Home Law United States law and policy on transitional justice : principles, politics, and pragmatics
A. NEGOTIATIONS LEADING TO “tOKYO”
As with the IMT, the creation of the IMTFE was not preordained.3 In fact, much like their decision-making regarding suspected Nazis, the Allies, including the USG, considered alternative transitional justice options for addressing Japanese atrocities at various points during WWII. Six major diplomatic steps ultimately led to the creation of the IMTFE.
Early American Responses to Japanese Atrocities During WWII
Imperial Japan, which officially allied with both Nazi Germany and Fascist Italy under the Tripartite Pact of September 27, 1940,4 invaded and occupied various parts of Asia and committed other acts of aggression against some Western powers in the first few years of WWII.5 In response, FDR froze all of Japan’s assets in the United States, terminated the U.S.-Japanese Treaty of Commerce and Navigation, placed an embargo on Japan’s oil supply, and threatened to suspend diplomatic relations between the two states. Japan then launched a surprise attack on Pearl Harbor on December 7, 1941, damaging the U.S. Pacific Fleet, killing over 2400 Americans, and wounding 1100 more.6 The United States (joined by the United Kingdom) declared war on Japan the following day. The United States, Japan, and their respective allies fought in the Pacific Theater (and in Europe) over the following four years.7
The Allies, including the United States, claimed that, in addition to illegally waging an aggressive war, Japan committed widespread atrocities (war crimes, crimes against humanity, and crimes against peace) during WWII, including against American prisoners of war (POWs) (for example, during the notorious 1942 Bataan Death March) but worst of all against Chinese and Korean combatants and civilians. The total number of victims of Japanese atrocities may never be known, but it is clear that the Japanese murdered, mutilated, tortured, beat, poisoned, starved, raped, enslaved (for both sexual and labor purposes), cannibalized, decapitated, burned alive, buried alive, froze, hanged by the tongue of, impaled the genitals of, pillaged from, and performed medical experiments on millions of men, women, and children.8 The brutality of the Japanese was so severe that, for example, upon witnessing the infamous 1937 Rape of Nanking, even the Nazi charge d’affaires stationed there remarked: “The Japanese Imperial Army is nothing but a beastly machine.”9 This Nazi and his colleagues eventually provided sanctuary to Chinese refugees and lodged complaints about Japan’s behavior to more senior Nazi officials in Germany.10
As information about Japanese atrocities emerged during WWII, the USG gradually took public and private steps to deter these crimes and to hold their perpetrators accountable. FDR and his vice president, Henry Wallace, voiced the earliest significant public pronouncements to this effect. As discussed in the previous chapter, FDR delivered a speech on August 21, 1942, denouncing Japanese (and German) atrocities,11 a point he later reiterated on March 24, 1944.12 FDR also used the earlier speech to warn Japanese (and Germans) suspected of perpetrating atrocities that they would be prosecuted.13 On a related point, in a December 28, 1942, speech, Wallace declared that the USG—without pursuing pointless, purely retributive punishment—would seek to prove the guilt of suspected Japanese leaders, holding them responsible for crimes they committed during WWII.14
Other states also joined the USG in publicly condemning and threatening Japanese suspected of committing atrocities. On December 1, 1943, the USG partnered with the governments of China and the United Kingdom to issue the Cairo Declaration (the outcome of a conference held in Cairo among the three states four days earlier). This meeting apparently generated the first Allied war crimes policy concerning Japan. The joint proclamation by these self-described “Three Great Allies” and “three great powers” declared their intention to “restrain and punish the aggression of Japan.”15 The Allies explicitly asserted that they would punish Japan by stripping it of the territory it had acquired since the beginning of not just WWII, but also WWI, with specific reference to Chinese and Korean lands. Although the declaration was not explicit on the topic of atrocities, it nevertheless did not preclude holding Japanese individuals accountable for them.16
During WWII, the USG also issued private threats and promises about its intention to punish Japanese leaders for offenses they committed during the war, especially against Americans. For example, a few days after the Japanese attack on Pearl Harbor, FDR asked the Japanese government to abide by the law of armed conflict and international agreements concerning POWs.17 FDR’s aforementioned August 21, 1942, statement emphasized that the USG was aware of the Axis powers’ war crimes in both Europe and Asia, and pledged prosecution for them.18 On April 12, 1943, Hull communicated a message to the Japanese government via Swiss emissaries that if American POWs were mistreated or illegally abused, then “the American government [would] visit upon the officers of the Japanese Government responsible for such uncivilized and inhumane acts the punishment they deserve.”19 Hull reiterated his position in late January 1944, issuing a simultaneous warning with the British government in which the two countries promised not to forget acts such as the recent Bataan Death March and vowed to mete out “just punishment.”20 Hull’s messages were sufficiently vague as to imply virtually any transitional justice mechanism except inaction or amnesty. At one point during WWII, Hull communicated to his British and Soviet counterparts his preference for dealing with suspected atrocity perpetrators from Japan (and Germany and Italy): the Allies “would take [German Chancellor Adolf] Hitler and [Italian Prime Minister Benito] Mussolini and [Japanese Prime Minister Hideki] Tojo and their arch accomplices and bring them before a drumhead court-martial. And at sunrise the following day there would occur an historic incident.”21 As discussed in the previous chapter, some USG officials (along with U.K. government officials) thus initially favored summary execution for leaders of the Axis powers, including the Japanese, suspected of committing atrocities during WWII.
In addition to these unilateral and multilateral efforts to denounce and deter Japanese atrocities, the USG also partnered with other states to investigate offenses. On May 10, 1944, the USG and some of its allies established the Special Far Eastern and Pacific Committee of the UN War Crimes Commission (UNWCC).22 This committee—which was created largely because of lobbying by Herbert Pell, the U.S. representative on the UNWCC23—was a significant international entity that observed, reported on, and made recommendations about responding to Japanese atrocities. On August 28, 1945, the Committee issued its final report, finding that the Japanese had committed various atrocities in violation of existing international law (e.g., the 1907 Hague Conventions).24 The report also recommended that senior Japanese political, military, and economic officials “should be surrendered to or apprehended by the United Nations for trial before an international military tribunal.”25 The report further suggested that other
Japanese who have been responsible for, or have taken a consenting part in, the crimes or atrocities committed in, or against the nationals of, a United Nation should be apprehended and sent back to the countries in which abominable deeds were done or against whose nationals crimes and atrocities were perpetrated in order that they may be judged in the courts of those countries and punished.26
Moreover, the report stated that the Supreme Commander of the Allied Powers (SCAP) should appoint “one or more International Military Tribunals for the trial of the war criminals” and that the SCAP should assume responsibility for appointing its members and adopting its rules of procedure.27 As occurred during the transitional justice process that birthed the IMT, the Allied Powers thus precluded a civilian prosecutorial option for the principal suspected atrocity perpetrators in the Far East. However, according to historian Donald Cameron Watt, compared to the London Agreement, which provided for the “Prosecution and Punishment of the Major War Criminals of the European Axis,”28
The novelty [of the UNWCC report] . . . [was in] recognize[ing] the military supremacy of the United States in the Far East by laying the responsibility for setting up one or more international military tribunals to try the Japanese major war criminals squarely on the shoulders of the American Supreme Allied Commander in the Pacific and left it to him to select the members of the tribunals.29
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