Andrea J. Horbinski (![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png)
ahorbinski) wrote2011-11-13 10:42 pm
ahorbinski) wrote2011-11-13 10:42 pm
Entry tags:
Book review: The Tokyo War Crimes Trial
Bibliographic Data: Totani, Yuma. The Tokyo War Crimes Trial: The Pursuit of Justice in the Wake of World War II. Cambridge, MA: Harvard University Asia Center, 2008.
Main Argument: Totani assesses the actual proceedings of the International Military Tribunal for the Far East (IMTFE) against the myths that later sprung up in the discourse around the trial, as well as surveying the history of criticism and historical analysis around the Tokyo Tribunal since its conclusion. Many of the myths about the trial, such as the idea that Gen. MacArthur alone kept Hirohito from prosecution, that prosecutors did not address Japanese war crimes in detail, and that the law applied at Tokyo was without precedent, do not match the historical reality of the Tribunal.
Historiographical Engagement: Totani's major innovation, aside from a thorough review of the Japanese-language sources on the Tribunal since its conclusion, was to travel to Australia and to review the court exhibits of the trial, which are vastly longer even than the transcript of the Tribunal's proceedings (which runs to 23 volumes in quarto) and which contain a wealth of additional information that materially affects the understanding of what the Tribunal did, and was trying to do.
Introduction: Argument, Sources, Examples After laying out the terms of Totani's investigation and its scope, she proceeds to offer a brief background sketch on the logistics of the Tokyo Tribunal--the composition of its prosecution, defense, defendants and physical location.
Chapter 1: Argument, Sources, Examples The first chapter details the preliminary phase of the Tribunal, pointing out how the Tokyo Tribunal drew its core legal precedents and legal goal (the confirmation of the crime of aggressive war, i.e. "crimes against peace", as an actionable violation of international law) from the Tribunal at Nürnberg. This chapter also details, not for the last time, the ways in which the flaming incompetence of the American chief prosecutor, Joseph B. Keenan, were materially detrimental to the goal of the Tribunal, particularly in his failure to secure documents pertaining to the pre-trial investigation for the IMTFE.
Chapter 2: Argument, Sources, Examples This chapter explores, in much detail, the question of whether or not to put Emperor Hirohito in the dock at the IMTFE, which was debated over many years at the highest levels among the Allied powers. Rather than MacArthur single-handedly saving Hirohito from prosecution (MacArthur's burgeoning megalomania gets a thorough outing in these pages), the decision not to prosecute the Emperor came about mostly through deliberate Allied inaction in conjunction with the changing security climate.
Chapter 3: Argument, Sources, Examples This chapter considers the question of who was indicted and brought to trial at the Tribunal versus who was actually arrested, a vexed question in light of the fact a number of "Class A" criminals who were freed without trial later became notable figures in postwar Japanese politics (particularly Kishi Nobusuke, who as Prime Minister in 1960 oversaw the illegal re-authorization of the U.S.-Japan Security Treaty in the midst of a riot). As has been fairly well-known, the prosecution team selected the 28 people they did indict (of whom 25 eventually stood trial) to be representative, both in terms of the breadth of the Japanese government (most indictees had served in multiple governmental positions) as well as in terms of phases of the war, which the prosecutors identified as having comprised roughly 10 phases over 15 years.
Chapter 4: Argument, Sources, Examples This chapter, in Totani's own phrase, "limits its tasks to exploring how the law pertaining to crimes against peace was put to actual use at Tokyo and comparing this application to the Nuremberg precedent" (78). Totani finds that rather than being a "flawed copy" of the Nürnberg Tribunal (a common historiographical construction), the Charter of the Tokyo Tribunal actually confirmed and extended Nürnberg precedents by clarifying several ambiguities in the Nürnberg Charter. Furthermore, the Tribunal continuously made judgments in such a way as to indicate that all legal questions about criminal conspiracies to war and crimes against peace had been resolved at Nürnberg, and, crucially, they rejected the doctrine of state impunity from prosecution in line with Nürnberg findings. Overall, Totani finds that "although the Tokyo Tribunal may have mishandled the conspiracy counts, its findings on substantive counts stood up to the test of history and came to set the foundation of the postwar Japanese historiography of World War II" (97).
