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Rethinking Justice? Decolonization, Cold War, and Asian War Crimes Trials after 1945


Conference | Programme | Abstracts

 

Organiser: Dr Kerstin von Lingen, JRG “Transcultural Justice”


Venue: Internationales Wissenschaftsforum (IWH)
Hauptsr. 242, 69117 Heidelberg


October 26-29, 2014

Abstracts

Coming to Terms with War Crimes in Asia in the Wake of Decolonization and Cold War Politics – Introduction

Kerstin von Lingen, Cluster of Excellence „Asia and Europe in a Global Context“, Heidelberg

The war crimes trials in Asia were a watershed moment marking the demise of an old political-legal order (defined by European hegemony) and the advent of a new, anti-imperial one (based on contestations between the American and Soviet blocs and the rise of postcolonial nation-states). The trials themselves served as critically significant sites for producing new visions of legality and political legitimation which would mark this period of transition.  In this conference, particular focus lays on the planning of the war crimes trials, their impact on global politics, and on the movements of legal personnel and concepts associated with the trials.

About the speaker:

Kerstin VON LINGEN is a historian and is teaching history at Heidelberg University in the Cluster of Excellence “Asia and Europe in a Global Context.” Since 2013, she leads an independent research project entitled “Transcultural Justice: Legal Flows and the Emergence of International Justice within the East Asian War Crimes Trials, 1946-1954,” supervising four doctoral dissertations on the Soviet, Chinese, Dutch, and French war crimes trial policies in Asia, respectively. Her many publications include two monographs in English, Kesselring’s Last Battle: War Crimes Trials and Cold War Politics, 1945-1960 (Lawrence: University of Kansas Press, 2009) and Allen Dulles, the OSS and Nazi War Criminals: The Dynamics of Selective Prosecution (Cambridge: Cambridge University Press, 2013), as well as the (co)edited volumes Kriegserfahrung und nationale Identität in Europa [War experience and national identity in Europe after 1945], Paderborn: Schoeningh, 2009, and with Klaus Gestwa, Zwangsarbeit als Kriegsressource in Europa und Asien [Forced labor as a resource of War: European and Asian perspectives), Schoening 2014.

End of Empire and International Humanitarian Law

Fabian Klose, Leibnitz Institut für Europäische Geschichte Mainz (IEG)

The “wars of national liberation” in the 1950s and 1960s posed new challenges to International Humanitarian Law as codified in the Geneva Conventions of 1949. On one side, the colonial powers feared unwelcome intervention in their colonial interests and therefore fought any expansion of international humanitarian law and the ICRC work in this area. On the other, liberation movements like the Algerian Front de Libération Nationale (FLN) instrumentalized the revised international humanitarian law for purposes of propaganda in their struggle to win public opinion. The Geneva Conventions were increasingly bounced back and forth in the tough political confrontations of decolonization, so that the original issue of securing minimum humanitarian protections in wartime threatened to pale or even perish in the skirmishes.
It is against this backdrop that this presentation uses the case studies of the Mau Mau War in Kenya (1952-56) and the Algerian War (1954-62) to examine the role of International Humanitarian Law and the International Red Cross in the process of violent decolonization. In the course of its attempt to develop an international humanitarian regime, two key questions arose for the ICRC. First, to what degree could the norms of the 1949 Geneva Conventions withstand the realities of colonial war? Second, how much influence could international organizations like the ICRC exert in these violent scenarios? Appealing to evidence mostly made available only recently by the archives of the International Red Cross in Geneva, I argue that the wars of decolonization became the first serious testing grounds for the revisions to international humanitarian law and had an impact on its future development.

About the speaker:

Fabian KLOSE received a Ph.D. degree in Modern History from the LMU Munich in 2007. From 2008 to 2009 he was Lecturer at Princeton University and from 2009 to 2012 Senior Researcher at the LMU Munich. Since November 2012 he is Senior Researcher at the Leibniz Institute of European History (IEG) in Mainz. His research focuses on the history of decolonization, international humanitarian law, human rights, and humanitarianism in the 19th and 20th centuries. He has recently published his book Human Rights in the Shadow of Colonial Violence: The Wars of Independence in Kenya and Algeria (University of Pennsylvania Press, 2013). He is currently working on his new project about humanitarian intervention in the long 19th century. His edited volume The Emergence of Humanitarian Intervention. Ideas and Practice from the Nineteenth Century to the Present is forthcoming in 2015 (by Cambridge University Press).

Decolonization and the search for justice in the imperial aftermath: Japanese discussions about the actual pursuit of Justice

Barak Kushner, Cambridge University

Building on research completed for my forthcoming monograph (Men to Devils, Devils to Men: Japanese War Crimes and Chinese Justice) on how the Chinese dispensed justice for Japanese war crimes in China, this paper examines the roots of law and the idea of justice in East Asia that fed into this postwar push toward the use of war crimes trials as a way to resolve post-imperial conflicts. Who were the key players in East Asia, in particular Japan, that responded to this call and what sort of legal training did they have? What ideology underpinned the pursuit of justice in China, Japan and Korea and how did this movement react to the political forces at the time who often announced goals in complete opposition? In Japan the immediate postwar saw political and military moves to stymie the war crimes process as the means to protect the "imperial polity," frequently just a stand in term for "military embarrassment." Likewise, the early postwar social debates about war responsibility were not limited to analyzing war crimes but rather focused on the issue of military loss. When did this shift occur and what were the parties that mobilized behind such action? My presentation will seek to illuminate these issues and establish a framework for considering a methodological orientation to tackle these questions.

