The Tokyo Trial and Beyond: Reflections of a Peacemonger

by Antonio Cassese, Bert Röling

This book provides a unique insider's view of the International Military Tribunal at the end of the Second World War and reflects on the nature and limits of international law in peacekeeping.

Genres: Japan

200 pages, Paperback

First published January 1, 1994

Reviews

[Wilte · Rating 3 out of 5]

Interview with Bert Röling, the Dutch judge at the Tokyo Trials. One of eleven, but also a judge with a disenting opinion. I read this after Embracing Defeat by John Dower,which is probably good to understand more of the context.

Quotes that give a good summary of Röling’s thinking and personality:

I remember that at a certain point an American weekly think it was also Time magazine, came out with the statement: "We'll give I them a fair trial and then hang them", indicating more or less to the Japanese that it was just a kind of theatrical performance that was being played. I didn't consider it as such, because we were free to acquit people, to decide that specific charges were not proven. Therefore, I think that in that respect it was all right.

Tojo's speech was remarkable in another respect as well. In the Japanese language there are different ways of speaking to superiors or to servants. Tojo spoke the language for addressing servants. We did not know that, of course, because we listened to the speech as it was simultaneously translated into English. A Japanese friend of mine once asked: "Did you not realize that what he was doing was one huge insult?". Well, I'm quite sure the Court did not realize it, nor did the American officials. Personally I could appreciate Tojo's behaviour. And I think that most Japanese enjoyed this way of insult ing the Court.

Someone described the attitude of the Japanese lawyers as "putting flowers gracefully upon the grave of their client".

The Anglo-Saxon party system may have advantages, but it can only work effec tively if there is a certain "equality of arms” between the parties. That was not the case in the post-war trials. The prosecution was in possession of the documents. It had the manpower and the means to prepare its case. The defen dants were in a clearly inferior position and in such a case the Anglo-Saxon system provides only a veneer of fairness, not true fairness.

One could argue that the Anglo-Saxon system offers fewer guar antees for the real truth in a specific case, but that in adverse political cir cumstances it provides better guarantees for the rights of the accused

As in Nuremberg, there were three crimes, the crimes against peace, the crimes against humanity and the conventional war crimes. In my view, how ever, the reason for the charges of crimes against humanity was not valid in Japan. In Germany, it was to provide a means of prosecuting the Germans for killing German Jews, who were, as Germans, outside the protection of the laws of war.

No, my request was rejected. I thought that judges who condemn someone to death should be present at the execution. But the others, and the occupation authorities, did not agree.

The victor in a war, even in a world war, is not entitled to brand as an international crime everything he dislikes and wants to prosecute for. It is for the Court to verify whether pre-existing international law deems it a crime. I think it is one of the possibly negative results of Nuremberg and Tokyo that the victor in the next war could say at the end of the war, I am now entitled to make new laws and then punish those who have breached them.

I would like to add that, in my opinion, the American military authorities in Vietnam were guilty of war crimes simply because they ordered them.

In the Tokyo judgement Shigemitsu was found guilty of "failure to act" with respect to war crimes, on the ground that he did not resign when he dis covered the ineffectiveness of his efforts to stop them. The judgement reads: "He should have pressed the matter, if necessary, to the point of resigning, in order to acquit himself of a responsibility which he suspected was not being discharged." In my opinion this goes too far, especially since, as I mentioned, Shigemitsu had entered the War Cabinet in 1943 intending to put an end to the war as soon as possible.

I sometimes had contacts with Japanese students, The first they always asked was: "Are you morally entitled to sit in judgement the leaders of Japan when the Allies have burned down all of its cities with sometimes, as in Tokyo, in one night, 100,000 deaths and which culminates in the destruction of Hiroshima and Nagasaki? Those were war crimes " I am strongly convinced that these bombings were war crimes

A dilemma clearly exists. Should one prefer a concept of war so disastrous, so atrocious that governments will prevent its occurrence at all costs, or a concept of humanized war, causing much more limited damage to both sides, which would be considered bearable and therefore possible?

