War Crimes Trials in the Wake of Decolonization and Cold War in Asia, 1945-1956

Justice in Time of Turmoil

Kerstin von Lingen, Kerstin von Lingen

• Publisher: Palgrave Macmillan
• Year: 2016
• ISBN:
  9783319429878
• Topic: History
• Subtopic: Asian History
• Index: History

This book investigates the political context and intentions behind the trialling of Japanese war criminals in the wake of World War Two. After the Second World War in Asia, the victorious Allies placed around 5, 700 Japanese on trial for war crimes. Ostensibly crafted to bring perpetrators to justice, the trials intersected in complex ways with the great issues of the day. They were meant to finish off the business of World War Two and to consolidate United States hegemony over Japan in the Pacific, but they lost impetus as Japan morphed into an ally of the West in the Cold War. Embattled colonial powers used the trials to bolster their authority against nationalist revolutionaries, but they found the principles of international humanitarian law were sharply at odds with the inequalities embodied in colonialism. Within nationalist movements, local enmities often overshadowed the reckoning with Japan. And hovering over the trials was the critical question: just what was justice forthe Japanese in a world where all sides had committed atrocities?

© The Author(s) 2016

Kerstin von Lingen (ed.)War Crimes Trials in the Wake of Decolonization and Cold War in Asia, 1945-1956World Histories of Crime, Culture and Violencehttps://doi.org/10.1007/978-3-319-42987-8_1

Begin Abstract

1. Justice in Time of Turmoil: War Crimes Trials in Asia in the Context of Decolonization and Cold War

Kerstin von Lingen¹ and Robert Cribb²

(1)

Heidelberg University, Heidelberg, Germany

(2)

Australian National University, Canberra, Australia

For this chapter, we draw also on results of intensive discussions with 2014’s visiting fellows to the Research Group ‘Transcultural Justice’ on Asian War Crimes trials at the Asia and Europe in a Global Context Cluster of Excellence at Heidelberg University, Sandra Wilson and Kirsten Sellars, whom we would like to thank for their valuable input. Additionally, we thank Beatrice Trefalt and Neil Boister, as well as members of the Heidelberg Research Group Milinda Banerjee, Lisette Schouten, Anja Bihler, Ann-Sophie Schoepfel and Valentyna Polunina, who commented on an earlier draft of the chapter.

End Abstract

During the half-decade following the end of the Second World War, Allied military tribunals in Asia and the Pacific tried Japanese military personnel for war crimes committed during the hostilities. The trials commenced on the Pacific island of Guam in September 1945 and encompassed over 2,300 proceedings in more than 50 locations in Asia and the Pacific. Australia, (Nationalist) China, France, the Netherlands Indies, the Philippines, the Soviet Union, the United Kingdom and the USA all convened trials in the period to April 1951. The Communist government of the People’s Republic of China, although not one of the wartime Allies, held its own trials in 1956. Around 5,700 people working for the Imperial Japanese armed forces were prosecuted. Approximately 4,500 were found guilty and in the end just over 900 were executed.¹ The remainder of those found guilty were sentenced to prison terms. Alongside the national tribunals that undertook the vast bulk of the trial work, the International Military Tribunal for the Far East (IMTFE, also known as the Tokyo Trial) convened between April 1946 and November 1948 to prosecute 28 senior Japanese political and military figures. None of the accused in this trial was acquitted, but one was found unfit for trial and two died during the proceedings.

These trials occupied a pivotal place in three major historical phenomena of the twentieth century: in the development of international humanitarian law, in the Cold War confrontation between capitalism and communism (and, on a geopolitical scale, between the USA and the Soviet Union) and in the decolonization process that led to the retreat of Western colonial empires and the emergence of new states in Asia. Yet in all three processes, the place of the war crimes trials is ambiguous, even contradictory. The trials were both a dramatic advance in international humanitarian law and an unsatisfactory dead end. They both served and confounded the Cold War interests of the prosecuting powers. And they reinforced the decolonization process in Asia while at the same time they were used to resist the end of colonialism.

These contradictions have been a major obstacle to understanding the historical significance of the trials, but this volume brings together recent research that begins to sort out this complexity.² The central conclusion of the book is that the trials cannot be understood simply as confirming or amplifying known historical trends. Rather, on key issues—the development of international law, the resolution of wartime and Cold War rivalries, and the process of decolonization—the trials operated on both sides of the historical ledger.

