The Tokyo Tribunal: Perspectives on Law, History and Memory (Nuremberg Academy)

Edited by Dr. Viviane E. Dittrich, Prof. Kerstin von Lingen, Prof. Philipp Osten and Dr. Jolana Makraiova, this book concerns the 'International Military Tribunal for the Far East' (IMTFE), held in Tokyo from May 1946 to November 1948. It was a landmark event in the development of modern international criminal law. The trial in Tokyo was a complex undertaking and international effort to hold individuals accountable for core international crimes and delivering justice. The Tribunal consisted of 11 judges and respective national prosecution teams from 11 countries, and a mixed Japanese-American team of defence lawyers. The IMTFE indicted 28 Japanese defendants, amongst them former prime ministers, cabinet ministers, military leaders, and diplomats, based on a 55-count indictment pertaining to crimes against peace, war crimes, and crimes against humanity. The judgment was not unanimous, with one majority judgment, two concurring opinions, and three dissenting opinions. The trial and the outcome were the subject of significant controversy and the Tribunal's files were subsequently shelved in the archives. While its counterpart in Europe, the 'International Military Tribunal' (IMT) at Nuremberg, has been at the centre of public and scholarly interest, the Tokyo Tribunal has more recently gained international scholarly attention. This volume combines perspectives from law, history, and the social sciences to discuss the legal, historical, political and cultural significance of the Tokyo Tribunal. The collection is based on an international conference marking the 70th anniversary of the judgment of the IMTFE, which was held in Nuremberg in 2018. The volume features reflections by eminent scholars and experts on the establishment and functioning of the Tribunal, procedural and substantive issues as well as receptions and repercussions of the trial. Foreword by the Series Editor Preface by the Editors Table of Contents List of Contributors List of Abbreviations Part I: Introductions 1. Towards a Fuller Appreciation of the Tokyo Tribunal 1.1. Context of the Book 1.2. Origins and Purpose of the Book 1.3. Structure of the Book 2. Opening Reflections: Tokyoberg 2.1. Introduction 2.2. Reorienting the Field 2.3. Coming in from the Margins of History 2.4. The Hidden Trials Part II: Foundations and Facets of the Trial 3. The Tokyo and Nuremberg International Military Tribunal Trials: A Comparative Study 3.1. Introduction 3.2. Background 3.2.1. The Tokyo Trial 3.2.2. The Nuremberg Trial 3.2.3. The London Conference 3.3. Proceedings 3.3.1. The Nuremberg Trial 3.3.2. The Tokyo Trial 3.4. Conclusion 4. The Tokyo Tribunal: A Transcultural Endeavour 4.1. Introduction 4.2. Selecting Judges 4.3. Colonial Endeavours 4.4. Structural Difficulties 4.5. Team Spirit 4.6. Fields of Friction 4.7. Conclusion 5. The Tokyo Tribunal’s Legal Origins and Contributions to International Jurisprudence as Illustrated by Its Treatment of Sexual Violence 5.1. Introduction 5.2. Accounting for Legal Scholars’ Relative Neglect 5.3. An Echo of Nuremberg and an American Show 5.3.1. Early Planning for Post-war Prosecutions 5.3.2. American Leadership in London and Domination in Tokyo 5.3.3. Legal Frameworks: Derivation and Difference 5.4. Reconsidering Tokyo’s Legal Legacy 5.5. Conclusion 6. Glimpses of Women at the Tokyo Tribunal 6.1. Introduction 6.2. A Tribunal in the Shadows 6.3. Amid New Visibility, Women’s Muted Roles 6.4. Figuring Women into Tokyo Trial Narratives 6.4.1. Elaine B. Fischel 6.4.2. Grace Kanode Llewellyn 6.4.3. Virginia Bowman and Lucille Brunner 6.4.4. Bettie Renner 6.4.5. Eleanor Jackson 6.4.6. Coomee Strooker-Dantra 6.4.7. Helen Grigware Lambert 6.5. Conclusion 7. Trial and Error in the Interpreting