About the speaker:

Barak KUSHNER teaches modern Japanese history in the Faculty of Asian & Middle Eastern Studies at Cambridge University. He was recently awarded a 2012-2013 British Academy Mid-Career Fellowship which he used to complete his third book entitled Men to Devils, Devils to Men: Japanese War Crimes and Chinese Justice (forthcoming from Harvard University Press, 2014). Last year he launched a 5-year European Research Council funded project, “The Dissolution of the Japanese Empire and the Struggle for Legitimacy in Postwar East Asia, 1945–1965.” Kushner’s second book, Slurp! A culinary and social history of ramen - Japan's favorite noodle soup (Brill, 2012), analyzed food and history within Sino-Japan relations and was awarded the 2013 Sophie Coe Prize for Food History. The Thought War - Japanese Imperial Propaganda (Hawaii 2006), Kushner's first book, delved into the history of wartime Japanese propaganda. He was a 2008 Abe Fellow and conducted research concerning "Cold War Propaganda in East Asia and Historical Memory." Previously, Kushner worked in the US Department of State as a political officer in East Asian affairs and taught Chinese and Japanese history at Davidson College in North Carolina, USA. As a scholar he has written on wartime Japanese and Chinese propaganda, Japanese media, Sino-Japanese relations, Asian comedy, food history, BC class war crimes, and the Cold War. (For more see www.barakkushner.net)

Colonialism, Anti-Colonialism and Neo-Colonialism in China: The Opium Question at the Tokyo War Crimes Tribunal

Neil Boister, University of Waikato, New Zealand

Partly a system of moral disapprobation, partly a system of trade prohibition, the foundations of the modern international drug control system arise from China’s opium problem of the Nineteenth and Twentieth Century. The bizarre morality play that began with the opium wars where European states fought to preserve their opium trade to China, reached its finale with the contest between Japan’s and the United States’ versions of drug control played out the Tokyo War Crimes Tribunal. The paper explores the hypothesis that debates on the appropriate responses to opium at the International Military Tribunal for the Far East played a crucial role in ending one kind of imperialism - the British/European enforced supply of opium into China - and introducing another - the US-buttressed moral-hegemonic enforced suppression of opium.. The Tribunal provided a venue to the US for achieving hegemony over the global drug system by condemning Japanese behaviour and ratifying the US policy of prohibition. The paper uses the Tokyo Trial as a space to interrogate these transitions. It traces the perspectives of the three main players – the coloniser, Japan – the colonised, China – and the neo –coloniser, the US, through the evidence tendered about drug control at the trial. The paper examines to what extent the main normative tool at the trial – the rapidly weakening crime against peace – succeeded in providing an avenue for the normative buttressing of international drug prohibition in the post Second World War period.

About the speaker:

Neil BOISTER is professor at Te Piringa Faculty of Law, University of Waikato. In 2012, he was a Visiting Fellow at the Institute for Criminal Law Sciences, Faculty of Law, University of Hamburg and a Visiting Fellow at the Law Department, European University Institute, Florence. In 2011, he served as an invited expert to a Transnational Institute (TNI)/ International Drug Policy Consortium (IDPC) Expert Seminar on the Future of the UN Drug Control Treaties, Prague 25-26 January 2012. He was also, in 2011, an Invited Participant in Open Society Initiative for Southern Africa (OSISA)/and Open Society Foundations Program Without Borders Grand Corruption Roundtable held in Victoria Falls 27-28 November 2011. He serves as a Member of the Editorial Board of the International Journal on Human Rights and Drug Policy and as a Member of the Advisory Board of the New Zealand Yearbook of International Law. He has published extensively in the areas of international criminal law and transnational criminal law.

The French prosecution of Japanese war crimes at the International Military Tribunal for the Far East: reframing the history of the Japanese Occupation of Indochina.

Beatrice Trefalt, Monash Univerity

The French participation in the International Military Tribunal for the Far East (IMTFE) is best known for the dissenting opinion of Justice Henri Bernard, who questioned some of the basic legal assumptions underpinning the trials when they came to an end. This paper claims that the French case for the prosecution, led by Robert Oneto, also deserves some attention, and argues that the French case, described by legal scholar Yves Beigbeder as flimsy at best, aimed to justify the French recovery of colonial control in Indochina, and to remove once and for all the stain of collaboration of the representatives of the Vichy government in Indochina between September 1940 and March 1945. Using archival sources, this paper traces how French Prosecutor Robert Oneto prepared his case, placing it in the context of French attempts to recover international prestige as a colonial power in the wake of the war. It argues that the audience for Robert Oneto’s case was the Allies and the world at large, not just the Japanese accused in the dock. Minimal and short-lived as it was, the French participation in the punishment of defeated Japan was a crucial moment in the attempt to recover post-war France’s image in the Far East.