Drawing on new research, this book demonstrates and debates the ways in which political and ideological considerations emanating from decolonization and the Cold War shaped, and were shaped by, the structure and outcome of the trials as a new post-imperial world gradually began to emerge. It juxtaposes their political and juridical roles in order to show the connections between the two. The war crimes trials in Asia were a watershed moment, coinciding with the demise of an old political-legal international order defined by European hegemony and the advent of a new, putatively anti-imperial one, based on contestations between the American and Soviet blocs and the rise of postcolonial nation-states.

International Humanitarian Law

Although there had been incidental efforts in earlier centuries to limit cruelty in the context of war, the modern construction of international humanitarian law in relation to war began in the mid-nineteenth century.³ It took serious form in the successive Hague and Geneva conventions. The Geneva Conventions, commencing in 1864, defined the rights of prisoners in wartime. The Hague conventions from 1899 and 1907 set standards which restricted the use of what were seen as barbarous weapons such as expanding bullets and poison gas and set out rules for the treatment of surrendered combatants. There was also some impulse to establish rules that would protect civilians from unnecessary harm in times of war, notably the 1910 convention against the bombardment of civilian settlements from the sea.⁴ Although the experience of war atrocities in the First World War in Europe had led to a codification of rules and a clearer definition about the nature of war crimes (the so-called ‘Versailles list’), no agreements had been made on setting up an international court to punish these offences. Trials in Leipzig and Constantinople, which dealt with German and Ottoman war crimes respectively, were deemed a failure because they relied on the courts of the offending nation to prosecute perpetrators.⁵ The interwar period was characterized by diplomatic efforts to ban all war, rather than framing legal rules for the next one.⁶

Thus, by the time of the outbreak of the Second World War, the formal legal protections for civilians were meager and there had still been no systemic prosecution of war crimes. The sequence of policy decisions which led to the postwar war crimes trial program began in London in January 1942, when a group of representatives of governments-in-exile from Nazi-occupied countries in Europe met at St James’s Palace and declared a principal aim of the war to be ‘the punishment, through the channel of organised justice, of those guilty of or responsible for [war] crimes, whether they have ordered them, perpetrated them or participated in them.’⁷ Japan had not yet launched its attack on Malaya and Pearl Harbor, but it was at war in China and the representatives of the Chinese Republic declared that China would ‘apply the same principles to the Japanese occupying authorities in China when the time comes.’⁸ This resolution led in 1943 to the founding of the United Nations War Crimes Commission (UNWCC) with its headquarters in London, which undertook the fundamental work of determining the legal basis for war crimes trials and which also began the task of collecting evidence for postwar tribunals.⁹

These changes in global legal-political norms and institutions were debated in international forums, the most prominent being the Legal Committee of the United Nations War Crimes Commission, also formed in 1943. Although China also took active part in all meetings and pushed for a global rhetoric in UNWCC recommendations, the debate initially was focussed on crimes of Nazi occupation forces in Europe, on the problem of violence among states prior to a state of war, and on the issue of a state’s violence against its own nationals, as the murder of European Jewry had shown this was a pressing issue.¹⁰ The Western Allies, or United Nations as they called themselves during wartime, responded to the horrors of the Second World War in two ways: by encouraging states to commit themselves to international law, with the aim of liberating the world from war itself, and second, with the Holocaust crimes in mind, by banning crimes against civilians and developing a system of what we today call international humanitarian law.¹¹

The postwar trials represented a dramatic advance both because they involved large numbers of prosecutions for war crimes under the Geneva Conventions and because, in a leap of legal imagination based on the never-ratified third Hague Peace Conference provisions as well as discussions at Versailles in 1919, they interpreted as war crimes a range of actions against civilians that had previously been regarded only as morally reprehensible.¹² The prosecution process confirmed that the provisions of the Geneva Conventions protecting prisoners of war could be enforced in a court of law and it consolidated an expanded definition of war crimes that provided new protection to the inhabitants of occupied territories from cruel and arbitrary treatment by those acting on behalf of the occupying power. Piccigallo’s 1979 survey of Allied war crimes trials in the Asia-Pacific region pioneered this interpretation of the trials as a major legal advance, albeit one that was subsequently overshadowed by the attention given to trials in Europe.

