Virginia Review of Asian Studies

Volume 17 (2015): 1-20

Takatori: Tokyo Trials

“EQUAL PUNISHMENT FOR ALL” -- JAPAN’S VIEW OF THE TOKYO TRIAL

Yuki Takatori

Georgia State University

Abstract

The Tokyo War Crimes Trial (1946-1948), one of the two major war crimes trials held after World War II, fell into oblivion soon after its conclusion. Why has the trial failed to earn the recognition, much less praise, admiration, and fame, as a judicial landmark, that the Nuremberg Trial (1945-1946) has garnered? In providing an answer to this question, I will draw heavily, in this article, on the importance of legalism in nations with a Judeo-Christian tradition and lack of its importance in Japanese society. I will also compare the prosecution’s strategy at Nuremberg with that at Tokyo as it relates to Japan’s aggression, in order to explain why the plan of action at the latter venue backfired, bolstering the negative image of the trial as one where “victors’ justice” was meted out.

Key words: Japan, war crimes trial, legalism, kenka ryōseibai

I.  The Tokyo War Crimes Trial

1.  Introduction

At the end of World War II, the leaders of the Allied Powers, in an attempt to restore order and sanity, set out to establish two major war crimes trials, one in Nuremberg and the other in Tokyo. The Tokyo War Crimes, officially known as the International Military Tribunal for the Far East, was the longer of the two, opening in May 1946 and concluding in November 1948. The trial, in which eleven nations participated,[1] was in session for 417 days, subpoenaed 419 witnesses, and accepted 779 affidavits. These numbers far exceed those in the Nuremberg Trial (1945-1946). Furthermore, while there were three acquittals (out of 22 defendants) at Nuremberg, all 25 defendants at Tokyo were found guilty.[2]

Despite these notable features, the trial in the Far East was utterly overshadowed by the one in Germany and was forgotten in the West soon after its conclusion. Such lack of knowledge of, and interest in, the Tokyo Trial is reflected in another statistic: in John R. Lewis’ Uncertain Judgment: A Bibliography of War Crimes Trials, there were a scant 231 entries related to the Tokyo Trial, compared with nearly 1,300 under Nuremberg.[3] It would not be an overstatement to say that the average Westerner today is not aware that an Asian counterpart of Nuremberg even took place. For instance, USA Today, a newspaper with a nation-wide circulation, in an editorial on the war crimes trial of former president of the Serbian Republic Slobodan Milošević, erroneously conflates the two trials as “the Nuremberg trials that followed World War II.”[4] More recently, when 18 judges were sworn in at the first permanent war crimes tribunal in the Hague, the events were hailed in a radio broadcast as “the most important milestone in international justice since the Nuremberg Trials of Nazi leaders half a century ago.” [5] Similarly, American Heritage, the popular history magazine, in an article in its 2000 issue, completely ignored the Tokyo Trial when it praised the War Crimes Tribunal in the Hague as the “first trial since Nuremberg that attempted to establish a worldwide rule of law.”[6] The list of instances in which the Nuremberg Trial is treated as the sole symbol of international justice can be easily expanded.

Why has the Tokyo Trial failed to earn the recognition, much less the admiration and the fame, as a judicial landmark, that the Nuremberg Trial has garnered? In addition to the trial’s legal foundations, such as the charter, constitution of the court, verdict and sentences, criticisms were also directed against the “haphazard” selection of defendants, the ineptitude of the chief prosecutor, and the domination by the U.S. prosecution team.[7] There is, however, one other reason which has been overlooked in previous studies: Why it did not deliver the results expected by those who conceived it? It is not related to the structure or conduct of the court, but to the nature of Japanese culture and society. In the pages that follow, I hope to provide an additional answer to this question by examining heavily the importance of legalism in nations with a Judeo-Christian tradition and the lack thereof in Japanese society.

