Nuremberg’s Regrettable Sibling: The Contradictions of the Tokyo Tribunal

Gary Bass’s work has been defined by the goal of offering an unsentimental look at the power politics of the postwar era and the stories that the great powers have told themselves to justify foreign intervention after naked imperialism became taboo. His first book, “Stay the Hand of Vengeance,” published in 2002, challenged the sentimental pretensions of war crimes prosecutions after an era when such trials epitomized a certain cosmopolitan self-righteousness. Given the troubled history that the “law of war” has had since the Sept. 11 attacks, it is easy to forget how contrary Bass’s take was when “Stay the Hand of Vengeance” appeared more than 20 years ago. In the heady decade after the end of the Cold War, the United Nations’s credibility was at its apogee and war crimes trials were widely touted as one culmination of the rules-based international order, evidence that “the end of history” would usher in the long-promised “perpetual peace.” Bass was not a critic of the enterprise of war crimes trials, as such. But he was troubled by their contradictions and willing to point them out. 

In “Judgment at Tokyo,” Bass returns to the politics of international justice. Outside of academic presses, “Judgment at Tokyo” is the first in-depth study of the International Military Tribunal for the Far East (Tokyo Tribunal) in English, arguably since the self-serving memoir that Joseph Keenan, its chief prosecutor, wrote in 1950, “Crimes Against International Law.” With the benefit of three-quarters of a century, Bass situates the Tokyo Tribunal within the then-uncertain politics of the postwar period, when colonialism was not yet outmoded, racism was more or less a background assumption akin to common sense, and the Western empires were about to face the shock of a newly self-confident Asia. Compromised from the start and ending with a fractious judgment, the Tokyo Tribunal embodied a collision of old powers and new ideas that continues to define Asian politics to this day.

The Tokyo Tribunal has long been the rather regrettable sibling of the monumental International Military Tribunal at Nuremberg, where the United States, the United Kingdom, the Soviet Union, and France haled many of the surviving members of the Nazi leadership for trial before the world, making the word “Nuremberg” a metonym for justice on a global scale. 

The Nuremberg Tribunal established international law as a set of rules that governed people, not just states. It yielded the creation of new international crimes such as crimes against humanity, aggression, and genocide. And, perhaps most remarkably, it created a surprising degree of closure after the war. Many reasonable people feared that the Nuremberg Tribunal, part and parcel of the demand for unconditional surrender, would continue the spiral of revenge between Germany and its long-standing European rivals. Instead, the imposition of criminal responsibility on specific individuals, many of whom were then executed, helped create the political space for postwar Germany not just to reintegrate peacefully into Europe, but to become a central pillar of a cooperative Western European political project.

Nuremberg’s liberal legacy has largely eclipsed how controversial it was at the time. Famously, when U.K. Prime Minister Winston Churchill, U.S. President Franklin Roosevelt, and Soviet Premier Joseph Stalin first met at the Tehran Conference in December 1943, Stalin proposed simply drafting a list of the top 50,000 Nazis and executing them. In fairness to “Uncle Joe” (the cuddly nickname Roosevelt gave to the Soviet dictator), he said this over a rather boozy dinner and with enough ambiguity so that he could claim he was kidding. Churchill, though, according to the contemporaneous memoirs of Roosevelt’s son Elliot, was deeply offended by the proposal, even in jest. And Roosevelt, eager to defuse the situation with his trademark glibness, proposed a compromise of 49,500. Churchill’s discomfort, though, was more a matter of degree than principal. As late as the Yalta Conference a year later, Churchill was quietly lobbying to dispense with international trials in favor of executing the top 500 Nazis.

One of the most compelling parts of Bass’s book is how it reilluminates the broader Allied debate over what to do with the defeated Axis leaders. Bass highlights the special role played by Henry Stimson in driving the Allies to embrace prosecutions over the more traditional tools of exile, execution, and reprisal, each of which had far more historical precedent than convening war crimes trials. A figure not unlike Robert Gates, Stimson had been secretary of war under Theodore Roosevelt and secretary of state under Herbert Hoover. FDR brought him back into the Cabinet as secretary of war in 1940, when the United States was internally divided on matters of war and still externally neutral. 

