Tokyo Trial Research Articles

The Spiritual Exercises of Antonio Cassese and the Re-Forming of a ‘European Tradition’ of International Law

Abstract This article describes Antonio Cassese’s vital influence on the ‘European tradition of international law’ through an attentiveness to those specific activities through which Cassese, as heir, received this tradition and through which Cassese, as ancestor, transmitted it. The specific activity that the article chooses to describe is that of writing – one of the several activities through which a tradition might be transmitted and received. It does so especially through close readings of several pieces of international legal writing wherein Cassese explicitly sought to dialogically redescribe the practices of an older generation of Euro-American international lawyers, including The Tokyo Trial and Beyond (1994) and Five Masters of International Law (2011). This training repertoire is his ‘spiritual exercises’, and, as the article shows, it invites others to take up their role as international lawyers and to conduct themselves as international lawyers in a specific way by cultivating in them conscience as a capacity to actualize judgment in the world.

Revisiting Röling and Cassese’s Appraisal of the Tokyo Tribunal

Abstract In late 1977, Antonio Cassese interviewed Bernard Röling about his experiences as a judge at the International Military Tribunal for the Far East, and his career after that. The resulting book, The Tokyo Trial and Beyond: Reflections of a Peacemonger, was published in 1993. It not only offered an insider’s account of the politics and personalities that shaped the Tokyo tribunal but also addressed associated issues – strategies for disarmament, the definition of aggression, the limits of self-determination – that would exercise international actors over the ensuing decades. In the process, it revealed much about the perspectives and occasional foibles of two innovative and outward-looking jurists whose work was nonetheless rooted in, and sometimes constrained by, European legal approaches to peace and justice.

The Un-Prosecuted Perpetrator: The Complex Case of Emperor Hirohito

Following the Second World War, the Japanese Emperor Hirohito was exempted from the Tokyo Trials, and the extent of his responsibility in the war has remained intensely debated among predominantly Western scholars. While some see him as a puppet of the military, others claim that Hirohito carries similar responsibility to the major war criminals of the European Axis. The usage of restorative justice, and an interplay between various powers, have obscured the truth of Hirohito’s potential responsibility. Consequently, countries that were victimized by the Japanese perpetration prior to and during the Asian-Pacific War propose different narratives that deeply contrast the heroization of Hirohito in the dominant narrative presented by Japan. In modern-day society, such disputes can still flare up when these narratives conflict, such as in relation to the ‘comfort women’ issue, destabilizing the relations between Japan and the victimized countries in question. By investigating various cultural products, such as museums, propaganda, manga and film through the prism of cultural memory studies, this paper examines Japan’s failure to adequately address wartime responsibility and the consequences it has on the creation and mediation of the nation’s cultural memory. Doing so might do more justice to the Japanese national and cultural memory and prevent international fallout.

Response to Schwöbel-Patel

The meticulous, searching and generous engagement that Christine Schwöbel-Patel has afforded The Humanity of Universal Crime is one that any writer hopes for.1 Her queries, astute and important, open up issues critical to the relationship between law, power, societal organization and transnational politics. I am grateful for her close and sincere reading and for the important questions she brings to the book’s weaknesses. My short answer to all of them is ‘yes, absolutely’. Fortunately, any possibly long answers to her questions are significantly more difficult, at worst insufficient, yet at best generative of further objections, uncertainties and inquiries. First, on ‘Origins and Outliers’. Schwöbel-Patel rightly notes that my book ‘demand[s] an answer to the Nuremberg question’. Equally well taken is her observation that we can see traces of both the lenses of ‘inclusionary Eurocentrism’ and ‘exclusionary Eurocentrism’ in the project that was the Nuremberg Trials (as long as we consider them isolated from the Tokyo Trials and the Singapore War Crimes Trials,2 that is). Maybe I can begin by taking up a conjecture Schwöbel-Patel offers, namely that the Nuremberg Trials reacted to mass atrocities during which ‘Europeans had displayed the type of barbarism reserved in the imagination of European theorists only for non-Europeans’–a conjecture she herself instantaneously invalidates as ‘morally indefensible’. Bringing the lens of ‘exclusionary Eurocentrism’ to this conjecture may help deepen Schwöbel-Patel’s point. In the book, I use the phrase to capture historical visions of international law as contracted in scope such that it orders relations between European (or Euro-American) powers while excluding non-European states and peoples from the law’s protection, its recognition and obligations. Once we stretch and soften this conception somewhat, we could put forward the thesis that Nuremberg’s ‘exclusionary Eurocentrism’ raised above the threshold of international law mass atrocities unleashed by a European power on European peoples—while historical mass violence by Europeans, not least by the Germans, against peoples in the Global South have remained, to this day, below such a threshold.