About the speaker:

Beatrice TREFALT is a Senior Lecturer in Japanese Studies in the School of Languages, Literatures, Cultures and Linguistics at Monash University. Her research area is early post-war Japanese history, focussing especially on war legacies, dislocation and repatriation. She has recently published articles on the aftermath of war crimes trials in the Philippines and Indochina, and is currently co-authoring a book with Sandra Wilson, Robert Cribb and Dean Aszkielowicz on the arrest, conviction, incarceration and release of Japanese war criminals, funded by an Australian government research grant. She has also written on the experience of Japanese soldiers and civilians in the Pacific and on the evolution of memories of the war in the first 30 years of Japan’s post-war period.

Another Meaning of Treason: The Red Fort Trials and Their Legal Legacy

Kirsten Sellars, National University of Singapore

In 1945, the British convened the first trial at the Red Fort to deal with senior figures in the Indian National Army. At first, this appeared to be a straightforward domestic case of treason. But the defence team, led by Bhulabhai Desai, turned the case on its head, arguing that the matter was not a question for municipal law, but rather one for international law — namely, ‘the right to wage war with immunity on the part of the subject race for their liberation’.
Just as the Bhulabhai Desai’s critique of ‘treason’ dominated the discussion about the first Red Fort trial, so the Indian judge Radhabinod Pal’s critique of its international equivalent — ‘crimes against peace’ — defined the debate about the Tokyo tribunal. At the time, Pal’s dissentient stance shocked the Western judges, but his approach was far from being a bolt from the blue: rather, it arose out of India’s campaign for independence, and was heavily influenced by the arguments that Desai had mounted in New Delhi.
Desai and Pal’s approach heralded a new perspective on international law, and in future decades their successors would demand a radical reordering of global priorities, with justice taking precedence over security, rather than security taking precedence over justice.

About the speaker:

Kirsten SELLARS is currently Research Fellow at the Centre for Asian Legal Studies at the National University of Singapore’s Faculty of Law. She focuses on Asian perspectives on public international law, with a particular interest in international aggression and uses of force, international criminal law, and law of the sea. Her route into academia began with journalism, having written on international affairs and other issues for newspapers and publications including The Times, Guardian, New Statesman, Spectator, and Los Angeles Times. Her first book, The Rise and Rise of Human Rights, was nominated in the New Statesman as one of 2002’s books of the year, and was translated into Korean/hangul as In-gwon Geu Wiseon-eui Yeoksa (tr. Oh Seung-hoon). Her latest book, ‘Crimes Against Peace’ and International Law, has just been published by Cambridge University Press. She has also contributed to the Journal of International Criminal Justice, European Journal of International Law, Edinburgh Law Review and International Affairs.

Can Sovereignty be Decolonized? Judge Radhabinod Pal’s Dissenting Judgment at Tokyo from a Perspective of Global Intellectual History

Milinda Banerjee, Presidency University Kolkata

The Indian Judge Radhabinod Pal’s dissenting judgment at the Tokyo Trial has always constituted something of an enigma in academic scholarship as well as public perception. It is conventionally described as being primarily directed against Western imperial encroachments on Asia, and its significance is assessed in the political context of imperial crises and emergent decolonization. But I argue that the Pal’s legal-intellectual and political location is more complex. Pal’s critical attitude towards the Trial and indeed towards international criminal law can only be understood when juxtaposed with his ambivalent attitude towards municipal law. Pal’s positioning is not just the product of an anti-colonial location, but is also the creative output of engagements between South Asian concepts of justice and juridicality (as interpreted by the British and by Indians in the colonial period) on the one hand, and ‘Western’ legal-philosophical concepts on the other. Pal’s location as a subject in colonial India is of course critically important; but so are the transnational debates, networks, and horizons which shaped his presence in important globally entangled discussions. I demonstrate how, in order to forge an anti-colonial legal theory, Pal contested the views of contemporaneous participants in debate about WWII war crimes trial policy (such as Joseph Keenan, the American prosecutor at Tokyo, and Aron Trainin, the famous Soviet jurist) as well as of older generations of European legal philosophers (Thomas Hobbes and John Austin, to take two important British examples). I will especially foreground the similarity as well as contrast between the approaches of Pal and Keenan, which offer me, in a way, two poles of the Tokyo debate. The conversations between Pal and the Dutch judge at Tokyo, B. V. A. Röling, are also crucial for me, in highlighting the moral debates about colonialism which spanned across (and did not merely divide) continental borders. My aim is thus to contextualize Pal’s judgment within wider debates on legal philosophy and indeed the metaphysics of law. Pal’s judgment thus shows a fascinating case of the formation of legal philosophy (that is, a certain critical epistemology of understanding the nature and functions of law, in domestic as well as international contexts) as the product of transnational encounters and colonial anxieties about old-style imperialism as well as new forms of American and Soviet hegemony. Pal’s Tokyo judgment will be juxtaposed here with his mounting anxieties in the late 1940s and early 1950s about the attempted reconstitution of different forms of colonial and quasi-imperial hegemony in Asia, such as in Indonesia, Indochina, and (most importantly, from his perspective) in Korea. Pal thus offers a legal-philosophical ‘third space’ which serves as a counterpoint, sharing similarities as well as differences with the more well-known political criticisms of European imperialism as well as Cold War hegemonic projects which were being fashioned around this time by anti-colonial politicians in Asia and Africa (for example, in India, by the country’s first Prime Minister, Jawaharlal Nehru).

