“The illegal we do immediately. The unconstitutional takes a little longer.” Henry Kissinger
“If the Nuremberg laws were applied, then every post-war American president would have been hanged.”
Noam Chomsky
My interest in the International Military Tribunal for the Far East is pricked by the disconcerting legacy of the trial. The dichotomy between contrived justice and hypocrisy was shrewdly recognised by Justice Robert Jackson in his injunction at Nuremburg: “We must never forget that the record on which we judge these defendants is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well.”[1]The statement makes expressly clear that the moral authority of the United States and the other ten prosecuting nations allied therewith, is conspicuously tied to its faculty to adhere and emulate the principles of international laws as derived at Tokyo and Nuremburg. However, the repeated failures of the United States to aspire to the kind of conduct pursuant to the justice she prescribed so emphatically, an indictment which will guide the remainder of this essay in proving, is a ceaseless display of wilful indifference and neglect, that surely invalidates all reasserted dignity claimed in punishing the Axis Powers. Naturally questions arise – should it be ascertained that the United States is guilty of such acts – about the true extent of American proclivity to construe and fashion justice for its own political goals; inviting one to surmise the damage such nefarious legal orchestration does to American credibility.
The International Military Tribunal for the Far East (IMFTE) was a military trial convened on April 29th, 1946, to prosecute the leaders of the Empire of Japan.[2]The Tribunal assumed authority to try and punish Far Eastern war criminals as individuals or as members of organizations for the following acts:
"(a) Crimes against Peace: Namely, the planning, preparation, initiation or waging of a declared or undeclared war of aggression, or a war in violation of international law, treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing;
"(b) Conventional War Crimes: Namely, violations of the laws or customs of war;
"(c) Crimes against Humanity: Namely, murder, extermination, enslavement, deportation, and other inhumane acts committed before or during the war, or persecutions on political or racial grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.”[3]
Twenty-eight Japanese military and political leaders were charged with fifty-five separate counts. Of the defendants: seven were hanged, sixteen were sentenced to life imprisonment, two died of natural causes during the proceedings, and one was found mentally ill and unfit to stand trial.[4]
The trial, however noble in its endeavours, was fraught with problematic legal processes, with substantive objections raised over matters of jurisdiction, procedure, and rules of evidence. Indeed, Justice Pal, the sole judge to dissent from the Tokyo Judgment, and notably the only judge specialised in international law, likened the trials as “little more than a sword in a judge’s wig”.[5]Rather than becoming embroiled in detailing the litany of disputes levelled against the trial – a course that would exhaust the entire word limit – this essay will enumerate only some as opined by Justice Pal in his dissent. This is for merely illustrative purposes; to show how the dubious employment of legal processes can be an instrument for political ends or procured to satisfy one’s appetite for retribution. Our focus still remains in establishing the precedent set at Tokyo to apply against succeeding cases of unchecked U.S foreign policy.
Dissent of Justice Pal
The task of abridging the dissentient judgement of Justice Pal, a comprehensive 700-page argument, into a short summary will inevitably be unexhaustive of all points. Listed below include some of the more pertinent for my purposes as aforementioned:
1. Victor’s Justice
From the outset, the Defence expressed apprehension in the Tribunal’s ability to execute a free and impartial trial. The root to this sentiment resided in the fact that Members of the Tribunal were representatives of the Allied Powers and had suffered the brunt of the atrocities accused. The ability of judges to maintain moral integrity; fend off bias, conscience or otherwise; and relinquish prejudice was naturally questioned by the Defence. Because any predisposition for a fair and impartial trial would require every judge to overcome this arduous personal tribulation, the risk for a miscarriage of justice was therefore high. In Justice Pal’s dissent, he quotes Professor Hans Kelsen to demonstrate this point: “It is quite understandable that during the war the people who are the victims of the abominable crimes of the Axis Power wish to take law in their own handsin order to punish the criminals. But after the war will be over our minds will be open again to the consideration that criminal jurisdiction exercised by the injured states over enemy subjects is considered by the people of the delinquents as vengeance rather than justice…”[6]. Man’s aptitude for revenge is thought to usurp his duty to justice and thus Justice Pal dismisses the legitimacy of the IMFTE accordingly.
2. Jurisdiction
The issue of jurisdiction consumed a large portion of Justice Pal’s dissent. Though the evidence becomes technical in detail, the notion that justice can, and often is, tethered to the whims of the victor is again observed.
