Inside Story

Victors’ justice?

A major new book revisits the moral and legal ambiguities of the Tokyo war crimes trial

Tessa Morris-Suzuki Books 4 March 2024 1645 words

Haunted proceedings: Japan’s wartime prime minister Tojo Hideki (to left of centre, with headphones) during his war crimes trial in January 1948. Keystone-France/Alamy

Now is a good time to be reassessing the Tokyo war crimes trial. Across East Asia and the world, the postwar global settlement is crumbling. This process has been very evident in Japan, though it has unfolded quietly there and attracted surprisingly little attention in the English-speaking world. Internationally, debates continue to rage about the definition of war crimes and processes for bringing war criminals to justice.

The Allies’ trial of Japanese wartime political and military leaders was intended to lay the foundations of a new, peaceful and democratic Japan by punishing the militarists who had led the country into a disastrous conflict. The notion that victors could judge the vanquished evoked controversy, both within Japan and internationally; yet in the late 1940s the pioneering Japanese feminist Kato Shizue could confidently write that “intelligent Japanese long ago decided that the punishment of the war criminals was inevitable, and they think the verdicts were just.”

Today, feelings are very different. Japanese conservative politicians (including prominent members of the present government) rail against what they label the “Tokyo Trial View of History,” which they blame for instilling a darkly masochistic view of the nation’s history in the minds of the Japanese population. The late prime minister Shinzo Abe was particularly emphatic in denying that the men convicted by the International Military Tribunal for the Far East should be regarded as criminals. The seven who were executed for war crimes following the Tokyo trial — as well as others convicted and given lesser sentences — are among those commemorated in the Yasukuni Shrine, where right-wing politicians and some senior military officers go to honour the spirits of the dead. As political scientist Gary J. Bass argues in his monumental new book Judgement at Tokyo, “the Tokyo trial misfired and fizzled,” revealing “some of the reasons why a liberal international order has not emerged in Asia, despite the wishes of some American strategists.”

The paradoxes at the heart of the Tokyo trial began to be visible well before the International Tribunal opened its hearings on 3 May 1946. Bass’s book starts by guiding readers through the concluding stages of the Pacific war and the impassioned debates among allied leaders about the treatment that should be meted out to the vanquished. (US secretary of state Cordell Hull was among those who initially favoured summary executions of Hitler and Japan’s wartime prime minister, Tojo Hideki.) A central figure in the early part of Bass’s narrative is Henry Stimson, US secretary of war at the time of the defeat of Germany and Japan, who played a key part in creating the conceptual framework that underlay both the German Nuremberg war crimes trials and the Tokyo trial.

In Nuremberg and Tokyo, the wartime leaders of the defeated nations faced three classes of criminal charge. Class A was the crime of waging (or conspiring to wage) aggressive war; Class B covered the war crimes set out in the existing Geneva Conventions, including mistreatment of prisoners of war; and Class C encompassed crimes against humanity. The difficulties lay in Classes A and C. There were no legal precedents for prosecuting people for waging aggressive war, nor for crimes against humanity, and even within the victorious allied nations some leading legal commentators were concerned that the trials were imposing newly invented laws retrospectively on the defeated.

The horrors revealed at Nuremberg helped to embed the notion of crimes against humanity both in public consciousness and in international law. But in Tokyo the key charge (though not the only one) was the crime of waging aggressive war — an offence for which no one had ever been prosecuted before the Nuremberg and Tokyo trials, and for which no one has been prosecuted since.

As Bass vividly shows, unease and disagreement about the moral and judicial basis of the International Tribunal’s proceedings haunted the Tokyo trial. Even Sir William Webb, the acerbic Australian judge who presided over the International Military Tribunal, privately questioned whether waging aggressive war could be treated as a crime, though he managed to suppress these doubts sufficiently to concur in, and hand down, the tribunal’s guilty sentences on all the twenty-five defendants who survived the trial. (Two died during the proceedings, and another was found mentally unfit to be tried.)

A further obvious paradox of the Tokyo trial was the fact that Emperor Hirohito, in whose name the war had been fought and hundreds of thousands of Japanese soldiers had gone to their deaths, never appeared in court. By the time Japan surrendered, the US government had decided that it would be politically expedient to retain the emperor as symbolic leader of the new Japan. Despite protests from Australia, he remained immune from prosecution.