About the speaker:

Milinda BANERJEE is Assistant Professor, Department of History, at Presidency University, Kolkata (India). His doctoral dissertation (from Heidelberg University) was titled: ‘The Mortal God’: Debating Rulership and Genealogies of Sovereignty in Colonial India, 1858-1947 (with a primary focus on Bengal)’. He is now also a Research Fellow in Junior Research Group ‘Transcultural Justice: Legal Flows and the Emergence of International Justice within the East Asian War Crimes Trials, 1946-1954’, Cluster of Excellence ‘Asia and Europe in a Global Context’, Heidelberg University, Germany; working title of project ‘An Intellectual History of the Tokyo Trial: Judge Radhabinod Pal and Debates on International Justice’. Banerjee specializes in intellectual history (eighteenth to twentieth century), with a particular focus on ideas of sovereignty and justice. He is also the author of two books and a number of articles in peer-reviewed journals and volumes on the intellectual history of Bengal.

Defining Colonial “War Crimes”: Korean Debates on Collaboration, War Reparations, and the International Military Tribunal for the Far East

Deokhyo Choi, Cambridge University

This paper examines how “war crimes” were discussed and framed among Koreans in the aftermath of liberation from Japanese colonial rule. Although Koreans were not given any significant role in the International Military Tribunal for the Far East (IMTFE), Korean political leaders and intellectuals in both Korea and Japan created their own movements and debates on how to define Japanese and Korean “war crimes” committed within a colonial context. In this paper, I focus on how they tried to approach the problems of colonial collaboration and war reparations while appropriating ideas and principles – such as “crimes against peace,” and liberation from the “enslavement of the people of Korea” – that the Allied Powers had pushed forward through the IMTFE and the Cairo Declaration of 1943. Through an examination of the Korean debates on war crimes and their critiques of the IMTFE, this paper shows how the limits of “victor’s justice” were understood by Japan’s former colonial subjects

About the speaker:

Deokhyo CHOI is a postdoctoral research associate in the Faculty of Asian and Middle Eastern Studies at the University of Cambridge. He has received his Ph.D. in History from Cornell University in August 2013. His research inquires into three key historical processes that have conditioned the regional political landscape of contemporary East Asia: Japanese empire-building, decolonization, and the Cold War. His dissertation, “Crucible of the Post-Empire: Decolonization, Race, and Cold War Politics in U.S.-Japan-Korea Relations, 1945-1952,” has examined how the decolonization of the Japanese empire and the Cold War in East Asia intersected at the site of the so-called “Korean minority question” in U.S.-occupied Japan. His recent article, “‘Mindful of the Enslavement’: The Cairo Declaration, Korean Independence, and the Ambiguity of the Liberation of Koreans in Defeated Japan,” was published in Taiwan in 2014.

Korea and Koreans in the Asian War Crimes Trials

Sandra Wilson, Murdoch University

After the Second World War, about 5,700 Japanese military personnel were tried by Allied governments for crimes against prisoners of war and the local inhabitants of areas occupied by the Japanese military. Large numbers of the defendants were convicted, and were either executed or sentenced to life imprisonment or lesser prison terms. While trials of Japanese suspects were still continuing, evidence began to mount that atrocities were also occurring in the Korean War. Investigation teams set up by the US Army produced evidence that North Korean troops were carrying out 'acts of barbarity and murder of American soldiers and POWs', and a considerable number of legal briefs were prepared. Yet, no war crimes trials were held in relation to the Korean War. Doubts about the effectiveness of trials of Japanese suspects played a part in the failure to bring suspects to Korea to account. This paper examines the question of why trials did not take place in Korea.

About the speaker:

Sandra WILSON is a Professor for School of Arts, Murdoch University, Australia. She received her BA (Hons) in History and her Master in Japanese Studies at the University of Western Australia. At Oxford University Sandra Wilson obtained her D Phil in Modern Japanese History. Her research interests concern the history of Japanese nationalism; post-1945 Chinese and Japanese films about the Second World War; and war crimes and war criminals in the Asian theatre after the Second World War. Among her publications are “The Manchurian Crisis and Japanese Society, 1931-33”, London, Routledge, 2002 and “War Criminals in the Post-War World: the Case of Katō Tetsutarō”, War in History, forthcoming.

The Australian Government’s Pursuit of Korean and Formosan ‘Japanese’ War Criminals

Dean Aszkielowicz, Murdoch University

The Australian government was an enthusiastic participant in the post-war prosecution of Japanese Class B and C war criminals. Almost a thousand war criminals faced Australian military courts between 1945 and 1951. Around a hundred of those convicted were former Japanese colonial subjects of Korean or Formosan origin that had served in the Japanese military during the war. Japan lost its empire immediately after it surrendered to the Allies in 1945 and Korean and Formosan ‘Japanese’ subjects had their nationality restored to that of their country of origin. Nonetheless, the Australian government continued to regard war criminals of Korean and Formosan origin as Japanese subjects for the duration of their prosecution and imprisonment, since they had been at the time of their crimes. Some argued that the prosecution and imprisonment of war criminals of Korean and Formosan origin was unjust because it failed to recognise the difficult circumstances that colonial subjects serving in the Japanese military were in. The Australian government maintained its position on the Korean and Formosan war criminals until they were released from prison in the late 1950s, despite being under diplomatic pressure from the Japanese, Korean and Nationalist Chinese governments to change its stance on the war criminals at various times in the late 1940s and early 1950s. The government maintained that these war criminals needed to be punished for their crimes, regardless of the circumstances of their nationality. When the government did eventually show leniency to the Koreans and Formosans and release them, it was in line with leniency shown to all ‘Japanese’ war criminals and was for diplomatic gain, rather than acknowledgement of the war criminals’ claims of injustice.

