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徐持:法学博士,中国社会科学院法学研究所助理研究员。

Abstract

The Tokyo Trial was an international war crimes tribunal convened by the Allies after WWII to try Japanese political and military leaders who committed war crimes such as the Nanjing Massacre. The International Military Tribunal for the Far East ruled that Iwane Matsui, Hirota Koki and five others accused of perpetrating the Japanese military atrocities in Nanjing by the International Prosecution Section constituted war crimes. However, the tribunal did not adopt Count 45 of the Indictment by the International Prosecution Section, and the trial mode, applicable charges, and imputation theories at the trial were all different from those of the Nuremberg Trials, which gave a pretext to the Japanese “Illusion School” to deny the Nanjing atrocities and even to impugn the Tokyo Trial. This, together with the psychological impact of the American occupation on Japanese people, the Japanese right-wingers’ attack, the “non-memory culture” as well as the impact of extreme relativism, caused the historical memory of the Tokyo Trial on Nanjing atrocities to become obscured and the recall of the memory to be  arduous. It is necessary to solve the issue and to get rid of the misunderstanding of this historical memory after the war. 

Keywords

the International Military Tribunal for the Far East, the Tokyo Trial, Nanjing atrocities, war crimes, historical memory

01  Problem Statement

The Nanjing Massacre, also known as “the Rape of Nanjing,” was a dehumanizing massacre of prisoners of war and civilians in Nanjing committed by the Japanese invaders in World War II. After the war, the International Military Tribunal for the Far East (IMTFE), commonly known as the Tokyo Trial, conducted a series of international criminal trials against Japanese political and military leaders who had committed the atrocities. The trial intended to clarify the criminal nature of the war by setting precedents and conveying the determination that any war in the future will be subject to criminal prosecution. However, the Tokyo Trial itself and the trials of Nanjing atrocities has created long-standing controversies in both China and Japan, and it has been described as a “black hole” in Western academic studies.

American scholar Richard Minear’s book Victors’ Justice: The Tokyo War Crimes Trial, published in 1971, is one of the famous books on the Tokyo Trial in the Western world, but the book does not make an in-depth study of the war crimes per se; rather, it uses descriptions of war crimes to express dissatisfaction with the U.S. for dispatching troops to Vietnam. This is not uncommon in Western academic circles. Just and Unjust Wars: A Moral Argument with Historical Illustrations, a book by American scholar Michael Walzer published in 1977, holds that the biggest problem of the U.S. policy of reforming the Japanese regime was that it did not regard Japanese militarism as a crime comparable to the standards applied to the Nazis, and it underestimated the scale of Japanese military aggression and atrocities in the war. Many arguments of Minear’s and Walzer’s, however, have been distorted by Tokyo University professor Nobukatsu Fujioka and others who’ve framed their words with revisionism concerning Japanese militarism and the “Greater East Asia War.” American historian John W. Dower, in his Pulitzer Prize winning book Embracing Defeat: Japan in the Wake of World War II, remarks that the Tokyo Trial was “but a murky reflection of its German counterpart (the Nuremberg Trials).” He believes that “Class A Tribunals represented a momentous development indeed,” but “like Nuremberg,” the Tokyo Trial “was law, politics, and theater all in one,” and “the contradiction between judicial idealism and plain victor’s justice provided fertile soil for the growth of a postwar neo-nationalism.”

Although the Nuremberg Trials and the Tokyo Trial are comparable, the major differences between them cannot be denied. Successive German governments have accepted and addressed the verdicts of the Nuremberg Trials and their explanation of the German’s responsibility for war crimes with a positive instropective attitude, and they have taken actions to prevent the recurrence of such historical tragedies. In 1970, former German Chancellor Willy Brandt knelt down in front of the Monument to the Ghetto Heroes in Warsaw when he visited Poland, which demonstrated the German government’s and its people’s sincere repentance for the  massacre ofJews. Germany took the initiative to hunt down and try the Nazi war criminals who had escaped, and they passed special legislation to pay long-term large-scale war reparations to the victims. The German government attaches great importance to developing a positive attitude and understanding among the German people, always maintaining a clear, sincere, and positive attitude towards remembrance of historical events, and using politics, laws, and other institutional systems to ensure that the correct view of World War II history takes root in the collective memory of the German nation.

