Review: Justice in Asia and the Pacific Region, 1945-1952

Justice in Asia and the Pacific Region, 1945-1952

by Yuma Totani

When a war ends and a victor emerges, what then? A general bloodbath? Sometimes the victors indulge in a not very sincere show of fairness before sentencing prisoners to summary execution. But today we pride ourselves on trying to achieve real justice, conducting trials according to international norms, “creating an educational moment,” as the U.S. authorities put it with their trials at the end of World War II in Nuremberg and various locations in Europe and the Pacific region. Those old trials took on renewed meaning in the 1990s when the U. N. set up two ad hoc tribunals to deal with war crimes in Yugoslavia and Rwanda. And their legacy today underlies the International Criminal Court in The Hague and perhaps sheds light on Guantanamo and elsewhere. Some of the profound difficulties in achieving justice for war crimes, particularly when the effort is in the hands of the victors, is vividly illustrated in Justice in Asia and the Pacific Region, 1945-1952, a study of fourteen trials of senior Japanese officers accused of war crimes.

One incidental question raised by the author is why atrocities were so rampant and so egregious among the Japanese forces. Japan had signed the Hague Convention (1907) on the laws and customs of war on land and the Geneva Convention (1929) on prisoners of war. And in the Russo-Japanese War of 1904-1905 the Japanese were known to give exemplary treatment to prisoners of war. But the book provides no answer to this question.

“Crimes against peace” was the focus of the Nuremberg trials and the famous Tokyo Trial; the aim was to establish in law that the waging of aggressive war is a crime for which top leaders are responsible. “War crimes” or atrocities took second place and were mostly dealt with in less prominent tribunals. This book examines command responsibility for war crimes.

General Tomoyuki Yamashita, commander of Japanese forces in the Philippines during the final year of the war, was charged in a Manila court with “permitting” his troops to commit atrocities. His trial, a rather hasty affair, found him guilty and sentenced him to death by hanging. The U.S. Supreme Court refused to hear his appeal, but two of the justices wrote an extraordinary dissenting opinion amounting to a withering attack on the fairness of the Manila trial. Not only was Yamashita denied due process, they said, but he was convicted of a crime which did not exist in U.S. law; furthermore, there was no evidence that he ordered, condoned or even knew about the atrocities other than the fact that they were widespread and, according to the prosecution, he ought to have known. But at the time his command was being overwhelmed by advancing American forces and his lines of communication were constantly disrupted, making it very difficult to know what his troops were doing or to exercise control over them. Yamashita was hanged three weeks after the Supreme Court decision. A similar trial followed for General Masaharu Honma. Part of his defence was that, although he might in principle have been in command of all Japanese forces during the invasion of the Philippines, the structure of the Japanese army separated responsibilities for military operations from responsibilities for administration, so that, as commander of operations, the plight of POWs and civilians was not in his purview. His trial, however, was a carbon copy of the Yamashita trial—similar in the presentation of evidence and similar in results: a guilty verdict, death sentence, refusal by the Supreme Court, sharply written dissenting opinion, and execution. When a third Japanese general, Shigenori Kuroda, went on trial in Manila, the U.S. military commission was replaced by Philippine authorities, who turned out to be much more generous in providing fair-trial protections. They did find him guilty but sentenced him to life in prison rather than death. (A few years later the Philippines gave him a presidential pardon, and he returned to Japan a free man.) As reports of these trials reached Japan, the educational moment did not come; the trials were vilified as victor’s justice, and books describing the shortcomings of the trials became bestsellers.

Totani’s careful analysis of the fourteen trials reveals how complex and troubling it can be to blame commanders for war crimes. Did the Americans have the moral authority to try anyone for war crimes after dropping atomic bombs on Hiroshima and Nagasaki? Can any trial, no matter how careful its procedures, escape being branded as victor’s justice? To underline that point, the defence in one trial went so far as to argue that the proper role of the Allied war crimes program was to target war criminals among the Allied forces, not military personnel of a defeated nation. Assuming that some kind of judicial reckoning necessary, is it realistic, is it even just, to apply to wartime situations the laws and standards developed for peacetime crimes? Faced with the horrors of war atrocities, can we really accept that it is better to let ten guilty people go free than convict one innocent person? It seems impossible to accept no one being held responsible or perpetrators being let off on a technicality for the Bataan Death March, the  Burma-Siam Death Railway (“The Bridge Over the River Kwai”), the Sook-Ching Massacre in Singapore (over 50,000 Chinese slaughtered on mere suspicion of being anti-Japanese), the often horrific treatment of POWs and civilians throughout the region.

Totani’s book demonstrates that there are no easy answers for how to conduct war crimes trials. It was not easy in the past, and it is not easy now. And however it is done, it will inevitably leave in its wake controversy, unsettling compromises and at best only a shadow of true justice.