LGD 2001 (1) - Shreyas Jayasimha
Victor's Justice, Crime of Silence and the Burden of Listening: Judgement of the Tokyo Tribunal 1948, Women's International War Crimes Tribunal 2000 and Beyond
University of Warwick
In this comment, the author examines two 'crimes of silence' on the part of the Tokyo Trials of 1949. First, the neglect of the victims of the bombing of Hiroshima and Nagasaki is focussed upon, through a dissenting judgement of Judge Radhabinod Pal in 1949 that has itself been largely ignored. Next, the struggle of the survivors of sexual enslavement by the Japanese Army is detailed through the Women's International War Crimes Tribunal, 2000. The burden of listening and granting redress is cast on International Humanitarian Law.
Keywords: Crime, Silence, Tokyo, War Tribunal, Victims, Judge, Japanese, Army, International.
This is a Commentary published on 21 June 2001.
Citation: Jayasimha S, 'Victor's Justice, Crime of Silence and the Burden of Listening: Judgement of the Tokyo Tribunal 1948, Women's International War Crimes Tribunal 2000 and Beyond', 2001 (1) Law, Social Justice and Global Development (LGD). <http://elj.warwick.ac.uk/global/issue/2001-1/jayasimha.html>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/lgd/2001_1/jayasimha/>
'When the conduct of the nations is taken into account the law will perhaps be found to be that only a lost cause is a crime' Judge Radhabinod Pal.
Judge Pal's comment is cynical as compared to the high moral ground that laws of war seek to occupy. If there is a legitimate moral basis for international criminal law, then to forget crimes of victors or ignore atrocities against non-combatants is to commit a further 'crime of silence'. The forgotten crimes I refer to are the bombing of Hiroshima and Nagasaki, and the sexual slavery of over 200,000 women by the Japanese Army. The focus is not on the initial offenders but on inadequacies of the justice systems that claimed to address war crimes in the Far East.
As compared with its more famous counterpart at Nuremberg the Tokyo war crimes trial, formally called the International Military Tribunal for the Far East, has suffered neglect since its very inception and planning. Further, museums, memorials, and media attention do not jog memory of South East Asia as much as Europe. Academic writing in International law and history has also cast sparse attention and critique. (Also noted in Hosoya et al, 1986 ).
The inevitable German comparison is not to compare horrors but to call attention to the struggle of victims of Japanese war crimes and war victims in Japan and their calls for justice. The International Women's War Crimes Tribunal's bold attempt at 'prosecution' and indictment of the Emperor of Japan and others throws a new challenge to International Humanitarian Law, which has only recently taken cognisance of the illegality of wartime rape and forced prostitution.
As the title of this essay indicates, the four main questions posed here are:
1. whether the IMFTE decision merely represents victor's justice;
2. whether a further crime of silence[3 ] was committed by not heeding to the experiences of sexually enslaved women, and what the nature of such crime was;
3. whether there is a burden of listening and if so what the nature of such a burden is; and
4. whether present-day attempts at addressing suffering caused over half a century earlier have legitimacy, effectiveness and legality.
2. A Brief history of the IMTFE
Starting on 3rd May 1946 and ending in November 1948, twenty-eight Japanese leaders were tried before a panel of eleven judges. The judges came from Australia, Canada, France, Great Britain, India, Netherlands, New Zealand, Philippines, USSR, and USA. Philippines and India gained independence during the time of the trial. The mandate of the tribunal covered acts committed between 1st January 1928 and 2nd August 1945.
Article 10 of the Potsdam Declaration stated that 'stern justice shall be meted out to all war criminals, including those who have visited cruelties upon our prisoners'. The criteria to define war criminals did not allow the prosecution of allied forces. The Charter of the IMTFE was a slightly modified version of the charter of the Nuremberg Tribunal drawn up at the London Conference. The three categories of offences tried were:
1. overall conspiracy to carry out wars of aggression in East Asia and Indian and Pacific Ocean areas;
2. ordering, authorising or permitting conventional war crimes; and
3. not taking adequate measures to prevent the occurrence of conventional war crime.
After the examination of over four hundred witnesses and four thousand documents, eleven were sentenced to death by hanging; sixteen to life in prison; one to twenty years' imprisonment; and one to seven years imprisonment. There were no acquittals, but two died during the trial and one was found to be mentally incompetent.
