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University of Tasmania Law Review (UTLR)
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Foster, Alexander --- "Beyond Victor's Justice? The Tokyo War Crimes Trial Revisited" [2012] UTasLawRw 20; (2012) 31(2) University of Tasmania Law Review 181

Beyond Victor’s Justice? The Tokyo War Crimes Trial Revisited

Edited by Yuki Tanaka, Tim McCormack and Gerry Simpson

Martinus Nijhoff Publishers, 2011, pp 381, ISBN 978 9004 20303 1, $192.00

Beyond Victor’s Justice, a collection of essays edited by Yuki Tanaka, Tim McCormack and Gerry Simpson, analyses many of the academically neglected areas of the International Military Tribunal of the Far East (Tokyo Tribunal). Historically, emphasis has been placed on the importance of the Nuremberg Trial and its contributions to international criminal law; the Tokyo Tribunal has been seen as little more than a footnote. Both tribunals have been criticised for being no more than an exercise of justice determined by the Allies, known as ‘victor’s justice’. However, Beyond Victor’s Justice goes beyond this critique. By including essays from a diverse range of contributors and attempting to look beyond the traditional discussion, the editors have successfully added to the growing discourse on the lessons that can be learned from the Tokyo Tribunal.

Beyond Victor’s Justice first contextualises the Tribunal historically and socially with an essay by Gerry Simpson, which provides a look at the development of the literature regarding the trials. Part Two details how the defendants were selected and analyses the decision not to prosecute the emperor and the significance this had for the allies in controlling Japan.

The book then provides five in-depth essays on the individual judges, focussing on those who made dissenting judgments. Underlying this section is each judge’s perception of Chief Justice William Webb of Australia, whose authoritarian approach to procedure and alleged bias against the accused were frequent sources of criticism concerning the tribunal. These chapters focus on those who openly opposed the Chief Justice. They raise questions concerning the legality of the trial given his extreme indiscretion. Unfortunately, permission for Webb’s own chapter was ‘suddenly and regrettably withdrawn’[1] and as such the book lacks direct insight into Webb’s personality and position. This would have been significant in assisting with an understanding of the challenges confronting the tribunal. A closer examination into Webb’s effect on the perceived legality of the trial would have been desirable.

In the following part, Yuma Totani and Gideon Boas examine the trial proceedings and challenge the notion of victors’ justice. Totani argues that the tribunal was not as influenced by the US prosecution as previously thought. Boas highlights that the legal regime under which the trials were conducted was created by former enemies, and the US could have easily summarily executed the accused. The notion of victors’ justice is therefore dismissed as the key source of criticism regarding the trials – it should not be used as an excuse to ignore the lessons Tokyo can provide. The authors instead highlight Tokyo’s importance in establishing precedent in the area of command responsibility, despite there being no specific reference to it in the Tokyo Charter. However, Boas suggests that prosecuting command responsibility in modern international tribunals will continue to be difficult until we can grapple with the ‘moral questions that underpin our expressions of legal certainty.’[2]

This focus on command responsibility is in contrast with the discussion of the crime of conspiracy under international law, which appears under-represented in this book. It has been one of the primary areas in which Tokyo diverged from Nuremberg, with the majority in Tokyo taking a broad approach to the notion of conspiracy. This has not been followed except in specific circumstances. These issues are briefly dealt with in the final chapter, but a closer examination into why Tokyo’s jurisprudence has not been used, even when a broad notion of conspiracy has been applied in US military commissions, would have been beneficial.

Where Beyond Victor’s Justice really stands out, however, is in its examination of areas that were failed to be prosecuted. Rather than indicting the tribunal itself for these failures, the essays analyse them as lessons from which modern international criminal law can adapt and develop. The notion of victor’s justice continues to underlie these discussions: Hisakuza notes that the failure to prosecute the members of Unit 731, who carried out lethal biological experiments on humans, was due to US intervention, and the failure to prosecute any of the Allied commanders highlights the unilateral nature of the Tribunal. Yet the authors go beyond that in there analyses, contributing ideas that can be applied to modern tribunals, regardless of the perceived unlawfulness of the Tribunal.

One of the areas of focus is the failure to prosecute crimes regarding comfort women and sexual violence. The essays provide insight into why it has been so difficult to have these crimes recognised by international law. For example, Helen Durham and Narrelle Morris’ essay suggests that the existence of provisions on sexual crimes in domestic legislation has caused them to be dismissed as serious matters for international discourse. The authors posit that the international community needs to understand the political and economic impact of such crimes before they will get the attention they deserve. Given the length of time that it has taken the international community to formally recognise sexual crimes in international law and the ambiguous nature of the current definition of rape, this discussion is particularly significant. The authors’ direct comparison with modern tribunals provides a level of analysis that would have been useful in other areas of the book.

In addition, this section of the book raises interesting points on the criminal responsibility of the Allies for the bombing of Hiroshima and Nagasaki and the indiscriminate fire-bombing of many other Japanese cities. Yuki Tanaka’s essay is striking in that it highlights the Shimoda case in which a Japanese court found the US liable to pay damages for those civilians injured by the atomic bomb. Tanaka points out that the court’s finding that President Truman was not personally responsible was completely at odds with the principles of command responsibility that had been established at Nuremberg and Tokyo. However, the legal ramifications of this divergence for modern international criminal law are not fully explained.

Most importantly, this collection contains essays from contributors from a diverse range of backgrounds. Thus various legal, political and philosophical views are presented. The various authors contributing to Beyond Victor’s Justice are from both sides of the conflict. It therefore steps beyond the scope of earlier works which, although comprehensive in their analysis of the Tribunal, do not provide the range of viewpoints offered by the current work.

As pointed out in McCormack and Finnin’s final chapter, the international community has rejected the victor’s justice model of international criminal tribunals. This is well established. This collection of essays adds a great deal to the continuing arguments and, in stepping away from the discourse on whether the Tribunal was merely an exercise in ‘victor’s justice’, successfully broadens the scope of discussion. A lot can be learnt from examining the failures and shortcomings of past trials. Beyond Victor’s Justice does exceedingly well in this regard, providing focus and insight into the failures of the Tokyo Tribunal and adds to the growing literature that brings focus away from Nuremberg.

Alexander Foster[∗]

[1] Beyond Victor’s Justice, xxix.

[2] Beyond Victor’s Justice, 173.

[∗] Fourth year BA-LLB student at the University of Tasmania, and member of the Editorial Board of the University of Tasmania Law Review for 2012.

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