Chapter 5: Argument, Sources, Examples This chapter gets into the torturous, and extended, question of war crimes and Japan's culpability in the commission of them during the war: the defense claimed, strenuously, that as Japan was not a signatory to the Geneva Convention and had pledged to apply its stipulations only mutatis mutandis, its mistreatment of POWs in particular was not strictly against international law. In contrast, the prosecution developed three separate theories of responsibility for war crimes: direct responsibility, command responsibility, and cabinet responsibility. It is important to note three things in the prosecution's war crimes strategy: first, the Japanese government was able to destroy the majority of documents relating to the atrocities it committed in the time between the surrender and the Occupation; second, prosecutors at Tokyo relied heavily on evidence and witnesses supplied by B & C trials throughout the Asia-Pacific; third, to streamline the trial prosecutors elected to give synopses of evidence in court, leaving the full details of their evidence for the court exhibits.
Chapter 6: Argument, Sources, Examples This chapter examines the case of the Nanjing Massacre and the Burma-Siam Death Railway, two of the most well-known Japanese wartime atrocities in the West, as the two single most instances of war crimes examined in the trial. In both cases the prosecution produced documentary evidence and witnesses that the defense was essentially unable to refute, and in both cases guilty verdicts relating to these incidents set important precedents in international law, confirming the principles of command and cabinet responsibility to prevent and to stop war crimes as they are being committed. These principles have been confirmed and extended very recently, particularly at the ICTR and the ICTY as recently as 2008.
Chapter 7: Argument, Sources, Examples In light of the massive destruction of documents relating to war crimes, Allied prosecutors as a group embarked on a strategy of demonstrating that war crimes were perpetrated in recurring patterns across the theaters of the war. To this end, individual national prosecutors introduced a wealth of evidence of war crimes committed in their specific countries, the most notable of which were the Commonwealth prosecutors, who documented more violations against Asian colonial populations than against Allied nationals, and the Dutch prosecutors, who were exceptionally thorough in documenting both war crimes of cannibalism and those pertaining to the comfort women system. In both cases, colonial authority that was left in tatters at the end of the war was at stake.
Chapter 8: Argument, Sources, Examples In this chapter Totani reviews the first generation of Japanese responses to the Tokyo Tribunal, namely those written during and just after its proceedings. "These scholars," Totani writes, "were interested in finding out, above all, how this trial would reveal the truth about Japan's path to war" (190). Despite noting that the Tribunal was by no means perfect, by and large this first generation of analysts found that the Tribunal, both in its upholding the general principle of justice by taking the perpetrators of the war to court, and in its application of the doctrine of crimes against peace and the charge of aggressive war, was valuable and legitimate. People writing after the Tribunal also found that its potential pedagogical value for the Japanese legal system as it reformed itself along an Anglo-American model (i.e. right to make a defense, right to cross-examine, presumption of innocence rather than presumption of guilt) was very great.
Chapter 9: Argument, Sources, Examples This chapter examines the fraught and significant topic of the dissent of the Indian Justice Radhabinod Pal, whose massive dissenting opinion has come to form the major foundation of the anti-Tokyo Tribunal strain of Japanese history, culture and politics since the end of the Occupation. The details Totani reveals about Pal leave him even more of a puzzle (and a morally repugnant one at that), and come no closer to explaining what exactly motivated his sweeping opinion, in which he found all of the defendants innocent on all counts, both because they were innocent and because, in Pal's opinion, the Tribunal itself was not legitimate. (Crucially, Indian Prime Minister Nehru immediately communicated to Allied governments that Pal's opinion did not match the government of India's. At some point before rendering his opinion, Pal had gone rogue.) Scholars on both sides of the Pacific picked up on Pal's themes, and in particular, Richard Minear and Ienaga Saburô debated the legitimacy of Pal's dissent in a trans-Pacific fashion. Despite Minear's minority view, however (which is not supported by documentary evidence), "while those who had repudiated the Tokyo trial succeeded in disseminating Pal's dissenting opinion far and wide in Japanese society, its counterarguments had also gained firm ground, providing the basic conceptual framework for the study of World War II in Japan today" (245).
