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Volume 17 (2015): 1-20
Takatori: Tokyo Trials
“EQUAL PUNISHMENT FOR ALL” -- JAPAN’S VIEW OF
THE TOKYO TRIAL
Yuki Takatori
Georgia State University
Abstract
The Tokyo War Crimes Trial (1946-1948), one of the two major war crimes trials held
after World War II, fell into oblivion soon after its conclusion. Why has the trial failed to
earn the recognition, much less praise, admiration, and fame, as a judicial landmark, that
the Nuremberg Trial (1945-1946) has garnered? In providing an answer to this question, I
will draw heavily, in this article, on the importance of legalism in nations with a JudeoChristian tradition and lack of its importance in Japanese society. I will also compare the
prosecution’s strategy at Nuremberg with that at Tokyo as it relates to Japan’s aggression,
in order to explain why the plan of action at the latter venue backfired, bolstering the
negative image of the trial as one where “victors’ justice” was meted out.
Key words: Japan, war crimes trial, legalism, kenka ryōseibai
I.
The Tokyo War Crimes Trial
1. Introduction
At the end of World War II, the leaders of the Allied Powers, in an attempt to restore
order and sanity, set out to establish two major war crimes trials, one in Nuremberg and
the other in Tokyo. The Tokyo War Crimes, officially known as the International
Military Tribunal for the Far East, was the longer of the two, opening in May 1946 and
concluding in November 1948. The trial, in which eleven nations participated,1 was in
session for 417 days, subpoenaed 419 witnesses, and accepted 779 affidavits. These
numbers far exceed those in the Nuremberg Trial (1945-1946). Furthermore, while there
were three acquittals (out of 22 defendants) at Nuremberg, all 25 defendants at Tokyo
were found guilty.2
Despite these notable features, the trial in the Far East was utterly overshadowed
by the one in Germany and was forgotten in the West soon after its conclusion. Such lack
of knowledge of, and interest in, the Tokyo Trial is reflected in another statistic: in John
R. Lewis’ Uncertain Judgment: A Bibliography of War Crimes Trials, there were a scant
231 entries related to the Tokyo Trial, compared with nearly 1,300 under Nuremberg.3 It
would not be an overstatement to say that the average Westerner today is not aware that
an Asian counterpart of Nuremberg even took place. For instance, USA Today, a
newspaper with a nation-wide circulation, in an editorial on the war crimes trial of former
president of the Serbian Republic Slobodan Milošević, erroneously conflates the two
trials as “the Nuremberg trials that followed World War II.”4 More recently, when 18
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judges were sworn in at the first permanent war crimes tribunal in the Hague, the events
were hailed in a radio broadcast as “the most important milestone in international justice
since the Nuremberg Trials of Nazi leaders half a century ago.” 5 Similarly, American
Heritage, the popular history magazine, in an article in its 2000 issue, completely ignored
the Tokyo Trial when it praised the War Crimes Tribunal in the Hague as the “first trial
since Nuremberg that attempted to establish a worldwide rule of law.”6 The list of
instances in which the Nuremberg Trial is treated as the sole symbol of international
justice can be easily expanded.
Why has the Tokyo Trial failed to earn the recognition, much less the admiration
and the fame, as a judicial landmark, that the Nuremberg Trial has garnered? In addition
to the trial’s legal foundations, such as the charter, constitution of the court, verdict and
sentences, criticisms were also directed against the “haphazard” selection of defendants,
the ineptitude of the chief prosecutor, and the domination by the U.S. prosecution team.7
There is, however, one other reason which has been overlooked in previous studies: Why
it did not deliver the results expected by those who conceived it? It is not related to the
structure or conduct of the court, but to the nature of Japanese culture and society. In the
pages that follow, I hope to provide an additional answer to this question by examining
heavily the importance of legalism in nations with a Judeo-Christian tradition and the
lack thereof in Japanese society.
2. Timeline of Nuremberg and Tokyo
Though the Tokyo Trial has generally come to be seen in a negative light, it had
actually made several positive contributions that may be of interest to those in political
and war crimes trials. For instance, while the Nuremberg Trial was a creation and
instrument of the “Big Four” alone,8 the Tokyo Trial was more inclusive, making
possible the participation of non-major Allied Powers, such as Canada and the
Netherlands, who were able to have their voices heard in the international arena. Its
historical significance is even greater than its legal one — for, though there were matters
that were deliberately kept out of the courtroom, the details of many events and
operations would not have been brought to light in such a thoroughgoing manner had the
trial not been held.
Within the office of General Douglas MacArthur, the Supreme Commander for
the Allied Powers (SCAP),9 in whose name the charter was promulgated, assessment of
the Tokyo Trial’s value ran the gamut, from the opinion of prosecutor Solis Horwitz that
the “proceedings [were] of utmost significance for . . . the elimination of war,”10 to the
view of General Charles Willoughby, MacArthur’s chief of counterintelligence, that they
were “the worst hypocrisy in recorded history.”11 Historians who have studied the trial
since have also been divided in their appraisals. Furthermore, they have advanced a
variety of hypotheses as to why it fell short in both import and impact, the foremost
having to do with its duration. That the Nuremberg Trial was much more expeditiously
carried out becomes obvious when one compares the timelines of the two trials:
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Surrender
Indictment Lodged
Trial Begins
Proceedings End
Judgment Pronounced
Nuremberg
Tokyo
May, 8 1945
October 19, 1945
November 20, 1945
August 31, 1946
October 1, 1946
September 2, 1945
April 29, 1946
May 3, 1946
April 18, 1948
November 4 – 12, 194812
The Nuremberg Trial concluded within a year of its beginning, and within a year and a
half after Germany’s surrender, when the public desire to mete out justice to the wartime
German leaders still remained high; the Tokyo Trial, by contrast, suffered several delays
before commencing, first from February to March, then to April, and finally to May; once
begun, it dragged on, with several extended recesses, for two and half years, ending at a
point in time nearer the Korean War than the World War.