Women judges in transitional justice and their impact on trials on cases of sexual and gender-based violence committed as war crimes

Unfortunately, sexual and gender-based violence (SGBV) against women and men who are identified as enemies very often appears as a tool of war. For a long time, SGBV-related atrocities were not perceived as an element of combat, thus they were not investigated as war crimes. None of the war criminals prosecuted in the Nurnberg and Tokyo trials was ever charged with crimes that specifically targeted women, despite overwhelming evidence of mass-scale rapes committed during World War II by their subordinates. Only in 2000, the Women's International War Crimes Tribunal on Japan's Military Sexual Slavery was established to hear cases of women forced into sexual slavery by the Japanese Imperial Army more than 50 years earlier.The perception of the SGBV crimes in armed conflicts has considerably changed because of the mass atrocities committed in Bosnia and Hercegovina and in Rwanda. Women who as victims of the sexual violence dared to talk about their suffering, played the crucial role in changing the general attitude towards SGBV crime committed during the war. Simultaneously, the composition of international prosecution and judiciary included numerous female prosecutors and judges.It may be argued if judge's characteristic, personal experience, or gender indeed or to what extent influence judicial decisions. Some fundamental questions related to the judge's gender remain without an answer: Would the gender of judges impact the quality of fact-finding in SGBV as a war crime? Would a female judge assess the evidence more thoroughly than a male judge? Would a SGBV victim's well-being be better protected by a judge of the same gender? Would the risk of a victim's re-traumatisation be lower if the trial was handled by a judge of the same gender as the victim? And finally: would the risk of a victim's re-traumatisation be lower if a judge of the same gender as the victim handled the trial? All these questions seem particularly relevant in the context of the new wave of war crimes SGBV cases resulting from the war in Ukraine.

The Tokyo and Khabarovsk Trials in the Context of the Problem of “Bacteriological War”

On the basis of the published declassified sources of information the author of the article presents the analysis of the Soviet law enforcement and judicial bodies’ activity that aimed at identifying and prosecuting Japanese war criminals, who were directly involved in developing “bacteriological weapons” before and during the World War II in the Far East. The Soviet side started receiving the information about the bacteriological weapons’ development from the moment of the liberation of Manchuria. The information was provided by sanitary doctors and war prisoners, who were subjected to overt and covert agent work. In 1947 the information about the experiments conducted on live humans while developing bacteriological weapons was submitted to the USA. The author describes the difference in the organization of the Tokyo and the Nuremberg trials, which lay in the fact that all authority in the Tokyo trial was concentrated in the hands of the Supreme Commander-in-Chief for the Allied Powers, who was the USA representative. The author presents the reasons why the issue of the “bacteriological weapons” was not considered in the Tokyo trial. Among the reasons there were procedure issues referred to the organization of the trial and the pursuit of the American side to receive the results of investigations that had been conducted by the Detachment 731, and, as the consequence, to provide its commander with the immunity from persecution. Moreover, one can relate to the reasons the geopolitical situation which was caused by the beginning of the “cold war”. For the conviction of the people involved in the development of the “bacteriological weapons” was held the Khabarovsk trial, which played a considerable role for the further development of the international humanitarian law.