On the other hand, the denial of the Tokyo Trial and the war of aggression has long been the mainstream narrative of World War II in Japan. The Japanese right-wing forces have long regarded themselves as Asian “liberators.” They never reflect on their own aggressive behavior and war crimes; instead, they developed the “Tokyo Trial historical view” to fabricate historical facts and indoctrinate the Japanese people. The centrists are indifferent. The leftists are introspective and hold an accurate historical view, but they are few in number and weak in influence. Shortly after the Tokyo Trial, the war criminals in custody were released one after another. Many of them, who committed numerous crimes, returned to the political stage and even became leaders of Japanese political parties or heads of the Japanese government. One after another, some Japanese politicians visited the Yasukuni Shrine where Class-A war criminals are enshrined, but they have never been to Nanjing or Bataan. The Japanese right-wing constantly sought “constitutional revisions” in a bid to break through the post-war system and reassert military strength. The Japanese government endeavored to avoid  reparations for their actions in World War II, especially reparations  to the “comfort women,” the victims of biological and chemical weapons, and forced laborers, while the Japanese judiciary actively cooperated with the government and shirked Japan’s responsibilities with excuses, such as “statute of limitations” and “non-accountability.” In this regard, former Singapore Prime Minister Lee Kuan Yew once pointed out: “Unfortunately, unlike the Germans, Japan has not been open and frank about the atrocities and horrors committed in World War II.” It can be seen that post-World-War II Japan has refrained from collective introspection and the kind of top-down responsibility  evinced by the Germans. As a result, Japan can only have a distorted historical memory of the war of aggression and a distorted attitude towards the Tokyo Trial.

After the victory of the war of resistance against Japanese aggression, a New York Times review stated: “Chinese could have had half a hundred [slogans]. They needed only one. It was ‘Remember Nanking.’ … At Nanking, in December 1937, the Japanese set a pattern of conquest they have followed faithfully since… After Nanking, no one should have been surprised at any subsequent barbarities.” The Nanjing Massacre was typical of the atrocities committed by the Japanese military during World War II. The Chinese still feel deeply pained about the Japanese soldiers’ violence and insult to civilians and prisoners of war during the war, but they are also confused about the Tokyo Trial’s verdicts concerning the Nanjing atrocities. For example, regarding the number of people killed in the Nanjing atrocities, the section entitled “The Rape of Nanking” in Chapter VIII Conventional War Crimes (Atrocities) stated that “the total number of civilians and prisoners of war murdered in Nanking and its vicinity during the first six weeks of the Japanese occupation was over 200,000.” In Chapter X, “MATSUI Iwane’s verdict” stated that “upwards of 100,000 people were killed,” and “HIROTA Koki’s verdict” stated that “hundreds of murders, violations of women, and other atrocities were being committed daily.” In light of the evidence, the Tribunal’s findings of the number of victims in the Nanjing Massacre was not only inconsistent but also different from the Nanjing War Crimes Tribunal’s findings that “the death toll in the massacre exceeded 300,000.” Another example involves the case of Matsui, who was found guilty under Count 55 of the indictment for “his failure to discharge this duty,” for which he was sentenced to death by hanging. He was not, however, sentenced for Crimes against Peace or for “waging a war of aggression and a war in violation of international law, treaties, agreements and assurances against the Republic of China” under Count 27. The Tribunal reasoned as follows as to why it did not convict him on these charges: “to justify a conviction under Count 27, it was the duty of the prosecution to tender evidence which would justify an inference that he had knowledge of the criminal character of that war. This was not done.” Finally,  in addition to the massacre of Chinese civilians and soldiers who laid down their weapons, many eye witness reports and documentary evidence indicated the Japanese military’s sexual violence against Chinese women. The Tribunal granted that “approximately 20,000 cases of rape occurred within the city during the first month of the occupation.” But there is a widespread view that the Tokyo Trial failed to conduct any investigation or trial on the issue of “comfort women” in the war. In fact, while most prosecutors believed that such forced sexual slavery was a war crime, the Tokyo Trial did not try the “comfort women”  cases. The prosecutors from three countries presented a total of seven pieces of evidence concerning the sex crimes involving “comfort woman,’ all of which were acknowledged without conviction in the verdicts. This inclusion came to be regarded as a precedent in future litigation involving crimes of sexual violence in wartime.

All the above judicial decisions have made many Chinese who do not understand the intricacies of war crime trials believe that justice has not yet been served and that justice must be served. Canadian scholar Timothy Brook commented on the sentiments of the Chinese people: “This disappointment is influenced by the view that the Tokyo Trial has failed to do what the Nuremberg Trial has done in terms of justice.”

