Tokyo, Gaza, London: justice, human rights and the international rules-based order

In the 1990s I was invited to a reception to mark the opening of an exhibition from the Museum of Modern Art in New York. After a lowish member of the imperial family had made her entrance and taken a seat in a roped off area of the room from where she presided in absolute silence, drank not a drop, and ate not a morsel while the guests quaffed champagne and tucked into the food, an oldish Japanese man gave a welcoming speech. A Japanese employee of the British Council whispered in my ear: “He’s a war criminal.” I forget his name, but he had served as a young officer in China during the war and had rehabilitated himself as a prominent figure in the art world.

 

I was reminded of my closest encounter with a war criminal when I read Gary J Bass’ monumental book Judgement at Tokyo: World War II on Trial and the Making of Modern Asia. The book is, as its title suggests, much more than just an account of the Tokyo war crimes trial, but its scrutiny of the trial’s contribution to the emergence of post-war international law is extraordinarily relevant in these turbulent times.

 

The tribunal that met in a devastated firebombed Tokyo had eleven judges:

 

Henri Bernard (France), on the tribunal because of the Japanese occupation of French Indochina, then under the rule of Pétain’s Vichy French regime.

Delfin Jaranilla (the Philippines), present because of Japanese crimes during the occupation of the islands. The Philippines had been in effect a US colony since the American defeat of Spain in 1898 and the Philippine-American war of 1899-1902. The Philippines had become independent of American rule in 1946.

E Stuart McDougal (Canada). Canada was a supporter of British imperial interests in the trial.

Major General Myron Cramer (USA). The USA had its own interests in the trial. Firstly, the US was really interested only in punishment for Pearl Harbor. Britain’s interest in restoring its empire, China’s search for justice for the Nanjing Massacre and other outrages, for example, were tiresome and caused the trial to last much longer than the US felt was necessary. Secondly, the trial was part of a broader plan to make a Japan rising from wartime ruins a key ally to advance US interests in East Asia.

Erima Harvey Northcroft (New Zealand). Like Canada, New Zealand helped to advance British interests,

Radhabinod Pal (India), who had served as a judge in British colonial India, but after independence in 1947 was a representative of an anti-colonial India. Pal wrote a long dissent arguing that all the indicted should be acquitted because the crimes of which they were accused did not exist, war being a prerogative of nation states. His document has become a favourite of Japanese revisionists who reject the convictions of the Tokyo tribunal. Alone among the judges, Pal has a statue In his honour at the Yasukuni Shrine, Japan’s memorial to its war dead.

Lord William Patrick (Great Britain), who answered to the imperially minded Labour foreign secretary Ernest Bevin. Britain’s interest in the trial was not only to punish Japanese crimes, but to consolidate Britain’s hold on imperial possessions forcibly occupied by Japan.

Bert Röling (Holland), present because of Japan’s occupation of the Netherlands East Indies (Indonesia). Röling wrote a more limited dissent from the final judgement than Pal.

Mei Ruao (China), appointed by the Nationalist government of Chiang Kai-Shek, which during the course of the trial was losing ground to Mao Zedong’s Communists. Mei was concerned primarily with justice for Japanese atrocities in China, most notably the Nanjing Massacre.

Sir William Webb (Australia), the irascible president of the trial, and like the New Zealand and Canadian judges present because of cruelties inflicted by the Japanese on Australian, Canadian and New Zealand POWs, but also as representatives of the Commonwealth and the British Empire.

Major General Ivan Zaryanov (Soviet Union) representing the political interests of Joseph Stalin, most notably concerning military encounters with the Japanese in northern China. Zaryanov approached the tribunal much as he might have a show trial in Moscow and was frequently frustrated by the legal approaches of the other judges, and especially by the determined work of the American and Japanese defence attorneys.

 

The chief prosecutor was an American Joseph Keenan, a personal appointment of President Franklin Delano Roosevelt, who was absent at times because of ill health, and given to frequent drunkenness. When Keenan was absent or incapacitated, the British prosecutor Arthur Comyns Carr assumed control of the prosecution, mindful of British imperial interests. Both pursued the interests of their governments: Keenan to avoid prosecuting Emperor Hirohito and Comyns Carr the restoration and protection of the Empire.