Conclusion: Argument, Sources, Examples The conclusion traces the history of scholarship on the Tribunal since the 1980s. "when a large number of trial-related records around the world became declassified and were made available to researchers" (246). Totani concludes that the staying power of the "absence of Asia" Tribunal criticism (which is not supported by the trial transcripts) relates to the ways Japan has processed its war guilt in the decades following the war. The newest and most promising interpretation of the Tribunal marries history and law (much as Totani's study does) makes it "conceptually possible as well as acceptable for Japanese scholars to go beyond the limits of the victors' justice perspective" (259).
Critical assessment: This is a strong, beautifully researched study that richly deserves to supplant Richard Minear's jeremiad Victor's Justice as the standard work in English on the Tokyo Tribunal. I could wish for many things about this book--that Totani had more clearly articulated her project, that she had explicitly noted that the first generation of Tribunal analysts were writing during the Occupation, that she took less of a narrow focus on the Tribunal itself in favor of the discourse on it in popular culture--but these quibbles cannot detract from its manifest strengths.
One of the key, and fairly subtle, things that Totani does is to completely downplay, deconstruct, or altogether neglect the key tropes and figures of the Tribunal discourse. She (rightfully) makes Tôjô look like a morally bankrupt weasel, leaves figures like B.V.A. Röling and the Women's International War Crimes Tribunal almost entirely out, and rightfully portrays MacArthur as a megalomaniac who had little personal influence over the fate of Emperor Hirohito, who was spared by a conjunction of Allied inaction and delay. She even, while rightfully exposing the true degree of Joseph Keenan's flaming incompetency, deliberately declines to quote the trial's single most well-known exchange, in which Tôjô blamed the Emperor for the war under Keenan's cross-examination, and declines to condemn Keenan in so many words.
All these choices are deliberate, and the picture Totani paints is stronger for it.
Meta notes: I've done a fair amount of research on the Tokyo Tribunal, and had I fully digested this book before publishing my paper on it last spring I would have substantially rewritten the section concerning Pal in particular, who from an ethical standpoint seems to have totally abandoned any defensible ethical principle in his increasingly fervent propounding of pan-Asianism (!), even to the point of telling convicted B and C war criminals in the 1950s that they had not committed any crimes (!). I also came away with even less respect for Richard Minear, who failed the basic standard of scholarship by declining to base his claims about the Tribunal in its actual historical realities. We all write history for our own times and from our own viewpoints; we must abide by certain basic standards of the practice of history, or everything we write will be, in the end, so much hot air, and just as vain.
Main Argument: Totani assesses the actual proceedings of the International Military Tribunal for the Far East (IMTFE) against the myths that later sprung up in the discourse around the trial, as well as surveying the history of criticism and historical analysis around the Tokyo Tribunal since its conclusion. Many of the myths about the trial, such as the idea that Gen. MacArthur alone kept Hirohito from prosecution, that prosecutors did not address Japanese war crimes in detail, and that the law applied at Tokyo was without precedent, do not match the historical reality of the Tribunal.
Historiographical Engagement: Totani's major innovation, aside from a thorough review of the Japanese-language sources on the Tribunal since its conclusion, was to travel to Australia and to review the court exhibits of the trial, which are vastly longer even than the transcript of the Tribunal's proceedings (which runs to 23 volumes in quarto) and which contain a wealth of additional information that materially affects the understanding of what the Tribunal did, and was trying to do.
Introduction: Argument, Sources, Examples After laying out the terms of Totani's investigation and its scope, she proceeds to offer a brief background sketch on the logistics of the Tokyo Tribunal--the composition of its prosecution, defense, defendants and physical location.
Chapter 1: Argument, Sources, Examples The first chapter details the preliminary phase of the Tribunal, pointing out how the Tokyo Tribunal drew its core legal precedents and legal goal (the confirmation of the crime of aggressive war, i.e. "crimes against peace", as an actionable violation of international law) from the Tribunal at Nürnberg. This chapter also details, not for the last time, the ways in which the flaming incompetence of the American chief prosecutor, Joseph B. Keenan, were materially detrimental to the goal of the Tribunal, particularly in his failure to secure documents pertaining to the pre-trial investigation for the IMTFE.
Chapter 2: Argument, Sources, Examples This chapter explores, in much detail, the question of whether or not to put Emperor Hirohito in the dock at the IMTFE, which was debated over many years at the highest levels among the Allied powers. Rather than MacArthur single-handedly saving Hirohito from prosecution (MacArthur's burgeoning megalomania gets a thorough outing in these pages), the decision not to prosecute the Emperor came about mostly through deliberate Allied inaction in conjunction with the changing security climate.
