Abstract
This chapter reveals the motives behind the omission of the mass atrocity committed against the population in the former colonies by the Japanese from the indictment despite the fact that the evidence was available during the Trial. Instances of rape, bacteriological warfare, human experimenting, and sexual slavery are unaddressed which comes with serious repercussions both legally and historically speaking. Babovic observes what was the purpose of partially including some of these crimes in the Indictment. The chapter also looks at the instances of Allied atrocity against Japan and shows in what way they have complicated Japan’s understanding of its own guilt.
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Notes
- 1.
Trial of Major War Criminals, Nuremberg, 51; cited in Robert Cryer, Prosecuting International Crimes: Selectivity and the International Criminal Law Regime (Cambridge: Cambridge University Press, 2005), 197; 206.
- 2.
For more details on these prosecutions see Yuma Totani, Justice in Asia and the Pacific Region, 1945–1952: Allied War Crimes Prosecutions (Cambridge: Cambridge University Press), 2015; Sandra Wilson, Robert Cribb, Beatrice Trefalt, and Dean Aszkielowicz, Japanese War Criminals: The Politics of Justice After the Second World War (New York: Columbia University Press), 2017.
- 3.
Keiichi Tsuneishi, “Reasons for the Failure to Prosecute Unit 731 and its Significance,” in Yuki Tanaka, Tim McCormack, and Gerry Simpson, eds., Beyond Victor’s Justice? The Tokyo War Crimes Trial Revisited (Leiden: Martinus Nijhoff Publishers) 2011.
- 4.
China Press, “Morrow Concludes China Tour, Gathered Evidence for the Trial,” April 10, 1946, Section 14, Folder 60, MSS1, Virginia Historical Society. http://imtfe.law.virginia.edu/collections/sutton/14/60/china-press-april-10-1946
- 5.
James Burnham Sedgwick, “The trial within: Negotiating Justice at the International Military Tribunal for the Far East,” (Doctoral thesis: The University of British Columbia), 2012, 118–126.
- 6.
Morrow to Keenan, “Evidence of Japanese use of Chemical Warfare Agents in China,” Report, April 25, 1946 in RG496, Box 343; Sutton to Keenan, Report on Bacteria Warfare, April 25, 1946, in RG496, Box 343.
- 7.
Sheldon H. Harries, Factories of Death: Japanese Biological Warfare, 1932–45, and the American Cover-up (New York: Routledge), 1994.
- 8.
“Item 1 - Trial Transcript, August 29, 1946,” Section 8, Folder 39, MSS1, Papers 1919–1965, Virginia Historical Society. http://lib.law.virginia.edu/imtfe/content/item-1-trial-transcript-august-29-1946
- 9.
Keiichi Tsuneishi, “Reasons for the Failure to Prosecute Unit 731 and its Significance,” in Yuki Tanaka, Tim McCormack, and Gerry Simpson, Beyond Victor’s Justice? The Tokyo War Crimes Trial Revisited, 191.
- 10.
“Rome Statute of the International Criminal Court,” July 1, 2002, UN General Assembly.
- 11.
Prosecutor v. Bemba, Case No. ICC-01/05–01/08–3343, Judgment Pursuant to Article 74 of the Statute (March 21, 2016), at https://www.icc-cpi.int/CourtRecords/CR2016_02238.PDF
- 12.
For more details on the Appeal Judgement, see Leila N. Sadat, Fiddling While Rome Burns? The Appeals Chamber’s Curious Decision in Prosecutor v. Jean-Pierre Bemba Gombo, The EJIL Talk, entry posted on June 12, 2018, https://www.ejiltalk.org/fiddling-while-rome-burns-the-appeals-chambers-curious-decision-in-prosecutor-v-jean-pierre-bemba-gombo/
- 13.
Nicola Henry, “Silence as Collective Memory: Sexual Violence and the Tokyo Tribunal,” in Yuki Tanaka, Tim McCormack, and Gerry Simpson, eds., Beyond Victors’ Justice: The Tokyo War Crimes Trial Reappraisal, 274.
- 14.
Ustinia Dolgopol, “Knowledge and Responsibility: The Ongoing Consequences of Failing to Give Sufficient Attention to the Crimes against the Comfort Women in the Tokyo Trial,” in Yuki Tanaka, Tim McCormack, and Gerry Simpson, eds., Beyond Victors’ Justice: The Tokyo War Crimes Trial Reappraisal, 253.
- 15.