As well as identifying an expanded range of actions as criminal under international law, the proceedings also consolidated an extended conception of guilt. They affirmed the principle of command responsibility, under which officers bore legal responsibility for the actions of their subordinates, even if they had done no more than shape the circumstances in which atrocities were committed. The proceedings also asserted the inadmissibility of a defense of superior orders, a claim which had still been possible in the trials after the First World War: the accused could not escape culpability by showing that they had merely followed the orders of their commanders. New research continues to draw attention to the hitherto little-recognized legal innovation of the postwar trials. Neil Boister’s chapter in this volume, for instance, reveals the role of the IMTFE in extending the scope of international law to regulate the trade in addictive drugs.

As Wolfgang Form and Robert Cribb argue for the Philippines and Burma respectively, and as Lisette Schouten’s chapter shows in the case of the Netherlands Indies, the trial process was driven above all by a determination to do justice, rather than out of overt political considerations. The investigators and prosecutors believed that terrible crimes had been committed and they wanted to see the perpetrators—or at least the worst of them—appropriately punished. Their determination reflected the mood expressed by Allied leaders in the Potsdam Declaration of 26 July 1945: ‘Stern justice shall be meted out to all war criminals, including those who have visited cruelties upon our prisoners.’¹³ Indeed, there was competition among the prosecuting powers, not only to indict high profile suspects but also for a general record of prosecution.¹⁴ Each of the prosecuting powers in the Asia-Pacific region conducted its trials under national legislation or regulations, but to varying degrees they cooperated first in the pooling of evidence and later in the exchange of suspects and witnesses. Judges and prosecutors sometimes sat in other jurisdictions. The prosecuting powers in Asia and Europe moreover watched each other closely, to identify the techniques that might work best in the process of investigation and prosecution, and to test new principles against the practicalities of prosecution. They sought to avoid approaches that might have undesired side-effects and they often tried to remain in step with each other in determining the pace and the scope of the trials. The records of the United Nations War Crimes Commission and of Allied Military Command bodies such as SCAP (Supreme Commander for the Allied Powers) or SEAC (South East Asia Command) thus reveal a transcultural dimension in which the war crimes trials in Europe as in Asia constituted a ‘learning system.’

Nonetheless, since the 1970s, there has been growing scholarly attention to procedural shortcomings in the trial process. In particular, inconsistencies in the selection of defendants and inadequacies in the treatment of evidence began to cast a shadow over the quality of the trials. Minear’s Victors’ Justice (1971) focused on the Tokyo trial alone, arguing that the USA’s determination to achieve convictions led to serious unfairness.¹⁵ The subsequent work of Totani and of Boister and Cryer on the IMTFE has revealed a legal process that fell short of the expectation of fairness on many fronts, while nonetheless boldly upholding new and higher standards of legal accountability for wartime actions.¹⁶ As several chapters in this book demonstrate, this critique can be applied also to the national trials of Japanese after the war. The prosecuting powers saw the trials as important business that needed to be finished quickly so that the world could move on. Changing political circumstances in many parts of the region strengthened the imperative to wrap up the trials. There was little appetite for making the trial process any longer or more comprehensive than it was; on the contrary, most dissenting voices on the prosecuting side argued for a more expeditious process, closer to summary justice. Lisette Schouten’s chapter in this volume shows both the determination of the Dutch colonial authorities to follow a justifiable procedure and their tolerance of irregularities that inevitably arose in the difficult circumstances of the trials.¹⁷

Decolonization

A powerful nexus also existed between the war crimes trials and the process of decolonization in Asia. Over the period from 1930 to 1960, most of Southeast Asia moved from an unambiguously colonial status to at least formal independence. This transition, defined by Duara as ‘the process whereby colonial powers transferred institutional and legal control over their territories and dependencies to indigenously based, formally sovereign, nation states,’¹⁸ profoundly transformed the international order in Asia and prefigured the decolonization of Africa. Japan’s imperial expansion in Asia was intimately connected with the decolonization process in several respects. First, Japan’s success in modernizing, industrializing and developing serious military capacity after 1868 was a source of inspiration to colonized peoples throughout Asia. Japan’s achievement was a potent refutation of racist assumptions of Asian inferiority, offering vivid proof that the West was not all-powerful. Japan’s rapid expansion in 1941–42 humiliated the Western powers in Southeast Asia and parts of the Pacific, making it impossible that they could return to the comfortable pre-war assumptions of superiority. Second, the Japanese victories and the destruction and disruption that accompanied the war seriously weakened the military capacity of the Western powers and the direct economic value of the Southeast Asian colonies. The ferocious fighting over Manila, the Allied bombing of cities such as Rangoon and Surabaya, catastrophic famines in northern Vietnam and Java, and the running down and repurposing of colonial infrastructure for the war effort me...