Did you know, there were more A class war criminals found guilty and hung at the Tokyo Trials than at Nuremberg? Yeah, there were like 7 who were found guilty of all that Nazi atrocity and hung but there were 20 who got done for the A-class war crimes in Tokyo. The comparison may be vexing - it might even be odious for some - and in many ways it's one of those moments in history where people wanted apples and oranges to be the same thing when they were clearly dealing with apples and oranges. And that's a vexing thought.
This show doesn't really go into the ins and outs of the trial itself, rather, it explores the judges who presided over the trials and the inner conflict amongst the members of the tribunal. I guess it's one tack for tackling the rather uncomfortable problems of the Tokyo Trials. I've read a fair bit about the Tokyo Trials so this wasn't exactly going to be news but you always wonder how other people would characterise the same material that you've read.
What's Good About It
At least somebody wanted to do a show about it. It's hard getting this kind of content made anywhere on any screen. Some of the stuff in it is still contentious, so the show puts on a brave face and tries to wade into some of the murkier bits.
Some of the legal problems with running the tribunal in Tokyo gets an airing, and to that extent you have to say it does the turn of events some justice.
What's Bad About It
It loses heart pretty quickly when it comes to the details and points contention. It wants to explore the personalities of the judges and just exactly what legal points with which they were wrestling.
It's really uninterested in the people on the stand, and as such you don't get a nuanced look at just what the problem is with the format of the trials. Instead, historical footage of the real people on the stand are cut in against the actors playing the multinational judges. There's something quite hokey about the whole production.
What's Interesting About It
The Tokyo Trial was an attempt to put a legal framework around the war in the Pacific and then "get the bastards". They keep coming back to the charter which tells the judges that getting the bastards is the whole point, and yet they keep finding there are real gaps in the legal frameworks to even be trying the bastards at all. They are also working with the precedent of the Nuremberg Trials and quickly run into the same problem the Nuremberg trials ran into in terms just whose authority under which such a court works. Worse still, the possibility of not being able to cleanly put the bastards away might jeopardise the very fragile veil of legitimacy placed upon the Nuremberg Trials.
In essence, the judges are working, knowing they have massive problems, but in a classic "maintain the fiction" modus operandi, they press on to get the results they want; which invites the question, how impartial were these proceedings anyway? That is to say if the judge is out to get you, how can that be an impartial trial?
That brings me to...
Sir William Webb
Jonathan Hyde plays Judge William Webb. It's a thankless kind of role in as much as Webb had a pretty awful job of corralling justices from very different kinds of judicial cultures. There are two lines of thought with Webb in everything else I've read. One is that he was a very politically minded sort of justice, the sort where political considerations were equally valuable as purely legal considerations. As such, it is not surprising that he was friendly with Douglas MacArthur in his time Australia, and that somehow translated into his appointment as the President of the Military Tribunal. Unsurprisingly he was also a High Court judge, so he knew his way around politics quite well.
The other thing about Webb is that he was a Queenslander, home of the White Australia policy (and One Nation too), so it's actually hard to imagine even for a moment that he was impartial as he says he was. In many ways he would have been the most parochially minded of the eleven judges presiding over the tribunals. In terms of performances, I think Hyde's portrayal of Judge Webb is the standout in this series. He captures the peculiar cultural stink of a Brisbane Judge that vaulted to the top of the Tribunal, really well.
In many ways it was very astute of MacArthur to place Webb at the centre because they wanted a certain kind of verdict and Webb was certainly a judge who could drive at that verdict while maintaining the facade of impartiality. I don't know if one looks upon a man like Judge Webb as an ideal, but as political appointments go, it was superb. If you have a distaste for hypocrisy, then Sir William Webb was the worst appointment. That being said, the most interesting aspect of Webb's character might be that he was against the death penalty for any of the accused. You recognise the fundamental Australian-ness in that sentiment., and that part is at least a little edifying.
The Shadow Of Nuremberg
The eleven justices essentially labour under the influence of the events at the Nuremberg Trials. The entire legitimacy of the trials hangs upon Nuremberg, precisely because there were so few laws upon which to frame the proceedings. The palpable risk for the judges is that they can't look to be any more lenient than the judges at Nuremberg. The problem for them is that the men in the dock weren't quite the same calibre of suspects as the top Nazis. All the same, the Tokyo trials found guilty for 20 A class war criminals, as opposed to the 7 found guilty by Nuremberg.