There were five judges who gave separate opinions. Sir William Webb from Australia (and President of the IMFTE) stated that the fact that 'leader in the crime' (the Emperor) had not been indicted must be considered while passing sentences. The French judge Henri Bernard complained of procedural shortcomings and stated that:
'a verdict reached by a tribunal after a defective procedure cannot be a valid one'.
Judge Radhabinod Pal from India pointed out the necessity of considering acts of Western powers before judging Japan and argued that all defendants were innocent of all charges. Judge B.V.A. Roling of the Netherlands argued that no conspiracy existed and that five of the defendants were innocent. Judge Delfin Jaranilla of the Philippines argued that many sentences were:
'too lenient, not exemplary and deterrent, and not commensurate with the gravity of the offence or offences committed' (Hosoya, 1986, p.11).
It is interesting to note that the two most extreme views, of acquittal and more grave sentences came from judges of newly independent countries. It may be pointed out the judge from Philippines had suffered personal injury and loss at the hands of the Japanese (Nandy, 1995, p.64).
3. Radhabinod Pal's Dissenting Judgement
Radhabinod Pal was the only judge who raised the issue of Hiroshima and Nagasaki to suggest that the trial was farcical. His judgement was not read out at Tokyo and was even banned for a while. Although scholars outside India have largely ignored Radhabinod Pal's judgement, the few comments that it has received are widely conflicting. Nationalist historians in Japan have hailed it as a vindication of their utter victimisation. Hideki Tojo, who was Prime Minister during the war and sentenced to hanging, even left a haiku in Pal's honour. (Nandy, 1995, p.56) Some others have described it as a misconceived attempt to translate Gandhian notions of ahimsa (non-violence) rather inappropriately into international law. Chomsky has hailed it as a courageous indictment of American criminality. More recent historical accounts have again nearly ignored him. Pal is often described as being the only judge on the tribunal who was formally trained in international law (Minear, 1986 and Saburo, 1986). Within India, Pal has been almost totally forgotten by legal scholars and historians. One of the only exceptions, which earned the qualification in the previous sentence, is an essay by psychoanalyst and social commentator, Ashis Nandy (Nandy, 1995).
Radhabinod Pal's possible motivations will be discussed later while we now turn to the content of his judgement. It is littered with quotes from scholars of international law of the time. His contradictory statements that the victors should be brought before tribunals, while stating that vengeance or retribution are not ethical values, may be described most charitably as being representative of his dilemma. In one of the most revealing sentences, he states that:
'questions of law are not to be decided in an intellectual quarantine area…we cannot afford to be ignorant of the world in which disputes arise'.
The judgement contains a detailed account of political events of the war. The basic premise seems to be that war in the Far East was the sporadic activity of groups rather than a well-defined conspiracy with clear commanders. This characterisation of war as mere international conflict seems to naturalise the atrocities in war. Pal also tried to justify that Japanese intervention in Chinese territory to prevent a communist take-over would not amount to aggression.
Legally speaking, the judgement clearly stated that new crimes cannot be created under international law and enforced without precedent. Further aggression and conspiracy to commit aggression did not exist as crimes in international law and therefore cannot be created ex post facto. This reflects Pal's inherent conservative attitude towards the expansion of international law.
Now, turning to Nandy's article, there are certain startling insights to be found. Contrary to Western authors' accounts, Nandy's biographical sketch of Pal clearly indicates that this law-teacher-turned High Court Judge had no formal training in international law (Nandy, 1995, p.70). By placing Pal in the context of the nationalist movement in India, the sympathetic treatment of Japanese may be influenced by the strong Japanese alliance forged by certain Indian nationalists especially in Bengal (Pal's home state) arguing that the enemy of the British is their friend. The connection between politically active Bengalis and Japan may be traced to their celebration of the 1905 victory of Japan over Russia. In 1946, around the same time as Pal's appointment, a sensational trial was underway in India of nationalists who fought with Japan against the British army with Nehru as the defence counsel.
Bold as Pal's judgement may have been, there was a deafening silencing of and refusal to acknowledge stories of victims of war in Japan and victims of Japanese aggression. The same may be said of all the judgements delivered at the Tokyo Trials. Even the judges who recommended harsh punishments did not seek to expand their mandate to cover sexual slavery. While it may be said that this is a harsh reading and seeks to impose today's standards on a historical document, the same is sadly true of more recent appraisals of the Tribunal. Neither Nandy nor Hosoya and other commentators on Tokyo trials mention the significant lapse in not addressing the issue of sexual slavery and mass rapes.
