Judgment at Tokyo: World War II on Trial and the Making of Modern Asia by Gary J. Bass

London: Picador, 2023
892 pp. $29.77 (paperback)

After Germany’s defeat in May 1945, leaders of the victorious Allies convened a trial in Nuremberg to prosecute Nazi leaders for war crimes and crimes against humanity. That trial lasted eleven months, and although prosecutors blundered in some ways—most infamously, bungling Hermann Göring’s cross-examination so badly that Göring used the opportunity to simply lecture the courtroom about Hitler’s greatness—it became one of the most dramatic episodes in legal and political history.

That much is well known. What’s less remembered—at least in the United States—is that a similar trial started in Tokyo in April 1946, to prosecute the leaders of the Japanese empire for their part in the war. The work of the International Military Tribunal for the Far East took more than twice as long as the Nuremberg proceedings and, as Princeton professor Gary Bass explains in this extraordinary feat of scholarship, the legacy it left is more complicated, and more troubling, than that of the noble—if flawed—prosecution of the Nazis.

Allied war planners had sketched ideas for post-war tribunals as early as the autumn of 1942, but it was not until late in the war that they started seriously making arrangements. As late as the 1943 Tehran Conference, in fact, Joseph Stalin told Franklin Roosevelt—apparently in all seriousness—that, after winning the war, they should summarily execute fifty thousand German officers. Roosevelt jocularly replied that only 49,000 would be necessary. Winston Churchill, to his credit, was so disgusted by this that he stormed out of the room. Yet Churchill’s own government was actually planning summary executions at that very moment. It was only in late October 1944 that his staff decided to hold a trial—and then, ironically, at Stalin’s behest. “[He] took an unexpectedly respectable line,” Churchill told Roosevelt after a Moscow meeting with the communist dictator. “There must be no executions without trial otherwise the world would say we were afraid to try them.”¹

Thus began the task of haling Göring and other Nazis before a panel of four judges—one each from France, the United Kingdom, the United States, and the USSR—to answer not only for long-recognized war crimes such as massacring civilians and abusing POWs, but also for “crimes against peace.” That concept was intended to implement the principle that waging “aggressive” war—that is, initiating hostilities—is not merely immoral, but a literal crime for which political leaders can be personally punished.

That was a controversial idea, in part because of the longstanding legal prohibition on ex post facto punishment: the rule that acts can’t be treated as crimes unless they’re already deemed crimes before they take place. This principle was at least nominally recognized in the legal systems of all four countries presiding at Nuremberg. But no country had ever criminalized waging or planning an “aggressive war,” or at least so the defendants argued. Allied prosecutors at Nuremberg (led by United States Supreme Court Justice Robert Jackson, on temporary leave from his judicial duties) made two arguments against the idea that the “aggressive war” charge violated the ex post facto rule. First, everyone had always known that starting a war was wrong; there was nothing new about that. Second, international agreements—notably the Kellogg-Briand Pact of 1928—had made it a crime to start a war, and Germany had signed that pact.

These arguments seem plausible, but the actual wording of the Kellogg-Briand Pact was more limited. It said its signers “condemn recourse to war” and “renounce it, as an instrument of national policy”—not that they regarded it as illegal, let alone as personally binding on political leaders. Thus the Nazis’ defense attorneys—one of the honorable elements of the post-war trials is the fact that the defendants were allowed legal counsel and given the opportunity to make their cases—claimed that the trial was merely an exercise in “victor’s justice.”

Jackson and his team hoped to show the world that the trial wasn’t a mere rationalization for revenge by basing the prosecution overwhelmingly on written evidence. As Ann and John Tusa explain in their outstanding book, The Nuremberg Trial, Jackson “had enough courtroom experience to know there can be little argument with a document, and it cannot be cross-examined. Witnesses are unreliable, they often have fallible memories and all too often collapse under cross examination. . . . A document cannot cover up.”² He and the other prosecutors therefore relied primarily on an exhaustingly thorough register of captured German paperwork proving Nazi guilt beyond a reasonable doubt. Translating, cataloging, and presenting these documents was backbreaking work, but the result was that although legal philosophers still dispute whether “planning aggressive war” is rightly classified as a crime, there can be no doubt that the Nazis not only planned and executed aggressive war, but that they represented, in Jackson’s words, “the darkest and most sinister forces in society—dictatorship and oppression, malevolence and passion, militarism and lawlessness.”³

The Tokyo trial was not nearly as well managed. In part, that was because Imperial Japanese forces took more care to destroy documentary evidence before surrendering, which forced the prosecution to rely on eyewitnesses instead. The prosecutors were also handicapped by the fact that they were led not by a celebrated Supreme Court justice, but by an alcoholic functionary named Joseph Keenan, whose ineptitude and combativeness often embarrassed his colleagues. At one point, the British government even tried to persuade General Douglas MacArthur, who as supreme allied commander was responsible for practically everything in post-war Occupied Japan, to fire Keenan. MacArthur refused.