About the speaker:

Dean ASZKIELOWICZ is an early career researcher in history, who is currently part of an Australian Research Council funded project on the repatriation and release of Japanese war criminals. His other key research interest is relations between Australia, the United States and Japan in the 1950s. He was awarded a PhD degree in 2013 for his thesis, ‘After the Surrender: Australia and the Japanese Class B and C War Criminals, 1945-1958’. He has published ‘Repatriation and the Limits of Resolve: Japanese War Criminals in Australian Custody’, Japanese Studies, Vol. 31, Issue 2, September 2011.

The British Military’s Prosecution of Japanese War Crimes in Colonial Singapore: A Historical and Socio-Legal Study

Wui Ling CHEAH, National University of Singapore

This paper forms part of a larger project that examines the historical significance and meaning of British military trials held in Singapore after WWII (the Singapore Trials). These trials were among the hundreds of post-WWII trials conducted by the Allied Forces in the immediate aftermath of WWII, alongside the Tokyo and Nuremburg Trials. In Asia alone, 920 accused persons were prosecuted before British military courts. In Singapore, which then served as the British military’s base for its Southeast Asian war crimes investigations, a diverse range of war crimes and Japanese accused were tried before British courts. However, there has yet to be any comprehensive study of these trials.
A cursory examination of these trials raises a number of puzzling questions, particularly when they are compared to contemporary war crimes trials, or even the Nuremberg and Tokyo Trials. Why were the judgments and findings of these trials so brief, comprising a mere one or two pages in length? How was it possible that each trial lasted only for a few days, given the complex or systematic nature of the crimes? It would be easy to dismiss the Singapore Trials as a form of “victors’ justice” due to the brevity of their judgements, their short duration, and their failure to discuss legal norms. In contrast, modern-day war crimes trials are regulated by substantive and procedural legal rules, and characterized by lengthy decisions and proceedings. Even the Tokyo Trial, which ran alongside the Singapore Trials,
had proceedings that lasted for over a year and issued a decision that ran for hundreds of pages. When compared against these trials, the Singapore Trials appear discretionary and vengeful.
And yet, a closer examination of these trials reveals a not insubstantial number of acquittals,
sentence reductions upon petition, and a gradation of sentences. Using a mix of reading and interpretive methods drawn from the disciplines of history and sociology, my project aims to achieve an empirically informed and historically-sensitive understanding of the Singapore Trials. Among other findings, I highlight how accusations of “victor’s justice” fail to adequately explain these trials. Instead, the influence of politics was more nuanced and complicated. Against a changing post-WWII political landscape, these trials were intended to facilitate the British authorities’ reassertion of colonial authority in Singapore.

About the speaker:

Wui Ling CHEAH is Assistant Professor at the National University of Singapore (NUS)’s Faculty of Law since 2007. She is also Senior Adviser of the Forum for International Criminal and Humanitarian Law, Co-rapporteur of the International Law Association’s Committee on Complementarity in International Criminal Law, and Adviser of the Case Matrix Network. She was educated at National University of Singapore (LL.B., LL.M.), Harvard Law School (LL.M.), European University Institute (Diploma in Human Rights Law, one of two diplomas awarded), and Oxford University (D.Phil. in Socio-Legal Studies, ongoing). She is a qualified lawyer (called to the New York Bar) and holds a diploma in arbitration (Queen Mary University of London).
Prior to entering academia, she served as a Legal Officer in the Office of Legal Affairs of Interpol’s General Secretariat (Lyon). Her teaching experience includes periods at the Centre for Transnational Legal Studies (London, UK), Oxford University (UK), Université Jean Moulin Lyon 3 (France), and Royal University of Law and Economics (Cambodia). In 2011, she was a Visiting Professional at the International Criminal Court. Wui Ling’s research and publications focus on international criminal law, human rights law, and criminal justice.

Another Meaning of Treason: The Red Fort Trials and Their Legal Legacy

Kirsten Sellars, Chinese University of Hong Kong

In 1945, the British convened the first trial at the Red Fort to deal with senior figures in the Indian National Army. At first, this appeared to be a straightforward domestic case of treason. But the defence team, led by Bhulabhai Desai, turned the case on its head, arguing that the matter was not a question for municipal law, but rather one for international law — namely, ‘the right to wage war with immunity on the part of the subject race for their liberation’.
Just as the Bhulabhai Desai’s critique of ‘treason’ dominated the discussion about the first Red Fort trial, so the Indian judge Radhabinod Pal’s critique of its international equivalent — ‘crimes against peace’ — defined the debate about the Tokyo tribunal. At the time, Pal’s dissentient stance shocked the Western judges, but his approach was far from being a bolt from the blue: rather, it arose out of India’s campaign for independence, and was heavily influenced by the arguments that Desai had mounted in New Delhi.
Desai and Pal’s approach heralded a new perspective on international law, and in future decades their successors would demand a radical reordering of global priorities, with justice taking precedence over security, rather than security taking precedence over justice.