In fact, the pronouncements that came out of the Tokyo Trials were not as widely accepted in Japan as those of the Nuremberg Trials in Germany. In a public opinion survey on the Tokyo Trials conducted in 1955, 60% of people expressed disapproval of the Allied Tribunals, which was an “improvement” from the situation at the beginning of the trial, when the overwhelming majority of the Japanese expressed their support for the political leaders under trial. The reaction to the Tokyo Tribunal trials gave rise to the Japanese “Illusion School.” Almost all major contested issues, including those of jurisdiction, the legitimacy of the Tribunal, the legality of the crimes and punishment, the joint consultation and the Mikado’s war responsibility, came in reaction to the proceedings of the Tokyo Trials. As Cheng Zhaoqi, a Chinese scholar, pointed out: “one problem is jurisprudence; another problem, one that had a more serious consequence, was evidence… For a long time the Japanese right-wing focused on the Nanjing Massacre among all the atrocities committed by the Japanese army, and the remote cause for this is the evidence of the Tokyo Trial is ‘untrue’.” Due to the different ideas concerning the trial mode and the application of international law, the Japanese right wing not only cast doubts on the claims concerning the Nanjing atrocities, but also explains the the pronouncements of the Tokyo Trials.

The above issues touched upon a number of core legal matters in the Tokyo Trials, among them: how to understand and respond to mass murder and violence in the war, andwhat kind of trial mode should have been adopted by the Tokyo Tribunal? What were the applicable charges? What imputation theories should have applied and what types of evidence adopted? It is also important to consider the Tokyo Trial from the perspective of the development of the law of war and peace. Has it had an impact on the formation of the historical memory of the international trials of the Nanjing Massacre and its contemporary communication? How has it shaped today’s international law?

 02  The Trial Mode of Nanjing Atrocities in the Tokyo Trial

The International Military Tribunal for the Far East Charter (hereinafter referred to as the “Tokyo Charter”), like the Nuremberg Charter, stipulates that the Tokyo Tribunal has jurisdiction over “Crimes against Peace,” “Conventional War Crimes” and “Crimes against Humanity” in order to carry out individual criminal liability against the Japanese wartime political and military leaders.

On April 29, 1946, the International Prosecution Section (IPS) formally filed an indictment to the Tokyo Tribunal. The structure of the indictment is very complex, and the prosecution covered the time period between January 1928, when the Pact of Paris (the Kellogg-Briand Pact) was signed, and September 1945. What is striking about this document is that the charges in the indictment were not completely consistent with the provisions of the Tokyo Charter. The prosecution listed 55 counts and charged 28 defendants with the following three groups of war crimes:

Group One: Crimes against Peace. The defendants were accused of “waging war or wars of aggression” and “war or wars in violation of international law, treaties, agreements and assurances.” Counts 1 to 5 charged the accused with participating in the formulation or execution of a common plan or conspiracy to “wage war or wars of aggression and war or wars in violation of international law, treaties, agreements and assurances.” Counts 6 to 17 charged the accused with having planned and prepared war of aggression against named countries. Counts 18 to 26 charged the accused with initiating war of aggression against named countries. Counts 27 to 36 charged the accused with waging war of aggression against named countries.

Group Two: Murder. Counts 37 and 38 charged the accused with conspiring to murder the soldiers and civilians by initiating hostilities from June 1, 1940 to December 8, 1941. Counts 39 to 43 charged the accused with the commission of murder on the day of the Pearl Harbor Incident (December 7 and 8, 1941). Count 44 charged the accused with conspiring to murder on a wholesale scale prisoners of war during the 14 years from the outbreak of the September 18 Incident to the surrender of Japan. Counts 45 to 50 charged certain accused with the murder of disarmed soldiers and civilians in China, such as those that had taken place during the Nanking Massacre. Counts 51 and 52 charged certain accused with the murder of members of the armed forces in the Soviet Union.

Group Three: Conventional War Crimes and Crimes against Humanity. Count 53 charged certain accused with conspiring to breach the laws and customs of war. Count 54 charged certain accused with committing breaches of the laws and customs of war. Count 55 charged the accused with having recklessly disregarded their legal duty of preventing their subordinates’ crimes.

The Nanjing atrocities were given a special status in the indictment of the Tokyo Trial, in Count 45, which read:

The Defendants ARAKI, HASHIMOTO, HATA, HIRANUMA, HIROTA, ITAGAKI, KAYA, KIDO, MATSUI, MUTO, SUZUKI and UMEZU, on the 12th December, 1937, and succeeding days, by unlawfully ordering, causing and permitting the armed forces of Japan to attack the City of Nanking in breach of the Treaty Articles mentioned in Count 2 hereof and to slaughter the inhabitants contrary to international law, unlawfully killed and murdered many thousands of civilians and disarmed soldiers of the Republic of China, whose names and numbers are at present unknown.

