Justice on Trial: Opening Up the Black Box of the Tokyo Tribunal

Author:
Dr. Aleksandra Babović

Aleksandra Babović is an Assistant Professor at Osaka University, teaching diplomacy, international affairs, and law subjects. Dr. Babović is the author of The Tokyo Trial, Justice, and the Postwar International Order, published by Palgrave MacMillan in 2019. Her primary research interest is an inter-disciplinary approach to Japanese defense, energy, and human security policies.

The U.S.-China competition in waters of the Indo-Pacific, harboring an array of security dilemmas, has ignited debates about the likelihood of war and adequate diplomatic, military, and legal remedies to prevent such a catastrophe. Tumultuous periods of human history such as the 1930s, WWII, and the Cold War, where the same topics were relevant, could offer some wisdom. International law and judicial mechanisms that emerged during that time with the intention to preserve peace by legal means and deter mass atrocity, have seen their authority and legitimacy repeatedly tested—from the Korean War, through the Iraq War, to the Syrian War, to name a few. International criminal tribunals are one such peace instrument. In 1945, the Nuremberg and Tokyo Tribunals were established prominently featuring the crime against peace. The trials sent out a clear warning to states whose leaders engaged in revising the status quo. 

This essay, however, looks into the warnings that the Tokyo Tribunal’s experience raises regarding the capacity-based authority of judicial governance for peace in post-conflict societies. In this regard, diplomatic history and relevant archival records are of value in providing access to the Tribunal and governmental ‘black boxes.’ This enables us to go beyond the understanding of tribunals as unitary entities and discern complex geo-political environments that prime their actors and shape their trajectories. More than seven decades have passed since the rendering of the majority judgment, giving us enough time to assess the Tribunal’s reverberations for the international order we live in and the regional order in the Indo-Pacific. In other words, history reminds us that the justice meted out by tribunals will also be put on a trial, regardless of their level of sophistication. The following sections discuss larger goals of justice in Tokyo, its evolutionary nature, roles, and greater consequences. I argue for the erosion of such judicial interventionism and its waning utility in securing peace during deeply transformative times of global governance.

The Tokyo Tribunal is yet another example of strategic legalism, a concept that  implies using law and legal reasoning to further more prominent political and strategic goals at the expense of factual and moral considerations. At the operational level, specific profile of actors is required to administer such tribunals. In Tokyo, the birth of the Tribunal required the existence of so-called lawyers-statesmen—with their penchant for legal justifications in political arrangements—and jurist-politicians—with their deep sense of pragmatism and readiness to forego their legal ideologies and commitment to justice in implementing these policies on an everyday basis. The prosecution section and majority of the judges prioritized more lofty and essential goals of the Tribunal: expedient retribution towards the Japanese leaders while the public support was still high and confirmation of the newly created law at Nuremberg that waging war was a criminal act. The judges who questioned or opposed the legality of the Tokyo Charter were told that they were under an obligation to follow the law, not challenge it.