One reason he refused was that the American government had chosen not to bring charges against Japan’s emperor, Hirohito—an omission that bothered many Americans, but which Keenan was willing to support. Although the empire’s surrender was “unconditional” on paper, the Americans had agreed not to remove him from the throne, in part because MacArthur was convinced that his remaining there was crucial to enabling America to rebuild the defeated country into a democratic bulwark against Soviet communism. But the Americans never obtained agreement from the Allies for the decision to leave him in power or even publicly admitted the decision, opting instead to leave the Allied governments and their people waiting in expectation of a second trial. It never came. Instead, MacArthur and Keenan engaged in a ruse: While seeking to convict Japanese officials for war crimes, they simultaneously strove to absolve the country’s wartime leader.

But the worst problem with the Tokyo trial was the judges. Whereas Nuremberg was presided over by four competent and patient legal scholars, the Japanese trial had eleven judges, many of whom performed in ways that undermined the trial’s credibility. The Soviet judge at Nuremberg, Ion Nikitchenko, had kept a relatively low profile, enabling most people to ignore the grotesquery of having a servant of Joseph Stalin pronounce judgment on others in the name of human rights. But the Soviet judge at Tokyo, Ivan Zaryanov was not so cooperative; his lengthy party-line tirades delayed and obscured the issues at trial. The American judge, John Higgins, quit after a month and had to be replaced by General Myron Cramer, even though the rules of procedure did not allow substitutions. The Filipino Judge, Delfin Jaranilla, was a survivor of a Japanese prison camp, which compromised his neutrality. Several judges absented themselves from the proceedings for weeks at a time, including India’s Radhabinod Pal, who seems to have made up his mind before the two-and-a-half-year trial began, and to have spent most of that time writing a thousand-page dissenting opinion declaring the defendants not guilty.

This motley bench was presided over by a short-tempered bully from Australia named William Webb, who often interrupted the proceedings to proclaim his own patriotism and to castigate defense lawyers who were just doing their job. In the midst of a tirade against one lawyer, he proclaimed, “I have no higher loyalty than that to my own country”—even though he obviously owed a higher “loyalty” to objectivity and the law (390). On another occasion, when an attorney protested Webb’s inappropriate behavior, Webb demanded an apology, and when, months later, the attorney finally complied, an unsatisfied Webb demanded a better apology. The infuriated lawyer resigned immediately.

These and other irregularities have led to what Bass calls “vexing doubts about the legitimacy of almost every aspect of the trial” (12). They certainly don’t absolve the Japanese empire of guilt for—among other things—the cruel mistreatment of conscripted civilians, who died in countless numbers constructing, say, the Burma “Death Railway,” or for their bloodcurdling abuses of prisoners, which even included ritual cannibalism. Bass details one especially stark example of this on the island of Chichi Jima, where a Japanese major issued an order detailing how his battalion would “eat the flesh of the American Aviator, Lieutenant (junior grade) Hall,” and instructing a lieutenant to “see to the rationing of this flesh” (313). (Hall was Floyd Hall, one of nine airmen shot down near the island in September 1944. Only one of these survived, having been picked up by a submarine before he could fall into Japanese hands: future president George H. W. Bush.)

The Tokyo trial’s primary success was its compilation of an objective record of such atrocities. As Bass shows, most of the defendants deserved at least the sentences they got. Most, in fact, deserved much harsher punishment; although seven were hanged, the other sixteen were given lifetime prison sentences—only to be released on parole. All were freed by 1958. The only wrongfully condemned defendant was former Foreign Minister Togo Shigenori, who before Pearl Harbor had opposed the war in cabinet meetings, and even resigned his post when the war started, only to return in April 1945 in hopes of steering the government toward quitting the war; he was executed merely for having served in leadership during wartime.