Chapter 3: Argument, Sources, Examples This chapter considers the question of who was indicted and brought to trial at the Tribunal versus who was actually arrested, a vexed question in light of the fact a number of "Class A" criminals who were freed without trial later became notable figures in postwar Japanese politics (particularly Kishi Nobusuke, who as Prime Minister in 1960 oversaw the illegal re-authorization of the U.S.-Japan Security Treaty in the midst of a riot). As has been fairly well-known, the prosecution team selected the 28 people they did indict (of whom 25 eventually stood trial) to be representative, both in terms of the breadth of the Japanese government (most indictees had served in multiple governmental positions) as well as in terms of phases of the war, which the prosecutors identified as having comprised roughly 10 phases over 15 years.
Chapter 4: Argument, Sources, Examples This chapter, in Totani's own phrase, "limits its tasks to exploring how the law pertaining to crimes against peace was put to actual use at Tokyo and comparing this application to the Nuremberg precedent" (78). Totani finds that rather than being a "flawed copy" of the Nürnberg Tribunal (a common historiographical construction), the Charter of the Tokyo Tribunal actually confirmed and extended Nürnberg precedents by clarifying several ambiguities in the Nürnberg Charter. Furthermore, the Tribunal continuously made judgments in such a way as to indicate that all legal questions about criminal conspiracies to war and crimes against peace had been resolved at Nürnberg, and, crucially, they rejected the doctrine of state impunity from prosecution in line with Nürnberg findings. Overall, Totani finds that "although the Tokyo Tribunal may have mishandled the conspiracy counts, its findings on substantive counts stood up to the test of history and came to set the foundation of the postwar Japanese historiography of World War II" (97).
Chapter 5: Argument, Sources, Examples This chapter gets into the torturous, and extended, question of war crimes and Japan's culpability in the commission of them during the war: the defense claimed, strenuously, that as Japan was not a signatory to the Geneva Convention and had pledged to apply its stipulations only mutatis mutandis, its mistreatment of POWs in particular was not strictly against international law. In contrast, the prosecution developed three separate theories of responsibility for war crimes: direct responsibility, command responsibility, and cabinet responsibility. It is important to note three things in the prosecution's war crimes strategy: first, the Japanese government was able to destroy the majority of documents relating to the atrocities it committed in the time between the surrender and the Occupation; second, prosecutors at Tokyo relied heavily on evidence and witnesses supplied by B & C trials throughout the Asia-Pacific; third, to streamline the trial prosecutors elected to give synopses of evidence in court, leaving the full details of their evidence for the court exhibits.
Chapter 6: Argument, Sources, Examples This chapter examines the case of the Nanjing Massacre and the Burma-Siam Death Railway, two of the most well-known Japanese wartime atrocities in the West, as the two single most instances of war crimes examined in the trial. In both cases the prosecution produced documentary evidence and witnesses that the defense was essentially unable to refute, and in both cases guilty verdicts relating to these incidents set important precedents in international law, confirming the principles of command and cabinet responsibility to prevent and to stop war crimes as they are being committed. These principles have been confirmed and extended very recently, particularly at the ICTR and the ICTY as recently as 2008.
Chapter 7: Argument, Sources, Examples In light of the massive destruction of documents relating to war crimes, Allied prosecutors as a group embarked on a strategy of demonstrating that war crimes were perpetrated in recurring patterns across the theaters of the war. To this end, individual national prosecutors introduced a wealth of evidence of war crimes committed in their specific countries, the most notable of which were the Commonwealth prosecutors, who documented more violations against Asian colonial populations than against Allied nationals, and the Dutch prosecutors, who were exceptionally thorough in documenting both war crimes of cannibalism and those pertaining to the comfort women system. In both cases, colonial authority that was left in tatters at the end of the war was at stake.