One reason for the delay was the failure of the Allied Powers to nominate justices
(including an American justice) promptly as requested by the United States government,
partly because full details of the court’s jurisdiction as well as arrangements for judges
and prosecutors (such as those regarding emoluments, meals, billeting, and
transportation) were slow in coming.
Another reason was the inability of the International Prosecution Section (IPS) to
unearth much documentary evidence. This was probably due to the fact that Japanese
government officials and military commanders had had ample opportunity to destroy
incriminating files between the announcement of capitulation on 15 August 1945 and the
arrival of the advance party of American forces two weeks later. As a result, the
prosecution had to prove a case covering the gradual development of events over a period
between 1931 and 1945, with indirect documentary and oral evidence alone.
3. Criticism of the Tokyo Trial
The hold-ups and the prolongation, to some extent unavoidable, may have had
adverse effects, but the trial’s legitimacy has not been questioned because of them.
However, the trial had drawn criticisms over other, more fundamental, problems: that it
was an act of judicial retribution against the defeated by the victorious.
The critics of the trial denounce it as an act of vengeance by victorious powers
and, therefore, as being intrinsically unfair.13 Not only did the bench consist of
representatives from the nations that defeated Japan, and no others, but the charter,
defining the jurisdiction of the court and legal procedures, was drafted by the American
prosecution team alone, a practice which would be unthinkable in today’s international
courts. In short, the Allied Powers were the judge, jury, and executioner. In fact, some of
the articles in the charter did appear intended to facilitate the convictions. For instance,
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Article 2 of the charter stipulated that due to the large number of judges, a provision for
alternates, who would become active when the principals were absent, was not a viable
option. Furthermore, unlike in Nuremberg, where all members of the bench had to be
present for a quorum, the prerequisite in Tokyo was a simple majority. And under Article
4, a majority vote of that quorum was sufficient in all decisions pertaining to verdicts and
sentences; in case of a tie, it was necessary for the president to cast the decisive vote.14
The consequences of this article were potentially quite grave: as Richard Minear
rightly points out, just three out of eleven judges (if the president was among the three)
could have held the life or death of each of the twenty five accused.15 In the end, though
all eleven justices were present for their sentencing, none of the seven condemned men
were sentenced to death by a unanimous vote: six were sent to the gallows by a vote of 7
– 4 and one by a vote of 6 – 5, which the Dutch member of the bench considered “a
scandalous way of arriving at the death penalty of hanging.”16 Another four defendants
narrowly escaped capital punishment by 5 – 6 decisions. [One defense lawyer received
information from “a source of unquestionable reliability” that some of the death
sentences might even have been imposed by less than a majority.]17 To consider for
comparison the contemporary statistics in the United States, only two states permitted less-thanunanimous verdicts in criminal trials in 1949, and in neither state did the exception apply to
capital cases.18 Since under the criminal law followed in today’s US courts it takes only
one dissenting opinion to produce a hung jury, the simple majority provision of the
charter has given rise to doubts about the fairness of sentencing decisions.
Perhaps the most incongruous aspect of the Tokyo Trial was the presence of the
Soviet prosecutor (and judge). After all, the Soviet Union had unilaterally broken its
Neutrality Pact with Japan and committed aggression against the latter only a week
before its capitulation. Yet, it had the brazen audacity to lay claim to being the victim of
the “treacherous attack” by the Japanese Navy on the Russian fleet that started the RussoJapanese war in 1904 (a war that had occurred well outside the period dealt with in the
indictment) and of two border incidents in the late 1930s (the Lake Khassan Incident in
1938 and the Nomonhan Incident in 1939), both of which had already been settled
diplomatically. Perhaps the counts concerning the preparation for and waging of war
against the Soviet Union had been included out of political necessity in order that every
one of the Allied member nations would have a role in the handing up of the indictment.
Equally egregious was the recent disclosure concerning the participation of one
of the Japanese defense lawyers in the drafting of the court’s judgment. According to this
discovery, first reported on February 22, 2009, Kenzō Takayanagi, the Japanese defense
team’s only expert on Anglo-Saxon Law, stated in a 1961 interview by the Justice
Ministry that he had been asked to conduct checks regarding law and findings of facts in
the text of judgment.19 Takayanagi did not reveal when he was asked, who made the
request, or what part of the judgment he had a hand in writing.
As scandalous as the defense lawyer’s admission may be, his connection to the
judgment was already implied 60 years ago in a dissenting opinion by the French justice
Henri Bernard, who, in the most eerie wording, wrote that someone other than judges
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may have been involved in the finding of facts.20 [Bernard also hinted that evidence
produced outside the court may have been accepted.] It goes without saying that
Takayanagi’s confession, if true, would have been sufficient to overturn guilty verdict or
to call for a mistrial (and perhaps justify disbarment of all those involved) in today’s
criminal justice.
4. Judgment
It is quite likely that the trial would have left a positive legacy had the judgment of
the court set important precedents to be cited in later international (as well as domestic)
war criminal tribunals. A measure of its small and ephemeral impact is that, when, in
1950, the International Law Commission of the United Nations adopted principles of
international law recognized in the Nuremberg charter and judgment, no mention was
made of Tokyo. Its snubbing by the UN body and in recent war crimes tribunals can be
ascribed to the fact that it adopted a theory of conspiracy and a principle of command
responsibility more encompassing than at Nuremberg.
The judges at Tokyo ruled that the defendants had engaged in a conspiracy to
wage a war of aggression and that each of them had played a part in advancing a
“common plan,” yet the court’s interpretation of “the ambit of conspiracy liability was
too broad, which has filtered in to the doubt about such an inchoate international crime.”