Put simply, Justice Pal disputed the view that Article 5 of the Tokyo Charter, which delineated the different cognizable crimes by this Tribunal, constituted the acts as criminal per se. Pal instead deemed that these acts are simply triable by the Tribunal. (“Whether or not these acts constitute any crime is left open for determination by the Tribunal with reference to appropriate law”). The semantics are important. Were the acts to be prescribed as criminal, and the Tribunal be stifled from determining so on its own accord through the application of “appropriate law”, the trial ceases to function as a court of law and becomes amanifestation of power. This was especially pertinent when examining the legality of aggression. The question of aggression – its appearance and qualifications; and the jurisdiction given to the charge – was keenly debated. The Majority concluded, perhaps validly, that treaties such as the Kellogg-Briand Pact can be used to determine that there was a “tortious obligation not to use force in international relations”.[7]Yet this didn’t translate into a criminal obligation on individuals and bestowed no authority upon the Tribunal to prosecute on such grounds. This lack of legal authority was intently rebuked by Justice Pal who observed wryly that only a lost war was a crime. Below, Pal describes the significance if one subscribes to the notion that the criminality of acts is already constituted through Article 5.
“The so-called trial held according to the definition of crime now given by the victors obliterates the centuries of civilization which stretch between us and the summary slaying of the defeated in a war. A trial with law thus prescribed will only be a sham employment of legal process for the satisfaction of a thirst for revenge. It does not correspond to any idea of justice. Such a trial may justly create the feeling that the setting up of a tribunal like the present is much more than a political than a legal affair, an essentially political objective having thus cloaked by a judicial appearance.” [8]
Notice the reappearing themes of justice wielded for political ends.
3. The Exoneration of the Imperial Family and other Prominent Suspects
The most visible manifestation of justice procured in the spirit of pragmatism actually fell outside the scope of Justice Pal’s dissent: the decision not to indict the Imperial Family, or other prominent suspects including industrialists and leaders of the Kempeitai (the military police).[9]No-where else at Nuremburg or Tokyo was justice so conspicuously warped to suit the needs of the victor. So blatantly did the United States Government connive the amnesties of such notable – and indeed guilty – figures for political means; that it demands one to question the true value the United States attaches to its long held legal principles, such as rule of law. The decision not to indict those involved in the activities of Unit 731, which conducted human experiments including vivisections, dissections, weapons testing, starvation, dehydration, poisoning, extreme temperature and pressure testing, and deliberate infection with numerous deadly diseases, such as bubonic plague, cholera, anthrax, smallpox, gangrene, streptococcus bacteria, and syphilis,[10]simply belies one’s basic understanding of what the United States represents. As one U.S sailor wrote:
“No matter what the American authorities believed those research papers contained, the objectives cannot possibly justify their actions. The research was in any case crude, backward, and barbaric. Any nation that had a monopoly on nuclear power certainly did not need this kind of research information—nor did we need to embarrass ourselves in such a despicable manner.”[11]
I have drawn on these examplesto simply illustrate that justicecan become malleable under the pressures of special political interests. This list is not in any way conclusive of all such manifestations seen at Tokyo.
The Tokyo Precedent
Though numerous precedents were established at Tokyo, this essay will examine just one: the Yamishita Standard. General Tomoyuki Yamashita was tried for war crimes relating to the Manila Massacre and many other atrocities in the Philippines against civilians and prisoners of war.[12]However, as detailed in his Defence, this case established a precedent in the presumed culpability of an individual based on the actions of his subordinates.
The charge alleges that the Accused failed in his duty to control his troops, permitting them to commit certain alleged crimes. The Bill of Particulars, however, sets forth no instance of neglect of duty by the Accused. Nor does it set forth any acts of commission or omission by the Accused as amounting to a ‘permitting’ of the crimes in question.
The Accused is not charged with having done something or having failed to do something, but solely with having been something. For the gravamen of the charge is that the Accused was the commander of the Japanese forces, and by virtue of that fact alone, is guilty of every crime committed by every soldier assigned to his command.
