The Tokyo War Crimes Tribunal : Law, History, and Jurisprudence

Like its Nuremberg counterpart, the Tokyo Trial was foundational in the field of international law. However, until now, the persistent notion of 'victor's justice' in the existing historical literature has made it difficult to treat it as such. David Cohen and Yuma Totani seek to redress this by cutting through persistent orthodoxies and ideologies that have plagued the trial. Instead they present it simply as a judicial process, and in so doing reveal its enduring importance for international jurisprudence. A wide range of primary sources are considered, including court transcripts, court exhibits, the majority judgment, and five separate concurring and dissenting opinions. The authors also provide comparative analysis of the Allied trials at Nuremberg, resulting in a comprehensive and empirically grounded study of the trial. The Tokyo Tribunal was a watershed moment in the history of the Asia-Pacific region. This groundbreaking study reveals it is of continuing relevance today. Cover Half Title Title page Imprints page Contents Acknowledgments Note to the Reader on Translation, Sources, and Citation I Transliteration, Ranks and Titles, and Translation II About the Records of Trials III Abbreviations and Citations in Notes and in the Text Introduction Aims and Methods The Relevant Legal Framework Historiographical Overview Initial Receptions in Japan Two “Victor’s Justice” Perspectives The Research Environment in Western Academia Summary Chapter Overview Part I The Allied War Crimes Policy, the Indictment, and Court Proceedings 1 The Framework of the Trial 1.1 From War to Peace 1.2 Planning for the Trial of Far Eastern War Criminals 1.3 A Chronological Overview of the Tokyo Trial 1.4 Rules of Procedure 1.5 Types of Evidence Collected 2 Charges of Crimes against Peace 2.1 Counts and Appendices in the Indictment 2.1.1 The Conspiracy Theory 2.1.2 The Other Counts on Crimes against Peace 2.1.3 The Appendices to the Indictment 2.2 The Legal Argument of the Prosecution 2.2.1 The Potsdam Declaration and the London Charter 2.2.2 The Authority of Nuremberg: Crimes against Peace 2.2.3 The Authority of Nuremberg: Individual Criminal Responsibility 2.2.4 Wars of Self-Defense 2.2.5 The Applicability of Conspiracy Doctrine in International Law 2.3 The Legal Argument by the Defense 3 The Japanese System of Government 3.1 The Prosecution’s Initial Presentation 3.1.1 The Constitution and Related Laws 3.1.2 The Formal Structure of Governmental Institutions 3.1.3 Informal Advisory Organs 3.1.4 Another Informal Advisory Organ: Wartime Liaison Bodies 3.1.5 The Role of the Imperial Diet 3.1.6 The Privy Council 3.1.7 The Crucial Role of the Cabinet 3.2 Evidence during the Court Proceedings 3.2.1 The Military and the Cabinet 3.2.2 The Military and the Foreign Ministry 3.2.3 The Development of the Liaison Bodies 3.2.4 The Imperial Conference and the Role of the Emperor 3.3 The Prosecution’s Final Argument during the Summation 3.4 Conclusion 4 Individual Roles in the Making of the War, and the Overall Conspiracy 4.1 “Obtaining Control of Manchuria” 4.1.1 Japan’s Rights and International Obligations 4.1.2 Assassination of Zhang Tsolin, and Further Unrest from Within and Without 4.1.3 The Manchurian Incident, September 18, 1931 4.1.4 International and Domestic Repercussions of the Manchurian Incident 4.1.5 The Establishment of Manchukuo 4.2 “The Expansion of Control and Domination from Manchuria to the Rest of China” 4.2.1 The Tangku Truce and Beyond 4.2.2 The Hirota Cabinet’s “Basic Principle of National Policy,” August 7, 1936 4.2.3 The Lukouchiao Incident, July 7, 1937 4.2.4 The Escalation of the Sino­Japanese Armed Conflict 4.2.5 The Sino­Japanese Peace Negotiation: Division from Within 4.2.6 The Policy Decision at the Imperial Conference, January 11, 1938 4.2.7 The Cabinet­Army Confrontation at the Liaison Conference, January 15, 1938 4.3 “Internal and External Preparation for Aggressive War in Asia and in the Pacific” 4.3.1 Insubordination of Diplomatic Officials 4.4 “Expansion of Aggression to the Rest of East Asia and the Southwest Pacific” 4.4.1 The Decision to Go to War, Adopted at the Imperial Conference, September 6, 1941 4.4.2 The Decision to Go to War Again, Adopted at the Imperial Conference, November 5, 1941 4.4.3 The Decision to Go to War Once Again, Adopted at the Imperial Conference, December 1, 1941 5 Counts on Murder, War Crimes, and Crimes against Humanity 5.1 Counts on Conventional War Crimes 5.2 Implications of Appendices D and E in the Indictment 6 Accountability for War Crimes 6.1 Challenges and Methods of Proof 6.2 The Prosecution’s Case 6.2.1 China: The Nanjing Massacre 6.2.2 China: The Post­Nanjing Period 6.2.3 The Pacific Region 6.2.3.1 The Prosecution Strategy 6.2.3.2 The Case against Tōjō 6.2.3.3 Circulation of Information on Atrocities 6.3 The Defense Case on China 6.3.1 The Nanjing Massacre 6.3.2 The Post­Nanjing Period 6.4 The Defense Case on the Pacific Region 6.4.1 The Army Cases 