There were two reasons why the Nanjing atrocities were given a special status in the Tokyo Trial indictment. The first reason was that the charges in Count 45 were (Group Two) murder charges instead of the (Group Three) Conventional War Crimes and Crimes against Humanity charges. The second reason was that all the criminal facts charged in Count 45 came from the Nanjing atrocities, but the basis of the defendants’ guilt was different and the indictment did not elaborate separately.

After the trial, the Tribunal found that the counts in the indictment were unbalanced and contained many repetitions. Therefore, most of the counts were merged and only 10 counts (1, 27, 29, 31-33, 35-36, 54-55) were kept. The murder, and the conspiracy to murder charges were rejected by the Tribunal. Count 45 that charged the Japanese army of committing the Nanjing atrocities (part of Group Two, “Murder” was not included in the final list of indictments. Hence, none of the accused was convicted under Count 45. This made many Chinese feel that the victims of the Nanjing Massacre were scorned and even lead some Chinese to believe that the Tokyo Trial failed to hold Japanese leaders accountable for the Nanjing atrocities. In fact, the 12 defendants who had been charged with causing, permitting and committing the Nanjing atrocities were not freed from culpability.

The reason for this seemingly “misplaced” result is closely related to the trial mode in the Tokyo Tribunal. The trial policyof war crimes, the corresponding conviction structure, and the determination of legal liability adopted by the Tokyo Tribunal established that a framework in which the prosecution of war crimes in the Tokyo Trial became epoch-making and the applied trial mode unprecedented. The trial involving the Nanjing atrocities had a special and important systemic position in the Tokyo Trial, but it inevitably left some ambiguity in legal.

First, when the Tokyo Trial took place, the Law of War was undergoing a transition from its earlier conception concerned only with restricting war violence to a dual concepetion which included both preventing the waging of war and restricting war violence. What people saw in the two world wars were “unspeakable despair and misery” and “faces distorted in the grip of the death-struggle.” The International Military Tribunal for the Far East and the International Military Tribunal sitting at Nuremberg shared a common conviction--that the Axis powers started the war and committed countless crimes, which was “essentially an evil thing.” The purpose of the International Military Tribunal’s trial of war criminals was to punish war crimes with the severest legal means and to prevent their recurrence. Therefore, in addition to advocating for the punishment of those who had committed atrocities in the war, theTribunal was also intent on punishing the perpetrators of aggressive wars by convicting them of Crimes against Peace, so as to prevent the recurrence of wars. Thus, the law of war was reformulated so as to prosecute both atrocities in war and waging the war of aggression as crimes.

Joseph B. Keenan, chief prosecutor in the Tokyo Trials, made a passionate statement in his opening speech:

Today, and far more important still, tomorrow and forever hereafter, wars can be nothing other than total wars. Today and tomorrow all wars have no limit of space or territory. The victims will be the young and the old, the armed and unarmed, and hardly a home — from one in a great metropolis to that in a smallest village — will be free from destruction. … wars of the future will literally threaten the existence, not alone of civilization but of all beings … This problem of peace, which has ever been the desire of the human race, has now reached a position of the crossroads. …Our question … at the crossroads in now literally an answer: To be or not to be. 

From the establishment of the Tokyo Trial policy, it can be clearly seen that the cruelty in war was the most important reason for the leaders and the public of all countries to share the same hatred and to determine to conduct international criminal trials against the aggressors. Crimes against Peace was still the core and focus of the Trial since it aimed at criminalizing the initiation of aggressive wars.

According to the judgment of the Tokyo Trial, seven defendants were sentenced to death. Although Crimes against Peace was recognized at the core of the Tokyo Trial, none of the accused was sentenced to death for Crimes against Peace. It was only those who were prosecuted and found guilty of war crimes that were sentenced to death. Among them, Matsui Iwane and Hirota Koki were convicted for neglecting their legal duty to prevent the Nanjing Massacre from happening. This was the only crime Matsui Iwane was charged with and sentenced to death by hanging. The same sentencing logic was also followed in the Nuremberg Tribunal, which indicated that both Tribunals believed that war atrocities call for severer forms of punishment than Crimes against Peace. Therefore, as a war crime, Nanjing atrocities weighed heavily in the Tokyo Trial. In fact, the most distressing atrocities revealed by the Tokyo Trial were the brutal killings of civilians and POWs by the Japanese army. The Allies’ outrage at Japan’s abuse of POWs was clear in the Potsdam Declaration, one of the legal bases of the trial. The appalling atrocities of the Nazis shocked the world, but “most Americans, British and Australians still believed that their enemies in Asia were even more hateful than the Germans.” The statistics compiled during the trials reinforced this impression. It was estimated that the death rate of British and American POWs in German and Italian camps was 4% while the death rate of American and British Commonwealth POWs held by the Japanese was about 27%.