The crux of the show is what constitutes an A class war crime, and the prosecution run it up the flag that the war of aggression is what is being tried. The judges have to then scramble to find legal precedent in trying heads of government and come up short-handed, so they decide to band together and run the gauntlet. It's not the most edifying bit of legal drama we've seen. It's very hard to be seen as impartial when you know you're working toward a guilty verdict from the justice's bench.
If the series is trying to make an appeal to exonerate the A class war criminals, it makes a pretty poor case. If it is trying to ask questions about the validity of the Military Tribunal itself, it does manage to hit its target.
Nanking Massacre What?
It's kind of contentious in Japan what people mean by the Nanking Massacre. The Nanking Massacre that the Tokyo Trial trial talks about is not what the Chinese propaganda machine loves to talk about. Namely, there was an incident where the Chinese POWs were taken down to the river's edge where they mounted a desperate resistance and were gunned down. Yes, it's an atrocity, but a) it wasn't planned that way b) it's not what the current day Chinese are claiming happened in the city of Nanking.
This portion of the trial is glossed over, but infamously, the Chinese were only only able to cobble together two witnesses for the entire trial, and both presented hearsay. The show then glosses over what exactly the nature of the atrocity was, and moves on to other topics, which is an interesting choice.
Just as an aside, to this day, the Chinese government - the Communist one in Beijing - will not release the alleged documentary evidence of the big massacre that they claim took place and none of which was presented at the Tokyo Trials. To be fair, the Chinese delegation at the Tribunal was from the Nationalists who did fight the Japanese. The Communists merely triggered the Marco Polo Bridge Incident by firing first and provoking return fire from the Japanese. For this, Justice Mei of China demanded Koki Hirota pay with his life. It's a bit rich, when you think about it, but then the whole Tokyo Trial has that problem.
Radhabinod Pal's Dissenting Judgment
The most crucial fallout from the process may have been Judge Pal's dissenting findings. If you go to the Wikipedia link there, you'll find that Pal's findings allegedly opens the door for right wing nationalists in Japan to question the legal foundation of the Tokyo Trials. As long as I've read about the trials, I haven't really found a reason to disagree with Pal's findings and I'm not exactly a right wing nationalist.
The real turning point in the Japanese decision-making leading up to the war was essentially the Hull Note. Pal rightly cites that document as being critical to the process that led to the war and places the culpability of the USA in that process of decisions. I imagine that would have been rather galling for the anglophones sitting with Pal, wanting to do a Nuremberg Trial to burnish their historic reputations.
As the world moves away from the colonialist history and into something we call post-colonial, Pal's dissent is going to take on a deeper meaning. The historians trying to talk down his dissent are going to have a harder time of it.
Henri Bernard's Dissent
Henri Bernard of France had a weirder cultural axe to grind. He thought the Showa Emperor should have stood trial, and the people in the dock in front of him were mere accomplices. He also thought colonialism was okay and so Japan had certain rights to prosecute her wars to protect her colonies. It's a mindset that sort of died hard with the French, in Dien Bien Phu Vietnam and Algeria, later on.
More interestingly, he claims that if the Emperor is getting off scot free without a trial, then hanging his subjects for their roles is clearly excessive. It's an interesting kind of judicial logic that only the French might conjure up; he also argues that conspiracy is an Anglo-American legal construct and no such thing exists under French law so he can't abide punishing Shigenori Togo for his part in the Tojo cabinet as conspiracy.
It's also interesting because not being the English-speaking ally and not having had French troops fighting the Japanese in the Pacific, Bernard was relatively free of the kind of mindset that saw the Japanese as enemies - which was in stark contrast to the English speakers, Patrick, Webb, Northcroft, Higgins, (and later Cramer who replaced Higgins) and MacDougall. As a voice of dissent goes, it's more like a dummy spit than a consideration in that, Bernard wants France to be able to do what France does, which is preside over colonies and spread French culture; and to that extent he can't really condemn the Japanese leadership for wanting to do the same.