Chapter 8: Argument, Sources, Examples In this chapter Totani reviews the first generation of Japanese responses to the Tokyo Tribunal, namely those written during and just after its proceedings. "These scholars," Totani writes, "were interested in finding out, above all, how this trial would reveal the truth about Japan's path to war" (190). Despite noting that the Tribunal was by no means perfect, by and large this first generation of analysts found that the Tribunal, both in its upholding the general principle of justice by taking the perpetrators of the war to court, and in its application of the doctrine of crimes against peace and the charge of aggressive war, was valuable and legitimate. People writing after the Tribunal also found that its potential pedagogical value for the Japanese legal system as it reformed itself along an Anglo-American model (i.e. right to make a defense, right to cross-examine, presumption of innocence rather than presumption of guilt) was very great.
Chapter 9: Argument, Sources, Examples This chapter examines the fraught and significant topic of the dissent of the Indian Justice Radhabinod Pal, whose massive dissenting opinion has come to form the major foundation of the anti-Tokyo Tribunal strain of Japanese history, culture and politics since the end of the Occupation. The details Totani reveals about Pal leave him even more of a puzzle (and a morally repugnant one at that), and come no closer to explaining what exactly motivated his sweeping opinion, in which he found all of the defendants innocent on all counts, both because they were innocent and because, in Pal's opinion, the Tribunal itself was not legitimate. (Crucially, Indian Prime Minister Nehru immediately communicated to Allied governments that Pal's opinion did not match the government of India's. At some point before rendering his opinion, Pal had gone rogue.) Scholars on both sides of the Pacific picked up on Pal's themes, and in particular, Richard Minear and Ienaga Saburô debated the legitimacy of Pal's dissent in a trans-Pacific fashion. Despite Minear's minority view, however (which is not supported by documentary evidence), "while those who had repudiated the Tokyo trial succeeded in disseminating Pal's dissenting opinion far and wide in Japanese society, its counterarguments had also gained firm ground, providing the basic conceptual framework for the study of World War II in Japan today" (245).
Conclusion: Argument, Sources, Examples The conclusion traces the history of scholarship on the Tribunal since the 1980s. "when a large number of trial-related records around the world became declassified and were made available to researchers" (246). Totani concludes that the staying power of the "absence of Asia" Tribunal criticism (which is not supported by the trial transcripts) relates to the ways Japan has processed its war guilt in the decades following the war. The newest and most promising interpretation of the Tribunal marries history and law (much as Totani's study does) makes it "conceptually possible as well as acceptable for Japanese scholars to go beyond the limits of the victors' justice perspective" (259).
Critical assessment: This is a strong, beautifully researched study that richly deserves to supplant Richard Minear's jeremiad Victor's Justice as the standard work in English on the Tokyo Tribunal. I could wish for many things about this book--that Totani had more clearly articulated her project, that she had explicitly noted that the first generation of Tribunal analysts were writing during the Occupation, that she took less of a narrow focus on the Tribunal itself in favor of the discourse on it in popular culture--but these quibbles cannot detract from its manifest strengths.
One of the key, and fairly subtle, things that Totani does is to completely downplay, deconstruct, or altogether neglect the key tropes and figures of the Tribunal discourse. She (rightfully) makes Tôjô look like a morally bankrupt weasel, leaves figures like B.V.A. Röling and the Women's International War Crimes Tribunal almost entirely out, and rightfully portrays MacArthur as a megalomaniac who had little personal influence over the fate of Emperor Hirohito, who was spared by a conjunction of Allied inaction and delay. She even, while rightfully exposing the true degree of Joseph Keenan's flaming incompetency, deliberately declines to quote the trial's single most well-known exchange, in which Tôjô blamed the Emperor for the war under Keenan's cross-examination, and declines to condemn Keenan in so many words.
All these choices are deliberate, and the picture Totani paints is stronger for it.
Meta notes: I've done a fair amount of research on the Tokyo Tribunal, and had I fully digested this book before publishing my paper on it last spring I would have substantially rewritten the section concerning Pal in particular, who from an ethical standpoint seems to have totally abandoned any defensible ethical principle in his increasingly fervent propounding of pan-Asianism (!), even to the point of telling convicted B and C war criminals in the 1950s that they had not committed any crimes (!). I also came away with even less respect for Richard Minear, who failed the basic standard of scholarship by declining to base his claims about the Tribunal in its actual historical realities. We all write history for our own times and from our own viewpoints; we must abide by certain basic standards of the practice of history, or everything we write will be, in the end, so much hot air, and just as vain.