Yuma Totani, The Tokyo War Crimes Trials: The Pursuit of Justice in the Wake of World War II (Cambridge: Harvard University Press), 179–180.
- 16.
Ustinia Dolgopol, “Knowledge and Responsibility: The Ongoing Consequences of Failing to Give Sufficient Attention to the Crimes against the Comfort Women in the Tokyo Trial,” in Yuki Tanaka, Tim McCormack, and Gerry Simpson, eds., Beyond Victors’ Justice: The Tokyo War Crimes Trial Reappraisal, 251.
- 17.
Nicola Henry, “Sexual Violence and the Tokyo Trial,” in Yuki Tanaka, Timothy L.H. McCormack, and Gerry Simpson, eds., Beyond Victors’ Justice? The Tokyo War Crimes Trials Revisited, 268.
- 18.
Ian Henderson, “The Firebombing of Tokyo and Other Japanese Cities,” in Yuki Tanaka, Tim McCormack, and Gerry Simpson, eds., Beyond Victors’ Justice: The Tokyo War Crimes Trial Reappraisal, 311–314.
- 19.
Sellars, ‘Crimes against Peace’ and International Law, 178.
- 20.
Convention (II) with Respect to the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land. The Hague. July 29, 1899. Article 25: “The attack or bombardment of towns, villages, habitations or buildings which are not defended, is prohibited.”
- 21.
Heinz Marcus Hanke, “The 1923 Hague Rules of Air Warfare – A contribution to the development of international law protecting civilians from air attack. International Review of the Red Cross, 33(292), 12–44.
- 22.
Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations concerning the Laws and Customs of War on Land. The Hague. October 18, 1907; in the Annex to the Convention, Article 23 (e) reads that it is forbidden “to employ arms, projectiles, or material calculated to cause unnecessary suffering.” https://ihldatabases.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=61CDD9E446504870C12563CD00516768
- 23.
Yuki Tanaka, “The Atomic Bombing, The Tokyo Tribunal and the Shimoda Case: Lessons for the Anti-Nuclear Movements,” in Yuki Tanaka, Tim McCormack and Gerry Simpson, 304–305.
- 24.
William F. Nimmo, Behind a Curtain of Silence: Japanese in Soviet Custody, 1945–1956 (Westport: Greenwood Press), 1988, 7.
- 25.
Sellars, ‘Crimes against Peace’ and International Law, 231.
- 26.
Nimmo, Behind a Curtain of Silence: Japanese in Soviet Custody, 1945–1956, 6.
- 27.
Ibid., 12.
- 28.
Ibid., 13.
- 29.
Sherzad Mominov, “‘The Siberian Internment’ and the Transnational History of the Early Cold War Japan, 1945–56,” In Pedro Iacobellu, Danton Leary, and Shinnosuke Takahashi, Transnational Japan as History: Empire, Migration, and Social Movements (London: Palgrave Macmillan), 2016, 71.
- 30.
“Final Text of Communiqué,” in FRUS, diplomatic papers. The Conferences at Cairo and Teheran, 1943 (Washington: Government Printing Office, 1961), 448, 556.
- 31.
Richard Minear, Victors’ Justice, 97.
- 32.
Aron Trainin, Russian legal scholar, whose work infused the legal philosophy of Justice Jackson, author of Hitlerite Responsibility Under International Law explained the Soviet view on the aggression by making distinction between just and unjust wars. Wars of liberation fit the category of collective self-defense in terms of assistance to the state prejudiced by the aggressor.
- 33.
For more on Trainin’s work and significance when it comes to international criminal law, see Kirsten Sellars, ‘Crime against Peace’ and International Law (Cambridge: Cambridge University Press, 2014); Francine Hirsch; The Soviets at Nuremberg: International Law, Propaganda, and the Making of the Postwar Order, The American Historical Review, Volume 113, Issue 3, 1 June 2008, Pages 701–730; Penn, Michelle Jean, “The Extermination of Peaceful Soviet Citizens: Aron Trainin and International Law” (2017). History Graduate Theses & Dissertations. 39.
- 34.
Roger S. Clark, “Nuremberg and the Crime Against Peace,” Washington University Global Studies Law Review 6:3 (2007), 534. https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1148&context=law_globalstudies
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Babovic, A. (2019). The Partial Interest for Victims and Strategic “Forgetting” at the Tokyo Tribunal. In: The Tokyo Trial, Justice, and the Postwar International Order. New Directions in East Asian History. Palgrave Macmillan, Singapore. https://doi.org/10.1007/978-981-13-3477-1_5
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