Lost Justice: Double Standards toward the Application of the Nuremberg Principles of Medical Ethics and International Humanitarian Law in the 1946-1948 Tokyo Trial Against Japanese Military Doctors on the Facts of Experiments on Human Beings

Lost Justice: Double Standards toward the Application of the Nuremberg Principles of Medical Ethics and International Humanitarian Law in the 1946-1948 Tokyo Trial Against Japanese Military Doctors on the Facts of Experiments on Human Beings

The Activity of Lawyers in the International Criminal Court: Theoretical and Practical Aspects

In the entire history of mankind, a large number of acts of violence and aggression have been committed. Over the past 50 years alone, there have been more than 400 interstate and intrastate conflicts that have claimed the lives of millions of people. Increasingly, there has been an urgent need to protect the violated rights of individuals. The idea of creating a single international body for the protection of human rights has been discussed more than once. For the first time, the idea of creating an international judicial body was expressed in 1948 by the UN General Assembly after the Nuremberg and Tokyo trials at the end of World War II, which issue has been discussed at the United Nations ever since. However, efforts to create such a mechanism have not been successful, despite the need for a permanent criminal court to prosecute and punish those who commit the most serious crimes. In 1998, this idea was realized. The International Criminal Court (ICC) has sought ways to establish a world order with a fair resolution of conflicts. It has long been recognized, the verdict of the Nuremberg Tribunal noted, that international law imposes duties and obligations on specific individuals as well as on the state. [] Crimes against international law are committed by people, not by abstract categories, and only by punishing individuals who commit such crimes can the provisions of international law be respected. To date, the ICC is successfully coping with the task of punishing those persons or groups of persons who have committed the international crimes listed in the Rome Statute. It would seem that the balance between good and evil has been found. The crime has been committed and the criminal punished. But it is important to note that the procedural issues have not been resolved as well as that of punishing criminals. An urgent matter today is the status of defenders of the accused in international criminal proceedings. This question requires not only a doctrinal, but also a practical understanding.

Adaptation of the Tokyo Trial: Reading Kinoshita Junji’s Between God and Man

Adaptation of the Tokyo Trial: Reading Kinoshita Junji’s Between God and Man

CRIMINAL ASSOCIATION IN INTERNATIONAL CRIMINAL LAW

The criminal association was a criminal offense of the Joint Plan and Conspiracy, or a special form of Crime against Peace, which was highlighted as such in the Nuremberg and Tokyo trials. In the recent practice of international criminal courts, this institute is used in a certain way, but its function is often subordinated to political abuses. By labeling certain political regimes as a “criminal association” by the so-called international political elites are provided with a wide margin of maneuver to justify their “humanitarian interventions” which are the consequence of a common criminal goal. From the middle of the 20th century until today, it is possible to identify violations of international law that occurred as a result of the activities of a criminal association, which continues with increased intensity. If the covert activities of real criminal associations continue, the main outcome will not be the achievement of world peace, but hegemony. In order to prevent this tendency, it is necessary to redefine the place of the Criminal Association in international criminal law, to point out the permanent cases of their actions, their subjects and the ways in which these same subjects avoid responsibility.

Nuremberg modification of international crime and criminal responsibility of individuals

The article analyses the formation of the Nuremberg model of international crime, its origins and preconditions, the role of theVersailles Peace Treaty of 1919 and other factors. The author states that the inability to ignore the expansion of international crimemakes criminal responsibility unavoidable, and thus the experience of the Nuremberg and Tokyo tribunals bear the fundamental meaning.Examined are the legal bases of the Nuremberg trial, the main problematic issues of discussion, in particular, the recognition ofcertain acts as criminal, procedural security of the accused, harmonisation of procedural rules of different legal systems (continental,Anglo-American, Soviet legal system), immunity of officials and especially the importance of the Nuremberg Trials for the furtherdevelopment of international criminal law. The author argues that individual international criminal responsibility, which should be consideredthe first most important feature of international criminal law, was formed during the Nuremberg Trials on the basis of customarylaw, general principles of law and normative sources: the London Agreement of 1945 “On Prosecution and Punishment of the majorwar criminals of the European Axis countries” and the Statute of the International Military Tribunal. The Nuremberg Trials of1945–1946 and the Tokyo Trials of 1946–1948 were the first effective international criminal tribunals in which individuals with fullprocedural rights and acting on their own behalf were indicted. The precedents of these tribunals have proven the ability to criminalisecrimes under international law that are not crimes under national law and serve as a basis for developing a concept of international crimein a new sense that is closely linked to international justice.The author also concludes by drawing the attention to the fact that due to internationalisation of crime, two different characte -ristics and dimensions have formed: criminal responsibility stricto sensu, and criminal responsibility within the frames of a newlyformed autonomous subbranch of international criminal law – transnational criminal law.