About the speaker:

Kirsten SELLARS will shortly be Assistant Professor at the Chinese University of Hong Kong’s Faculty of Law. She focuses on Asian perspectives on public international law, with a particular interest in international aggression and uses of force, international criminal law, and law of the sea. Her route into academia began with journalism, having written for publications including The Times, Guardian, New Statesman, Spectator, and Los Angeles Times. Her first book, The Rise and Rise of Human Rights, was nominated as one the books of the year in the New Statesman. Her latest book, ‘Crimes against Peace’ and International Law, was published by Cambridge University Press in 2013, and her next, the edited volume, Trials of International Crimes in Asia, also published by Cambridge, will be out in 2015.

The Japanese Crimes against Civilians in the China-Burma-India Theater: Case Studies from the UK War Crimes Proceedings

Yuma Totani, University of Hawaii

This paper explores a selection of UK war crimes trials where former high-ranking members of the Japanese armed forces were prosecuted on charges of war crimes against civilians in the China-Burma-India (CBI) theater. The purpose of this paper is twofold. First, by tapping into the UK trial records, it aims at bringing to light the rhetoric and reality of Asian solidarity from the standpoint of those civilian populations that fell under Japanese military control. The wartime Government of Japan (GOJ) propagated the idea of the “Greater East Asia Co-Prosperity Sphere” in order to win the hearts and minds of the Asian people. Yet the UK trial records show that the reign of terror characterized the Japanese military occupation, including in the Andaman and Nicobar Islands that GOJ presumably presented with the “Provisional Government of Free India”—the Japanese-sponsored Indian government established in Singapore in 1942—in a symbolic gesture of pro-Indian independence. Second, this paper will inquire into the nature of “British justice” as articulated at the UK war crimes trials. How did the UK Courts achieve justice on behalf of the British colonial subjects in this theater? How did they strike the balance between the need for retribution and the enforcement of the rule of law? What were the political implications of prosecuting the Japanese for crimes against British colonial subjects in the context of decolonization? To address these questions, this paper will explore three trials that were held at Singapore in a relative early stage of the UK war crimes program in the Asia-Pacific region.

About the speaker:

Yuma TOTANI earned her Ph.D. in history at the University of California, Berkeley, in 2005, and is presently an associate professor of history at the University of Hawaii. The field she teaches is the history of modern Japan, and her research specialization is the post-WWII Allied war crimes trials in the Asia-Pacific region. She authored The Tokyo War Crimes Trial: The Pursuit of Justice in the Wake of World War II (Harvard University Asia Center, 2008) and produced its expanded Japanese-language edition, Tōkyō saiban: dai-niji taisen go no hō to seigi no tsuikyū (Tokyo: Misuzu shobō, 2008). Her second book, Justice in Asia and the Pacific Region: Allied War Crimes Prosecutions, 1945-1952 (Cambridge University Press), is expected for publication in 2015.

Forgotten prisoners: Japanese war criminals in Rangoon jail, 1946-1951

Robert Cribb, Australian National University

In the aftermath of the Second World War, Allied governments in Asia and the Pacific tried thousands of suspected Japanese war criminals. In Burma, most of which had been re-occupied by British forces before the end of hostilities, around sixty trials took place in Rangoon (now Yangon), Mandalay and Maymyo in 1946 and 1947. The defendants were charged with crimes against Western prisoners of war and civilians and with crimes against local people. Eighty-five of the defendants (some of them in mass trials where several defendants were tried simultaneously on different but related charges) were convicted and sentenced to jail terms, commonly around 10-15 years. Those who had committed crimes against non-Burmese people were transferred to prisons outside Burma in 1947, while the remaining 57, whose victims had been locals, were consigned to Rangoon jail. After independence, the convicted war criminals stayed in Rangoon Jail, cultivating garden plots and largely ignored by both British and Burmese authorities. In early 1950, the British notified the Burmese that they had decided to reduce the sentences of a number of the prisoners, as part of a systematic review of the sentences of war criminals convicted by British tribunals. The British could no longer instruct the Burmese authorities to take action, however, and the Burmese government failed to record the sentence reductions on the prisoners' files. The anomaly went unnoticed after the prisoners were repatriated to Japan in mid-1951 to serve out the remainder of their sentences in Sugamo Prison in Tokyo, under the authority of the US military. Only in 1953 did British officials realise that the earlier adjustments to sentences had not been implemented; they then scrambled to rectify the anomaly, and the Rangoon prisoners were amongst the first to have their sentences reduced by the British after the signing of the 1952 San Francisco Peace Treaty, which transferred responsibility for war criminals back to the prosecuting powers. The case of these prisoners is an early illustration of the complex practicalities of international criminal law in an era when national jurisdictions were in flux.