System and Procedures at the Tokyo Trial 7.1. Introduction 7.2. Lessons from Class B/C Trials: Three-Tier Interpreting System 7.2.1. Use of Local Translators and Interpreters During the Preparation Stage 7.2.2. Learning from Failures at Class B/C Trials 7.2.3. Japanese Interpreters Working for the Former Enemies 7.2.4. Checking Mechanism 7.2.5. Monitors and Language Arbitration Board 7.3. Improvising Procedural Rules on Interpreting 7.3.1. Untrained Interpreters and Inexperienced Users of Their Services 7.3.2. Court Expectations vs. Interpreter Limitations 7.3.3. Relay Interpreting 7.3.4. Belated Inquiry to Nuremberg 7.3.5. Use of a Third Language by Prosecutors 7.3.6. Educating the Users of Interpreting Services 7.4. Tokyo, Nuremberg and Beyond 7.4.1. Connection to Nuremberg? 7.4.2. Relevance to Present-Day International Criminal Justice 7.5. Conclusion Part III: Dynamics and Dimensions of the Trial 8. Individual Responsibility at the Tokyo Trial 8.1. Introduction 8.2. The Accused 8.3. The System of Japanese Government 8.4. Individual Responsibility for War Crimes 8.5. The Case of Shigemitsu 8.6. Conclusion 9. ‘Conventional War Crimes’: The International Military Tribunal for the Far East and the Ill-Treatment of Prisoners of War and Civilian Internees 9.1. Introduction 9.2. Indictment 9.3. Proceedings 9.4. Defence 9.5. Judgment 9.6. Conclusion 10. Nuremberg, Tokyo and the Crime of Aggression: An Intertwined and Still Unfolding Legacy 10.1. Introduction 10.2. Early Perceptions of the Trials 10.3. The Ex Post Facto Issue: The IMT Makes Its Peace with Crimes Against Peace 10.4. The IMTFE Plays ‘Follow the Leader’ 10.5. The Ex Post Facto Issue: Not All Are Convinced, Nor Should They Be 10.6. Jackson at the IMT: The Push for Accountability 10.7. Post-Nuremberg: Optimism, Expectation and Ambivalence 10.8. The ICC Finally Takes the Baton, a Slippery One 10.9. Final Observations 11. Substantive Law Issues in the Tokyo Judgment: From Facts to Law? 11.1. Introduction 11.2. Conspiracy 11.3. The Crime of Aggression 11.4. War Crimes 11.5. Superior Responsibility 11.6. Conclusion 12. The “President’s Judgment” and Its Significance for the Tokyo Trial 12.1. Introduction 12.2. Webb on Crimes Against Peace and Aggression 12.3. Webb’s Individual Factual Findings and Verdicts on Crimes Against Peace: Case Studies 12.3.1. The Case of Hata 12.3.2. The Case of Hiranuma 12.3.3. The Case of Hirota 12.3.4. The Case of Kimura 12.3.5. The Case of Shigemitsu 12.3.6. The Case of Shimada 12.4. Conclusion 13. Constructing the Historical Legacy of the International Military Tribunal for the Far East: Reassessing Perceptions of President William Webb 13.1. Introduction 13.2. Shaping Perceptions of the IMTFE 13.3. Contradictory Views of President William Webb 13.4. Webb and the Role of the President 13.5. Private Criticism of Webb by the Judges 13.6. The Emergence of Public Criticism of Webb 13.7. Conclusion Part IV: Receptions and Repercussions of the Trial 14. ‘Substantial Criminal Character’ or ‘Lawless Violence’: Crimes in the Charter of the Tokyo Tribunal and Their Receptions in Contemporary Japanese Legal Scholarship 14.1. Introduction 14.2. Crimes in the Tokyo Charter: Definitions, Modifications, Counts and Judgment 14.2.1. Crimes Against Peace 14.2.2. Crimes Against Humanity 14.2.3. Conventional War Crimes 14.3. The Contemporary Scholarly Debate on the Concept of Crimes 14.3.1. Criminal Law Scholars 14.3.1.1. Shigemitsu Dandō 14.3.1.2. Seiichiro Ono 14.3.1.3. Chihiro Saeki 14.3.2. Public International Law Scholars 14.3.2.1. Kenzō Takayanagi 14.3.2.2. Kisaburō Yokota 14.4. Outlook: Further Developments in the Japanese Scholarly Debate 15. Remembering the Tokyo Trial, Then and Now: The Japanese Domestic Context of the International Military Tribunal for the Far East 15.1. Introduction 