Stimson is a largely forgotten figure today, though for historians, his voluminous papers, which are housed at Yale, offer one of the richest sources of insight into the foreign relations of the United States in the first half of the 20th century. Many Republicans then, including Stimson, embraced American internationalism, while Democrats were sharply divided between the two extremes of isolationism and aggressive anti-colonialism. Stimson was less interested in reshaping the structure of international relations as Roosevelt would be, and more interested in giving the United States an equal seat at the table with the other great powers of the era, including securing the preservation of its colonial possessions, such as the Philippines. Bass spends much of the first hundred pages of the book highlighting Stimson’s central role, not simply in committing the United States to international war crimes prosecutions, but in shaping the terms of Japan’s surrender. 

Bass makes a strong case that under Stimson’s influence the circumstances of Japan’s surrender led to the Tokyo Tribunal’s most controversial feature: the absence of Emperor Hirohito. Whether Hirohito should face the death penalty for his role as the head of the Japanese imperial state was the single greatest point of contention in the peace negotiations of July and August 1945. In the debate over the dropping of the atomic bombs, many have argued that the United States should have simply assured Japan that it could preserve its monarchy in some form to end the war. Stimson thought so at the time. And it is easy in hindsight to lament that the Pacific War was allowed to drag on for more than a month in which hundreds of thousands were killed, when preserving Hirohito on the Japanese throne was exactly what Douglas MacArthur did upon becoming the supreme commander for the Allies in the Pacific. 

MacArthur’s decision to protect the emperor was based on the fundamentally conservative—and not unreasonable—judgment that Hirohito could be more valuable as an agent of the United States than as a scapegoat for Japan’s past sins. MacArthur made similar judgments about many former Japanese military officials, including Sadamu Shimomura, the country’s last war minister, who successfully demobilized millions of Japanese soldiers from around the Pacific in the waning months of 1945. For his good deeds, MacArthur permitted Shimomura to go under “house arrest,” which involved living under an assumed name in a comfortable house outside Tokyo until 1947, when the threat of prosecution had dissipated. McArthur also permitted amnesty for the doctors behind Japan’s Unit 731, whose horrific human experimentation was all but forgiven in exchange for the valuable research data they had produced on biological weapons. 

Similar corrupt deals were cut in Germany as well. But the immunity given Hirohito created a problem that was bigger in kind than any of the other deals that allowed the guilty to go free for the greater good. Hirohito was too large a figure to be given an assumed name. And the domestic politics, particularly in the United States, were such that nothing short of the emperor’s violent death would sate the popular desire for revenge. A political settlement, in which MacArthur candidly gave Hirohito immunity in exchange for helping with the occupation of Japan, was not something MacArthur could do (not least if he planned to run for president in 1948). Instead, MacArthur absolved Hirohito of all responsibility, telling the world that an investigation showed that Hirohito was effectively a captive of the Imperial Army and a champion of peace.

While evidently high on stimulants in a bunker next to his dogs, Hitler graciously spared the world of the need to put him on trial. And the denazification of Germany was feasible, at least above a certain level of individual responsibility, given that the Nazi Party had held power for only a dozen years. The Nuremberg Trial, as a consequence, could endeavor to present the truth, the whole truth, and nothing but the truth about the Third Reich. It made a durable historical record that assigned individual responsibility to those who had worked side by side with Hitler since their time together in Landsberg prison. To be sure, certain topics were—to put it generously—soft pedaled at the trial. The Allies’ strategic bombing of Germany and the savagery of the Russian counteroffensive across the eastern front are the most glaring examples. But there were few meaningful constraints in presenting the full ugly truth of the Third Reich itself, who made its crucial decisions, and why. 