Broad or not, the decisions written by the Tokyo Trial judges did constitute case law,
establishing the fundamental principles (had they been recognized as such) for the theory
of Joint Criminal Enterprise (JCE). Nonetheless, when the International Criminal
Tribunal for the Former Yugoslavia (ICTY) resurrected this doctrine in the trial of Duško
Tadić, critics claimed there were no precedent of such a form of liability in international
law, completely ignoring (or being completely ignorant of) the judgment at Tokyo.21
Unlike the judges at Nuremberg, whose findings regarding command
responsibility were based firmly on direct evidence of orders, authorizations and
permissions, the majority judges in Tokyo have been criticized for “inducting” policy
whenever documentary evidence was not to be had. The Yugoslavia and Rwanda
tribunals made some references to the Tokyo Trial in respect to command responsibility,
but their overall discussions relative to Tokyo were only cursory, except for in the trials
of Tihomir Blaškić and Sefer Halilović, even though the Tokyo judgment offered detailed
opinions that could have shed light on the problems.22
5. A Fair Trial for the Accused
Despite its excessive length and legal inadequacies, the Tokyo War Crimes Trial
was far from a show trial, from the species of sham commonly seen during the Stalin
regime and still practiced in illiberal countries of the Middle East and Africa in the 21st
century, and, as far as due process of law is concerned, it should surely have had,
therefore, a more consequential legacy.23 The tribunal’s president, Sir William F. Webb,
when questioned about the sluggish pace of progress in his courtroom, replied that it
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would be more important to “make the trial a fair one than a quick one.”24 True to
Webb’s intention, the trial kept those procedures necessary for the protection of the rights
of the accused: the defendants were represented by defense attorneys of their choice and
were shown all prosecution documents, both in English and Japanese, at least 24 hours
before they were to be submitted in evidence, and each had the opportunity to tell his
version of events in open court (with one of them, at his own request, even taking the
stand a second time to refute the testimony of a defendant who had testified earlier).
The courtroom was also equipped with the same simultaneous translation setup
that had been used for the four official languages (English, French, German, and Russian)
at the Nuremberg court, and the US War Department looked for qualified translators in
military training facilities as well as at universities with strong Japanese language
programs, such as Yale University. For quality control, language monitors were selected,
in addition to the court translators, to correct any mistakes. Although the translation was
temporarily discontinued from time to time due to technical reasons, defendants,
prosecutors, defense lawyers, and judges were all able to listen to the proceedings either
in English or Japanese throughout the trial.25
MacArthur’s office went so far as to provide the defendants with the services of
American lawyers: since the criminal law of modern Japan was modelled after
Continental (specifically, German) law and most of the Japanese lawyers were not
familiar with the Anglo-Saxon court procedures used at the trial, the defense requested,
and was granted, the assistance of American attorneys, some of them selected from
among those already functioning in the Tokyo area and others recruited in the U.S. by the
War Department. [It must be noted here that no similar aid was extended to the German
lawyers at Nuremberg although they had to labor under the same disadvantage.] Though
acting on behalf of their erstwhile enemies, the Americans fought hard in their defense,
whether by challenging the court’s jurisdiction, requesting a recess in order to make
adequate preparation, flying to Europe to obtain statements favorable to their clients from
Allied diplomats (and, in one instance, from a Nuremberg prisoner on death-row on the
eve of execution), or filing petitions for a writ of habeas corpus in the United States
Supreme Court.
At first, naturally, the defendants looked upon their foreign defenders with
distrust. However, as they later watched them lock horns with the prosecutors and the
judges in earnest pursuit of a fair trial, many of them were deeply struck by their
indefatigable and professional advocacy. Not surprisingly, such zealousness appeared
unpatriotic to some: for example, President Webb taunted one of these unfaltering
defense lawyers by intemperately remarking, “If American counsel think they have a
higher loyalty than their loyalty to their own country, they are at liberty to indulge it,” to
which he immediately retorted that, although he found this job “distasteful to [him]
personally, as an attorney appointed by the United States at the request of this Tribunal to
help defend these people, [he has] a high duty.”26
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The foregoing episodes amply show that, by any standard of judicial propriety,
the trial exhibited high regard for niceties of jurisprudence, offering rights and guarantees
that the Japanese war-time leaders had never granted to the defendants of pre-war
domestic political trials.
II.
Legalism
The legal rectitude of the trial notwithstanding, it failed to be a significant
development in international jurisprudence as intended. One – perhaps the main – reason
for this is that it did not have the desired influence upon Japanese society. Kazuo Kawai,
in his work on the Allied occupation, states that it did not have a “major impact on the
consciousness of the Japanese public.”27 Concurring with Kawai’s assessment, the
renowned political theorist Judith Shklar, with bluntness and accuracy, described the trial
as a “dud,” since it did neither harm nor good.28 As I will demonstrate in the remainder of
this paper, the trial’s lack of consequence stems not from how it was conducted, but
rather from the conspicuous absence of a tradition of legalism in Japanese society.