2.  Timeline of Nuremberg and Tokyo

Though the Tokyo Trial has generally come to be seen in a negative light, it had actually made several positive contributions that may be of interest to those in political and war crimes trials. For instance, while the Nuremberg Trial was a creation and instrument of the “Big Four” alone,[8] the Tokyo Trial was more inclusive, making possible the participation of non-major Allied Powers, such as Canada and the Netherlands, who were able to have their voices heard in the international arena. Its historical significance is even greater than its legal one — for, though there were matters that were deliberately kept out of the courtroom, the details of many events and operations would not have been brought to light in such a thoroughgoing manner had the trial not been held.

Within the office of General Douglas MacArthur, the Supreme Commander for the Allied Powers (SCAP),[9] in whose name the charter was promulgated, assessment of the Tokyo Trial’s value ran the gamut, from the opinion of prosecutor Solis Horwitz that the “proceedings [were] of utmost significance for . . . the elimination of war,”[10] to the view of General Charles Willoughby, MacArthur’s chief of counterintelligence, that they were “the worst hypocrisy in recorded history.”[11] Historians who have studied the trial since have also been divided in their appraisals. Furthermore, they have advanced a variety of hypotheses as to why it fell short in both import and impact, the foremost having to do with its duration. That the Nuremberg Trial was much more expeditiously carried out becomes obvious when one compares the timelines of the two trials:

Nuremberg Tokyo

Surrender May, 8 1945 September 2, 1945

Indictment Lodged October 19, 1945 April 29, 1946

Trial Begins November 20, 1945 May 3, 1946

Proceedings End August 31, 1946 April 18, 1948

Judgment Pronounced October 1, 1946 November 4 – 12, 1948[12]

The Nuremberg Trial concluded within a year of its beginning, and within a year and a half after Germany’s surrender, when the public desire to mete out justice to the wartime German leaders still remained high; the Tokyo Trial, by contrast, suffered several delays before commencing, first from February to March, then to April, and finally to May; once begun, it dragged on, with several extended recesses, for two and half years, ending at a point in time nearer the Korean War than the World War.

One reason for the delay was the failure of the Allied Powers to nominate justices (including an American justice) promptly as requested by the United States government, partly because full details of the court’s jurisdiction as well as arrangements for judges and prosecutors (such as those regarding emoluments, meals, billeting, and transportation) were slow in coming.

Another reason was the inability of the International Prosecution Section (IPS) to unearth much documentary evidence. This was probably due to the fact that Japanese government officials and military commanders had had ample opportunity to destroy incriminating files between the announcement of capitulation on 15 August 1945 and the arrival of the advance party of American forces two weeks later. As a result, the prosecution had to prove a case covering the gradual development of events over a period between 1931 and 1945, with indirect documentary and oral evidence alone.

3.  Criticism of the Tokyo Trial

The hold-ups and the prolongation, to some extent unavoidable, may have had adverse effects, but the trial’s legitimacy has not been questioned because of them. However, the trial had drawn criticisms over other, more fundamental, problems: that it was an act of judicial retribution against the defeated by the victorious.

The critics of the trial denounce it as an act of vengeance by victorious powers and, therefore, as being intrinsically unfair.[13] Not only did the bench consist of representatives from the nations that defeated Japan, and no others, but the charter, defining the jurisdiction of the court and legal procedures, was drafted by the American prosecution team alone, a practice which would be unthinkable in today’s international courts. In short, the Allied Powers were the judge, jury, and executioner. In fact, some of the articles in the charter did appear intended to facilitate the convictions. For instance, Article 2 of the charter stipulated that due to the large number of judges, a provision for alternates, who would become active when the principals were absent, was not a viable option. Furthermore, unlike in Nuremberg, where all members of the bench had to be present for a quorum, the prerequisite in Tokyo was a simple majority. And under Article 4, a majority vote of that quorum was sufficient in all decisions pertaining to verdicts and sentences; in case of a tie, it was necessary for the president to cast the decisive vote.[14]