Second, the  logic applied to the classification of the charges determined the Tokyo Trial’s identification of the war crimes in the Nanjing atrocities. That logic would be guided by the principal that the ultimate goal of the trials was “peace through the rule of law.” Therefore, the trials of Crimes against Peace and criminal complicity became the center of the Tokyo Trial. All 28 war criminals had to be charged first with Class A crimes such as Crimes against Peace before they could be tried at the Tokyo Tribunal. The result was the establishment of a  convictions schema in which Crimes against Peace  criminalized the waging of aggressive wars as the starting point, and the atrocities in war and crimes against humanity as its logical extensions.

The prosecution’s unexpected accusation of murder rebutted the Allied forces’ natural law claim that they were fighting a just war. There were three main reasons for this rebuttal. First, wars inevitably involve killing and destruction. If a war is illegal from the perspective of international law, and the killing of soldiers and civilians during the war is intentional, then such intentional killing is murder. The Tokyo Tribunal prosecutors cited the following in support of this determination: the Pact of Paris, which outlaws war as an instrument of national policy; the Hague Convention III, which recognizes that hostilities between nations must not commence without previous and explicit warning, in the form either of a reasoned declaration of war or of an ultimatum with conditional declaration of war; and Regulations Concerning the Laws and Customs of War on Land, also known as the Hague Convention IV, which forbids treacherous killing or wounding (Article 23). The prosecution argued that once these provisions were violated, any justification in defense of the killings, including emergency avoidance and justifiable self-defense, is rendered irrelevant. Second, an accusation of murder meant that -attempts at legal revisionism and  “victors’ justice” would be repudiated on that the grounds that murder is a natural crime in the legal tradition of all civilized countries. The question was whether murder could be charged on its own as an international crime. The prosecutors believed that they could eliminate their uneasiness and worries by first having to resort to the provisions of domestic laws on murder and then looking for elements related to them in international laws. Third, it was considered simpler and better that those who waged aggressive wars should be recognized first as ordinary murderers before being tried for specific war crimes. The prosecutors tried to pierce the balloon of sovereignty and remove the corrupt authority of senior government officials; as Joseph B. Keenan pointed out, “it is high time that the promoters of aggressive, ruthless war and treaty-breakers should be stripped of the glamour of national heroes and exposed as what they really are — plain, ordinary murderers.”

The defense argued against the above ideas by claiming that even though murder was criminal everywhere, that did not mean that murder should be treated as a separate crime in international law. In a similar vein the defense argued that the prosecution was making an error in drawing an analogy between illegality in international law and that in domestic law. Takayanagi Kenzo, deputy head of the Tokyo Trial defense team, said, “The Chief of Counsel begins by using the ambiguous epithet ‘illegal’ meaning ‘illegal by the Law of Nations’ and then erroneously uses the same word to mean ‘illegal with all the consequences and accompaniments of acts illegal by municipal law.’”

The Tribunal’s judgment on murder was divided into two parts: it first dismissed the count of murder on the grounds that there were no such charges in the charter, and then it accepted the remaining counts:

Counts 39 to 52 inclusive (omitting Count 44 already discussed) contain charges of murder. In all these counts the charge in effect is that killing resulted from the unlawful waging of war at the places and upon the dates set out. In some of the counts the date is that upon which hostilities commenced at the place named, in others the date is that upon which the place was attacked in the course of an alleged illegal war already proceeding. In all cases the killing is alleged as arising from the unlawful waging of war, unlawful in respect that there had been no declaration of war prior to the killings (Counts 39 to 43, 51 and 52) or unlawful because the wars in the course of which the killings occurred were commenced in violation of certain specified Treaty Articles (Counts 45 to 50). If, in any case, the finding be that the war was not unlawful then the charge of murder will fall with the charge of waging unlawful war. If, on the other hand, the war, in any particular case, is held to have been unlawful then this involves unlawful killings not only upon the dates and at the places stated in these counts but at all places in the theater of war and at all times throughout the period of the war. No good purpose is to be served, in our view, in dealing with these parts of the offences by way of counts for murder when the whole offence of waging those wars unlawfully is put in issue upon the counts charging the waging of such wars. … From the language of these counts it is not quite clear whether it is intended to found the unlawful killings upon the unlawfulness of the attack or upon subsequent breaches of the laws of war or upon both. If the first is intended then the position is the same as in the earlier counts in this group. If breaches of the laws of war are founded upon then that is cumulative with the charges in Counts 54 and 55. For these reasons only and without finding it necessary to express any opinion upon the validity of the charges of murder in such circumstances we have decided that it is unnecessary to determine Counts 39 to 43 inclusive and Counts 45 to 52 inclusive.