Legalism, as defined by Shklar, is the “ethical attitude that holds moral conduct to
be a matter of rule following, and moral relationships to consist of duties and rights
determined by rules.” Originating in the Torah, the Pentateuch or first five books of the
Bible, which dictates equal obligations under the law whether one is a king or a slave, a
man or a woman, legalism has been handed down for generation after generation in the
Judeo-Christian world. It has deep roots in Western culture, permeating the everyday
language, metaphors and literature: “[the] court of love, the court of conscience, the trial
of wits, the court of honor, Judgment Day.”29
Like any school of thought, legalism has spawned various theories, two notable
ones being natural law and positive law. In the Tokyo courtroom, the defense team based
their argument on positivism; i.e. analytical law jurisprudence. While acknowledging that
Japan’s war crimes were horrendous, one of the U.S. defense lawyers maintained that:
The crimes here charged, no matter how much they have outraged human
morality, have not and still are not sanctioned as legal crimes of justiciable
nature. This is not to say that they should not be punished. They probably
should be, but the sad fact is that until such acts become so recognized by
the law of nations, and custom and usage, we cannot treat them as legal
crimes.30
Espousing, in turn, natural law, the prosecution attacked this denial of an inherent
connection between the law and human ethics and morality, calling the defense position
“worm-wood legalism” which would place mankind in “a straightjacket of legal
precepts.” The chief prosecutor thus appealed to mankind’s sense of right and wrong:
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. . . the helpless dupes and victims who were subject to the control and
orders of these leaders, as well as millions of other innocent individuals,
may undergo untold suffering for these acts while these leaders remain
free from punishment. And this is said to be the law. Such a contention is
as revolting as it is unsound.31
Having heard both these arguments and examined evidence presented by each
side, the panel of judges strove to achieve a just resolution, that is, a determination of the
defendants’ guilt or innocence. In Japan, on the other hand, where personal conflicts had
long been resolved mainly by village officials or headsmen through a process called
“conciliation,” and very rarely by courts of law, such a method, so out of keeping with
traditional mores, did not exist.32
III. History of Law in Japan
1. From Ritsu-Ryō to Meiji Constitution
Wherever legalism has held sway, law and revolution (or more gradual, but
irreversible transformation) have come as a package: the overthrow or weakening of the
autocrat’s rule, followed by a series of sweeping changes such as the breakdown of
feudalism, the abolition of the class system, the institutionalization of parliamentary
democracy, and the establishment of laws to protect the people’s inalienable rights.
However, having never experienced a true revolution, Japan has a legal system with a
history quite different from the West’s. For instance, its first laws were borrowed in the
7th century from China’s Ritsu (criminal code) and Ryō (administrative code). The RitsuRyō system underwent several modifications, falling into disuse by the 12th century,
though it was never abolished.
The military code of law followed, superseding the defunct Ritsu-Ryō system.
During the Tokugawa shogunate regime in the 17th and 18th centuries, the natural-law
order gradually emerged, but its concept of law was an amalgamation of “individual
behavior, social practice, positive law and justice,” which would be clearly differentiated
in a positive law system. Such distinctions, in the opinion of Dan F. Henderson, author of
Conciliation and Japanese Law – Tokugawa and Modern, would never have developed
in the Tokugawa legal system.33 Even after a semblance of an elaborate “court” system
was established owing to a discernible growth of positive law, procedural protection was
guaranteed only for those cases deemed essential to the maintenance of the feudal order
and “rule by status.”34 Furthermore, it was the government policy to reject cases going
against the Confucian relations, that is, inferiors suing superiors. Carefully examining
differences between English and Tokugawa laws, Henderson came to the conclusion that
Judeo-Christian tradition of legalism and equality and justice “[goes] a long way toward
explaining these basic differences, ultimately and in broad terms.”35
The Tokugawa law remained in effect until the mid 19th century, when the feudal
shogunate was overturned by supporters of the emperor. [It must be noted here that
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although the Meiji Restoration was revolutionary in nature and in some of its effects, its
leaders were from the samurai class, and they in no way considered what they had done
as a revolution. It would be more aptly characterized as a coup.]36 Upon the reinstatement
of the emperor, Japan reverted to the ancient Ritsu-Ryō system, but for just 20 years, that
is, until Japanese bureaucrats realized that this outdated body of law was not suitable for
a modern society. Its abolishment, in 1885, was followed by the adoption of a criminal
code, a civil code, and a commercial code in 1880, 1886 and 1890, respectively, and a
constitution in 1889. An ulterior motive for the writing of the new body of laws was to
convince the Western powers, who regarded Japan’s legal system as archaic, that unequal
treaties and extraterritoriality, violating national sovereignty, could no longer be imposed
by them.37 And therefore, despite the country’s new appearance of a constitutional
monarchy (having been modeled after Continental law), there existed in Japanese society
no philosophical or cultural foundation upon which to build a nation governed by the rule
of law.
None of this legal discontinuity and inconsistency disrupted the lives of the great
majority of the population at all; what was binding on them was not law, but the
customary practices and unspoken rules of their villages, where local leaders, mostly
wealthy landowners or elderly wise men had the sole authority to decide how best to
maintain a conservative and stable, but far from democratic, community order.
Though nearly 150 years have passed since the Meiji Restoration, the Japanese,
from ordinary citizens to policy makers, still prefer to seek extra-legal solutions
whenever practicable. For instance, the current penal code (Act No. 45 of April 24,
1907), which has not been revised since it came into force,38 “does not provide any
procedures for the management of persons acquitted due to mental disorders”39; when, in
2001, this legal deficiency became an issue, Prime Minister Jun’ichirō Koizumi ordered
his cabinet to devise effective preventive measures, including the possible revision of the
century-old criminal code.40 However, in the end, the Justice Minister deferred to custom,
deciding that all matters related to medical treatment and supervision of the mentally ill
should be handled “outside the framework of the criminal law.”41
The legal vicissitudes outlined above did not much change the mores of Japanese
society, but a principle that emerged in the 15th century has come to exert a far-reaching
influence on the Japanese mind.
2. Principle of “Equal Punishment”: Kenka Ryōseibai
In the mid15th century, a desire among regional warlords to minimize the
unauthorized use of violence, by samurai against other samurai, took the form of a legal
principle called kenka ryōseibai (equal punishment of both parties to a quarrel).42
Although never codified, kenka ryōseibai came to be widely accepted in practice by the
17th century, “[exerting] a profound influence on subsequent developments in patterns of
conflict resolution among the samurai” as observed by Eiko Ikegami.43 Ikegami also
emphasizes that kenka ryōseibai “rejected any discrimination concerning ‘the judgment
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of right or wrong.’”44 In other words, the only question that mattered was “Were you
involved in an altercation or were you not?”