In the absence of a positive law, the criminalization of aggressive war served the Allied Powers as a tool to preserve the status quo in the newly created international order. The Nuremberg Charter created a dangerous legal precedent against principles of legality and non-retroactivity, referencing the 1928 Kellogg-Briand Pact. Faithful to natural law theories, the U.S, which played a prominent role in this legislative process, imposed the view of law as an elastic and adaptable thing—more of which the post-Cold War period would see concerning jus ad bellum. The Pact stipulated that states condemned and renounced unilateral use of force as an instrument of national policy without proscribing war altogether or making it a criminal act. Curiously, during the 1919 Paris Peace Conference, President Wilson had opposed the criminal prosecution of German Emperor Wilhelm II for waging war as these matters were ‘statesmen business’ and ‘out of reach of judicial authorities for an offense that was clearly of a moral but not legal character.’ The U.S. reverted to this view in its decision not to become a party to the International Criminal Court (ICC). Article 8bis of its Rome Statute establishes material jurisdiction for the crime of aggression (in effect from 2018). However, it also involves an opt-out clause provision (Article 15bis) for member-states unless the UN Security Council had determined and referred the case to the ICC (Article 15ter). Such consent-based jurisdiction renders prosecuting for aggression the leaders of states heavily engaged in military operations nearly impossible. Similarly, the liberal states started using legal subterfuge such as humanitarian interventions and pre-emptive self-defense to conveniently, once again, stretch the positive law for reasons of realpolitik. The UNSC permanent members made themselves an exception to the very rule they had created in a severe blow to the legitimacy and legacy of these trials. In 1946, by Article 9 of its Constitution, Japan forever renounced war as a sovereign right of the nation as well as maintenance of any war potential. However, Japan de facto maintains highly sophisticated military and can partially exercise the right to collective self-defense based on the government’s special measures laws. Pending its highly contentious and needed revision, its U.S. ally’s expansive interpretations of jus ad bellum can become problematic once Japan fully embraces collective security.

History matters in all criminal tribunals’ proceedings. At the Tokyo Tribunal, selected historical events were used as evidence against the defendants. The peculiarities of the Japanese wartime political context and the absence of direct evidence rendered the attribution of individual criminal responsibility a daunting task. The judges, unbound by technical rules of evidence, established the individual guilt of defendants based on a larger narrative on Japanese aggressive war that the prosecution had constructed by bringing distinct and in nature different events together. The solution was to show how each defendant indirectly contributed to the war of aggression. The definition of crime against peace included conspiracy as a legal crutch in helping unify temporarily and geographically distinct instances of war. The defendants’ official rank within the government, military, or party organization at the time of the aggressive war act sufficed for attributing criminal responsibility, as conspiracy required mere membership without their consent, authorization, or actual commission of a criminal act. Furthermore, the absence of a clear definition of aggression facilitated the inclusion of border clashes (Nomonhan Lake) and incidents (Manchurian Incident), which the prosecution qualified as ‘undeclared wars,’ into the counts of war of aggression on par with the 1941 Pearl Harbor Attack. That way, the majority judgment convicted defendants on nine counts of aggressive war against each Allied Power and one count of overall conspiracy.

The majority judgment produced a hegemonic history of the Pacific War, which deliberately omitted Japanese atrocities against the local population throughout its empire or the Allied Powers’ acts that could have been judged against the newly created law. The indictment contained only one count of war crimes and one count of crimes against humanity, demonstrating that they played a marginal role and were primarily used as evidence of the pattern of widespread, and thus organized, mass atrocity for the ‘star crime’ of aggression. The widespread patterns of violence were used to deduce defendants’ responsibility in the formulation or execution of a common plan or conspiracy to commit atrocities against the local population in violation of laws of war or through inhumane acts. For instance, despite the evidence of widespread human experimentation, sexual violence, and rape, the Allied leaders and the majority of the court members were unwilling to prosecute these crimes separately as instances of crimes against humanity. Instead, immunities from prosecution of military officers in charge of human experimentations were traded for the Allied Powers’ access to military intelligence. In addition, the judges also relied on criminal negligence to establish superiors’ responsibility for their failure to observe the duty of preventing the atrocities. Imperatives of expedience and racial, colonial, and gender mentalities had permeated the decision-makers behind the Tribunal. The Soviet invasion of Manchuria and indiscriminate warfare against the local population in the last days of the war, when the Japanese defeat was imminent, could have been qualified as aggression. Moreover, the dropping of nuclear bombs, although not explicitly prohibited by law, violated a fundamental principle of unnecessary suffering due to the indiscriminate use of weapons, enshrined in the 1907 Hague Convention. In line with the previous point of being above the law, these and many other mass-scale atrocities of the Allied Powers remained outside the judicial framework which introduced confusion within the overall societal understanding of Japan being the sole aggressor in the war.