Judgment at Tokyo, though, is not a dry analysis of judicial principles and legal arguments. It is a vivid blow-by-blow account of the trial, filled with colourful characters and moments of farce as well as tragedy. The Tokyo tribunal, though dominated by the colonial powers, was more international than its Nuremberg counterpart. Its eleven judges represented the United States, Canada, Britain, France, the Netherlands, Australia, New Zealand, the Soviet Union, China, India and the Philippines, and each judge brought with him (they were all men) his own experiences, professional training and personal prejudices. They spent their time in war-devastated Tokyo living an isolated existence in the Imperial Hotel, and relations between them were often tense. Chinese judge Mei Ruao took a deep dislike to Indian judge Radhabinod Pal; the British judge, Lord William Patrick, was derisively dismissive of his Filipino counterpart, Delfin Jaranilla. They were united, it seems, only in their shared aversion to the court’s president, William Webb.

Yet this is not a simple litany of fractiousness and failure. What the Tokyo trial achieved, in very difficult circumstances, was the collection of a mass of vivid and often searing evidence of the horrors of war, including of many conventional war crimes: among them, the massacres and mass rapes of civilians in the Philippines and China, the mistreatment and killing of prisoners of war, and the brutal forced labour inflicted on tens of thousands of Southeast Asians and of allied prisoners of war on the Thai–Burma Railway and elsewhere.

While taking readers through this evidence, Judgement at Tokyo also points out the silences: most notably, the absence from the trial of any serious discussion of Japan’s use of biological warfare in China. The US and Soviet authorities were well aware of this dark story but made sure that it was kept out of the trials because they were busy trying to obtain knowledge of Japan’s biological techniques for their own purposes.

Bass explores not only the events of the trial itself but also the subsequent destinies of the judges — particularly the very different fates of Mei Ruao and Radhabinod Pal. Mei, who had been appointed to the court by the Chinese Nationalist government of Chiang Kai-shek, decided hesitantly to return to mainland China in 1949 and throw in his lot with the new People’s Republic of China. Ironically, he fell foul of the communist authorities because of his fierce criticism of Japanese war crimes at a time when China’s government was trying to improve the country’s political relationship with Japan. He was publicly condemned during the Cultural Revolution and died soon after — only to be elevated to the status of national hero under current Chinese leader Xi Jinping, whose nationalist rhetoric echoes Mei’s own insistence that China should never forget the wartime horrors inflicted on its people by Japan.

The Indian judge Pal, on the contrary, famously wrote a dissenting judgment that sweepingly rejected the right of the International Tribunal to judge the defendants. (Later, he also questioned the Nuremberg judgements and the reality of the Holocaust.) Pal’s lengthy statement of dissent made him the hero of the Japanese right, who feted him on his later visits to Japan and have cited his judgement ever since as justification for their own revisionist views of the war.

Judgement at Tokyo is based on a mountain of court records, government archives and interviews with the descendants of the judges and defendants, and Bass skilfully weaves all this together into a fascinating narrative. Despite the scale and scope of the book, though, there is one odd lacuna. It barely mentions a crucial counterpoint to the Tokyo trials: the story of the 4000-odd Japanese soldiers and military auxiliaries who were found guilty of Class B and C war crimes in trials held throughout East and Southeast Asia and the Pacific, of whom almost 1000 received the death sentence.

As Utsumi Aiko and other Japanese scholars have pointed out, these were the most tragic of the war crimes proceedings, for many of those who received the harshest sentences were low-ranking auxiliaries — some of them drafted from Japan’s colonies of Taiwan and Korea into the violent world of the Japanese wartime military only to be abandoned to their fate by the collapsing military machine that had recruited them.

As Gary Bass shows, the Tokyo trial had far-reaching implications for Japan and its Asian neighbours. Its fundamental flaw was its shakily based attempt to define the waging of aggressive war as a crime. The spectre of double standards and retrospective justice raised by this concept has never been laid to rest. This in turn allows historical denialists today not only to dismiss the trial as “victors’ revenge” but also, by extension, to whitewash the history of the war and depict the Tokyo defendants as innocent martyrs to a just cause. And the growing influence of that denialism, as Bass trenchantly observes, risks shackling Japan to a narrative of the war that is both “morally odious and historically dubious.” •

Judgement at Tokyo: World War II on Trial and the Making of Modern Asia
By Gary J. Bass | Picador | $39.99 | 912 pages