 

The other key player was no judge, but General Douglas MacArthur, the supreme commander in Japan who had his own interests in shaping post-war Japan. MacArthur’s personal interest in the trial was to punish the Japanese for the cruelties of the Bataan death march in the Philippines. He shared the US government’s determination that Emperor Hirohito should under no circumstances be prosecuted. MacArthur had a very personal vision of a democratic Japan, in which the Emperor would be the guarantor of democracy. Indeed, the first post-war election returned to the National Diet, much to the alarm of the US government, some communists and numerous socialists. MacArthur’s Quixotic overweening democracy project was soon derailed by the rise of Communism in East Asia, particularly in China. In this context, from the point of view of the US government the trial was a lengthy and dangerous distraction from building Japan into an anti-communist bulwark. Those accused of war crimes scheduled to be judged in a second and subsequent trials were released, and indeed some became significant figures in post-war Japan. For example, Kishi Nobusuke, accused on crimes in China, and grandfather of future Prime Minister Abe Shinzō, was Prime Minister from 1957-1960.  The rightward shift reflected in the election of Kishi was no accident. The USA alarmed by the Communist victory over the Nationalists in China and the ever-present Soviet threat had decided that there must be limits to democracy in Japan. The CIA accordingly assisted Kishi in forming a conservative bloc whose heirs have ruled Japan to this day.

 

The judges had considerable difficulty in agreeing whether the court had jurisdiction to pursue the proposed charges, and also whether some charges were crimes at all. One of the charges against Japan was the crime of international aggression: the violation of national sovereignty and the acquisition of territory by force. There was a considerable irony here. Several of the nations represented by judges and prosecutors had been guilty of acquiring colonies by exactly the same method: Holland in the Netherlands East Indies, France in French Indochina, the US in the Philippines, and Britain in India, Burma, Hong Kong, Singapore. One charge that was rigorously avoided (much to the annoyance of judge Mei) was the murder of civilians by intensive bombing of cities in China, since the victorious nations had been guilty of exactly the same crime in their carpet bombing of Japanese cities, and nuclear bombing Hiroshima and Nagasaki. None of the war’s victors wanted their own conduct to be scrutinized. In other words, the prosecution of charges was highly political and several of the prosecuting nations were as guilty of some war crimes as Japan. A curious irony here was that the Japanese had been particularly sensitive about the racist treatment of Japanese populations in the USA and Australia and had proposed that the founding charter of the League of Nations should prohibit racism. The USA suppressed this proposal at the behest of the British for fear that, if racism were banned, it would be impossible to maintain the British Empire.

 

Western nations have accused Russia of aggressive war in Ukraine, the charge levelled against Japan in Tokyo. There is also talk of crimes against civilians (rape and murder), for which Japan was also prosecuted. And western nations have supported the International Criminal Court’s (ICC) indictment of Vladimir Putin for the crime of abducting Ukrainian children. Even those nations that have not subscribed to the jurisdiction of the court, such as the USA, have applauded this charge. However, the same nations have been reluctant to contemplate the possibility that Israel has committed crimes against civilians in its (legally sanctioned) pursuit of and defence against Hamas. And some have wilfully mischaracterised the indictments sought against Benjamin Netanyahu and Yoav Gallant for war crimes in Gaza by the prosecutor of the ICC as implying “equivalence” between the crimes of Hamas and the actions of Israel. This is nonsense, as those nations surely know: the commission of a crime by one party does not excuse another from the requirements of international law. Nor do the indictments prove ipso facto, as Israel alleges, that the charges and the prosecutor are antisemitic. Complicated and awful as events in Gaza, Israel (and we must not forget the West Bank) are, they do not exempt any party from its obligations under international law.

 

The political interests so clearly exposed in Bass’ book, are deployed today against the interests of international justice, much as they were in Tokyo. In the case of my own country, the hypocrisy of the world’s greatest practitioner of aggressive colonial war prosecuting Japan for just that crime, is equally alive today. Our government calls for the principled application of international law against Russia and Hamas, while the Conservative Party argues repeatedly that the “will of Parliament” and the “will of the people” relieve us of our obligations to human rights and international law when it is convenient to do so. The Prime Minister himself has proposed withdrawing from the European Convention on Human Rights if it prevents the application of UK laws to deny asylum seekers international protection. Recent legislation has restricted the rights of trade unions to strike (rights already much reduced by a number of laws since the government of Mrs Thatcher). Earlier this month the High Court ruled that a law that prohibited protests that cause more than a “minor nuisance” is unlawful. A judge recently dismissed charges of contempt of court brought by the government to punish a woman who held a placard outside a court stating the simple truth that a jury may rely on its conscience to acquit a defendant, a right first established in 1610 to acquit two Quaker preachers. The government, nothing daunted, has announced its intention to appeal. Fortunately, the forthcoming election may remove the government from office before it can do so.

