War crimes trial may be useful in relieving political tensions with China

An understanding of an important World War 2 war crimes trial might guide us in handling one aspect of our current contentious China relationship, writes Terence Hewton.

WITH TENSIONS MOUNTING between China and the West over many things including who has a legitimate right to disputed territory in the South China Sea, how clear are we on such fundamentals as what constitutes “aggressive war” and “self-defence” against it? Should we feel the need to defend our territorial national interest by force of arms at some stage in the not-too-distant future?

It may turn out that when it comes to what these things mean, we are not as certain as we think we are.

But given the harsh rhetoric on both sides – and a certain measure of bilateral sabre-rattling in the South China sea at present – we cannot afford to be complacent when it comes to these fundamentals in international relations.

Certainly, there are some pretty uncomfortable lessons in history when it comes to this sort of thing.

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Take, for example, the biggest trial of Japanese war criminals just after the Pacific War.

Between 1946 and 1948, the Allied nations in the Pacific War conducted the International Tribunal for the Far East, otherwise known by its short title as the Tokyo Trial. It was instigated to try the Japanese heads of state for waging aggressive war in the Pacific in the first half of the 1940s.

It is a largely forgotten and underemphasised trial. It was, in effect, the Far Eastern equivalent of the Nuremberg Trials. However, whereas the Nuremberg Trials are a household name, few people are familiar with the Tokyo Trial.

In Tokyo, there were 25 defendants, including Tojo Hideki, the wartime Japanese Prime Minister. Controversially, the indictment did not include Hirohito, the Emperor of Japan.

Eleven judges, one from each of the prosecuting nations, heard the charges with Sir William Webb, an eminent Australian judge, presiding. The defendants were found guilty and severe sentences were handed down.

The indictment had a much wider focus than those in conventional war crimes trials. Whereas in the latter, defendants were tried for particular, localised acts of barbarity, in the Tokyo Trial, as in Nuremberg before it, the act of waging aggressive war itself was deemed to be a crime.

The Japanese defendants were accused of being ultimately responsible for major atrocities by virtue of the fact that they led the Japanese nation in waging the aggressive war which gave rise to them.

The Allied objective in holding the trial was, on the face of it, a noble one. They sought to give legal expression to a renunciation of uncivilised and barbaric behaviour among nations. This was to be done through a grand demonstration of Anglo-American democratic justice — a final elevated gesture to set the seal on the hard-won peace.

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However, after two years, the trial produced not the positive and ringing affirmation of a concept of civilised behaviour among nations, but a mouse of legal and moral uncertainty.

The only defence open to the accused in international law was self-defence. Accordingly, they argued that Japan had been implementing a policy of imperial expansion in eastern Asia in the years leading up to the war that was not essentially different, in moral political terms, from the expansionary activities of European powers (including those of several of the nations represented on the bench) in the 19th and earlier 20th Centuries.

The defence further argued that the Japanese expansion was a necessary response to the restrictive trade policies of accuser nations represented at the trial, especially the United States. In mid-1941, an American, British and Netherlands East Indies oil embargo on Japan had gone into effect, presenting the East Asian nation with some stark do-or-die choices in terms of its imperial ambitions.

The bench rejected the Japanese case but with an uncomfortable lack of unanimity. Of the 11 judges, only four concurred fully and of the seven who did not, four wrote their own independent judgements. Sir William Webb, setting an example of compromise as President, suppressed his misgivings.

He put his name to the majority judgement but chose as well to offer a separate concurring judgement.

One judge, Justice Radhabinod Pal of India, dissented from the majority outright. He concluded that the Japanese defence was a valid one and that the Japanese defendants should have been acquitted.

The nightmare prospect of a “not guilty” finding hung like a spectre over the later proceedings. An acceptance of the Japanese plea of self-defence would have been tantamount to finding that the Allies were, in some sense, aggressors in the Pacific War. It may well be that it was a perception that the trial was starting to reverse the unqualified basic assumption of goodness on the Allied side and evil on the part of the Japanese that led in large measure to the implementation of what one commentator has labelled ‘victors’ justice’ in Tokyo.

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In the closing stages of the trial, the defence complained bitterly:

The verdict looks too much like an act of vengeance to impress the world with our love of justice and fair play. We can only stultify ourselves if we become party to the use of forms of law and justice to perpetuate acts of vengeance. We will not impress our enemies; we will not gain the respect of our friends; we will, in the end, brutalise and destroy ourselves.

Even Sir William, throughout the 30 months of the trial, entertained doubts as to its fundamental validity:

I sometimes asked myself what right we had to condemn Japan for having recourse to belligerency in 1941. I perceived much justice and extenuation in the able arguments of defence counsel that Japan was a tiny land of 90 million and 15 per cent cultivable soil, and that she had been subjected to severe trade restrictions and limitations from without. I pondered how the U.S. and Britain would have reacted in that situation...

The U.S. and Britain, in a situation like Japan’s in 1941, might well have had recourse to war...

Webb was well aware of the irony in trying Japan for territorial aggression in the Pacific when the territory in question had been subject to a prior European incursion — an incursion which had a certain aggressive aspect to it. The ‘expansion of little England into a great empire’, he reflected with ironical understatement, ‘was not wholly the result of peaceful negotiation’.

So the Tokyo Trial sits uncomfortably in our war mythology. It is untidy history and it is scarcely surprising that it has, to date, no strong place in our popular perception of that war.

At present, we seem to be in the early stages of an alignment of national forces behind either China or the USA. At this stage, it isn’t clear whether and in what way this might crystallise into combative alliances of national forces as in the two world wars, should the worst happen.

But if it does, it very likely will – and certainly should – bring to the fore our thinking on what is meant in the international arena by “aggression”, “self-defence”, “legitimate use of military force”, “just war” and so on. And we will be much better placed in making our civilised strategic decisions in our national interest if we have a clear idea of what these things mean.