Professor Neil Boister of the University of Canterbury in New Zealand and professor Robert Cryer of the University of Birmingham in England maintain that “it is impossible to see the murder counts as being supportable in international law, and similarly difficult to see them as having been a sensible set of charges to have been brought by the prosecution. As they were framed, there was a risk of unlimited liability”; “every act which would have been legal in a defensive war was illegal in this one”; “every soldier who marched under orders into occupied territories or who fought in the homeland was a criminal and a murderer”. 

The famous Israeli international jurist Yoram Dinstein also pointed out: “From a practical perspective, it is evident that acceptance of either of these two conceptual analyses would have led to a complete collapse of the jus in bello. … The rules of land warfare … would not be the measure of conduct and the pronouncement of guilt in any case would become a mere formality.” Murder, as the most profound and basic crime, is punishable in any place and legal system. Although international criminal law also recognizes the criminality of murder, it only considers murder as a criminal means and method rather than an independent crime. The fundamental reason for this rests on a conception ofthe “international nature” of the crime. In international criminal law, “crime” must simultaneously violate individual rights and the fundamental value of the “integrated international society.”. The Rome Statute of the International Criminal Tribunal explains it this way: that acts of international criminality unlike those within national borders, can affect and infringe the peace and security of the world, and the well-being of mankind.

Furthermore, the Tokyo Trial indictments did not make a clear differentiation between War Crimes and Crimes against Humanity, but combined them.. Both the International Military Tribunal for the Far East and the International Military Tribunal at Nuremberg included Crimes against Humanity in their proceedings. The prosecution’s basic claim was that the Japanese army committed mass atrocities such as massacre and rape for at least six weeks after the fall of Nanjing. However, the prosecutors soon realized that Japan’s killing, enslavement and persecution of civilians were different in kind from those committed by Nazi Germany, and that Crimes against Humanity could not in itself be aptly applied. Therefore, in the Tokyo Trial, Crimes against Humanity was integrated into the framework of Conventional War Crimes, and what the prosecution tried to prove was that the crimes which typically may have been differentiated between Crimes against Humanity and Conventional War Crimes were all of a kind–essentially typical war crimes that involved the same inhumane treatment of civilians and disarmed soldiers.

The fact that the Tokyo Tribunal did not issue a verdict on Crimes against Humanity, but handled all documented cases as war crimes did not weaken the humanitarian position of the Tokyo Trial. On the contrary, it highlighted the Tribunal’s thoughtful rearticulation of Crimes against Humanity. According to the Tokyo Tribunal, the essence of Crimes against Humanity relates to the special criminal motives, that is, the discriminatory motives based on the race, nationality, ethnicity, cultural community, and the beliefs of the victims. Where such motives are involved, the systematic violation of human life, health, freedom and other lesser dignitiesmay be tried as “Crimes against Humanity.” These crimes “consequently affect, or should affect, each and every member of mankind, whatever his or her nationality, ethnic group and location.”

The subsumption of Crimes against Humanity under War Crimes was also related to the prosecutors’ claim that the persons responsible for the crimes included not only military personnel, but also civilian leaders. The prosecutors maintained that after the Nanjing Massacre, the Japanese government realized that mass atrocities had been committed and that they may continue. Knowledge of the crimes of the Japanese invaders was so widespread that even civilian officials knew about them. Itaro Ishii, director of the Japanese Foreign Ministry’s East Asian Affairs Bureau at that time, wrote in his diary on January 6, 1938: “I received a message from Shanghai reporting on the violent behavior of our own troops. The extent of robbery and rape described in the message is too intense to look at. Alas! Is this the Imperial Army? This is a serious problem since it shows the degradation of the Japanese people’s moral standard.” The Japanese government also obstructed the work of the International Committee of the Red Cross (ICRC). During the entire war, Japan only allowed three delegations of the ICRC (in Tokyo, Shanghai and Hong Kong) to work within its own territory and the territories it occupied. However, the work of these three delegations was hamstrung, and their general attitude toward to ICRC was exemplified in Borneo where an ICRC representative was executed by the Japanese for conspiracy against Japan. These was also clear evidence that the Japanese government knew about the atrocities of the war. The authenticity of war crimes was proved, and war was a matter of Japanese national policy. In other words, the Japanese government was aware of these crimes and infractions, but did nothing to prevent them. According to the relevant statutes of the Hague Conventions and the Geneva Conventions, the government is responsible for prisoners of war, and civilian officials are responsible for the actions of the army. Accordingly, civilian officials who do not act to stop war crimes or resign in protest will be held to account for the same. The rules of military engagement and discipline follow a chain of command and oversight that extends from the highest levels of government down to the single soldier. Accordingly, when any office within that chain of command becomes cognizant of the crimes and misdeeds of military actors, it is responsible for quelling them and disciplining the culprits. Disregarding such offenses is itself an offense, which, in cases of rampant disregard, can reach back to the offices of heads of state. It is on this basis that the Tokyo Tribunal issued three indictments for “direct responsibility” (Count 54), “cabinet responsibility” (Count 55) and “commander responsibility” (Count 55).