Bert Rohling's Dissent
The miniseries is built around Bert Rolling's road to a dissenting opinion. It is a better argued dissent than Bernard's which is steeped in the culture from which it emerges. It is also not as perspicacious as Pal's dissent which squarely argues against the legal authority by which the Tribunal can even proceed. The most important judgements he dissented with were the civilian politicians, namely Kido, Hirota, Shigemitsu, and Togo. He also dissented on Field Marshall Shunroku Hata, which is a very nuanced kind of judgement. Hata's resignation in the Yonai cabinet brought about the Tojo cabinet that led to war. At the same time, Hata was instrumental in bringing the war to an end.
The name that really sticks out on Rohling's list is Koki Hirota who was Prime Minster at the time Japan went to war with China. The tribunal pretty much hung him on the statement he made that Chang Kai-Shek could not be negotiated with. He meant that in exasperation as Chang made it impossible to come to any terms to end hostilities, not because Hirota saw Chang as unworthy of negotiation. He was also lumped with the responsibility of the Kwantung Army going out on its own, crossing the Marco Polo Bridge. It is a bit much to be hung by the allies for that turn of events.
Anyway, the way Rohling saw it was that you couldn't be trying these people with post factum laws, but you could try them for their misinterpreting their job descriptions, part of which was to not start wars. That is to say, these subjects could be tried and found guilty for fucking up their job briefs. That's certainly a much better way to have approached the Trials, but of course he failed to persuade the Anglophone justices because the Anglophone justices really wanted revenge (and they just don't bother hiding it all that much).
The Anglophone judges really believed the charter they had was waterproof in its legality. Rohling disagreed necessarily because he was at least a proper scholar of legal arguments and their limits.
Did It Do Any Good?
If the fruits of the Tokyo Trials is the Hague and the International Court, then perhaps it was worth the effort. Personally, I am a contrarian on this topic, simply because if human rights are a real thing there should have been more people from the allied side in a dock somewhere getting prosecuted. The fact that didn't happen makes the Tokyo Trials pretty much a victor's justice. It's been argued elsewhere that bombing cities wasn't illegal so the allied command should not be tried. With logic like that, you sort of wonder how anybody can sit through hours of the Tokyo Trials taking seriously as a trial. What was, and what was not up for discussion - let alone trial - was actually quite messy:
However, in respect to Pal and Röling's statement about the conduct of air attacks, there was no positive or specific customary international humanitarian law with respect to aerial warfare before and during World War II. Ben Bruce Blakeney, an American defense consul for Japanese defendants, argued that "[i]f the killing of Admiral Kidd by the bombing of Pearl Harbor is murder, we know the name of the very man who[se] hands loosed the atomic bomb on Hiroshima", even though Pearl Harbor was classified as a war crime under the 1907 Hague Convention, as it happened without a declaration of war and without a just cause for self-defense. Similarly, the indiscriminate bombing of Chinese cities by Japanese Imperial Forces was never raised in the Tokyo Trials in fear of America being accused the same thing for its air attacks on Japanese cities. As a result, Japanese pilots and officers escaped prosecution for their aerial raids on Pearl Harbor and cities in China and other Asian countries.[21]Yeah right. Lots of people escaped prosecutions, full stop. (You should see the doco about the 'Einsatzgruppen' on Netflix. It's frightening how few got prosecuted for anything.) The whole point of Pal's dissent and Rohling's as well, is that the allies didn't have a legal reference from which to prosecute the Class A war criminals as they saw them. So, the absence of laws applies equally to the Axis as well as Allied command. You can't try some of them selectively from the losing side and pretend this isn't victor's justice. Not if you want it to look impartial and universal.
It troubles me to this day that the people who end up at the Hague are tinpot dictators from Africa, or Bosnian Serb leaders who, like the Axis powers, were on the shitty end of the war and got lumped with their trials. Although I found those leaders odious, I still feel uncomfortable with the whole trials they went through. It reeked of being victor's justice from day 1 and the case hasn't exactly been made that it wasn't. Then there was the trial of Saddam Hussein in the wake of the Gulf War which looked more or less like a kangaroo court. These things keep discrediting themselves.
All the same, going forwards, if the Tokyo Trials contributed the notion that all nations have rules by which they must abide, even in war, then maybe it was worth going through with the charade. It's probably going to save somebody's life, somewhere in the future. Judging by the history since the Tribunals, it's hard to say the deterrent is working.
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