 

Not only has Israel deployed the specious argument that rulings against it equate a democratic nation with a terrorist Hamas. In a BBC radio interview recently an Israeli MP of Prime Minister’s Likud party, dismissed a ruling of the International Court of Justice (ICJ) that Israel desist from attacking Rafah where large numbers of Palestinian civilians have sought refuge, on the grounds that the president of the ICJ is Lebanese. This neatly ignored that fact that the order was endorsed by a majority of 13-2. The fifteen judges of the ICJ are from many countries: Australia, Belgium, Brazil, China, France Germany, India, Japan, Mexico, Romania, Slovakia, Somalia, South Africa, Uganda, USA.

 

Since this blog is titled Mexico and other matters, as I wrote this I came across an article by Jorge Castañeda, a former Secretary of International Relations of Mexico, about the recognition of the state of Palestine by Ireland, Norway and Spain. Castañeda speculated whether the government of President Andrés Manuel López Obrador (AMLO) might recognize Palestine. Castañeda’s guess is that AMLO might wish to do so in what remains of his term of office, but that pressure from the USA and from groups in the USA who support Israel might dissuade AMLO from doing so. In the 1970s President Luis Echeverría supported a UN resolution that equated Zionism with racism. The resulting tourism boycott cost Mexico dear. Castañeda also notes that one of the judges who will decide whether to grant the request of the prosecutor of the ICC to charge Netanyahu and Gallant is Mexican. Judge Socorro Flores Liera has had a distinguished career in Mexico’s foreign service and the UN, and was a member of the Mexican delegation that was involved in setting up the ICC. Castañeda speculates that Mexican government, under pressure from the USA, might attempt to influence judge Flores Liera’s decision in the case of Netanyahu and Gallant.

 

Israel’s occupation of Palestine and the misery that flows from it are now decades old. The accumulated distrust and hatred did not begin on 7 October and will not be resolved by an Israeli “victory” in Gaza. It seems that for the USA and other western allies that an “ironclad” commitment to supporting Israel is more important than the application of international law.  For them the rules-based international order is a matter of selective convenience, rather than of principle.

 

Wheelchairs on Eurostar: a small victory

 

The blog of 9 April told the sorry tale of our friend Cedric Álvarez and the lack of support for wheelchair users on Eurostar services at St Pancras Station. Thanks to the journalism and determination of the redoubtable Anna Tims of the Observer, Eurostar has taken steps to improve its support of wheelchair users. The old-fashioned printed newspaper still has some power to encourage change.

 

Anna recently received this statement from Eurostar:

 

“Thank you for bringing this to our attention as well as other discussions we've had over the last month or so. The experience of this customer and your outreach has prompted us to take a very close look at accessibility, which is a top priority for Eurostar. We understand the challenges faced by customers with mobility needs, and we are committed to providing a safe and inclusive travel experience for all.

 

I'm pleased to inform you that, effective May 8th, Eurostar has updated its processes regarding accessibility assistance at St Pancras. Customers will now be assisted in their own wheelchairs, provided their equipment passes a Health Check (visual attached of this process) This measure is aimed at ensuring the safety of our customers and staff while accommodating individual mobility needs and providing a much better experience, bringing SPI into line with other stations for a more consistent service for customers.

 

To support this initiative, we have already trained over 60 staff members, and this training will be conducted every 12 months, with regular refresher courses as needed. Our Customer Assistance Team Members have been briefed on these changes, and our partners at the European Business and Service Centre (EBSC) are updating their information accordingly. Pre-travel communications will also be amended to explain the elements we will be checking.

 

The new guidelines have been developed in partnership with our Safety and Legal teams, and we will continue to work closely with Office of Rail and Road (ORR), ensuring compliance with industry standards.

 

We understand the importance of transparency and would be delighted to welcome you and a some of the customers to visit us and observe the training sessions firsthand. This would provide an opportunity for you to see the measures we are implementing to prioritise the well-being and needs of our accessibility customers.

 

Please feel free to reach out with any further questions or concerns. 