We learned that punitive peace bred German revisionism and led to WWII. We could also enrich that insight by adding that judicial narratives—hegemonic in nature—breed historical revisionism. Law as a discipline is interested in qualifying elements of crime by selecting facts that fall within their definition. The rest is irrelevant. History, however, aims to uncover as much evidence as possible and create a more inclusive and authentic narrative which has been happening with the recent declassification of archival records in Japan and other parts of its former empire. The revisionist politicians have challenged the Tokyo Tribunal view of history by refuting the legality and veracity of the Tribunal’s findings. To that effect, they instrumentalized Justice Radhabinod Pal’s dissenting opinion to invalidate Japanese wartime leaders’ legal and moral responsibility for the war which ought not to be conflated.

The compartmentalization of tribunals shows us their dynamic and evolving nature. Wheels of justice continue turning even when the political circumstances or mood of the day—stimmung—profoundly change. War criminals continued to serve their sentences until their release through clemency or parole. Meanwhile, Japan’s strategic value for the U.S. changed in the Cold War context—it went from being a foe to becoming a friend pressed to rearm. Nevertheless, the Tribunal’s war criminals remained in Japanese prison until 1956. Although being sentenced to 20-years or life in prison, these men were released on medical parole or parole after serving ten years.  At that time, ironically, the Allied Powers feared that any early political solutions in terms of sentence reductions or amnesty would undermine the legality of the war criminal program. The Japanese government had successfully resisted the U.S. pressures for rearmament by linking it to war criminals' release—thus strategic legalism losing its strategic value. Over time, Japanese public opinion started seeing war criminals as martyrs and sensed that the entire population was paying the stiff price for war, given that the war criminals issue had a strong social dimension. The released war criminals re-entered the political life of democratic Japan. For them, it was the end of an era and in recent history, an excuse for the Japanese politicians to offer ambiguous apologies to the victims of imperialism. The lack of forgiveness became a valuable political asset for elites in Beijing and Seoul that often exploit history through issue linkage strategies to get concessions on unrelated matters. The parole system represents institutional forgiveness, forgiveness by law, hence does not originate from victims of war (e.g. comfort women). The Tribunal’s modus operandi did not aim at fostering true reconciliation.

The re-emergence of international criminal tribunals indeed contributed to the sophistication of international criminal law and justice. Yet, criticism rests on similar grounds as for their historical counterparts when it comes to the quality of justice and its operationalization. International criminal justice remains imperfect, and its workings should be more tangible and consequential for the societies it tends to appease and reconcile. The selectivity and ulterior motives in administering justice—sponsoring states, creating hegemonic historical narratives in judicial verdicts, and stigmatizing arbitrarily selected elites while creating spillover effects upon entire nations in the process—discredit the tribunals’ expert, principled, and capacity-based authority, and raise  questions about their legitimacy and accountability. The cost of international criminal justice is high. The ICTY cost $1 billion over the ten years of its operation or $10 to 15 million per accused. Constituencies ought to scrutinize whether their resources were being effectively used.

Priorities of global governance have been shifting as we operate in an increasingly uncertain, disruptive, and unpredictable realm of challenges—pandemic, environmental degradation, terrorism, technological disruptions. These require effective risk management  by installing early warning systems and preventive measures, including a more inclusive dialogue with epistemic and lay communities. What do these new priorities signify for judicial interventionism? They imply the use of instruments that have already been in place. Primary emphasis on national jurisdictions to prosecute international crimes or use of universal jurisdiction could be an alternative track. The ICC, after all, was imagined to be the court of last resort, leaving primacy to national jurisdictions in the prosecution of individuals.

Ultimately, peace is a holistic process that requires dovetailing of various facets of justice and trans-disciplinarity to include psychosocial, political, economic, and legal aspects. A transformative justice model might be a plausible solution for effectively addressing societies torn apart by mass violence in line with the demands of transforming global governance, focusing on inclusivity and sustainability. 

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