The Revenge of the Tokyo War Crimes Tribunal

I had read a couple chapters of Beyond Victor's Justice? The Tokyo War Crimes Tribunal Revisited and took a look at Justice Pal's dissent.

His reasoning was, I think, fairly correct in what the consequences of prosecuting for ex-post-facto crimes and for the reasoning behind the Japanese defendants.

Japan Focus has a nice article on the subject and on how people have tried to distort the dissenting opinion to try to absolve Japan of guilt for the direct atrocities the Japanese military committed.

While I reject the idea that humanity can or should unify into one political order, Justice pal was correct in that doing so on a peaceful basis would require an honest and fair international law environment. Punishing senior government officials for laws passed by another country after the alleged crimes were committed is a violation of both the fundamental notions of law and of the trust needed for international cooperation.

The notion of "Crimes against Peace"  and "Crimes against Humanity" were not codified by Japanese law at the time and that war as an instrument of state policy was still accepted at the time of initial Japanese actions in China. He also argued that Japanese officials were not acting on some great conspiracy (as the prosecution alleged) but rather in the normal conduct of state policy that assumed war was a legitimate path for a country to take in pursuit of its objectives.

By prosecuting Japanese officials for these charges, the tribunal was not acting on behalf of a legal order above nations but rather on behalf of a victor who sought to cloak their actions under the prestige of law. Instead of seeking to handle cases of these "Class A war criminals", Pal believed that the tribunal could only prosecute more conventional crimes like those of Unit 731 or the Nanjing Massacre.

Justice Pal also questioned if many of the defendants were liable for the illegal actions of their subordinates given the frequent lack of any real control the defendants had over their subordinates. A legitimate argument could be made that military seniors are responsible for their subordinates but Pal disagreed with extending that to government ministers (civilians) for the actions of other people in their ministries. I would agree with that claim giving the very real difficulty in getting anything accomplished in government and in the virtual impossibility of firing senior leaders.

In regard to prosecuting senior IJA officers for the Bataan Death March, he concluded that a lack of evidence made prosecution unwarranted (and historians have found no reason to believe the atrocities committed against US and Philippeno POWs were ordered by the senior IJA leadership, only racist junior officers). He found conspiracies existed on lower levels (like the IJA in Manchuria) but not at the ministerial level.

Pal argued that Japan was only imitating Western Imperialism in their own quest for power and that while the means Japan had employed diplomatically were reprehensible, evil is not by itself criminal.

I hope to expand on this topic when I have a little more time.