by “persons deeply versed in the history and practice of international relations” (p. 494).

What does Bass make of all this? On the one hand, he gives the various dissents their due. But on the other hand, he remarks at one point (comparing Tokyo unfavorably to Nuremberg):

This sounds like an argument against judicial independence, against variety, against the idea of a contested history. Would the judgement have been more “legitimate” (a word that gets mobilized when legal institutions slip out the grasp of their architects) with only the four Great Powers represented on the bench? Even Bass does not seem to think so as he bemoans the failure of the trial architects to contemplate the prosecution of Allied leaders or those responsible for the secret biological weapons program in Northern China or the incendiary bombing of Tokyo and other major Japanese cities (not to mention the use of atomic weapons on Hiroshima and Nagasaki).

The Emperor

The other great figure looming over the Trial—there but not there—was the Japanese emperor. Bass places a good deal of emphasis (perhaps over-emphasis) on the issue of how to dispose of the imperial question, or, indeed, the emperor himself.Footnote ³⁰ This is presented as a long feud between those thirsty for judicial revenge and a group of more diplomatically minded individuals around Truman who wanted to protect the emperor in order to smooth the transition to indigenous civilian rule in Japan and who were conscious of Lord Hankey’s edict that we have to live with our enemies after the battle has ended. The disposition of the emperor replayed an earlier controversy in relation to another emperor, Kaiser Wilhelm of Germany. Unlike Hirohito, Kaiser was indicted (in Article 227 of the Versailles Peace Treaty). But, as with Hirohito, there was no trial. Instead, Kaiser Wilhelm was offered hospitality by the Dutch government and died in the Netherlands in June 1941, the same month that Hitler embarked on his ill-fated war against the Soviet Union.

Pragmatism (or mercy) ruled at Tokyo, too, where there was a preference for bloodless invasion over attritional war and so, on the emperor’s directive, seven million soldiers would lay down their arms (pp. 124–25). The emperor’s shared culpability for the war is laid out forensically and repeatedly, and, as Bass argues, the decision not to prosecute him not only leaves a shadow over the trial but may have discouraged the Japanese from coming to terms with war guilt more generally. But Bass also describes this decision as “understandable” and spends more time in the book describing the machinations around imperial immunity than adjudicating the decision to grant it (p. 15).

This is familiar territory, of course, and we may find ourselves revisiting it in relation to Vladimir Putin at some point in the intermediate future. I suppose, in the end, I would argue that international criminal law has long been a vulnerable project to prevent impunity while offering up a practice in which impunity is the default position and in which the requirements of diplomatic resolution often prevail.Footnote ³¹ In the particular context of post-war Japan, we can be glad that people sick of delivering justice saw the immense advantage in sparing the emperor whatever he may or may not have done (he comes across in the book as a wily, evasive, but one might say, necessary character).

