In January 1649, shortly after his defeat by Parliament, King Charles I of England was brought before the High Court of Justice, a new-fangled tribunal established by the victors, to answer the novel charge of making war on his own people. It was probably the world’s first recognisable war crimes trial. Apprised of the court’s standing by the judge but unprepared to accept limits on his authority, the king commented wryly, ‘I see I am before a power.’ Three centuries later, in 1945–46, after a more immense conflict, the vanquished rulers of Nazi Germany and imperial Japan were publicly confronted, in Nuremberg and Tokyo, with a new ‘power’ in the shape of an international court. The Allies sought to install a system of international law which would make it impossible in future for any rogue nation to run amok with impunity. 

The two new courts set out to convict the topmost German and Japanese leaders of such unfamiliar offences as ‘crimes against peace’, ‘conspiracy to commit aggression’ and ‘crimes against humanity’, as well as of established crimes such as atrocities in the field and maltreatment of prisoners of war. The Tokyo court, which began sitting in April 1946 (rather later than its European counterpart), followed the Nuremberg court in rejecting the plea of subordinate personnel that they were merely ‘following orders’. In addition, the prosecutors in Tokyo insisted that senior figures on trial had full responsibility as individuals for any savageries committed under their direction and couldn’t take refuge behind ‘the state’.

But the defendants, like Charles I, refused to acknowledge the right of the Allied authorities to try them. General Tojo Hideki, the former prime minister and war minister, and his associates spoke out against ‘victors’ justice’. Some thoughtful Western observers had reservations too. Dr Selwyn Selwyn-Clarke, former director of medical services in British Hong Kong, who had himself been tortured by the Japanese military police, held that the victorious Allies had too much blood on their own hands to warrant their sitting in judgement on their beaten enemies. Hideous though Japanese treatment had been of Allied captives, many of whom had been worked to death on the Burma–Thailand railway, or murdered during the Bataan Death March in the Philippines, were such acts any more indefensible than the firebombing of Tokyo and the nuclear obliteration of Hiroshima and Nagasaki, which had taken place just a few months before? Even the Allied prosecutors showed their disquiet on this score by excluding strategic bombing from their indictment of the Japanese. 

The arrangements for the trial were in many ways ones of exemplary fairness. The twenty-eight accused were provided with defence counsels, American as well as Japanese. The US attorneys fought for their Japanese clients with a pugnacity which astonished some of the clients themselves. The defendants were also given opportunities to plead their own causes. Against this, eight of the eleven judges were Caucasians, inevitably conveying the impression this was a trial of Asians by whites.

An authority on war crimes trials, Gary Bass devotes several chapters to the historical background: Japan’s remorseless expansion in the 1930s; the attack on Pearl Harbor; the atomic bombings; the occupation of Japan by United States forces under General Douglas MacArthur. Most absorbing, however, is the use he makes of the trial itself as a kind of prism reflecting the different concerns of the eleven participant countries at this transitional moment between wartime and postwar worlds. The USA, for example, had two priorities: securing acceptance of their occupation by the conservative elite in Japan, on whose support they relied, and halting the advance of the Soviet Union. They were therefore determined to exclude Emperor Hirohito from arraignment at all costs, fearing that his prosecution would lead to an explosion of popular unrest. They also shielded Ishii Shiro, commander of the notorious Unit 731, which had conducted biological warfare in Manchuria, with a view to obtaining the secrets of his bioweapons for use in an eventual showdown with the Soviets. 

By contrast, the Australians were focused on securing retribution for their prisoners of war, who had suffered bestial treatment in Southeast Asia. They had no doubt that the emperor should be put in the dock. Keenly aware of the drastic decline of their standing in East Asia, the British were partly motivated by a desire to play a part in the trial comparable with that of the USA. Led by the formidable Lord Patrick, they, along with Commonwealth judges from Canada and New Zealand, worked to uphold the judicial innovations made at Nuremberg. The Soviets saw no need for a trial whatsoever and merely wished to exact revenge for the losses they had suffered in their battles with the Japanese on the fringes of Manchuria and Mongolia in 1938–9. In China, Chiang Kai-shek’s Nationalist regime was preoccupied with its struggle with the Chinese Communist Party (CCP). Although Chiang’s country had suffered more than any other at the hands of the Japanese army, the Nationalists sought only modest retribution in the hope of fostering the emergence of a Western-leaning Japan that would support them against the CCP. The rest of the bench was made up of judges from India, the Philippines, the Netherlands and France. The Dutch and French justices were nominally representing the colonies of Indonesia and Indochina respectively, which the Japanese had occupied and the colonial powers wished to recover.

