On November 12, 1948, the International Military Tribunal for the Far East convened inside the former Japanese Ministry of War to deliver its verdicts and pronounce its sentences. Of the twenty-eight defendants originally charged with committing crimes against peace, war crimes, and crimes against humanity, twenty-five stood in the dock. Two had died during the trial, and one had been declared unfit to stand trial. The prosecution had labored for months to establish the men’s culpability for almost eighteen years of chaos in East Asia. Now, the ultimate test of their case was at hand. The tribunal convicted every defendant, condemning seven to death and consigning the remainder to imprisonment for terms ranging from seven years to life.
Sixty years have passed since the tribunal delivered its verdicts, which have become precedent for similar tribunals held in Rwanda and the former Yugoslavia. However, its incorporation into international jurisprudence has not diminished its drubbing in academia. Historians of modern Japan such as Richard H. Minear and John W. Dower have inveighed at its legal foundation and what they perceive to have been its double standard of justice, best symbolized by the tribunal’s failure to try the Japanese emperor for his role in the war. This disapproval has caused many Japanese to reject the validity of its rulings, making it a bête noire for those troubled by the implications of such rejection. Another adverse result has been a tendency among the same historians to ignore its positive contributions to the growth of international jurisprudence.
In The Tokyo War Crimes Trials, Yuma Totani has taken up the onerous task of defending the tribunal’s legitimacy. Examining more archival sources than any previous study, she concludes that many of the most common criticisms directed at the tribunal cannot bear historical scrutiny (2–4). She also analyzes Justice Radhabinod Pal’s controversial dissenting opinion, which dismissed all charges and, she argues, provided the intellectual support for Japanese nationalists and American historians to attack the tribunal’s legitimacy. Rounding out the book are surveys of Japanese commentary and research on the tribunal unavailable in translation that give her study additional value for the uninitiated and introduce new perspectives into English-language literature.
One of the most divisive questions in any fair debate of the tribunal’s legitimacy is whether the charges constituted retroactive prosecution. Its critics assert that they did, but Totani shows how the justices reasoned that they did not. The prosecution based these charges on the 1928 Pact of Paris, which renounced wars of aggression as an instrument of foreign policy. Since Japan was a signatory nation, the prosecution argued that it had committed a crime by waging such a war. The defense countered that the pact failed to forbid war explicitly, but the justices rejected this by citing a ruling of the International Military Tribunal in Nuremberg. As Totani notes, the Nuremberg justices had ruled that international law was more customary than statutory at that time, meaning that the pact had to be interpreted by international custom as much as by statute. International custom had come to forbid such wars, so Japan defied a custom tantamount to a law among nations in addition to violating a pact which the justices accepted as having an inherent premise outlawing wars of aggression. Any claim of retroactive prosecution was therefore baseless since custom and pact effectively functioned as law before the war (84–86).
Another equally divisive question is why the tribunal failed to try the emperor, who, as the head of state, was part of the decision-making process before and during the war. Critics consider it symbolic of the tribunal’s double standards and credit General Douglas MacArthur for the decision. Indeed, MacArthur later claimed to have convinced his superiors in Washington to spare the emperor, arguing that his prosecution would make the occupation untenable without a full military presence. Totani disagrees, claiming that the emperor’s prosecution was always an open option, particularly if his usefulness expired. Her research reveals that despite differences on whether he was a threat or an asset, the Allied powers decided before the Occupation not to grant him immunity and instructed MacArthur to collect evidence secretly for a future trial. As for why they never tried him, her research confirms the widely held belief that emerging geopolitical differences dampened enthusiasm (53–56). Even so, she argues that justice’s hand may have been stayed to let the Japanese independently judge him after the Occupation (62). This interpretation, a “process-oriented” one versus the “result-oriented” ones she ascribes to prior studies, seems valid but also naïve given her evidence, which shows that exigency ruled principle. Nonetheless, it is a part of her overall effort to fight decades of conventional wisdom.
No study of the tribunal is complete without consideration of Justice Radhabinod Pal’s dissenting opinion, which has been a guide for many attacks on the tribunal’s legitimacy. The tribunal’s critics lavishly praise him as the only justice that had experience in international law and clear insight into the tribunal’s shortcomings. Yet, as Totani argues, his interpretation of the law during the trial casts doubt on the opinion’s worth, particularly in the present context of international law. He denied the validity of international law, arguing that it supported imperialism, that the Hague and Geneva Conventions were binding for Japan, and that state leaders could be held responsible for their subordinates’ actions (220–222). Capping these denials was his later description of Japan’s war as defensive against Western imperialism, which implicitly accepts the validity of Japan’s Greater East Asian Co-Prosperity Sphere (226). Given that later tribunals have accepted this tribunal’s verdicts, and that historians are not likely to accept Japanese imperialism as superior to Western imperialism, Totani’s concerns must be considered by future students of the tribunal.
Totani’s study represents the beginning of a serious reappraisal of the tribunal’s place in history. Its place in international jurisprudence demands it, if the prosecution of contemporary war crimes is to be taken seriously. Her work is more a correction than a critique, and so the matter must wait for studies that will comprehensively defend the tribunal. Nonetheless, her work stands out as one of the few to question what has become a credo among historians of modern Japanese history and is commendable for its courage.