Matsui Iwane was charged with commander responsibility under Count 55 for having deliberately and recklessly neglected his legal duty. The Tribunal stated that: 

His illness was not sufficient to prevent his conducting the military operations of his command nor to prevent his visiting the City for days while these atrocities were occurring. He was in command of the Army responsible for these happenings. He knew of them. He had the power as he had the duty to control his troops and to protect the unfortunate citizens of Nanking. He must be held criminally responsible for his failure to discharge this duty. 

This conception of responsibility has been cited as a precedent by the International Tribunal of Justice at Hague. The Tribunal recognized that Hirota Koki, who was charged with cabinet responsibility, did take up the matter of the Nanjing atrocities with the War Ministry, but held that he did not fulfil his obligations to comply with international law as a cabinet member: 

As Foreign Minister, he received reports of these atrocities immediately after the entry of the Japanese forces into Nanking. According to the Defence, evidence credence was given to these reports and the matter was taken up with the War Ministry. Assurances were accepted from the War Ministry that the atrocities would be stopped. After these assurances had been given, reports of atrocities continued to come in for at least a month. The Tribunal is of opinion that HIROTA was derelict in his duty in not insisting before the Cabinet that immediate action be taken to put an end to the atrocities, failing any other action open to him to bring about the same result. He was content to rely on assurances which he knew were not being implemented while hundreds of murders, violations of women, and other atrocities were being committed daily. His inaction amounted to criminal negligence.

When the judgments of the Nuremberg Trial and the Tokyo Trial were issued, the legal principle of civil servants’ responsibility for negligencewas criticized, but its appropriateness is now widely recognized in today’s international trials. In the Nuremberg Trial, German Foreign Minister Joachim von Ribbentrop, like Hirota Koki, was sentenced to death for “Crimes against Peace,” “Conventional War Crimes” and “Crimes against Humanity.” Later, Articles 26 and 28 of the Rome Statute of the International Criminal Tribunal stipulated both direct culpability and negligent culpability respectively and clearly included them as the basic principles of international humanitarian law.

The challenge facing the international community today is not whether to accept them as legal principles, but how to apply them universally in the future. The Tokyo Trial made great contributions to the development of the principles of international humanitarian law to protect civilians from the abuse of power by state leaders in wartime, and for this, it should be highly commended.

 03  Post-War Historical Memory and Contemporary Communication

For a long time since the end of World War II, Japan’s understanding of its historical heritage of extreme nationalism and militarism has lacked a sense of justice, described in one instance as undergoing a “blind stage.” This was mainly caused by the “bitter victim mentality” based on its Hiroshima experience. Discussions about historical responsibility have focused on the government’s responsibility for the disasters caused by military defeat rather than its responsibility for launching the war. The Japanese right-wing has even denied that the Nanjing Massacre took place. In sharp contrast, Germany firmly condemned the Nazis and publicly acknowledged its collective shame very early on.