Originally an unwritten law in a military code of justice, this mode of communal
regulation, far removed from a fundamental belief in equity (defined as fairness within
the context of equal rights and obligations under law), has endured on into the modern era
as a way of preserving social tranquility. Today, it governs many situations in Japanese
society, where imposed compromise and the apportionment of responsibility, rather than
the clear-cut, black and white assignment of blame or guilt, is the norm.45 For instance, if
a vehicle entering an expressway collides with a vehicle in the merge lane, the driver of
the latter is held partially responsible, even though he had the right of way, because he
had “not paid adequate attention to the incoming traffic.” Such an unreasonable
interpretation of traffic law, Takeyoshi Kawashima, one of the founders of sociology of
law in Japan claims, does not exist in any other “civilized nation.”46
Even the right to self-defense may be denied if a judge concludes that the
principle of kenka ryōseibai is applicable: on July 19, 2006, the Tokyo District Court in
Hachiōji followed the reasoning of a 1932 Supreme Court decision citing the principle of
kenka ryōseibai in rejecting a defendant’s claim that he used reasonable force to protect
himself in a fight.47
The broad applicability of the notion of “equal punishment to both parties” can
extend far beyond domestic traffic violations and personal altercations: often times,
foreign dispute settlements, both fictional and actual, and ranging from the trivial to the
quite consequential, have been seen as instances of this legal philosophy. For instance,
Kenka Ryōseibai is the Japanese title of Wages for Wives, a 1925 American movie about
housewives making unreasonable demands about monthly spending and their husbands
rejecting them, and both sides reconciling in the end. Within the realm of the real, the
media reported a May 2014 mixed verdict in litigation involving patent infringement
between Apple and Samsung as a case of kenka ryōseibai because the jury concluded that
each of the parties had infringed on the other’s patent. At the international level, some
have interpreted the United Nations Security Council Resolution on the war between
Ethiopia and Eritrea in 2000, demanding both countries to “cease all military action and
refrain from further use of force,” as an example of kenka ryōseibai.48
When one considers Japanese society’s long-standing adoption of kenka
ryōseibai, it should not be surprising, therefore, that many Japanese hold that the AsiaPacific War was the kind of conflict to which it should have been applied, that Allies and
the Axis deserved equal punishment.
3. What Law Means to Japanese
In Germany, which shared a legalistic heritage with the prosecuting nations, Nazi
ideology had subverted that inheritance, as one of the French prosecutors at Nuremberg,
François de Menthon, rhetorically asked during the proceedings:
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How can one explain how Germany, fertilized through the centuries by
classic antiquity and Christianity, by the ideals of liberty, equality, and
social justice, by the common heritage of western humanism to which she
has brought such noble and precious contributions, could have come to
this astonishing return to primitive barbarism?49
Fortunately, the Nuremberg Trial revived an appreciation for the value and
importance of legalism, giving rise to the framing of the Basic Law of the Federal
Republic; in Japan, on the other hand, the court could not restore a regard for legalism
among that nation’s jurists and political elites, for no such tradition had ever existed. [The
Constitution of Japan, promulgated two years before the conclusion of the trial, was
written for the most part by the office of General MacArthur, who had grown impatient
of the unwillingness of the Japanese draft committee to make more than cosmetic
changes to the old Meiji Constitution.]
The spirit of kenka ryōseibai has long shaped the perceptions of the Japanese,
who have traditionally understood law as consisting of ad hoc or temporary measures for
controlling and punishing dangerous and disruptive elements in society and that
upstanding citizens ought to distance themselves, whenever possible, from legal
entanglements, whether of a criminal or civil nature. Even now, many may look upon
suing someone as shameful and dishonorable conduct, and upon those who choose to do
so, even for legitimate reasons, as contemptible, as “hot headed,” “lawsuit happy,” or
even “eccentric.” It is not uncommon for such conduct to elicit hate mail, death threats
and ostracism.50
In Japan’s feudal period, laws and decrees were orders issued by the central
government to provincial authorities, not rules of conduct for ordinary citizens. In the
pre-Meiji era, the word “law” for the average Japanese was almost synonymous with
“punishment”: it was a list of rules by which the government restrained them, not a
system of rights that protected them. In the matter of contracts, the more specific a
contract was, the more uneasy both parties to it felt, as they feared that detailed
descriptions and definitions would serve but to constrain them and reduce the
“flexibility” of the agreement.51 In such a social environment, aspirations to build a legal
system which specifies and defines one’s rights and elaborates obligations in civil cases,
or crimes and punishment in criminal cases are almost non-existent. People feel more at
ease if rights and obligations remain amorphous rather than delineated. A journalist,
Takashi Higaki, having compared Japanese penal code with that of forty five countries,
was appalled at the complete absence of specificity and elaboration in the former of the
crime of “homicide,” since it provides for one article: A person who kills another shall be
punished by the death penalty or imprisonment with work for life or for a definite term of
not less than 5 years.52 With so much in the hands of a judge’s interpretation and
discretion, he concludes, the current criminal justice system of Japan does not even have
an appearance of the principle of nulla poena sine lege.53 The low level of esteem in
which the public regards the role of law is also reflected by the absence in the Japanese
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lexicon of some of the legal terms indispensable in the West. For instance, Japanese has
had to borrow the English terms “compliance,” “legalism,” “due process,” or “privacy,”
transliterating them as /konpuraiansu/, /riigarizumu/, /d(e)yuu purosesu/, and /puraibasii/,
respectively.
IV:
Situational Ethics
The absence of a legalistic tradition in Japan is aggravated by the people’s
inclination toward the elasticity of “situational ethics,” an “inherently unlegalistic”
philosophy which disposes them to adopt new rules without questioning.54 Not bound by
the absolute dichotomy of good and evil embraced by most of the prosecuting nations at
the Tokyo Trial, the Japanese people found no difficulty in accepting that the twenty five
defendants, to whom they had given unstinting support during the war, were deserving of
punishment under the new circumstances of Allied occupation. And with the signing of
the Treaty of Peace in 1951, finding themselves in yet another situation, they turned
about-face again, launching a campaign to release the convicted Class A war criminals
who had been imprisoned.
