A History of War Crimes Trials in Post 1945 Asia-Pacific

367 Pages·2019·6.546 MB·English

by  Zhaoqi Cheng

A History of War
Crimes Trials in
Post 1945
Asia-Pacific
Zhaoqi Cheng
Translated by Jun He and Fangbin Yang
A History of War Crimes Trials in Post 1945
Asia-Pacific
Zhaoqi Cheng
A History of War
Crimes Trials in Post
1945 Asia-Pacific
Zhaoqi Cheng
Shanghai Jiao Tong University
Shanghai, China
Translated by
Jun He Fangbin Yang
East China University of Science East China University of Political
and Technology Science and Law
Shanghai, China Shanghai, China
ISBN 978-981-13-6696-3 ISBN 978-981-13-6697-0 (eBook)
https://doi.org/10.1007/978-981-13-6697-0
Jointly published with Shanghai Jiao Tong University Press
The print edition is not for sale in China Mainland. Customers from China Mainland please
order the print book from: Shanghai Jiao Tong University Press.
ISBN of the China Mainland edition: 978-7-313-16041-6
Library of Congress Control Number: 2019936149
Translation from the Chinese language edition: 东京审判——为了世界和平 by Zhaoqi
Cheng, © Shanghai Jiao Tong University Press 2017. Published by Shanghai Jiao Tong
University Press. All Rights Reserved.
© Shanghai Jiao Tong University Press 2019
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P
reface
Since ancient times, the greatest disasters that mankind have experienced
have been wars. During the twentieth century, two World Wars broke
out. Advancements in science and technology mean that mountains and
rivers can no longer serve as a barrier to block attacks, and the destruc-
tive nature of war has reached an almost unprecedented level whereby
human civilization could be outright destroyed. Investigating the
responsibility of those who wage war, and preventing further war crimes
from taking place by punishing the perpetrators have become critical
issues that need to be solved urgently. Since the late nineteenth century,
war crimes have attracted the attention of the international community.
The “Convention with Respect to the Laws and Customs of War on
Land” was established at the International Peace Conference at The
Hague in 1899. The conventions of the Second Hague Conference in
1907 saw only a few major advancements from the 1899 convention. As
early as 1864, the International Committee of the Red Cross has set-
tled treaties on the treatment of sick and wounded prisoners. After sev-
eral amendments, the Treaty on the Treatment of Prisoners of War was
promulgated in 1929. These treaties and provisions specify the treatment
of prisoners, and what assistance should be provided to the wounded and
the sick. It assesses the use of weapons and the means of war, and explic-
itly prohibits excessive harm to military personnel and civilians. It plays
a positive role in limiting the vicious outcome of war and punishing the
violators.
v
vi PREFACE
The enactment of laws and regulations on war marks a great improve-
ment in the rationality of mankind. But preventing war is obviously
much more important than limiting the crimes committed during the
war. This is because the catastrophe caused by war itself is far more seri-
ous and massive than the crimes committed during the war. It is also
much more difficult to create legislation to limit war activities than it is
to regulate general war crimes. For instance: what is aggression? What is
the difference between aggression and self-defense? Is there any limit to
self-defense? And if so, what is the limit? How can you determine one
party in the war as an aggressor? So far these questions have not found
satisfactory answers. This proves that legislation, while it might seem
easy, is actually extremely difficult.
It was the tremendous losses caused by the First World War that
made the international community realize that legislation—albeit diffi-
cult to achieve—would be necessary. After World War I, the preparatory
committee of the Paris Peace Conference’s “Liability and Punishment
Commission for War Initiators” put forward a report proposing that
heads of state should be prosecuted for launching war. The report was
ultimately not approved by the Peace Conference. However, the Allies
still persevered with the prosecution of Wilhelm II, the last German
Emperor, by virtue of Section 227 of the Vienna Convention: “The
highest crime in violation of international morality and treaties”. Once
again, the Allies failed because of the Netherlands’s refusal to extradite
the accused. This well-known abortion trial was not about Wilhelm II
dodging a bullet, but about missing an opportunity to place responsi-
bility with those who started the war. The case can serve as a symbol of
how difficult it is to punish those responsible for starting a war.
The most important act by the international community to limit
war crimes was during the 1928 International Convention, commonly
known as the “Kellogg-Briand Pact”. As its real name, the Pact of Paris,
indicates, signatory states promised not to use war to resolve “disputes
or conflicts of whatever nature or of whatever origin they may be, which
may arise among them”. It was signed on 27 August 1928 by what were
then the 15 strongest countries, including the United States, Britain,
France, Germany, Japan and Italy. Soon after, a further 63 countries
signed it including the Soviet Union. Consequently, it was signed by
almost all of the world’s great families.
The “non-war” idea advocated by the Pact of Paris had almost univer-
sal acceptance and marked an important milestone in history. We cannot
PREFACE vii
blame later generations for criticizing the convention by not being