Still Desperate after Pearl Harbor: Investigations of Saburo Kurusu after the War of the Pacific

Saburo Kurusu, an oft-forgotten diplomat who participated in the final three weeks of the U.S.-Japanese negotiations prior to the Pearl Harbor attack, has garnered renewed attention from diplomatic historians in the last several years. Owing to the publication of The Desperate Diplomat (Clifford & Okura, 2016), which included an original research article on Kurusu’s informal diplomacy along with his own English translation of the crucial parts in his memoir, academics now have a better understanding of his diplomatic efforts to stave off the War of the Pacific. A follow-up article, “The Desperate Diplomat Revisited (Okura, 2016),” presented perspectives from Kurusu’s collaborators in his informal diplomacy, an American financier, Barnard M. Baruch, and a Methodist minister, E. Stanley Jones, in support of his innocence. While those two studies are valuable in examining Kurusu’s involvement in the final U.S.-Japanese negotiations, they came up short in enlightening academics about what happened to Kurusu after Japan’s unconditional surrender in 1945. No studies have revealed Kurusu’s struggle after the war to debunk the myth of the deceitful ambassador. Although the International Persecution Section for the Tokyo Trials never indicted him, he was indeed under investigation. This article will seek to fill the gap in research by undertaking multi-archival studies.

Book Review: The Tokyo trial, justice, and the postwar international order by A. Babovic

Book Review: <i>The Tokyo trial, justice, and the postwar international order</i> by A. Babovic

Addressing violations of international humanitarian law through the international criminal justice system: A criminologist’s contribution

The international criminal justice system has resorted to criminal sanctions as the sole response to international criminal offending, including international humanitarian law (IHL) violations. While responding to international criminal offending, the international criminal justice system has overly relied on utilitarianist and retributivist assumptions to criminal punishment that assumes the application of criminal law in enforcing compliance to societal norms in order to deter potential norm violators and to induce compliance. Furthermore, correcting criminal behaviour creates a sense of accountability and appeases victims of international humanitarian law violations and other international crimes. Arguments in support of this strategy also posit that it is important to take these steps because it brings a sense of respect to the rule of law or what is popularly known as fighting ‘impunity’. A reflection on the Nuremberg and the Tokyo trials following World War II seems to have influenced the criminalising of war crimes and other international crimes. On the other hand, criminologists over a century now have been studying causes of crime to influence public policy in crime prevention. It is, therefore, imperative to examine the aetiology of international humanitarian law violations through a criminological lens to inform international criminal justice policy on best approaches in responding to international crimes in general and war crimes in particular. The essay examines international humanitarian violations in the Democratic Republic of Congo to find out whether the international criminal justice system’s response to war crimes meet the purported stated goals of the international criminal justice system. The Lubanga case in the DRC situation is informative since it is the first conviction before the International Criminal Court.

‘A Continuous Retrial’: Trans/national Memory in Chinese and Japanese Tribunal Films

On the 60th anniversary of the end of WWII, three prominent East Asian films on the International Military Tribunal for the Far East (IMTFE) appeared in China and Japan. The Chinese film Tokyo Trial (Dongjing shenban, 2006) was heavily promoted in the Chinese mainland, screened extensively at universities in Beijing and Shanghai, and broke opening weekend box office records at that time. In Japan, there were two high-profile films on both the Tokyo (A-class war criminals) and Yokohama (B/C-class) trials: I Want to Be a Shellfish (Watashi wa kai ni naritai, 2008) and Best Wishes for Tomorrow (Ashita e no yuigon, 2007). All three tribunal films deal with the question of who gets to write the official “history,” or master narrative of the past, with the national narratives of other nations looming large. Produced at the height of the mid-2000s East Asia history conflict, the three films constitute a major layer in the discourse on national memory in China and Japan. Focusing on representations of race and memory and drawing from theories of the film as a site of memory, this paper will reveal how these films attempt to redefine the official history established at the IMTFE (International Military Tribunal for the Far East) and establish a national narrative of perpetrators, heroes, and victims of WWII.