About the speaker:

Robert CRIBB is Professor of Asian History at the Australian National University. His research focuses on Indonesian history, with special attention to violence, national identity and environmental politics. His recent publications include Wild Man from Borneo: a cultural history of the orangutan (Hawaii, 2014, with Helen Gilbert and Helen Tiffin) and Historical Atlas of Northeast Asia 1590-2010 (Columbia 2014, with Li Narangoa).

Retribution and Civil War: Communist and Nationalist Traitor Elimination Work 1945-1948

Konrad M. Lawson, University of St Andrews

Recent scholarship on political retribution against suspected collaborators with the Japanese occupation of China, including important contributions by Liu Jie, Dan Shao, Margherita Zanasi and Yun Xia, have concentrated on trials carried out by the Nationalist government after Japanese surrender. Though almost all historians of the Chinese Communist revolution mention the process of punishing collaborators as part of a longer history of political violence, only a few scholars, including Jiu-jong Lo and Uchida Tomoyuki, have looked in much detail at the closest equivalent to the Nationalist treason trials in Communist controlled areas of China. One consequence of this has been a tendency to draw a fairly strong contrast between a Nationalist realm of political retribution marked by legalistic trials, and a Communist process of mass local trials of accused collaborators hardly distinguishable from previous or future waves of political violence. The Nationalist trials, if marred by corruption and inconsistency, are at least recognizable to historians as similar to trials being carried out in courtrooms across Europe and Asia. The trials and executions in Communist controlled areas appear messy, cynically following Communist Party political tactics and more appropriately tied to a narrative of revolution than of transitional justice. This presentation argues that the perceived binary between Nationalist trials and Communist traitor elimination campaigns is in part an illusion. Using "traitor elimination handbooks" and other documents from both the Nationalist and Communist side, this presentation will argue that both the Nationalist and the Communist party operated extensive campaigns of "traitor elimination" outside of the major cities after Japanese surrender in which the process of retribution against betrayal in the past was very poorly distinguished from the threats of national betrayal in the present and future. Perhaps more revealing than the apparent contrast between the urban courtroom and the village mass trial were the differences to be found in instructions given to traitor elimination agents on each side.

About the speaker:

Konrad LAWSON is Lecturer in Modern History at the University of St Andrews, Scotland. His currently research focuses on the relationship between the politics of retribution against those accused of war crimes and acts of betrayal in East and Southeast Asia. He is more broadly interested in the aftermaths of modern war and especially East Asia in the aftermath of Japanese surrender. He recently published "Universal Crime, Particular Punishment: Trying the Atrocities of the Japanese Occupation as Treason in the Philippines, 1947-1953” in Comparativ – Zeitschrift für Globalgeschichte und vergleichende Gesellschaftsforschung.

The Question of Legitimacy - Chinese War Crimes Trials on Taiwan

Anja Bihler, Heidelberg University

After the end of the Second World War the Chinese government conducted a series of trials against Japanese war crime suspects and military tribunals were established in various locations on the mainland as well as on Taiwan.
The trials on Taiwan, however, took place under circumstances that differed significantly from those on the mainland. Whilst several parts of the Chinese mainland had been occupied by the Japanese forces during the war Taiwan had been under Japanese influence for fifty years when it was placed under Chinese control again in 1945. The period after the Japanese surrender might be described as a time of decolonization and the attempt to solidify Chinese control over the island. Initial support from the population was soon replaced by disillusionment with the new Chinese administration under the governor general Chen Yi. The newly created tensions became obvious when the Taiwanese revolted against the new rulers in what later became known as the February 28 incident in 1947.
The war crimes trials against the Japanese were held at this extremely sensitive time when the Chinese were fighting for their own legitimacy as the new rulers on the island and had just used force against members of the civilian population. Some of the cases were still handled under auspices of Chen Yi, while others were adjudged under his successor Wei Daoming who took over as a civilian governor in May 1947.
This paper will attempt to understand how this historical background influenced the way in which the trials were conducted and if they differed from the trials on the mainland.

About the speaker:

Anja BIHLER is a Ph.D. candidate in Chinese Studies at the Cluster of Excellence ‘Asia and Europe in a Global Context’ at Heidelberg University. For her doctoral research she focuses on the War Crimes Trials that were conducted in the Republic of China between 1946 and 1948. She holds a Magister Artium degree in Chinese Studies, Economics and Law from Ludwig-Maximilians-University (LMU) Munich where she graduated with a thesis on the ‘Ma Xiwu Trial Method’. She was awarded a university scholarship to study for one year at Peking University and spent another semester at the Inter-University Program for Chinese Studies at Tsinghua University. In 2012, she was a member of the Jessup Moot Court Team for the LMU Institute for International Law.

Belated Justice: Soviet War Crimes Trials Policy on Bacteriological Warfare – The case of Khabarovsk Trial (1949)

Valentyna Polunina, Heidelberg University

The so-called Khabarovsk Trial took place in the Russian Far East in December 1949. It was the only trial that was entirely dedicated to the Japanese biological weapons (BW) program and human experiments related to it. 12 war criminals were finally brought to the military tribunal in the city of Khabarovsk after being held captive by the Soviets for four years. 12 defendants were sentenced to a forced labor camp for 2 to 25 years but returned to Japan by 1956. The unusually light sentences were handed down in exchange for the “valuable” BW data.
Question remains why the Soviet government decided to establish a military tribunal so late, at a time when the global wave of prosecuting wartime atrocities was mainly over? Justice for the victims was not amongst primary goals of the Khabarovsk Trial: after the fiasco of the Soviet performance in Nuremberg and Tokyo, Moscow needed to reassert itself during an internationally recognized war crimes trial. The tribunal in Khabarovsk presented an ideal opportunity to promote the Soviet vision of the war crimes policy after World War II. Nevertheless, even more important for the Soviets were geopolitical considerations in the emerging bipolar world – establishing good relationship with the newborn People’s Republic of China and opposing the growing influence of the USA in the Far East during the early days of the Cold War.