American jurisprudence recognizes no such principle so far as its own military personnel is concerned. The Articles of War denounce and punish improper conduct by military personnel, but they do not commanding officer for the crimes committed by his subordinates. No one would even suggest that the Commanding General of an American occupational force becomes criminal every time an American soldier violates the law. It is the basic premise of all civilized criminal justice that it punishes not according to status but according to fault, and that one man is not held to answer for the crime of another. [13]
Yamishita’s death sentence signified the inception of a new concept in law: command responsibility. It marked for the first time in modern history that a commanding officer has been held criminally liable for acts committed by his troops. It also marked the first time in modern history that any man has been held criminally liable for acts which according to the conclusion of the Commission did not involve criminal intent or even gross negligence. This would prove to have devastating consequence on US jurisprudence.
Conclusion
Ideally, this essay would now commence its case against various US president’s in failing to uphold and emulate the justice that was directed at Axis Powers at Tokyo, but the limited word count has prevented this possibility. Noam Chomsky, as quoted at the header of this essay, has undertaken a similar line of work and concluded – if by way of general description rather than through a legal framework – that all U.S presidents would be hanged. The precedent set by Yamishita for command responsibility – which stripped criminal intent and gross negligence from the burden of proof – should aid one in understanding Chomsky’s judgment: The threshold for criminality has not been set particularly high. One needs only to cast his mind back to the interventionist foreign policies in Latin America during the Cold War, the atrocities committed in Korea and Indochina, and more recently in the War against Terror across the Middle East, to gain some comprehension of the extent of American crimes in international law.
Upon concluding, the greatest Precedent set at Tokyo is perhaps how justice can become a powerful instrument for the victor powers. Justice Pal was the sole judge to dissent from the Tokyo Judgement, and he feared that owed largely to the pressure exerted on Judges and were not in a position to resist. Pal himself was pressed by Rama Roa, the Indian ambassador to Japan at the time, to concur with the majority judgment so as not to incur political pushback. Tokyo perhaps also represent one of the first taints to American Exceptionalism that prior to then had been knitted so tightly into the national psyche as Manifest Destiny.
Bibliography
Boister, N. (2014). The Tokyo Military Tribunal: A Show Trial? Historical Origins of International Criminal Law: Volume 2, 3-29.
Britannica, T. E. (2020, October 18). Yamashita Tomoyuki.Retrieved from Encyclopaedia Britannica: https://www.britannica.com/biography/Yamashita-Tomoyuki
Chomsky, N. (1990). If the Nuremberg Laws were Applied….Retrieved from chomsky.info: https://chomsky.info/1990____-2/
Hosch, D. J. (2020, September 8). More About the IMTFE. Retrieved from Alexander Cambell King Law Library: https://libguides.law.uga.edu/c.php?g=177176&p=1164581
Kaufman, Z. D. (2013). Transitional Justice for Tōjō’s Japan: The United States Role in the Establishment of the International Military Tribunal for the Far East and other Transitional Justice Mechanisms for Japan after World War II. Emory International Law Review, 755-798.
Lael, R. (1946). The Yamashita Precedent: War Crimes and Command Responsibility.Wilmington: Scholarly Resources.
Pal, R. (1999). Dissentient Judgement of Justice Pal.Tokyo : Kokusho- Kankokai, Inc.
Taylor, T. (1955). The Nuremberg Trials. Columbia Law Review , 488-525.
The Tokyo Trials Holocaust and Human Behavior.(2020). Retrieved from facinghistory.org: https://www.facinghistory.org/holocaust-and-human-behavior/chapter-10/tokyo-trials
[1]Telford Taylor, The Nuremberg Trials [2]Zachary D. Kaufman, Transitional Justice for Tōjō’s Japan: The United States Role in the Establishment of the International Military Tribunal for the Far East and other Transitional Justice Mechanisms for Japan after World War II [3]Radhabinod Pal, Dissentient Judgement of Justice Pal [4]Dean J. Alton Hosch, More About the IMFTE [5]Radhabinod Pal, Dissentient Judgement of Justice Pal [6]Radhabinod Pal, Dissentient Judgement of Justice Pal [7]Neil Boister, The Tokyo Military Tribunal: A Show Trial? [8]Radhabinod Pal, Dissentient Judgement of Justice Pal [9]Facing History and Ourselves, The Tokyo Trials [10]Zachary D. Kaufman, Transitional Justice for Tōjō’s Japan [11]Zachary D. Kaufman, Transitional Justice for Tōjō’s Japan [12]Yamashita Tomoyuki, The Editors of Encyclopaedia Britannica [13]Richard Lael, The Yamashita Precedent: War Crimes and Command Responsibility