It is a sad commentary on intelligentsia and a tribute to survivors' struggles that the second crime of silence has finally attracted attention. Especially since 1992, there has been a strong movement of women victims of Japanese war crimes to speak out and demand justice.
4. War Victims Break Their Silence
On December 9th 1992, 46 years after the end of World War II, an international public hearing was held on 'War Victimisation and Japan' (International Public Hearing Report, 1993). A panel of six academicians, NGO representatives and UN officials heard the testimonies of six women from as many countries. The women from South Korea, Philippines, North Korea, China, Taiwan and Netherlands shared their traumatic experience of being 'comfort women', a euphemism for violent sexual slavery.
The titles of their testimonies speak for themselves: 'Brother, Don't Avoid Me'; 'Fortunate to Speak Out about My Experiences during the War'; 'How Can We Permit Their Sins'; 'Cry of the Raped'; 'I Hate Japanese Soldiers'; and 'Like an Animal on Timor Island'. It is clear from these accounts that 'comfort houses' were carefully monitored by weekly visits by doctors and were part of the Japanese army's strategy to humiliate their enemies. The rapes could be described as a military strategy where the body of the woman is seen as a battlefield.
The first military 'comfort station' was established in March 1932 in Shanghai, China after Japanese invasion. The institutionalisation of the comfort women system was the Japanese government's response to the outrage generated by the massacres, rapes, and pillage of Nanking, known as the 'rape of Nanking.' Procuring and securing women for these stations was an integral part of the war strategy, admittedly intended to deter open rape in occupied territory, limit anti-Japanese resistance among the locals, avoid international disgrace and protect the Japanese soldiers from venereal disease. Women and girls were forced or coerced into these stations, often 'recruited' by deceptive promises. The poorest were frequent targets of official or officially sanctioned recruitment.
International law of the time did not unequivocally prohibit such atrocities. Japan was signatory to the 'International Arrangement and Conventions for the Suppression of Traffic in Women and Children' concluded in 1904, 1910 and 1921. The convention only sought to regulate flesh trade and mandated that prostitutes must be above 21years and must not be forced into the trade. This treaty contained a clause that permitted signatories to exclude the application of certain clauses in their colonies. Japan used this clause with impunity and exempted Korea and Taiwan from the convention. Thus the international legal regime permitted sexual exploitation.
Until 1992, the Japanese government shamelessly denied all reports of 'military comfort houses' and merely claimed to be a victim of US hatred. A partial apology and growing international pressure led to the creation of the Women's International War Crimes Tribunal (WIWCT).
In December 2000, the WIWCT met in Tokyo with four judges to listen to the testimonies of 73 survivors and to prosecute Emperor Hirohito and the Japanese government for the sexual exploitation of over 200,000 girls and women. The Japanese government refused to appear before the tribunal but allowed the proceedings to take place in Tokyo.
Initial responsibility for the failure to address these crimes was laid with the World War II Allies:
'That a court, especially an internationally constituted court, could ignore a systematic atrocity of this dimension is unconscionable'.
However primary responsibility was placed on the state of Japan for its continuing failure over 55 years to prosecute, apologise and provide reparations and other meaningful remedies.
5. Legitimacy, Efficacy and Legality of the WIWCT
The tribunal claimed to be a People's Tribunal that was not the product of a state or intergovernmental organisation. Acknowledging that there are no due process guarantees, its charter reasserts that the Tribunal was set up due to the lack of State response, not to replace the role of State-sponsored courts. The main aim was to build a credible historical record that forms the basis for reparations.
The Tribunal uniquely combined individual criminal culpability with state responsibility. Under Article 4 of its charter, international wrongs include concealment or failure to find and disclose the truth concerning these crimes; failure to prosecute and provide reparations; failure to take measures to protect the integrity, well being and dignity of the human person; discrimination; and failure to take the necessary measures to prevent recurrence. Thus for the first time, Sartre's 'crime of silence' had been codified and applied.