J. Guillemin, Hidden Atrocities: Japanese Germ Warfare and American Obstruction of Justice at the Tokyo Trial

J. Guillemin, <i>Hidden Atrocities: Japanese Germ Warfare and American Obstruction of Justice at the Tokyo Trial</i>

The International Military Tribunal for the Far East: "The Japanese Operation in the Khalkhyn Gol Area Was an Aggressive War"

More than 20 Soviet, Mongolian and Japanese witnesses who had taken part in the battles in the area of the Khalkhyn Gol (English “Khalkha River”) were heard in the International Military Tribunal for the Far East, held in Tokyo in 1946-1948. The events were presented to the world community to the extent appropriate. Although some believe that the Tokyo Trial was an event where the victors in the war were able to impose their views and the decision on the war’s losers, the Tribunal was a very important event that revealed the causes of military action in the Khalkhyn Gol area and came to conclusions of international significance. The Tokyo Trial found that the military action near the Khalkhyn Gol was “an aggressive war unleashed against the MPR and the USSR” and prepared by Japan in advance. It was a reasoned conclusion from the point of view that “War is a continuation of politics by other means” as well as from the point of view of international law. On the other hand, at the time, the Tokyo Trial made a political judgement that the military action in the Khalkhyn Gol area was “an aggressive war”, that undoubtedly makes those events a real war for Mongolia. The article was written based on the decision of the International Military Tribunal for the Far East on the military activities in the Khalkhyn Gol area.

Reconciling after Transitional Justice: When Prosecutions are not Enough, the Case of Bosnia and Herzegovina

Abstract The concept and study of transitional justice has grown exponentially over the last decades. Since the Nuremberg and Tokyo trials after the end of the Second World War, there have been a number of attempts made across the globe to achieve justice for human rights violations (International Peace Institute 2013: 10). How these attempts at achieving justice impact whether or not societies reconcile, continues to be one of the key discussions taking place in a transitional justice discourse. One particular context where this debate continues to rage on is in Bosnia and Herzegovina, many scholars argue that the transitional justice process and mechanism employed in Bosnia and Herzegovina have not fostered inter-group reconciliation, but in fact caused more divisions. To this end, this article explores the context of transitional justice in Bosnia and Herzegovina from a unique perspective that focuses on the need for reconciliation and healing after transitional justice processes like war crime prosecutions. This article explores why the prosecuting of war criminals has not fostered reconciliation in Bosnia and Herzegovina and how the processes have divided Bosnian society further. Additionally, this article presents the idea of state-sponsored dialog sessions as a way of dealing with the past and moving beyond the divisions of retributive justice.

Glimpses of Women at the Tokyo Tribunal

Compared to its Nuremberg counterpart, the International Military Tribunal for the Far East has scarcely been visible in the seven decades since both tribunals’ inception. Recently the situation has changed, as publications of IMTFE documents have occurred alongside divers legal and historical writings, as well as two films and a miniseries. These new accounts give new visibility to the Tokyo Trial – or at least to the roles that men played at those trials. This essay identifies several of the women at Tokyo and explores roles they played there, with emphasis on lawyers and analysts for the prosecution and the defense. As was the case with my 2010 essay, “Portraits of Women at Nuremberg,” the discussion is preliminary, offering glimpses of the Tokyo women in an effort to encourage further research.

Hidden Atrocities: Japanese Germ Warfare and the American Obstruction of Justice at the Tokyo Trial, written by Jeanne Guillemin

Hidden Atrocities: Japanese Germ Warfare and the American Obstruction of Justice at the Tokyo Trial, written by Jeanne Guillemin