Not so at the Tokyo Tribunal. MacArthur made the decision not to pardon the emperor, but to absolve him. This forced the prosecutors to present Imperial Japan’s recent political history without besmirching the very emperor who presided over Japan’s transition from a basically liberal, democratic, and internationalist state to the militaristic menace of the Asia-Pacific. Before its violent turn in the 1930s, Japan was as contentious a global player as Canada. It was a charter member of the League of Nations and among the first countries to sign the Washington Naval Treaty of 1922, the Kellogg-Briand Pact of 1928, and the Geneva Convention of 1929. Hirohito, only 27 when he fully acceded to the imperial throne in 1928, inspired—or at least did nothing to discourage—the rise of an energetic fascist movement that was fanatical in its devotion to him. He consistently acceded to the replacement of Japan’s civilian political leadership in the Cabinet with military officers and members of the royal family. He withheld ratification of the Geneva Conventions of 1929. And, of obvious relevance to the Tokyo Tribunal, he issued the imperial rescript authorizing the surprise attacks executed across Asia on Dec. 7, 1941. 

The political need to exonerate the emperor embedded a fatal flaw in the foundation of the Tokyo Tribunal before it was even called to order. The trial not only would have to create a historical record and identify those responsible for Japan’s atrocities around Asia. It had to do so while absolving Japan’s head of state. And intent on mimicking the Nuremberg Tribunal as much as possible, the prosecution set about attempting to prove that the Japanese government engaged in a criminal conspiracy to wage aggressive war from 1931 to 1945. During those turbulent years, Japan had as many as 15 prime ministers, 16 governments, and three coup attempts. The only constant was Hirohito, whose absence from the Tokyo Tribunal became as conspicuous as the absence of any mention of whales would be in a telling of “Moby Dick.”

Bass does a superb job of chronicling the strains under which the prosecutors, headed by the former head of the Justice Department’s Criminal Division, Joseph Keenan, operated as they tried to match the successes of Nuremberg while tied from behind by MacArthur, who was intent on preventing any case from being made against the emperor and who opposed the creation of the Tokyo Tribunal in the first place. Keenan does not fare well in Bass’s telling and has not in most scholarly accounts of the Tokyo Tribunal. A difficult individual, prone to vaingloriousness and alcoholism, Keenan had neither the clout of his counterpart at Nuremberg, Justice Robert Jackson, nor the disposition to manage the international team of prosecutors under his nominal supervision. 

One can almost feel sympathetic to Keenan, whose British and Canadian underlings both despised him and did a thorough job of papering the historical record with his failings. But the sympathy goes only so far, given that what made Keenan’s task impossible was the fundamental ethical compromise he accepted to keep the job. As the rules of professional responsibility make clear, a prosecutor is not there to represent the interests of a client, even one as imposing as Douglas MacArthur. A prosecutor’s basic responsibility is the pursuit of justice and the truth. Once speaking the name of the man at the center of Japan’s imperial conspiracy became as taboo as saying “Macbeth” in a theater, Keenan made the choice to do something other than pursue justice. And if that political errand was too strenuous for Keenan’s personal and professional talents, then he could always have resigned.

Bass is less critical overall and more keenly interested in the judges who served on the Tokyo Tribunal. Unlike Nuremberg, which had judges only from France, the United States, the United Kingdom, and the Soviet Union, the Tokyo Tribunal also included judges from the Netherlands, Australia, Canada, New Zealand, China, India, and the Philippines. Some of the most fascinating original research in the book supports Bass’s portraits of the judges, whose roles in the tribunal offer apt personifications of the forces that, to borrow from the book’s subtitle, made modern Asia. 

The most compelling portrait Bass paints is surprisingly not of Radhabinod Pal, the Indian judge whose famous dissent from the Tokyo Judgment has made him—paradoxically—a celebrated figure for right-wing Japanese politicians as well as for liberal advocates of judicial independence and the rule of law. In Bass’s telling, Pal came to the Tokyo Tribunal set on dissenting, exemplifying the burgeoning self-confidence of the great powers’ newly or soon-to-be independent colonial subjects. Pal appears in his own legal career to have been the furthest thing from a radical opponent of British imperialism in the years before Indian independence and probably would not have gotten the appointment, which came in the waning years of British control, had he been otherwise.

The most interesting of the judges in Bass’s account is the Chinese judge, Ju-ao Mei. Part of Bass’s contribution is offering an important corrective to the conventional wisdom (at least in the English-speaking world) of Mei as an intellectual lightweight. Mei probably should have recused himself, given his personal connection to some of the events that formed the basis for charges heard by the tribunal. But he comes off in Bass’s telling as the most hardheaded of the judges and certainly the most learned in international law. That would be enough to make Bass’s portrait of Mei a real contribution, but it is the historical context that shifts under Mei’s feet that makes him the most illuminating figure with whom to understand the shifting geopolitics of Asia in the middle of the 20th century. 