The result of all this extraordinary jumble of outlooks was, as Bass vividly demonstrates, nothing less than a shambles. At Nuremberg, the Allied judges and prosecutors had worked together in harmony. Those in Tokyo, by contrast, were at each other’s throats. The defence counsels stirred up trouble at the outset by formally challenging the court’s legitimacy. ‘Bitter dissension’ is said to have broken out among the judges on this score, to the point where Sir William Webb, the Australian president of the tribunal, was obliged to kick the issue into the long grass, promising vaguely to address it later on. A second major conflict centred on the validity of the new charge of waging wars of aggression. The British-led majority believed that this had been implicitly recognised as a crime in a series of international pacts concluded over the preceding half-century. The Indian judge, Radhabinod Pal, however, argued vehemently that aggression had not been established as a crime under international law, and the Dutch judge, Bert Röling, inclined to the same opinion. 

These disputes were exacerbated by political rancour. Both the Americans and the British regarded the Soviet presence in Tokyo with ‘barely concealed alarm’. Mei Ruao, the Chinese judge, adopted a ‘frosty’ attitude to his Soviet colleague on account of the stationing of Soviet troops in Manchuria, while privately scorning the British as ‘imperialist white supremacists’. And Pal, who had climbed the Raj’s legal ladder without making waves, now turned out to be violently opposed to Western racism and hypocrisy and warmly sympathetic to Japan. While conceding that Japanese troops had committed some atrocities, he cast doubt on many allegations and even echoed the claim of Tojo and the other defendants that their rampage across Asia had been undertaken purely for reasons of self-defence. As the judges drew up their opinions in 1948, it looked all too possible that the court might be split. Pal proposed to deliver a separate 1,200-page judgement advocating the acquittal of all the Japanese. Röling also seemed likely to dissent, as did the French judge, Henri Bernard, over various procedural questions. The British-led majority feared the collapse of the whole trial, something that would undo all the good work achieved at Nuremberg in creating a progressive international legal order.

In the event, a collapse was averted. Röling still had doubts about wars of aggression, but he was also aware that the trial was ‘more or less the touchstone for the possibility of organised international justice’. He and Bernard lined up with the majority, leaving Pal on his own. The ‘power’ introduced at Nuremberg had been upheld, and sentences were duly passed on the former Japanese leaders in accordance with it, although it’s notable that only those defendants who had also been convicted of conventional war crimes were actually executed. The sentences seem generally to have been appropriate, though Bass draws attention to an undoubted miscarriage of justice in the case of one-time foreign minister Togo Shigenori, who had resisted the Japanese military’s plans for attacking Pearl Harbor until virtually the last minute. Documents clarifying his role hadn’t yet been recovered, and the unfortunate minister was given a twenty-year prison sentence effectively for having been in the wrong meeting room at the wrong time. 

According to Bass, the trial received the broad approval of the Japanese intellectuals who were now emerging from the shadows, though it is perhaps legitimate to wonder whether approval in some quarters didn’t reflect a desire to fit in with the views of the new American occupation authorities. Certainly, it’s surprising to find the punishment of Tojo and his colleagues warmly supported by Yomiuri Shimbun, traditionally a right-leaning newspaper. Bass traces the continuing unwillingness in right-wing Japanese circles to take blame for the war. Pal, whose dissenting verdict was viewed by right-wingers as the only correct one, became the sole foreigner to be honoured with a monument at the Yasukuni Shrine, which commemorates many of Japan’s military dead, including a number of war criminals.

For the Allied victims of imperial Japan, the results of the trial weren’t altogether satisfactory. The Japanese military chiefs had directed a shredding of documents at the end of the war, resulting in the destruction of much evidence of their misdeeds in China. Crimes perpetrated by the Imperial Japanese Army in Taiwan and Korea were not investigated because these two territories were regarded as having been part of Japan. All of this stored up grievances, which continue to fester eighty years on. But the Tokyo trial was at least successful in preserving the juridical breakthroughs made at Nuremberg, providing the template for the next international war crimes tribunal, which was set up in 1993 to prosecute offences committed during the conflict in Yugoslavia. And the contention of these courts that international law should trump national sovereignty remains at the heart of the West’s confrontation with China and Russia today.

Bass has produced an immense work, highly readable and full of human interest. He has drawn on much fresh material, including the diaries and correspondence of Judge Röling and Judge Mei Ruao. The Tokyo trial is less well known to Western readers than its Nuremberg counterpart, but Bass’s book will undoubtedly do much to correct that imbalance.