6.4.1.1 The Context of War 6.4.1.2 The Legal Duty or Authority of Individual Accused 6.4.2 The Navy Cases 6.4.3 The Non­Military Government Cases 6.5 The Prosecution’s Summation on Government Responsibility Part II The Law and Jurisprudence of the Judgments and Separate Opinions 7 The Majority Judgment: Crimes against Peace 7.1 Introduction 7.2 Chapter II of the Majority Judgment and the Law of Crimes against Peace 7.2.1 Jurisdiction 7.2.2 The Indictment 7.3 Chapter III of the Judgment and the Framework of International Treaty Law 7.4 Chapters IV–VIII of the Judgment: The Master Conspiracy Narrative 7.4.1 Overview 7.4.2 Narrative Form and Individual Accountability 7.4.2.1 The Case of Hirota 7.4.3 Army Domination and the Conspiracy 7.5 Chapter IX: Findings 7.6 The Verdicts 7.6.1 Dohihara 7.6.2 Hashimoto 7.6.3 Hata 7.6.4 Hiranuma 7.6.5 Kaya 7.6.6 Kimura 7.6.7 Satō 7.6.8 Shimada 7.6.9 Shigemitsu 7.6.10 Tōgō 8 An Alternative Perspective on Accountability for Crimes against Peace: The Two Webb Judgments 8.1 Introduction 8.2 The Law of the Tribunal 8.2.1 The Charter and its Authority 8.2.2 The Charge of Crimes against Peace 8.2.3 Individual Responsibility for Crimes against Peace 8.2.4 The Law of Conspiracy 8.3 Individual Factual Findings and Verdicts on Crimes against Peace 8.3.1 Dohihara 8.3.2 Hashimoto 8.3.3 Hata 8.3.4 Hiranuma 8.3.5 Hirota 8.3.6 Kaya 8.3.7 Kimura 8.3.8 Satō 8.3.9 Shigemitsu 8.3.10 Shimada 8.3.11 Tōgō 9 The Majority Judgment on War Crimes 9.1 Introduction 9.2 Standards of Responsibility in Chapter II of the Judgment 9.3 Standards of Responsibility and Factual Findings in Chapter VIII 9.4 Standards of Responsibility in the Individual Verdicts 9.4.1 The Responsibility of Military Commanders: Dohihara, Hata, Itagaki, Kimura 9.4.2 The Convictions of Mutō, Oka, and Satō 9.4.3 The Responsibility of Civilian Officials: Hirota, Koiso, Shigemitsu, and Hiranuma 10 An Alternative Tokyo Judgment The Draft Webb Judgment on War Crimes 10.1 Issues and Context 10.2 Individual Cases 10.2.1 The Responsibility of Civilian Officials for War Crimes 10.2.2 The Responsibility of Military Offices for War Crimes 10.3 Conclusion 11 The Dissenting Opinions of Justices Bernard and Roeling 11.1 Bernard’s Dissent 11.2 Roeling’s Dissent 11.2.1 Introduction 11.2.1.1 The Puzzle of the Charter 11.2.1.1.1 Is the Charter Binding Upon the Tribunal? 11.2.1.1.2 Is Aggressive War a Crime Under Existing International Law? 11.2.1.1.3 If There is No Basis in Existing International Law for Crimes against Peace, is There Another Foundation for Suc ... 11.2.1.2 Roeling’s “Observations on the Facts” 11.2.1.3 The Verdicts in the Individual Cases 11.2.1.3.1 Hata 11.2.1.3.2 Hirota 12 Pal’s “Judgment,” or Dissenting Opinion, on Crimes against Peace 12.1 Introduction 12.2 Preliminary Overview 12.3 The Crime of Aggressive War 12.3.1 The “Material Questions of Law” 12.3.2 “Antecedent Behavior” 12.4 The Conspiracy Charges 13 Pal’s Treatment of War Crimes Charges 13.1 Introduction 13.2 War Crimes against Civilian Populations 13.2.1 War crimes in the Pacific Theater 13.2.2 The Nanjing Massacre and Other Atrocities in China 13.2.3 The Rape of Manila 13.2.4 Pal’s Conclusion on Individual Guilt 13.3 Crimes against Prisoners of War 13.3.1 Applicable Law 13.3.2 Pal’s Treatment of Factual Matters: “Two Very Pertinent Factors” 13.3.3 Evidence on Widespread Prisoner-of-War Mistreatment 13.3.4 A Nine­Point Summary of Pal’s Argumentative Strategy 13.3.5 Pal’s Imaginary Tribunal 14 The Concurring Opinions of Justices Webb and Jaranilla 14.1 Jaranilla’s Concurring Opinion 14.1.1 Victor’s Justice? 14.1.2 Retroactive Laws? 14.1.3 Individual Responsibility or “Acts of State”? 14.1.4 Was Nuremberg a Precedent? 14.1.5 Extraneous Issues: The Atom Bomb 14.1.6 Criticism of Pal 14.1.7 Sentencing the Accused 14.2 Webb’s Separate Opinion Conclusion References Archives Online Sources Published Primary Sources – Microfilms Published Primary Sources – Book Format Secondary Literature Index "The Tokyo War Crimes Tribunal: Like its Nuremberg counterpart, the Tokyo Trial was foundational in the field of international law. However, up to now, the persistent notion of "victor's justice" in the existing historical literature has made it difficult to treat it as such. David Cohen and Yuma Totani seek to redress this by cutting through persistent orthodoxies and ideologies that have plagued the trial. Instead they present it simply as a judicial process, and in so doing reveal its enduring importance for international jurisprudence. A wide range of primary sources are considered, including court transcripts, court exhibits, the majority judgment, and five separate concurring and dissenting opinions. The authors also provide comparative analysis of the Allied trials at Nuremberg, resulting in a comprehensive and empirically grounded study of the trial. The Tokyo Tribunal was a watershed moment in the history of the Asia-Pacific region. This ground-breaking study reveals it is of continuing relevance today"-- Provided by publisher