It is clear that the moral legitimacy is claimed on the grounds of a global responsibility to restore justice to the survivors, and a duty not to repeat the 'crime of silence' that it implicated others for. In terms of efficacy, the survivors have received no compensation nor acknowledgement or apology from the Japanese Government. At the very least, the collection of their stories marks an indelible record of history. Legally, the tribunal had no binding powers. However, an interesting resolution of the problem of retroactivity of modern definitions of crime to actions over fifty years ago was reached. In the eyes of the WIWCT, positive law of the 1940s and 50s disqualified itself due to the neglect of women's rights.
Significantly, the Tribunal found that the Peace Treaties signed after the War contained an inherent gender-bias and that states cannot agree by treaty to waive the liability of another state for crimes against humanity. Emperor Hirohito was found guilty of responsibility for rape and sexual slavery as a crime against humanity, and the government of Japan was found to have incurred state responsibility for its establishment and maintenance of the comfort system.
Despite the deficiencies of the Tokyo trial, we must not lose sight of an important principle that was enunciated there. In Falk's paraphrase, the majority judgement of the Tokyo Tribunal held as follows:
A leader must take affirmative acts to prevent war crimes or dissociate himself from the government. If he fails to do one or the other, then by the very act of remaining in a government or a state guilty of war crimes, he becomes a war criminal.
The military war may have ended in 1940s, but the psychological and physical burdens are carried even now without adequate redress. The incomplete narration of offences at Tokyo, of the use of nuclear bombs by the US on one hand and Japanese sexual slavery on the other, has only caused further hurt.
States, international institutions, legal theorists, historians, media representation and other structures of society have consistently failed the victims. Ultimately, it was the courage of the victimised survivors that contributed to the emergence of a larger movement for women's human rights to be respected, to end impunity for such crimes and to repudiate the notion that sexual abuse of women is an inevitable consequence of war and conquest. This has culminated in the first prosecution for rape as a war crime only recently.
The methodology of having such peoples' tribunals is not new. After the mass destruction in Vietnam, Bertrand Russell, Jean-Paul Sartre and others convened a tribunal in Stockholm to try the US for war crimes and genocide. Sartre's notion of intent to genocide has since become a useful yardstick of assessing tragic situations. The articulation of 'the crime of silence' in legal language as an international wrong is a very useful contribution of the Tokyo Women's Tribunal. In a world where atrocities are multiplying beyond the reach of management through international law, such clear formulations are very handy. Some of the recent attempts at building peoples' tribunals include the permanent people's tribunal, international tribunal for US/NATO war crimes in Yugoslavia and an attempt to try the US for war crimes in Iraq.
It is difficult and challenging to break silences – of victims, perpetrators and onlookers. Once that is broken, as in the cases listed above, a new question of responsibility is raised. The burden of listening involves not only the test of capacity to look and comment on stark horrors, but also the responsibility to ensure that redress is achieved. In other words, breaking the silence is only the first step in a long process. The international criminal justice system especially laws of evidence, reparations and the ability to bring even victors to book need to be strengthened. If not, Pal's simple statement that a crime is only a lost cause will continue to hold true.
1. The quotation is taken from Chomsky, Noam, (1993) Year 501, South End Press: New York, accessed on 07/04/2001 at <http://www.zmag.org/chomsky/year/year-c10-s02.html>.
2. Radhabinod Pal has described international crime as nothing more than a lost cause. Scholars like Minear have written books describing the IMFTE as 'victor's justice', see Minear, R.H., The Individual, The State and The Tokyo Trial, in C. Hosoya, ibid., pp.159-165.
3. This is a reference to Sartre's description of a crime of silence, which has also been used to describe processes surrounding the Permanent Peoples Tribunal. See Nayar, Jayan, A Peoples' Tribunal against the Crime of Silence? The Politics of Judgment and an Agenda for a Peoples' Legality, (2001) forthcoming.
4. This is with reference to the usage of the phrase by Mary Robinson, UN Commissioner for Human Rights to describe the moral and psychological burdens of listening to tales of horror. See her resignation letter as reported in the International Herald Tribune on 20 March 2001.
5. This was when Zhang Zoulin (Chang Tso-lin), warlord in North China, was murdered.
6. For a copy of the charter see <http://www.btinternet.com/~stephen.stratford/imtfe.htm>, accessed on 07/04/2001.
7. The original judgements could not be accessed and the descriptions in this paragraph merely paraphrase the narration by Hosoya.C et al., supra n.2 at p.10.