Yet as far as broader legal precedents were concerned, the Tokyo trial accomplished little. The judges never agreed on a single explanation of the source of their power. They issued an opinion that just copied the reasoning adopted at Nuremberg, but several judges, unsatisfied with that, also wrote separate opinions sparring over the question. Henri Bernard of France, for example, insisted that the court’s authority derived from “reason and universal conscience,” according to which initiating war “is and always has been a crime” (575). Webb privately agreed with that, and he drafted a seven-hundred-page opinion saying so, only to throw it away and issue a brief comment holding that international treaties gave the Tribunal its authority. The Dutch judge, Bert Röling, rejected the idea that either natural law or treaties made aggressive war a crime (576). On the contrary, he believed that “the waging of war was a sovereign right of states.”⁴ (Else why would governments bother making peace treaties?)

Then there was the immense dissent by India’s Judge Pal, which endorsed the defendants’ contention that Japan had not aimed to conquer Asia, but only to “liberate” it from European colonialism. The reality is that the empire annexed some three million square miles of Asia and enslaved perhaps one-hundred and fifty million of its people, whom the Japanese considered racially inferior. But imperial leaders claimed they were only trying to unify Asia and free it from Western domination—and Pal apparently agreed. At the trial, former Japanese Prime Minister Tojo Hideki—the highest-ranking and most unapologetic of the accused—insisted his government’s true purpose had been to free Asia from “the oppression of western powers.” Pal accepted this argument, affirming that Japan was simply “defending itself” against the West when it invaded China, Korea, Burma, Thailand, Cambodia, Vietnam, Malaya, Singapore, the Philippines, and other countries, and downplayed such atrocities as the Rape of Nanking and the Manila Massacre (473).

In fact, although Bass doesn’t say so, Pal’s line of thinking not only affirmed the Axis view of the war, but also anticipated today’s fashionable “antiracist” ideology, which regards Western civilization as inherently “oppressive” and excuses non-whites for whatever crimes they might commit against Europeans (and, predictably, Jews). “Imperial Japan portrayed itself as an army of liberation, driving out white and wicked European empires under the slogan ‘Asia for the Asiatics,’” writes Bass. “Japanese intellectuals promised a wholly new order from that of the ousted white supremacists: rejecting a rationalist, materialist, capitalist, and imperialist Western world for a soulful, holistic, and traditional Asian civilization” (213). In other words, like today’s “Critical Race Theorists,” the empire employed the language of victimhood and “resistance” to veil its own essentially racist and primitivist nature. Pal blithely ratified this view, even characterizing the Japanese government’s official racism as “a necessary measure of protection for their own race” (594). Of course, the Nazis had said the same about their own anti-Semitic Nürnberger Gesetze (Nuremberg laws).

The perversity of his way of seeing things was perfectly encapsulated by the fact that he ended his dissent by quoting a politician who said that the cause defeated in war would be vindicated in peace “when time shall have softened passion and prejudice” (602). These words were more revealing than Pal supposed: The politician was Confederate President Jefferson Davis.

Pal spent the rest of his life basking in the applause of a small group of revanchists who still endorsed the empire’s mission, or at least minimized the atrocities it committed. Bass warns that a significant fraction of Japanese politicians have come startlingly close to endorsing such views in recent years. Former Prime Ministers Abe Shinzo and Koizumi Junichro, for example, made several ceremonial visits to Tokyo’s Yasukuni Shrine, where those convicted at the trial are memorialized as heroes. Even if this was not intended as a celebration of the Japanese empire’s leaders, Chinese propagandists have taken full advantage of these visits—and of other examples of Japan’s reluctance to acknowledge the empire’s crimes—to depict today’s Japan as being stained with guilt for the murder, rape, and pillage committed decades ago. This is obviously a cynical rhetorical trick by a totalitarian government responsible for the deaths of at least 38 million of its own people and the enslavement of a billion more. But Japan’s reluctance to acknowledge the history of its imperial aggression has contributed to what Bass calls the “baffling spectacle of a peace-loving democracy losing the moral high ground to a nationalistic Communist dictatorship” (11).

The first comprehensive book on the Japanese war crimes trial, Judgment at Tokyo, is an exceptional feat of political, legal, and historical scholarship, filled with previously unpublished information. More importantly, it sheds valuable light on the ways in which the great moral crises of the World-War-II era continue to reverberate around the globe.

About Timothy Sandefur

Timothy Sandefur is vice president for legal affairs at the Goldwater Institute and is a contributing editor of The Objective Standard.

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