 

We value your feedback and are committed to continuously improving our services.”

 

Cedric and his mother Chantal will visit London at the end of June with tickets provided by Eurostar by way of apologies and we will celebrate our small triumph with a lunch and an afternoon at the theatre. And other wheelchair users will receive improved service.

 

How to make people poor

 

I was born in a house in Swinburne Road, on Whitton council estate, newly built on the northern edges of Ipswich, in 1952. Whitton’s new houses, on roads named after poets and literary figures (Byron, Chaucer, Defoe, Shakespeare, Spenser and so on), were intended for the families of men recently returned from service in the war. My father, Douglas (Doug) Jacobs, had been absent for much of the war in France until the great retreat of Dunkirk, Palestine, and France and Belgium after D-Day. When my eldest brother was born in 1945 Doug was overseas. My sister was born in 1946. Doug was happy to be a council tenant, but his wife, Alice was determined that our family would own its home, and had saved his army pay to accumulate a deposit. She achieved her ambition five years after my birth. My family. Was not well-to-do, but my mother’s careful management of the family’s income kept us well-fed and clothed (Doug was good with numbers but not with money). But if my mother had not been so thrifty my parents could have lived securely in Swinburne Road until their deaths. My first school, a modest walk from the newly-built home in Ely Road that Alice and Doug purchased, was set in another large area of council housing, so many of my schoolfriends lived in council houses. These families, no doubt, were not especially prosperous kike the Jacobs family, but they lived in secure housing at affordable rents.

 

In 2024 Britain things have changed. The prosperous can still live in decent homes, mostly privately owned, but for the poorer members of our society employment, incomes and housing are precarious, the long-term publicly-provided home is a vanished relic of a very different past. Destitution, child poverty and homelessness are increasingly common and accepted as regrettable facts of economic life. The minister responsible for housing, an unctuous, pervasive character called Michael Gove, has stated that he feels regret when he sees the (steadily increasing) statistics of homeless children, but his only answer is to boast of the number of ‘affordable’ homes for purchase to enable families to ‘get on the housing ladder’. This evades the most pressing housing problem for the homeless and poor: the complete and deliberate lack of publicly-provided homes at rents that people can afford.

 

Things began to change in 1980 when the government of Margaret Thatcher introduced the “right to buy” policy which has systematically destroyed the provision of rented public housing. Tenants could buy their homes at a discount of 33%-70%. Councils, which were obliged to sell, also provided loans to finance the sale. The council received only half the discounted purchase price, and rather than use the proceeds to build replacement public rented housing, were obliged to use the revenues to reduce debt. Moreover, tenants’ legal right to buy their homes at subsidized prices, was an insuperable disincentive for local governments to build public housing since the Thatcher reforms made this a loss-making investment.

 

The provision of public rented housing reduced rapidly and many right to buy homes, after a qualifying period, were sold, frequently to private landlords. The minister responsible for this policy, Michael Heseltine, stated that "no single piece of legislation has enabled the transfer of so much capital wealth from the state to the people." The long-term result of the policy has been to create a large (almost 20% of the population) of private landlords, who charge the market rent, not the affordable rent charged by councils. And the quantity of publicly-owned housing has been radically reduced. In effect the transfer of wealth that Mr Heseltine considered to be a roaring success was not to ‘the people’ but to the property-owning class.

 

The contribution of this policy to the manufacture of poverty can be outlined as follows:

·      An increasing proportion of people who cannot afford to buy a home in a society whose economy is founded on an ever-increasing value of housing as a ratio to income.

·      Landlords who control the rental market can, and have, driven up the real cost of renting as a proportion of income. Moreover, rentals are extremely short-term and insecure and tenants’ rights effectively minimal because such rights as they have are very difficult to enforce in a market in which the landlords have enormous power.

·      The state, which Mr Heseltine rejoiced has transferred capital to “the people” has, in fact transferred it to private investors. Moreover, the state continues to do so because the many people who cannot afford private rents receive (if they are lucky) rental support from the government. In short, the government subsidizes the inflation of rents. As rents inflate, a greater proportion of the population is unable to afford them, so they become insecure tenants, seeking less expensive places to live when the landlord increases the rent. Or landlords evict tenants who cannot pay inflated rents in order to charge more.

·      However, the government has not increased the rental subsidy to accord with the levels of rent charged, so rent consumes more and more of the income of even the poorest.

