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Home arrow Law arrow United States law and policy on transitional justice : principles, politics, and pragmatics



Just because the USG may have wanted to lead the transitional justice institution for Japan need not have meant that other states would follow suit. A second question, therefore, is why the USG’s allies decided to defer to the USG taking such a prominent role in the establishment of the IMTFE. As Dower observes, “[a]lthough the countries Japan had invaded and occupied were all Asian, and although the number of Asians who had died as a consequence of its depredations was enormous, only three of the eleven judges were Asians ... . The trial was fundamentally a white man’s tribunal.”187 The United States’ commanding role was especially unanticipated considering that some of the USG’s allies suffered much more from Japanese activities than the United States. Most significantly, China was the greatest victim of Japanese atrocities, with approximately 6 million Chinese having been killed, in what is sometimes referred to as “the forgotten Holocaust.”188

The authority to lead Japan’s transitional justice process was not based, though, solely on victimhood. Instead, it was grounded at least as much in global power. The USG’s allies were content to defer to it because the USG was both willing and able to oversee the post-conflict occupation and administration of

Japan, including the IMTFE. In contrast to the European Theater, in which the victorious powers each played a substantial role and each placed a significant military presence in postwar Germany, it was almost exclusively the United States that led the Allied defeat of Japan and that stationed a disproportionate amount of troops on Japanese territory. In some ways, precisely because the USG deferred to other states to shoulder the burden of fighting Japan earlier in WWII, those states’ resources were then depleted and so they deferred to the USG to shoulder the burden of dealing with post-conflict Japan. The United States not only won the Pacific War but also established itself, with the atomic bombings of Nagasaki and Hiroshima and its subsequent occupation of and overwhelming military presence in Japan, as by far the strongest power in Asia, if not the world. Thus the USG’s dominance in the IMTFE reflected the fact that the USG also dominated the occupation of Japan.189 Specifically referring to the fact that the IMTFE’s single chief prosecutor was American, whereas the IMT featured four chief prosecutors (one from each of the quadripartite Allied powers), Horwitz observes:

While this plan was wholly consonant with the principles governing the occupation of Japan, it was an unusual departure from ordinary international practice. For the first time eleven nations had agreed in a matter other than actual military operations to subordinate their sovereignty and to permit a national of one of them to have final direction and control.190

American postwar hegemony, at least regionally, was therefore clear. As Watt argues: “That America should lead in matters concerned with war crimes trials was only one facet, albeit an important one, of that fact.”191 The United States even had enough resources to provide much of the funding for, and staff of, the IMTFE, which further compelled its allies to let the United States lead the IMTFE effort.192 American prosecutors at the IMTFE made similar arguments at the time, pointing out the USG’s “predominant contribution” to defeating Japan, and therefore claiming that “it was the universally admitted right and duty of the United States” to oversee Japanese war crimes trials.193 The United States’ WWII Asian allies, crippled by and suffering from the war, deferred to it on the occupation of, and transitional justice process for, Japan, mostly because there was nothing else they could do about the inertia built from, and the hierarchy derived by, the USG’s leadership in winning the Pacific Theater.

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