Particularly noteworthy was the implication that they all deserved to be released
because they had been wrongly convicted, an outright challenge to the Tokyo Trial
verdict and a possible breach of Article 11 of the San Francisco Peace Treaty. It was
therefore quite natural that the participating nations of the Tokyo Trial who received the
petitions for clemency were far from impressed, pointing out more than a few
inconsistencies in their reasoning. The bitterness felt among the former Allied nations
notwithstanding, Japan, as if testing the limits of generosity of the parole board, kept
submitting request after request for further remission of sentences, the most audacious
one being a plea to reduce them to time served, so that one of the parolees would be
eligible to run for office in the upcoming national election.55
Be that as it may, the Japanese persistence bore fruit when, on April 7, 1958, after
a meeting at the U.S. Embassy in Tokyo, the Allied Powers sent a diplomatic note to the
Japanese government, announcing that they had decided to reduce the sentences of Class
A war criminals to the time already served, thus agreeing to virtually everything Japan
had asked for. A few days later, the embassies in Tokyo received a note from Japanese
Foreign Minister, expressing his gratitude for the Allies' "humanitarian decision."
Conspicuous by its absence in his note was the phrase A-kyū senpan, "Class A war
criminals"; the minister instead used the euphemistic, but obscure, A-kyū kankeisya,
literally meaning "Class A-related persons." Presumably, Japan had drawn the conclusion
that, as of April 7, 1958, these "persons" were no longer to be considered lawless
international evildoers, and that, by abruptly discontinuing the use of a term carrying a
severe social stigma, their (and the nation’s) embarrassing past could be, in some
measure, put behind them.56 It was perhaps no coincidence that twenty years later, on
October17, 1978, when Japan was basking in economic prosperity, Yasukuni Shrine
consecrated, without even consulting their families, the seven men who had been hanged,
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waiting until six months later to publicize the decision. Thus these war-time policy
makers underwent two dramatic transformations first from leaders to criminals, then from
criminals to spirits of the honored dead.
V.
Additional Contributing Factors
Thus far, I have focused my attention primarily on the legal aspects of the Tokyo
Trial, but I would like to point out one other important factor, unrelated to the question of
law, per se, that led to its diminished effect. It was the court’s approach to the issue of the
war’s causes, in particular, the motives for Japan’s aggression. In Nuremberg, the
prosecution chose not to delve into causation, reasoning that to do so would have opened
the floodgates for the Nazis to present their views and further spread their propaganda.
Fearing more than anything else what Shklar has termed an “open recrimination of who
did what to whom in Europe in the interwar years,”57 the Allies did not allow the defense
to state its own viewpoint on the war, only letting it dispute the legality of the charges in
the indictment. Fortunately, at Nuremberg, the prosecution was able to prove beyond a
shadow of doubt, and without exploring the many factors that led to hostilities, that the
twenty two men in the dock were responsible for the outbreak of war.
At Tokyo, on the other hand, the prosecution took the risk of examining the
causes of the war, inevitably creating an opening for the rehashing of war-time
propaganda by the defendants, most notably by General Hideki Tōjō, whose knowledge,
and resourcefulness in argument, Chief Prosecutor Joseph B. Keenan could not match.
Thanks to Keenan’s poor handling of what was supposed to be the showcase crossexamination, Tōjō was able to defend all the main assertions of his affidavit without a
serious challenge, spoiling Keenan’s only chance to deliver a telling blow against the
most infamous of the accused. What was doubly unfortunate for the prosecution was that,
since the defendants testified in alphabetical order, Tōjō’s testimony came second to last,
allowing the individual phase to end on a positive note for the defense. Nothing could
have been more damaging for the Allies than this opportunity for the defendants to
present post facto justifications in open court and before the international press, and to
leave the lingering impression that only “victors’ justice” had been done. If MacArthur’s
office had wished to use this opportunity to arouse in the Japanese public a sense of war
guilt and of the futility of militarism, then Keenan had scuttled the effort in one fell
swoop.
It must be added here in defense of the Tokyo Trial, however, that the
prosecution’s decision to probe Japan’s pre-war period and the involvement by some
judges in a serious discussion, in their dissenting opinions, of the causes of war were
aspects of the Tokyo Trial that places it in a position superior to Nuremberg.58
VI.
The Tokyo Trial and Beyond
The standard image of the Tokyo War Crimes Trial has been defined as an
imposition of “victors’ justice” by America, who took the initiative in all matters
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pertaining to the machinery of the court. What led the Japanese people on the path to take
this view was, for the most part, a philosophy of “situational ethics” and the absence of a
tradition of legalism. In hindsight, what the Allies could have done that might have muted
later accusations of punishment unjustly meted out by the war’s winners was to nominate
a Japanese judge and a prosecutor; it was an option that was actually contemplated by the
United States, on the grounds that, according to Article 2 of the IMTFE Charter,
members of the tribunal were to be appointed “from the names submitted by the
Signatories to the Instrument of Surrender,” and that Japan itself was one of the
signatories. As expected, however, the idea of the Japanese government joining with the
Allies in bringing charges against Japanese war criminals was, owing to the sentiments
prevalent in the immediate post-war period, totally unacceptable to the other participating
nations.59
Nevertheless, there would have been ample opportunity after the signing of the
Peace Treaty for the Japanese to convene criminal trials for the prosecution of lowerranking Class B and C war criminals. Such domestic trials by the Japanese themselves
would have greatly discredited future claims of “victors’ justice.” However, the public
never called for such an initiative: the whole nation was satisfied that the renunciation of
war written into Japan’s new “Peace Constitution” cancelled out all past sins.60
However, the belief in constitutional absolution has contributed, to this day, to the
reluctance of the Japanese government and people to unequivocally admit the truth of,
come to terms with, and sincerely express remorse for, the war crimes that Japan
committed. Were they to wisely engage in this process, their country’s relationship with
its Asian neighbors, upon whom it inflicted far more suffering and damage than upon the
western Allies, would surely be one of much reduced mistrust.