·      Those who cannot afford the rents, or who simply cannot find a landlord who will rent to them (for example, because they receive government housing benefit) become homeless. The very councils, which have been obliged to sell and reduce their public housing stock, are then obliged to provide housing for homeless individuals and families. So they pay inflated rents to private landlords or the owners of hotels and bed and breakfasts. This housing is often of poor quality and in many cases simply not decent or safe.

·      This emergency rented accommodation is frequently insecure, and may be long distances from family, friends, school and work, sometimes in another city.

Thus, the Conservative Party has engineered the largest transfer of wealth from the state to the people, and then to a class of private landlords, and in the process has systematically immiserated a substantial proportion of the population.

 

Another of Mrs Thatcher’s contribution to creating poverty was the political and fiscal consequences of the Community Charge, commonly known as the poll tax, implemented in Scotland in 1989 and in England and Wales in 1990. It replaced a tax commonly known as “the rates,” a property tax, which was based on the notional rental value of a property. This tax had become unpopular but nevertheless to some extent was proportionate to the asset value of the property. The new tax was a flat per capita tax to pay for local government: the rich and the poor paid the same tax. The poor were taxed more and the rich less (as a gleeful member of the House of Lords told me at the time). The political opposition to the tax effectively ended Mrs Thatcher’s career in 1990, and the tax was replaced in 1993 by a curiously hybrid tax, the Council Tax. The tax is personal to an extent, since the residents of a home occupied by two or more adults pays the full tax, while a property occupied by one person pays a reduced rate. However, the rate at which the tax is charged is based on the property’s 1991 value classified into bands A-H, H representing a value of £320,000. Since the valuations have not been updated, and since high value homes are now worth vastly more than £320,000, the tax on the wealthy is very low, while residents of low value properties pay much more as a proportion of the value of their home, and generally of their income.

 

Housing and taxes are not the only tools used by the Conservative Party to manufacture poverty. When the party returned to power in 2010, it adopted rhetoric and policies hostile to recipients of state benefits, in order to label its opponents as supporters of the feckless, lazy poor. The rhetoric was of “skivers” staying in bed while their employed “striver” neighbours went to work. New doctrines of fairness were created. It’s not fair for recipients of benefits to receive child support in proportion to their number of children, so support is provided only for the first two: the result has been increasing child poverty. A tenant who rents public housing may only have the number of rooms dictated by law – it’s not fair for the poor to have ‘too many’ rooms. Thus, a couple whose children have left home, and as a result has one or more bedrooms deemed to be no longer required, must pay extra rent or leave. Moreover, in order to fund tax cuts benefits have not increased at the same rate as inflation because the government’s policy is to force the supposedly workshy into work. Anti-trade union laws, employment laws that hav promoted highly insecure jobs and other government policies have further contributed to increased inequality and poverty.

 

The result is a society in which the number of people dependent on food banks has steadily increased. Moreover, many families can no longer simply not afford food, they cannot afford the energy required to cook a meal, to buy beds or bedding, new clothes, and other essentials of life. Poor families increasingly live in cold, damp, mouldy, rat and cockroach infested insecure and temporary homes. And, of course, Mr Gove regrets that there are many homeless children. I am sure that many social and economic problems worried the residents of the Whitton Estate in the 1950s, but at least families like mine had access to a decent and secure rented home.

 

As I was writing this, I received an email from a Latin American listserve that I belong to entitled “Poverty increases in Peru due to corruption and bad governance.” It seems that Peruvian government statistics record that 29% of Peruvians live in poverty (according to the Joseph Rowntree Foundation the figure for the UK is 22%, although I suspect that Peruvian poverty is more severe than that of the UK). The author of the email (Enver Machel Figueroa Bazán, an economist at Syracuse University) writes: “The symbiotic association between the most discredited political groups linked to drug trafficking and illegal mining and the most incompetent and corrupted operators within the public administration has produced some of the wrongest [sic] and most damaging public policies, aimed only to keep big groups of people in a situation of vulnerability, with the intention of capturing their votes for the coming general election of 2026 by giving them direct cash transfers.”

Moe than one million Peruvians (Peru’s population is 34 million) live without access to potable water, sewage, employment, education, health care and banking services. Perhaps the groups that achieved control of the Peruvian Congress in 2021, who Figueroa Bazán blames for increased poverty in Peru learned a few lessons from Mrs Thatcher and her fellow Conservatives.