Many political scientists and legal experts who study the Tribunal questioned the legality of the proceedings. This became especially so after Richard H. Minear published Victors' Justice: Tokyo War Crimes Trial which got many to start looking at the convicted as victims of miscarried justice. Jaudel gave a good account of the difficulties and disagreements in the literature. These include the sparing of the Japanese Emperor Hirohito (pg. 5, 32); the concept of Crime Against Peace having no precedence (pg. 67); the procedural issues (pg. 12, 52) and the suitability of the general prosecutor, Joseph Keenan (pg. 13).
His perspective is different however. To him, a crime so great deserves punishment for those accountable and while the proceedings were not without flaws, the defendants were given due representation including the provision of fifteen defence lawyers (pg. 35). And although the type of evidence admitted was not like those in a usual criminal trial, the circumstances and the deliberate destruction of documents by the Japanese at the end of the war made it necessary for personal diaries and evidence not produced under oath (pg. 52) to be admitted. Furthermore, the author asked, could one expect that the accused be only convicted after there was no longer any doubt in any part of the proceedings? He reminded readers that the accused had all the legal rights accorded by the prosecution and more importantly, the prosecution had the moral grounds to prosecute because they represent countries that did not commit the same crimes (pg. 148).
Admittedly this Tribunal was different from the Nuremburg Trials because the political structure in Japan and Germany were different. In the case of Germany, it was much easier to identify the culprits because they reigned supreme during the war. Japan on the other hand, had ten prime ministers in that time. With power seemingly diffused among the Emperor, the cabinet and the military, it is hard to establish who should take overall responsibilities for the war and the atrocities resulting from it. From the start, the Tribunal was besieged with the problem of whether it was individual crimes or collective crimes the accused were prosecuted for (pg. 39) and with such a confusing administrative structure, the author felt that it was just to convict the accused so long as the prosecution could prove that the accused have direct or indirect involvement in the policy-making process involving the war.
Two judges in the panel of 12 needs special mention here. The first is Judge Radhabinod Pal who was dissenting and would later write a book to explain his position (Pal, 1953). He was accused by a Japanese author, Saburo Ienaga, of being partial to the accused because Pal was anti-communist and China was slowly drifting towards Communism during the trial (Saburo Ienaga, pg. 201). This is hard to prove especially when Ienaga himself was accused of being a communist. However, the credibility of the Judge took a bit of a hit when it was revealed here that he missed 109 days out of 423 during the trials, making him the biggest absentee (pg. 47).
The second judge is Judge Bert Röling who was also dissenting. He was among the people who believed that it was right not to put Emperor Hirohito on trial because he was just a figure-head and did not really have a say (pg. 143). This is ironic because it was precisely because of this that many felt that the Tribunal was a farce (pg. 145). This case is instructive for it highlights the fact that while people many agree that the Tribunal was less than impeccable, they were of the opinion for different reasons. This lack of agreement among the critics of the Tribunal may actually strengthen its legitimacy.
This book is marred by lapses, some of which are minor like the exact dates when Yamashita left for the Philippines which had no material impact on this book (pg. 33, 78, 80, 137, 151) but others are major (pg. 37, 49, 60, 62) such as the date that Japan withdrew its membership of the League of Nations (pg. 78). Fortunately, the translator, 程兆奇 did a good job checking the facts and correcting them in the footnotes. What I personally like about the author was his willingness to consider non-scholastic work which he qualified (pg. 20). I think pure scholarly work done in the scholastic tradition is important because it is on this that future knowledge is built. Unfortunately this always leaves the output dry and the physical scenes incomplete. I found myself constantly forming images informed by pictures from books or even scenes from the television programmes especially when reading works on China in that era. I hope more scholars would consider non-scholastic works but of course with qualifications and proper citations.
Finally, two points made by the author is worth repeating here. First of all, he, in response to Minear’s term ‘Victors’ Justice’, proposed that the Tribunal could also be called ‘Losers’ Justice’ because the judges in the Tribunal were all from countries that have suffered under the Japanese, they therefore represent their civilians who have suffered when they were losers (pg. 65). Secondly, a position not widely considered, is the fact that the outcome of the Tribunal ironically relieved the Japanese of their war guilt, for now they can say that it was the responsibility of those convicted (pg. 150) that perpetuated the atrocities and cruelty throughout Asia and brought Japan to the brink of destruction.
Reference
Ienaga, S. (1979). The Pacific War, 1931-1945 : A Critical Perspective on Japan's Role in World War II. NY:The Pantheon Asia Library.
Pal, R. (1953). International Military Tribunal for the Far East: Dissentient Judgement. Kolkata:Sanyal & Co.
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