Mei was selected in spring 1946 by the Kuomintang government, when Chiang Kai-shek looked as if he might still prevail in the Chinese Civil War. Mei completed his service on the tribunal, however, in November 1948, when Mao’s People’s Liberation Army was only a year from total victory. Mei returned to mainland China instead of fleeing to Taiwan with the rest of the Kuomintang holdouts. And over the intervening three-quarters of a century, Mei was by turns integrated, purged, rehabilitated, and then celebrated in China’s national mythology to suit the Chinese Communist Party’s fluid self-image.

As comprehensive as it is, two things are missing from Bass’s book. One is admittedly unfair to complain about but is nevertheless worth mentioning. The other is puzzling.

First, the unfair complaint is that Bass spends almost no time examining the legal strategies or influence of the defense counsel for the Japanese. Critiquing an author by asking, “Why didn’t you write a different book?” is idiotic (despite how routine it is). And if Bass were asked this question, he would certainly say that he is not interested in courtroom drama or international jurisprudence, but in situating war crimes tribunals within their historical context and understanding their political uses and ramifications. 

To the extent Bass considers development of the law at all, it is through his biographies of the judges. But if there is a fair criticism hidden within this possibly unfair one, it is that Bass leaves the impression that the judges played a greater role in shaping the direction of the law than they did. The arguments counsel make, even if unsuccessful, are often far more important to shaping the law than anything the judges come up with on their own. That is even true—and perhaps especially true—when the judges have a preordained outcome in mind. 

The Tokyo Tribunal was vexed from its inception, for example, by defense objections to its jurisdiction, particularly over the novel crime of conspiracy to wage aggressive war. The Nuremberg Tribunal had largely waved away this issue. But the criticisms of that ruling and the legal arguments against aggression had grown more sophisticated by the time they were presented by the lawyers for the Japanese in Tokyo. As a result, the ultimate judgment from the Tokyo Tribunal made something of a hash of the law, with the judges who affirmed the tribunal’s jurisdiction over aggression failing to come to a consensus, and both the Dutch and the Indian judges converting the defense’s arguments into persuasive dissents. Because of all this, the crime of aggression became the most dubious legacy of the postwar tribunals, which in turn effectively kept aggression from having any meaningful place in international law until 2010.

Even the factual questions presented to judges for decision reflect strategic judgments by counsel that affect doctrine in unpredictable ways. One of Bass’s best chapters is on Japan’s war crimes in China and the prosecution’s frustrating failure to prove those accusations, not because they could not be proved, but because there had been little investment in proving them. For largely prudish reasons, for instance, the prosecution refused to call a single woman to testify about the campaign of sexual violence perpetrated in places like Nanjing. 

Contrast this meager showing with the trial of Tomoyuki Yamashita before a U.S. military tribunal in the Philippines. Yamashita’s trial offered little more than a parade of victims from all walks of life testifying about how they personally suffered in the Battle of Manilla. Yamashita’s trial created a deep and unassailable historical record of atrocities. And because it was a riveting spectacle, it left any judge reviewing Yamashita’s case so appalled that whatever Yamashita personally did or did not do was secondary. That, in turn, ensured that a legal means was inevitably contrived to hang Yamashita by the neck until dead, if only because someone had to answer for crimes like that.

It is doubtful that the doctrine of command responsibility, which was created to make Yamashita liable and which continues to play a major role in war crimes prosecutions from Guantanamo to the Hague, would have been contrived—over the strong dissents from Supreme Court Justices Frank Murphy and William Rutledge—had it not been for the factual record the lawyers presented. That is admittedly speculation, but it offers a plausible example of how legal doctrines with enormous political and historical significance arise not from judicial rumination, but from ad hoc strategic judgments made by lawyers of varying quality who are trying to persuade judges—also of varying quality—how to decide the fate of a specific defendant in a specific case. 