In my view weapons have a war-deterring function. They threaten the would-be aggressor with unacceptable losses and costs and with the risk of not succeeding in his aggressive aims. But the military posture I have sug gested would not be capable of large-scale offensive action. Therefore one speaks of a system of "inoffensive deterrence", which might eventually lead to the acceptance of a "calculated inferiority". The striving for superiority leads inevitably to an arms race, such as we have been witnessing since 1945. By contrast, the strategy of inoffensive deterrence might be a solid starting point for mutual, well-balanced agreements concerning arms control and disarmament.

Some years ago the UN Secretariat was requested to make a report on the criteria for distinguishing between developed and devel oping countries. Clear criteria were considered necessary because new rules of international law sometimes made special provisions for developing coun tries" (think, for instance, of Art. 2 of the UN Covenant on Economic, Social, and Cultural Rights; of Part 4 of GATT: of the copyright provisions in the Bem Convention). The study proved to be very difficult, but in the corridors of the Secretariat an unofficial criterion was agreed: ifa delegate had a daily allowance of less than 100 dollars, he belonged to a developing coun try. Other criteria of this kind were discussed: the kind of cars, the parties All this display of wealth by extremely poor countries was considered by developed nations as "bad manners", a clear sign of irresponsibility - and a reason for not taking their suggestions at conferences and meetings too seriously.

[René Toet · Rating 4 out of 5]

This book contains an exhaustive interview with Justice Röling, who represented the Netherlands as one of the eleven international judges during the two year Tokyo Trial after WW II -- the far eastern equivalent to the Nuremberg Trials.
The book offers a great deal of insight into the development of international law and, moreover, the immense political vestments of the victorious powers. In addition, the immense interview sheds light on the causes behind the Pacific War -- colonialism and imperialistic policies of the west being the main factors influencing Japan's pre-war politics.
Surely an interesting read. - 4 stars

[Robu-sensei · Rating 3 out of 5]

The International Tribunal for the Far East ("Tokyo Trial") of 1946-48 was intended to mirror the Nuremberg war-crimes trials, but several important differences have made the Tokyo Trial far more controversial. First, "conspiracy to wage aggressive war," one of the four charges leveled against defendants at Nuremberg, was a uniquely European concept. Next, the defense argued, with some justification, that Japan's "aggressive" warmaking was (largely) in the service of freeing Asian peoples from European colonial rule. Also, whereas atrocities against civilian populations and prisoners of war by the Nazis were systematic and carefully orchestrated from the highest levels, atrocities committed by the Japanese military occurred spontaneously, without orders from high-ranking officers. Defendants, therefore, were often charged with having failing to prevent war crimes (i.e., "negative culpability"). Moreover, the moral superiority of the victorious Allies had been heavily compromised by the horror of the Allied firebombing of major Japanese cities, and even more by the nuclear bombings of Hiroshima and Nagasaki. Finally, the United States unmistakably dominated the proceedings, creating the impression that the Tokyo Trial was an act of revenge for the December 7, 1941 attack on Pearl Harbor. In this setting, proponents of the tribunal have had difficulty convincing the world at large that justice in international law was served.

The Tokyo Trial and Beyond is primarily an interview of Justice B. V. A. Röling, who represented the Netherlands as one of eleven justices in the International Tribunal, and who was one of the three dissenting justices in the 8-3 final verdict. Röling receives the accolade of "peacemonger" in the title, but in fact argued that three of the military defendants should have been sentenced to death rather than to life imprisonment. On the other hand, he maintained that five of the defendants should have been acquitted, especially Foreign Minister Hirota Koki, who was slated for execution despite having opposed aggressive military buildup and action by Japan during his time in office. Röling, interviewed by European University Institute professor Antonio Cassese, explains his decisions and gives his general impressions of the trial itself and his life as a tribunal justice living in Tokyo shortly after the war's end.

While this book offers an intriguing glimpse into the Tokyo Trial and, more generally, into international law, it does little to explain the trial to a reader not already well versed in its particulars. I recommend it to the advanced World War II enthusiast, but alas, I do not know of a commendable general history of the trial for those who lack the necessary background. My best suggestion is the judgment itself: The Tokyo Judgment: The International Military Tribunal for the Far East I.M.T.F.E. 29 April 1946-12 November 1948.