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.
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