15.2. The Tokyo Trial and the Allied Occupation of Japan 15.3. Tokyo Trial vs. Other War Crimes Trials 15.4. Legacies 15.5. Conclusion 16. Clemency for War Criminals Convicted in the Tokyo Trials 16.1. Introduction 16.2. Clemency for Japanese War Criminals Before 1952 16.3. War Criminals and the San Francisco Peace Treaty 16.4. Negotiations over the IMTFE Prisoners 16.5. Conclusion 17. Spaces of Punishment 17.1. Introduction 17.2. How to Punish War Criminals 17.3. Sorting Out Suspected War Criminals 17.4. Carceral Systems 18. The International Criminal Court and the International Military Tribunal for the Far East: Lessons Learnt or Not? 18.1. Introduction 18.2. Origins and Jurisdiction of the International Criminal Tribunals 18.3. Procedural Law 18.4. Substantive Law 18.4.1. Individual Criminal Responsibility 18.4.2. Command Responsibility 18.5. Conclusion Part V: Conclusion 19. Concluding Reflections: Nuremberg and Tokyo – Twin Tribunals, Far Apart? 19.1. Introduction 19.2. The German-Japanese Criminal Law Dialogue 19.3. The German-Japanese Scientific Discourse 19.4. Post-Second World War Developments 19.5. Conclusion Annex: Tokyo Charter Index TOAEP Team Other Volumes in the Nuremberg Academy Series Towards a fuller appreciation of the Tokyo tribunal / by Viviane E. Dittrich and Jolana Makraiová -- Opening reflections : Tokyoberg / by Gerry Simpson -- The Tokyo and Nuremberg international military tribunal trials : a comparative study / by David M. Crowe -- The Tokyo tribunal : a transcultural endeavour / by Kerstin von Lingen -- The Tokyo tribunal's legal origins and contributions to international jurisprudence as illustrated by its treatment of sexual violence / by Diane Orentlicher -- Glimpses of women at the Tokyo tribunal / by Diane Marie Amann -- Trial and error in the interpreting system and procedures at the Tokyo trial / by Kayoko Takeda -- Individual responsibility at the Tokyo trial / by Yuma Totani -- 'Conventional war crimes' : the International Military Tribunal for the Far East and the ill-treatment of prisoners of war and civilian internees / by Robert Cribb -- Nuremberg, Tokyo and the crime of aggression : an intertwined and still unfolding legacy / by Donald M. Ferencz -- Substantive law issues in the Tokyo judgment : from facts to law? / by Marina Aksenova -- The "president's judgment" and its significance for the Tokyo trial / by David Cohen -- Constructing the historical legacy of the International Military Tribunal for the Far East : reassessing perceptions of President William Webb / by Narrelle Morris -- 'Substantial criminal character' or 'lawless violence' : crimes in the charter of the Tokyo tribunal and their receptions in contemporary Japanese legal scholarship / by Philipp Osten -- Remembering the Tokyo trial, then and now : the Japanese domestic context of the International Military Tribunal for the Far East / by Beatrice Trefalt -- Clemency for war criminals convicted in the Tokyo trials / by Sandra Wilson -- Spaces of punishment / by Franziska Seraphim -- The International Criminal Court and the International Military Tribunal for the Far East : lessons learnt or not? / by Kuniko Ozaki -- Concluding reflections : Nuremberg and Tokyo - twin tribunals, far apart? / by Christoph Safferling "This volume combines perspectives from law, history, and the social sciences to discuss the legal, historical, political and cultural significance of the Tokyo Tribunal. The collection is based on an international conference marking the 70th anniversary of the judgment of the IMTFE, which was held in Nuremberg in 2018. The volume features reflections by eminent scholars and experts on the establishment and functioning of the Tribunal, procedural and substantive issues as well as receptions and repercussions of the trial." --book jacket