The consequences of this article were potentially quite grave: as Richard Minear rightly points out, just three out of eleven judges (if the president was among the three) could have held the life or death of each of the twenty five accused.[15] In the end, though all eleven justices were present for their sentencing, none of the seven condemned men were sentenced to death by a unanimous vote: six were sent to the gallows by a vote of 7 – 4 and one by a vote of 6 – 5, which the Dutch member of the bench considered “a scandalous way of arriving at the death penalty of hanging.”[16] Another four defendants narrowly escaped capital punishment by 5 – 6 decisions. [One defense lawyer received information from “a source of unquestionable reliability” that some of the death sentences might even have been imposed by less than a majority.][17] To consider for comparison the contemporary statistics in the United States, only two states permitted less-than-unanimous verdicts in criminal trials in 1949, and in neither state did the exception apply to capital cases.[18] Since under the criminal law followed in today’s US courts it takes only one dissenting opinion to produce a hung jury, the simple majority provision of the charter has given rise to doubts about the fairness of sentencing decisions.

Perhaps the most incongruous aspect of the Tokyo Trial was the presence of the Soviet prosecutor (and judge). After all, the Soviet Union had unilaterally broken its Neutrality Pact with Japan and committed aggression against the latter only a week before its capitulation. Yet, it had the brazen audacity to lay claim to being the victim of the “treacherous attack” by the Japanese Navy on the Russian fleet that started the Russo-Japanese war in 1904 (a war that had occurred well outside the period dealt with in the indictment) and of two border incidents in the late 1930s (the Lake Khassan Incident in 1938 and the Nomonhan Incident in 1939), both of which had already been settled diplomatically. Perhaps the counts concerning the preparation for and waging of war against the Soviet Union had been included out of political necessity in order that every one of the Allied member nations would have a role in the handing up of the indictment.

Equally egregious was the recent disclosure concerning the participation of one of the Japanese defense lawyers in the drafting of the court’s judgment. According to this discovery, first reported on February 22, 2009, Kenzō Takayanagi, the Japanese defense team’s only expert on Anglo-Saxon Law, stated in a 1961 interview by the Justice Ministry that he had been asked to conduct checks regarding law and findings of facts in the text of judgment.[19] Takayanagi did not reveal when he was asked, who made the request, or what part of the judgment he had a hand in writing.

As scandalous as the defense lawyer’s admission may be, his connection to the judgment was already implied 60 years ago in a dissenting opinion by the French justice Henri Bernard, who, in the most eerie wording, wrote that someone other than judges may have been involved in the finding of facts.[20] [Bernard also hinted that evidence produced outside the court may have been accepted.] It goes without saying that Takayanagi’s confession, if true, would have been sufficient to overturn guilty verdict or to call for a mistrial (and perhaps justify disbarment of all those involved) in today’s criminal justice.

4.  Judgment

It is quite likely that the trial would have left a positive legacy had the judgment of the court set important precedents to be cited in later international (as well as domestic) war criminal tribunals. A measure of its small and ephemeral impact is that, when, in 1950, the International Law Commission of the United Nations adopted principles of international law recognized in the Nuremberg charter and judgment, no mention was made of Tokyo. Its snubbing by the UN body and in recent war crimes tribunals can be ascribed to the fact that it adopted a theory of conspiracy and a principle of command responsibility more encompassing than at Nuremberg.

The judges at Tokyo ruled that the defendants had engaged in a conspiracy to wage a war of aggression and that each of them had played a part in advancing a “common plan,” yet the court’s interpretation of “the ambit of conspiracy liability was too broad, which has filtered in to the doubt about such an inchoate international crime.” Broad or not, the decisions written by the Tokyo Trial judges did constitute case law, establishing the fundamental principles (had they been recognized as such) for the theory of Joint Criminal Enterprise (JCE). Nonetheless, when the International Criminal Tribunal for the Former Yugoslavia (ICTY) resurrected this doctrine in the trial of Duško Tadić, critics claimed there were no precedent of such a form of liability in international law, completely ignoring (or being completely ignorant of) the judgment at Tokyo.[21]