8. Saburo, Ienga, The Historical Significance of the Tokyo Trial, C.Hosoya, supra n.2 at pp.165-70, see especially p.169.
9. Supra n.1. and Chomsky, Noam, If the Nuremberg laws were applied..., accessed on 07/04/2001 at < http://www.geocities.com/CapitolHill/Senate/3761/nuremberg.html >
10. One of the most recent books on Japan has relegated discussion on the judgement to one footnote where the author agrees partly with Pal that Allied powers should have been prosecuted for dropping the bomb, but differs by stating that such inaction did not invalidate Japanese culpability. See Tanaka, Yuki, (1998), Hidden Horrors – Japanese War Crimes in World War II, Westview Press, Boulder: Colorado, at p. 217.
11. The judgement could not be read in original, but this is the impression one gets by reading excerpts at < http://www.geocities.com/Athens/Academy/9246/Hall-content.htm>, accessed on 07/04/2001.
12. C.Hosoya or Nandy for example do not touch upon war victims in Korea, China, etc.
13. KANG Soon-Ae of South Korea recounted a horrific tale of being abducted and repeatedly raped over many years and the ultimate rejection of her family when she returned. See ibid., at pp.16-26.
14. Maria Rosa Luna HENSON from Philippines spoke of her kidnapping, heroic resistance, multiple rapes and fortunate recovery. See ibid., at pp.38-46.
15. KIM Yong-Sil of North Korea spoke of her torture, daily rape and miraculous escape. See ibid., at pp.56-59.
16. Jeanne O'HERNE of the Netherlands spoke of her multiple rapes and life-long fear of sex. See ibid., at pp. 60-67.
17.WAN Ai-Hua from China spoke of her severe mutilation, rapes and her lifelong disabilities such as restricted movement and impotence that was caused by the Japanese army. See ibid., at pp.68-71.
18. A Taiwanese Woman who chose to remain anonymous recounted her story of being kidnapped from a hospital where she was a nurse to several years of rape for Navy officers. See ibid., at pp.79-80.
19. Yoshimi Yoshiaki, Hisotrical Understandings on the 'Military Comfort Women' Issue, ibid., pp.81-93, at p. 83.
20. Following these public hearings, a seminar on 'War and Human Rights – Legal Analysis of post-war Reparations' was held in Tokyo, but their report has proved to be inaccessible.
21. For details see < http://www1.jca.apc.org/vaww-net-japan/en/Dec2000/tribunal.html>, accessed on 06/04/2001.
22 . Constitution and procedure of Women's International War Crimes Tribunal, Japan, accessed on 07/04/2001 at <http://witness.peacenet.or.kr/symek2000.htm>.
23. The preceding paragraphs are from the summary of the Tribunal's judgement. The full judgement was to be published on International Women's Day. March 8 2001, but could not be procured.
24. See Falk, R; 'The Circle of Responsibility', The Nation, 26 January 1970.
25. See Failure of Tokyo Tribunal < http://centurychina.com/wiihist/japdeny/tokyo_trial.html> for a Chinese critique of the Tokyo Trial, accessed on 06/04/2001.
26. On February 23rd 2001, Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic were found guilty of using rape as 'an instrument of terror' by the International Criminal Tribunal for the former Yugoslavia. See CNN report at < http://www.cnn.com/2001/fyi/news/02/23/war.crime.verdict>, accessed on 06/04/2001.
27. See LeBlanc, Lawrence J., The Intent to Destroy Groups in the Genocide Convention: The Proposed U.S. Understanding (1984) 78 American Journal of International Law p.369, and Sartre, Jean-Paul, On Genocide, accessed on 07/04/2001 at <http://www2.prestel.co.uk/littleton/v1217sar.htm >.
29. International Tribunal for US/NATO War Crimes in Yugoslavia, accessed on 06/04/2001 at <http://www.iacenter.org/warcrime/wct_talks.htm>
30. See Legal framework to try US for war crimes against Iraq <http://www.infoshop.org/library/wc-ilaw.htm>, accessed on 07/04/2001.
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Legal framework to try US for war crimes against Iraq <http://www.infoshop.org/library/wc-ilaw.htm>.
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