Race

One of the more neglected aspects of the trial is race.Footnote ³² The trial, it is now clear, laid bare the racialized inflections of early international criminal law. At one point a Chinese reporter at a White House press conference on the trial is seen with a badge that says, “Chinese Reporter: Not Japanese, Please” (p. 687). Meanwhile, Life Magazine described Tojo as “betraying (sic) aboriginal antecedents” (id.). But, as Bass shows, racism lay not far beneath the surface of the formal proceedings themselves (even the heroes of the story, like Bert Röling, traded in racial stereotyping of the Japanese). And little wonder, given the anti-Japanese propaganda and stereotypes that were churned out during the war (and in the boyhood comics consumed by British schoolboys well into the 1970s) positioning the “Japs” as a sub-human race of violent lunatics. The Supreme Court, in a politer vein, had done its bit by permitting the internment of Japanese Americans (Korematsu, Hirabayashi). All of this produced a situation where the Allies felt obliged to restrain popular (and savage) passions. The Tokyo Trial might be understood as an attempt to do this though not everyone thought the Japanese worthy of such a trial. As one British official is quoted as saying “We are judging them by the rules of an adult’s party to which they should never have been invited in the first place” (p. 179). And it is clear from Bass’s book that to varying degrees a number of the judges regarded the Japanese as an inferior race and indeed continued to project onto the trial a number of barely disguised colonial—or at least heavily paternalistic—assumptions. Pal himself put it diplomatically remarking that his fellow judges might hold a “bias created by racial … factors” albeit one that “operated … unconsciously” (p. 21). As the book points out, the trial itself followed the Potsdam Declaration, which included the less than reassuring promise that “[we] do not intend that the Japanese shall be enslaved as a race or destroyed as a nation,” a promise prompted by and reversing an earlier view of Truman’s that the Japanese ought to be “annihilated” (id.). Even the structure of the trial proceedings led to an over-emphasis on crimes against peace (Pearl Harbor, the invasion of Singapore) and an under-emphasis on war crimes (especially many of those committed against subjugated Asian peoples). In the end, though, and in spite of the racialized “optics” of the trial, Bass takes an equivocal line—one that I broadly share—by arguing that it at least (certainly Pal’s dissenting judgement and some of the latter-day commentary around the trial) contributed to the opening up of questions around race in international law and relations.

Memory

Hovering over all this is the question of memory itself (a question the book directly intervenes in). The controversy over whether to convene the trial was eventually displaced by a different question about how to, or whether to, remember it. On one side there are the likes of the Hiroshima Foundation, on the other are the “normalizers” like Abe Shinzo, Japanese prime minister and grandson of an A-Class war criminal, who visits the Yasukuni Shrine and calls for a de-emphasis of the trial or like Chairman Mao who exclaims to a Japanese visiting delegation: “you can’t apologize every day!”

To a great extent the final parts of Bass’s book are dedicated to diagnosing the many important ways in which the trial is remembered, misremembered and unremembered (e.g., by Abe Shinzo at the Yasukuni Shrine, or by Vladimir Putin, or by George H.W. Bush). But how might international lawyers remember the trial? First, and most obviously, the proceedings were very much part of a general mid-century turn toward individualized forms of justice. Second, the Tokyo Trial was symptomatic of later asymmetrical applications of justice: not just the justice of the victors but also a justice that selected among war’s losers by trying a tiny caste of war-time leaders while implicitly exculpating both the industrial elites who kept the war machine ticking over by exploiting enslaved enemy citizens, and the masses who enthusiastically supported it at every turn. Third, this was itself an act of memory in the midst of a struggle over the terms of memorializing. Nuremberg settled an official history of World War II for post-war Germany where remorse was the operative emotional state. Tokyo, on the other hand, was—and remains to an extent—the occasion for contentious debates and national agonizing in Japan. The decision to spare the emperor and the various dissents meant that the Trial left an equivocal or maybe plurivocal legacy and one that was further shaped by a Cold War of which the trial, the nuclear attacks on mainland Japan, and the rehabilitation of the Japanese state (now an ally) were opening gambits.Footnote ³³ Fourth, Tokyo and Nuremberg introduced a language of criminality into our discourses of war and peace (Edith Togo, the wife of Togo Shigenori, one of the accused, caught this mood when she described the incarceration of her sick husband as a “crime against humanity”) (p. 116). Finally, of course, the trial—remembered as an act of memory—was also about everything that was not acknowledged or charged, the forgotten material of the trial from the nuclear attacks and fire-bombing of Japanese cities (the inhabitants “perishing in their own wooden houses”) to the sexual violence perpetrated on Korean (and other) women to biological warfare testing (p. 545).

At the time, the U.S. prosecutor, Joseph Keenan, hailed the trial as “another milestone in the quest of mankind for peace” (p. 565). But maybe, given the recent tectonic shifts in global political alignments, we will remember it instead as one of the opening acts in a seventy-five-year experiment now slowly receding.