NOTES:
1
Australia, Canada, China, France, India, the Netherlands, New Zealand, the Philippines, the Soviet Union,
the United Kingdom, and the United States.
2
The original indictment listed 28 defendants, one of whom one was declared insane and was never
arraigned, and two of whom died during the proceedings. About the circumstances surrounding the death of
one of the latter, Osami Nagano, see John Ginn, Sugamo Prison, Tokyo (Jefferson, N.C.: McFarland, 1992),
p.25.
3
John R. Lewis, Uncertain Judgment: A Bibliography of War Crimes Trials (Santa Barbara: ABC Clio
Inc., 1979).
4
“The Nuremberg Trials,” in plural, is used only when the follow-up trials held in occupied countries in
Europe are included (USA Today, June 3, 2001).
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5
National Public Radio, All Things Considered, March 11, 2003.
Steven Brill, “Trial,” American Heritage, May/June (2000), p.85.
6
7
Daniel Luban, Julie R. O'Sullivan & David P. Stewart, eds., International and Transnational Criminal
Law (Austin: Wolters Kluwer. 2010), pp. 92 – 93.
8
France, the Soviet Union, the United Kingdom, and the United States
9
In this paper, the term “SCAP” refers to General Douglas MacArthur and his administrative organization.
10
Solis Horwitz, “The Tokyo Trial,” 455 International Conciliation, 455 (1950), pp. 475 - 584.
11
Letter from B.V.A Röling to Arnold Brackman, 20 Sept 1982, Arnold C. Brackman Papers, Howard
Gotlieb Archival Research Centre, Boston University.
12
At Tokyo, it took the bench a week to read the judgment. Unlike at Nuremberg, only the president of the
tribunal took part in the reading.
13
F. J. P. Veale, Advance to Barbarism - The Development of Total Warfare from Sarajevo to Hiroshima
(London: The Mitre Press, 1968); Richard Minear, Victors' Justice: The Tokyo War Crimes Trial
(Princeton: Princeton University Press, 1971);Yuki Tanaka, Tim McCormack & Gerry Simpson, eds.,
Beyond Victor's Justice? The Tokyo War Crimes Trial Revisited (Leiden: Martinus Nijhoff Publishers,
2011).
14
To quote for comparison the Rome Statute of the International Criminal Court entered into force on 1
July 2002, Article 74 states that “[a]ll judges of the Trial Chamber shall be present at each stage of the trial
and throughout their deliberations” and the “judges shall attempt to achieve unanimity in their decision,
failing which the decision shall be taken by a majority of the judges.”
15
Minear, Victors’ Justice, p. 89.
16
B. V. A. Röling & Antonio Cassese, The Tokyo Trial and Beyond (Cambridge: Polity Press, 1993), p.64.
17
Letter to the Supreme Commander, 13 November1948. RG-5: SCAP, Box 115, Folder 15. MacArthur
Archives, Norfolk, VA.
18
Louisiana and Oregon (“Use of Majority Verdicts in the United States,” Journal of American Judicature
Society, December 1949, p. 111).
19
Asahi Shinbun, February 22, 2009, pp, 1, 34.
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20
Henri Bernard, "The Dissenting Opinion of the Member for France,"in John R. Pritchard, & Sonia Zaide,
eds., The Tokyo War Crimes Trial: Transcript of the Proceedings (21 vols., New York: Garland Publishing,
1981), 21, pp. 20 – 21.
21
Neil Boister and Robert Cryer, The Tokyo International Military Tribunal: A Reappraisal (Oxford,
Oxford University Press, 2008), pp. 244 - 246.
22
Op. cit., pp. 229 – 230, 303 - 308.
23
Gary Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals (Princeton: Princeton
University Press, 2001).
24
Message to Foreign Office, 25 November 1946, FO371/57429. The National Archives, Kew, England.
25
Regarding a popular theory that one of the discontinuations of the translation was a deliberate hush-up
ordered by MacArthur’s office, see Yuki Takatori, "The Myth of the 'A-bomb Statement,'" Translation
Studies, 4(3) (2011), pp. 282 - 96.
26
International Military Tribunal for the Far East (IMTFE), The Tokyo War Crimes Trial: Transcript of the
Proceedings (21 vols., New York: Garland Publishing, 1981), p. 20483.
27
Kazuo Kawai, Japan's American Interlude (Chicago: Chicago University Press, 1969), p.23
28
Judith N. Shklar, Legalism: Law, Morals, and Political Trials (Cambridge: Harvard University Press,
1965), p. 181.
29
Op. cit., pp. 1, 180 – 181.
30
IMTFE, Transcript, p.231.
31
Op.cit., p.146.
32
Dan Fenno Henderson, Conciliation and Japanese Law, Tokugawa and Modern (Seattle: University of
Washington Press, 1965), p. 55
33
Op. cit. pp. 48 – 9.
34
John W. Hall, “Rule by Status in Tokugawa Japan,” Journal of Japanese Studies, 1(1) (1974), pp. 39 - 49
35
Henderson, Conciliation, pp. 123 – 4.
36
Marius B. Jansen, The Making of Modern Japan (Cambridge: The Belknap Press of Harvard University
Press, 2000), p. 336.
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37
Melvin M. Belli & Danny R. Jones, Belli looks at life and law in Japan (Indianapolis: Bobbs-Merrill,
1960), pp.56 – 7; Donald L. Uchtmann, Richard P. Blessen & Vince Maloney, "The Developing Japanese
Legal System: Growth and Change in the Modern Era," Gonzaga Law Review,23 (1987/1988), pp. 352 - 4.
