I attended the DIJ forum on Thursday. The presentation, 「国際刑法からみた東京裁判」 was in Japanese and given by a young German scholar Philipp Osten.
Since he was looking at the Tokyo War Crimes trials from a legal perspective, I didn’t expect the talk or the discussion to get that controversial and that he would most likely delve into lots of legal details I wouldn’t understand. Instead, his talk, which was delivered in beautifully fluent Japanese, was mostly a general overview which did get into the more central controversies of the trials during discussion.
He looked at three categories of crimes covered in the trials, the “conventional war crimes” (通例の戦争犯罪) which makes up the B and C class criminals who were tried all over Asia, the “crimes against humanity” (人道に対する罪) and “crimes against peace” (平和に対する罪). He seemed to be most interested in the last of these categories.
The first category is covered by treaties like the Geneva and Hague conventions. The latter two always become an issue when looking at the postwar war crime trials (and incidentally, also for the treason trials that I have been researching lately in China) because the charges brought against the accused were based on laws that didn’t exist when they committed the acts (a violation of the old legal principle of “nullum crimen, nulla poena sine lege“). This is also a problem in the case of trying Chinese “traitors” who cooperated with the Japanese after the war. Many of the treason or 漢奸 laws were made from scratch during or after the war with Japan. The war crimes trials, the treason trials, and many other early postwar events like it have been recently grouped and studied as examples of “political retribution“. My own interest in the study of treason and collaboration, and especially how it figures into postwar political and historical discourse can be said to fit under this category…
Professor Osten made some interesting points. While crimes against humanity have been elaborated and codified in postwar international law, apparently crimes against peace have not. I guess we can see something like it in the current charter of the UN, and there is the “renunciation of war as an instrument of national policy” in the unique and idealistic Kellog-Briand pact signed by the US and others in 1928 which was used against Japan (who signed it in 1929). It is amazingly difficult to imagine how we would handle a host of recent conflicts should there exist any clear cut, binding international criminal law defining crimes against peace which held leaders responsible for these crimes.
During discussion time, Osten got dragged into classic debate about the trials as a hugely flawed example of “victor’s justice“. Anyone who has read anything in detail on the trials can not help noticing how amazingly flawed they were (no judges from neutral countries, no binding dependence on evidence, hearsay permitted, etc.) He didn’t seem to be bothered by being dragged into this. He admitted that his own position was similar to some Japanese scholar named Dandô who, after admitting how flawed the trials were, saw them as something that “had to be done” . In other words, the trials were legally spurious but not necessarily unjust. He also brought up the argument that the trials get their legal justification solely and sufficiently from article ten of the Potsdam declaration which demands the punishment of war criminals. The problem, of course, is that at the time war criminals is most naturally understood as those being guilty of crimes defined in previous treaties, not those which were to be invented during the Nürnberg trials or thereafter.
One last interesting thing brought up was the fact that Japan is not a party to a number of international treaties related to war crimes. It hasn’t been a problem for a country whose very constitution renounces war (article 9). However, with Japanese troops now just off the plane in Iraq, serving there on a humanitarian mission for the first time on the ground without a UN mandate this is a bit problematic. He says that Japanese bureaucrats argue that, in contrast to most other countries in the world who sign and then deal with the consequences, Japan believes in first passing the necessary domestic laws to be compatible with international treaty before signing it.
I find the concept that the trials could have been just without being legal a very interesting concept. It is even one that I could see myself agreeing with in certain circumstances. But I think it is also a potentially dangerous idea. Wouldn’t a lynch mob or a kangaroo court use a similar justification if ever they were called to account for their actions?
Derek, thanks for your posting. I understand your concern. In fact, for Christianity especially, this is a problem with a particularly long history. When does one stop rendering unto Caesar? Even traditional ethics though, whether in divine command theory, intuitionist, utilitarian etc. the role of the law is by no means final. We can all see examples of unjust law in the world, and the fact that it is ad hoc “international law” doesn’t change this fact. While I don’t have a refined opinion on the war crimes trials, I certainly have no hesitation (in the “chaotic good” tradition) of opposing unjust law and implementing illegal but just law. For me, the law is merely an imperfect tool.
The Tokyo Trials were perhaps a very good example of “victors justice” at its worst but what of it? Here we sit nearly 60 years after the fact and take great comfort at that distance. The crimes that the Japanese military and political elite were tried and convicted of are no less hideous today as they were when those criminals went on trial. I think anyone who loses much sleep over the hanging of a man like Tojo should give the basic facts closer consideration. Personaly I would have favoured Churchills suggestion of randomly shooting 50,000 members of the general staff and leaving it at that.
Thanks for your comments Michael. I don’t know about the random shooting thing but I share your feelings on the point that, while hugely flawed from a legal perspective, I believe that much is to be gained from having a formal and legal proceeding to punish war crimes. I think it is important to point out thought that there is nothing unique or special about the crimes that many Japanese soldiers were guilty of, and that if we are to punish leaders for wars of aggression, we will have to uncomfortably deal with a number of more recent conflicts.