explicit about “invasion”; the defect did exist. However, just because the
convention avoided the difficult by choosing the easy, it was at the time
possible for all countries to reach a “non-war” consensus.
Of course, the ideals of a “non-war” agreement fell apart when there
was breach of contract, and the pact was merely a scrap of paper. Since
then, the Eurasian bells and fires have fueled one other and eventually
led to much further destruction in World War II. This shows that we
cannot avoid a war without proper legal enforcement, and we cannot
trust in mere unfettered promises.
In view of this, when rebuilding the postwar international order, the
allied countries, having learnt painful lessons, had to overcome all kinds
of difficulties, and finally build the foundation for protecting civilizations
from further destruction. Seventy years after the war, though war had
not ceased to exist, there were no uncontrollable battles between pow-
erful nations, much less a world war. Although world peace could not
be fully guaranteed, the process to focus on peace had seen momentum.
The two military trials in Tokyo and Nuremberg became important cor-
nerstones for the postwar foundation of peace.
“Anti-peace crimes” were viewed to be as serious as “crimes against
humanity” during the Nuremberg trials, and were of even greater signif-
icance during the Tokyo Trials. Anti-peace crimes were the most severe
crimes in Tokyo, and all defendants appeared in court on these charges.
The importance of anti-peace crimes in Tokyo trials remains unpar-
alleled. The Tokyo Trials were also known as the Class A Trials, “anti-
peace crime trials”, and “Class A anti-pacifist crimes” in the International
Military Tribunal for the Far East Charter. The defendants in the Tokyo
Trial were known as “Class A war criminals”. During the Nuremberg
trials, “Class C humanitarian crimes” were not lighter but even heavier
than “Class A anti-peace crimes”; so there was no such thing as Class A
trials or Class A war criminals.
In a court speech, Keenan, the chief prosecutor of the Tokyo trial,
made many references to “humanity”, “civilization” and “peace”, reaf-
firming that “we are not conducting ordinary trials today, but the battle
to save human civilization from destruction”. When the defense ques-
tioned jurisdiction prior to the opening of the court session, Keenan
made it clear that “safeguarding peace” was the “mission” of the Tokyo
Trials. Safeguarding world peace was the Allies’ fundamental purpose
viii PREFACE
in conducting the Tokyo Trials. Even so, jurisdiction was a contentious
issue during the trial, and after, it was the protracted offensive and defen-
sive. The prosecutors (like the judge’s corps) still adhered to the “pro-
cedural justice” of the “ordinary trial”. During postwar trial discussions,
the allies highlighted that they were fully aware of difficulties they might
face in complying with existing judicial fairness (such as the so-called “ex
post facto law”). They opted not to carry out speedy executions or estab-
lish a simple military court, but instead adopted a cautious approach in
the allied courts. This showed the allied countries’ firm determination
not only to win trust, but to set an example for future generations to
defend peace.
Today, Japan’s Prime Minister Shinzo Abe publicly stated in the
House of Representatives that “the Tokyo Trial was victor’s justice”; the
Japanese Liberal Democratic Party set up a special agency to “review”
the Tokyo Trial; and the Japanese government frequently accuse oth-
ers of “changing the status quo” while constantly trying to overthrow
the basic “status quo” postwar order in East Asia, which is based on the
Tokyo Trial. Reviewing these great trials from 70 years ago is of great
importance to human history. It helps us revisit the significance of the
Tokyo Trial and confirm our confidence in upholding their results.
Shanghai, China Zhaoqi Cheng
c
ontents
Part I
1 The Road to the Tokyo Trials 3
1 Major Allies’ Stances on Trials Against Japan 3
2 The United Nation’s War Crimes Commission and the
Development of the Laws of War 14
3 Preparatory Work Ahead of the Tokyo Trials 21
4 Summary 40
Bibliography 41
2 The Dispute Over Jurisdiction Prior to the Court
Opening 43
1 Questions from the Defense 43
2 The Prosecution’s Reply 49
3 Debate Continues 54
4 Related Continuing Debates 57
5 Summary 67
Bibliography 67
3 The Trials 71
1 Trial Procedures 71
2 The Crimes Against Peace Trials 80
3 The Trial Proceedings for War Crimes 90
ix
x CONTENTS
4 Summary 102
Bibliography 103
4 The Declaration of Judgment 105
1 Disagreements Among Judges and the Formation of the
Verdict 105
2 Interpretations of the Verdict and the Individual Opinions 112
3 Reactions to the Verdict and How It Was Evaluated 123
4 Summary 126
Bibliography 126
5 Other Asian Trials for Japanese War Crimes 127
1 The Allies’ Trials 127
2 The “Quasi-Class A” Trial 133
3 Class B and C Trials Conducted Within the Allied Nations 140
4 After the Trials 157
5 Summary 160
Bibliography 160
Part II
6 A Reevaluation of the Tokyo Trial Argument 165
1 Following Discussions on the Issues of the “Ex Post
Facto” Law 165
2 The Issue of Conspiracy 167
3 The Issue of Crimes Against Humanity 172
4 The Reevaluation of the War Responsibility of the Showa
Emperor 176
5 Summary 187
Bibliography 191
7 Evidence-Take Nanjing Massacre as Example 195
1 The Reevaluation of the Testimony of Matsui Iwane 196
2 A Review of the Testimony of Ogawa Sekijiro 214
3 Summary 242
Bibliography 242