Any simple comparison cannot explain why Germany was repentant of while Japan was ambiguous about their crimes after the war. In his book The Wages of Guilt: Memories of War in Germany and Japan, Ian Buruma puts forward the view that Germany’s repentance involves a kind of political maturity and moral progress that Japan has failed to achieve to this day, and he draws the following implication: “If an irresponsible system cannot be made public, it is likely to continue its existence in another way.” This is exactly why the manner in which the events of the Nanjing atrocities and the examination of records of the Tokyo Trials are being communicated and understood is vitally important. To avoid misunderstanding the contemporary communication of the history of the Tokyo Trial, we should address the issue of “post-trial justice.” The number of the war criminals tried at the IMTFE was far smaller than the number of those imprisoned on suspicion of committing war crimes, and the number of the latter was continuously declining during the time of the trials. As many war criminals who were released or pardoned returned to the politic arena, Japan’s bureaucracy carried down was even more powerful than that in wartime. In addition, after the Tokyo trial, the US occupation of Japan gradually deviated from the original ideals of “demilitarization” and “democratization.” These paved the way for the revival of Japanese nationalism after the war, although the expectation for peace and the yearning for democracy and freedom had been accepted by most Japanese people and had been playing a profound role in the reconstruction of the entire Japanese society. Many Japanese admitted that the war was evil and that, as a nation, they needed to show contrition. Various non-governmental organizations, intellectuals, and some media openly called on the public to report war criminals and for a course of self-examination. Some leftists, however, believed that the responsibilities of the Japanese people should not be overemphasized, since they believed that the crimes of the emperor and military officials, who  bore the greatest responsibility for the war, would be minimized when the government advanced a “Repenting of All 100 Million People” campaign. Many young Japanese felt confused. It seemed that  their teachers taught them to worship the emperor and support the war yesterday, but today they were being taught to condemn militarism and support democracy. Having received an American-influenced democratic education, most of them came to have left-leaning tendencies and were full of distrust of Japan’s militarist system in the past. However, during the Cold War, in its anti-Communist campaign, the US government rehabilitated former Japanese militarists, which made many people feel betrayed. All kinds of uncertainties emerged, including the dispute over Japan’s constitutional amendment, the shirking of the war responsibility, the playing down of war atrocities, and the diplomatic relations with neighboring countries. All these matters can be traced back to the contradictions and confusions of the “mixed Japanese and American heritage.”

To avoid misunderstanding the contemporary communication of the history of the Tokyo Trial, we should understand the culture of denial among the Japanese. civilization. While European culture has had a history in which war crimes and other wrongdoings were denied and history revised,  this changed in the aftermath of World War II when the ancient rule that one should “never forget” became a moral obligation. We often hear the Japanese right-wing nationalists deny history, but we also rarely hear their opposition make strong counterattacks. This is partly due to the “shame culture,” which is different from the Christian-laden “guilt culture” which has had some prevalence in European nations. “The Japanese people are concerned more about who should be responsible for the defeat than about who should be responsible for the crimes committed during the war.” They are “obsessed with the role of justice here and now in social harmony and collective well-being. They firmly look forward” and “don’t touch the past.” What’s more, they make those who have died on the battlefield “heroes” because the “heroic” dead could make the postwar Japanese society develop successfully. Those who died on the battlefield are also regarded as gods who protect the survivors, so they cannot be classified as criminals.

To avoid misunderstanding contemporary communication of the history of the Tokyo Trial, we must also resist extreme relativism. In the 1980s, postmodernism has had an unprecedented impact on the study of history. The extreme relativists not only deny the objective reality of the past, regarding the chronicles of the past as merely discourses and texts, and denying  that historians can re-construct history objectively and fairly. By equating the re-construction of history with the interpretation of the text, the extreme relativists try to blur the boundary between fact and fiction and obliterate the factual basis upon which history as a discipline rests. This postmodernist precept is bound to be used by some people as a theoretical tool to deny the history of the Massacre or the Holocaust. Richard Evans, a British historian who specializes in the history of Germany in the 20th century and the history of World War II, draws the following conclusion in his book In Defence of History: although everyone has a different understanding of the text, the interpretation of the text by historians is not and cannot be unlimited. In the final analysis, the truth of history is discovered, not artificially fabricated; it is found, not made up by historians.

To  prevent tragic events, such as the Nanjing Massacre or the Holocaust, the post-war international trials represented an effort to expose the vileness of those events and, ultimately, build a better world. Now we are living in an era of intense “interactive memory,” which means that the Nanjing atrocities and other acts of like it are living parts of personal and national memory, constantly being spoken of, taught and retaught generation after generation.. As Hegel observed: the word “history” in most languages usually has two meanings: it means the past events or the past per se, as well as story or our narration of the past. We must continuously clarify the legal understanding of the history of the trial of Nanjing atrocities, prevent historical memory from being distorted and slandered by revisionists and demigods who are intent upon using the Internet and other media for their vile purposes. We must do everything possible to counteract that messaging and put forth truthful and factual messaging that ultimately promotes peace, the integrity of history, and the well-being of mankind.

Translated by Li Ping

中文原文载于《日本侵华南京大屠杀研究》中文刊2019年第2期

英文载于《日本侵华南京大屠杀研究》英文刊2021年第1期,注释从略


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