38
The government has issued supplements to the law, but the Japanese public is “relatively conservative
in its approach to reforms [of old laws] and is generally inclined to oppose them.” Bureau of Justice
Statistics, U.S. Department of Justice, The World Factbook of Criminal Justice Systems: Individual Country
Reports – Japan http://www.bjs.gov/content/pub/ascii/WFBCJJAP.TXT.
39
Koji Nakatani, Miwa Kojimoto, Saburo Matsubara & Isao Takayanagi, “New Legislation for Offenders
with Mental Disorders in Japan,” International Journal of Law and Psychiatry, 33(1) (2010), p.7.
40
In June 2001, a 37-year old man with schizophrenia broke into an elementary school and stabbed eight
students to death. The man, who had been in and out of treatment at a mental clinic, had an extensive
criminal record of 15 prior arrests, but, in each instance, all charges had been dropped because of his
mental illness.
41
Takashi Higaki, Gendai Nihon no Mondaisyuu [Problems of Japan Today] (Tōkyō: Kōdansha, 2004), p.
206.
42
Katsuyuki Shimizu, Kenka Ryōseibai no Tanzyō [Birth of Kenka Ryōseibai], (Tokyo: Kodansya, 2006);
Louis Frédéric, Daily Life in Japan at the Time of the Samurai, 1185-1603 (New York: Praeger Publishers,
1972), p. 67.
43
Eiko Ikegami, The taming of the Samurai, (Cambridge: Harvard University Press, 1995), p.142.
44
Op. cit., p.141.
45
Shimizu, Kenka Ryōseibai, pp. 4 – 8; Nobuhiro Ueda, “Rechtsnormen zur Bestrafung beider
Streitparteien (Kenka-Ryoseibai) im japanischen Mittelalter,” Journal of Law and Politics, 72(2) (2005),
pp. 458 - 50 [sic].
46
Takeyoshi Kawashima, Nihonzin no hō isiki [Legal awaness among the Japanese people] (Tokyo:
Iwanami Shoten, 1967), pp.32 – 3, 143 - 7.
47
Masahiko Kawase, "Jisho shingai ni tsuki seito boei ga hitei sareta jirei," Keio Law Journal, 20 (2011),
pp. 296 - 7. The fight started when a man (A) threw garbage into a communal bin on a sidewalk, and the
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defendant (B), suspecting illegal dumping, reprimanded him and slapped him once. B then left, but A
started chasing him, shouting, “Wait!” Catching up with B, A hit him in the back, and B responded by
taking out a personal protection baton and striking A with it repeatedly.
48
Teruyuki Noritake, "Kokuren Anzen Hosyō Rizikai ni yoru Kenka Ryōseibai" [Kenka Ryōseibai by the
United Nations Security Council] in H. Akizuki, K. Nakatani, and M. Nishiumi, eds., Zinrui no Mitisirube
to site no Kokusaihō [International Law as a Signpost for Humanity] (Tokyo: Kokusai Shoin, 2011), pp.425
- 443. United Nations Security Council Resolution 1298, adopted at its 4144th meeting on 17 May 2000.
49
Robert Conot, Justice at Nuremberg (New York: Harper & Row, 1983), p.284.
50
Kawashima, Legal Awareness, pp.137 – 43.
51
Kawashima, Legal Awareness, pp. 87 – 123.
52
Article 199.
53
Higaki, Problems, pp. 208 – 210.
54
Hayao Kawai, Bosei Syakai Nihon no Byoori [The Pathogy of Japan's Maternal Society], (Tokyo: Chuo
Koronsha, 2004); Shklar, Legalism, p.180.
55
Letter to MacArthur. 21 May 1957. D'1.3.0.3-10. Vol. 5. The Diplomatic Record Office, the Ministry of
Foreign Affairs, Tokyo, Japan.
56
Letter to William Frederick Bull, Ambassador Extraordinary and Plenipotentiary for Canada, 8 Apr.
1958; Letter to the Under-Secretary of State for External Affairs, No. 329, 11 Apr. 1958, RG25/Volume
6854/File 4060-C-40/Part 10-2, External Affairs Series G-2. Library and Archives Canada, Ottawa,
Canada.
57
58
Shklar, Legalism, p.173,
Notably those written by the Indian Justice Radhabinod Pal and the French Justice Henri Bernard. See
also Radhabinod Pal, "The Dissenting Opinion of the Member for India," in John R. Pritchard, & Sonia
Zaide, eds., The Tokyo War Crimes Trial: Transcript of the Proceedings (21 vols., New York: Garland
Publishing, 1981), 21; Elizabeth Kopelman, "Ideology and International Law: The Dissent of the Indian
Justice at the Tokyo War Crimes Trial." New York University Journal of International Law, 23(2) (1991),
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pp. 373 – 444; Timothy Brook, "The Tokyo Judgment and the Rape of Nanking." The Journal of Asian
Studies, 60(3) (2001), pp.673 - 700.
59
Telegram from the Secretary of State for Dominion Affairs, London. 7 March 1946, Message from the
Minister for External Affairs, Wellington, New Zealand. 9 March 1946, Message from the Minister of
External Affairs, Canberra, Australia. 11 March 1945. RG 25/Volume 2641/File 4060-C-40/Part 2. Library
and Archives Canada, Ottawa; Letter from the High Commissioner for South Africa. 12 March 1946. FO
371 / 57425. The National Archives, Kew.
60
Kentarō Awaya, "Tokyo Saiban ni Miru Sengo Syori" [Post-war Normalization Policy in the Tokyo
Trial], in Kentarō. Awaya, ed., Senso Sekinin, Sengo Sekinin [War Responsibility, Post-war Responsibility]
(Tokyo: Asahi Shinbun, 1994), pp.73 - 122.
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20