The second, puzzling absence from Bass’s book is the role of the Kōdōha, or the so-called Imperial Way faction, the umbrella term for the Japanese fascist movement, particularly within the Army. It rallied around the young Hirohito as both a revanchist figure, who would return Japan to “traditional” Japanese values and away from the liberalism of the Meiji and Taisho periods, as well as the emperor who would make Japan a truly imperial power in the international sense. The influence of the Imperial Way faction was a major theme in the Tokyo Tribunal’s judgment. But Bass never mentions it and offers no explanation why. 

Given the depth of Bass’s scholarship, the omission is puzzling, particularly insofar as dealing with the Imperial Way in Japan’s march toward war was one of the major complications of the prosecution’s case. Without the emperor to stand trial, the role of lead defendant and therefore the central villain of the Asia-Pacific War fell to Hideki Tojo, who had consolidated power as both war minister and prime minister of Japan in 1941. Tojo was unquestionably a militarist, who was behind the wheel as his country initiated a catastrophic war. But unlike Hermann Goering, who both looked the part and was the closest thing to Hitler still alive in 1946, Tojo was a mediocre stand-in. He was a bland, but effective, conformist in a context in which that kind of careerism implicated him in war criminality. The Japanese government’s imperial ambitions in China, where Tojo served throughout the 1930s, and its pursuit of the “Greater East Asia Co-Prosperity Sphere,” all predated Tojo’s membership in the Cabinet in 1940. Indeed, Tojo was ridiculed by those in the Imperial Way faction as part of the Tōseiha (translated in the judgment of the Tokyo Tribunal as “control faction” but more aptly translated as “the establishment”). Like Adolph Eichmann, Tojo was replaceable—indeed was replaced in 1944. And had he not been prime minister in 1941, history may have turned out differently. But there is a strong chance it would have ended up the same.

None of this, of course, exonerates Tojo. As Hanna Arendt said of Eichmann, “[N]o matter through what accidents of exterior or interior circumstance you were thrust on to the road of becoming a criminal, there is an abyss between the actuality of what you did and the potentiality of what others might have done.” But it does highlight the peculiar myth that these major war crimes tribunals are often forced to embrace: that war criminals are separate from recognizable politics. Like war, a criminal trial makes absolutes necessary because it must reach a verdict. There are the innocent and the guilty. The victims and the perpetrators. The good and the evil. 

To call it a myth is not to denigrate its value. Scapegoats serve a valuable purpose in rehabilitating societies that, like postwar Germany and Japan, need the special kind of closure that a criminal verdict can provide. Blaming Goering or Tojo allowed these societies to move on without endless recrimination. But in fixing the historical narrative around the acts of criminal “monsters,” the myth asks us to ignore the thousands, if not millions, of clerks, journalists, managers, soldiers, train conductors, and voters as bystanders, even victims of the monsters they enabled. And that distorts our ability to perceive how it is that war criminality on a national scale truly comes about. Because for every monster, thousands more actually did the worst, either by being paid to do so, by believing their country’s enemies had done and would do far worse, or by simply ignoring reality to maintain a wholesome view of themselves and the country they loved. 

The myth can also have lasting political consequences, as Bass explores in his epilogue. Executing Tojo as a monster enabled Japanese politicians in the 1950s to make the past into the past, allowing Japan to become one of the world’s largest economies and liberal societies. But the Tokyo Tribunal’s mythological picture of history so distorted reality that it fed into the rise of right-wing political movements that continue to offer a revisionist history of the war at places like the Yasukuni Shrine. And political leaders in a rising China, as well as South Korea, have had their own political reasons to reject Japan’s evident belief that “embracing defeat” meant that bygones will be bygones, when Japanese politicians pander to the country’s right wing with ceremonial visits to Yasukuni and where Hirohito left the imperial throne in 1989 only because he died of cancer. When leaders compromise justice for a greater political good, in short, they fail to secure either.

– Michel Paradis is a senior attorney in the U.S. Dept. of Defense, Military Commissions Defense Organization. He is also a lecturer at Columbia Law School and a fellow at the Center on National Security. The views expressed are his own and do not reflect the position of the U.S. government or any agency or instrumentality thereof. Published courtesy of Lawfare.