About the speaker:

Valentyna POLUNINA is a Ph.D. candidate at the Cluster of Excellence at Heidelberg University where she is working on her Ph.D. project on the Soviet war Crimes trial at Khabarovsk and the question of judging bacteriological warfare. She holds a magister in International Relations from Kiev State University and a master in Pease and Conflict Studies from Marburg University where she worked as a student research assistant in the International Centre for the Research and Documentation of War Crimes Trials. She is the author of ‘Die Rahmenbedingungen der Erlassung von Amnestiegesetzen in Argentinien nach der Militärjunta (1976-1983)’ in: Transitional Justice in Argentina. Ein Zeitalter der Gerichtsverfahren und Amnestien (Editura ALTIP Alba Julia, 2008) and of ‘Holocaust, Auschwitz und die Vergangenheitspolitik der UdSSR’ (together with Lyubov Pogromskaya, in: Form/ Lingen/ Ruchniewicz, Narrative im Dialog. Deutsch-Polnische Erinnerungsdiskurse, Dresden 2013, p. 363-382).

The Shenyang Trials of 1956: The Resurrection of Defeat

Adam Cathcart, University of Leeds

Using now-closed files from the Chinese Foreign Ministry Archive and contemporary sources in Chinese, this paper investigates the role of the Shenyang Trials of 1956 in configuring China's postwar position and asserting a specifically Chinese communist response to Japanese war crimes. Within the matrix of East Asian war crimes trials of Japanese defendants, the Shenyang Trial was peculiar in that it served as the preeminent Chinese forum for prosecuting crimes committed under the auspices of the Japanese colonial experiment of Manchukuo. While the Khabarovsk Trials of December 1949 also exposed crimes committed in Manchuria with an emphasis on bacteriological weapons research, the Shenyang Trials held up Pu Yi, the puppet emperor, and various officials throughout the broader Manchukuo system to scrutiny. With the Shenyang Trials, the CCP sought to move China beyond gratefulness for the Soviet intervention which had, in fact, crushed the puppet state and on toward a more assertive portrayal of Chinese Communist Party justice. They also exemplified how the government used show trials in the 1950s to undergird public support, serve as instruments of propaganda internationally, and frame a model of Japanese postcolonial guilt in the face of contingent Chinese benevolence that persists to this day in the People's Republic of China.

About the speaker:

Adam CATHCART is Lecturer in Chinese history at the University of Leeds (UK). Under the supervision of Donald Jordan, he wrote his dissertation on the subject of early postwar Chinese responses to Japan, and subsequently researched in the PRC Foreign Ministry Archive, publishing a handful of articles on investigations and trials of Japanese war crimes in the early PRC. He also maintains an active research program in Sino-North Korean relations and transnational aspects of the Korean War, with a focus on eastern Manchuria.

The Price of Justice? Dutch East Indies' War Crimes Trials in the Face of Decolonization

Lisette Schouten, Heidelberg University

With the Second World war still raging on, representatives of the Allied governments gathered in a number of organizations such as the London International Assembly, the International Commission for Penal Reform and Development and the United Nations War Crimes Commission, to address the use of legal means to confront war crimes and to establish a practical scheme for the prosecution and punishment of war criminals. Through the likes of Mr. Dr. de Moor and Captain-lieutenant Mouton, the Netherlands took an active role in these first international efforts, determined to contribute towards the adjudication of international crimes. As a result of this Allied exertion, the Axis ‘arch criminals’ were put on trial at the International Military Tribunals in Nuremberg and Tokyo, while numerous ‘lesser perpetrators’ were sentenced in national war crimes courts. The Netherlands established national courts in Europe as well as in their colony of the Dutch East Indies. Unlike in the motherland, were peace had been re-established, Dutch Indies post-war justice took place in a period of great internal turmoil and fast-changing international political relations. As a result of the Dutch precarious political position and its double experience with war crimes both in the motherland and in its colony, different perceptions of what was acceptable in times war and what was indeed guilty action emerged. Misbehaviour condemned by Dutch Temporary Courts Martial sentencing Japanese war criminals, was for example displayed by Dutch military forces against Indonesian forces at the same time, while war crime trial regulations were used to convict Indonesian independence fighters. This paper shows that in the Dutch East Indies, post-war justice was contextualized and partial, as the political situation heavily influenced the policy and outcome of the trials.

About the speaker:

Lisette SCHOUTEN is a Ph.D. candidate at the Graduate Programme for Transcultural Studies at the Cluster of Excellence, Heidelberg University, and member of the JRG “Transcultural Justice”. Her research focuses on Dutch war crime trial policy in the Netherland Indies and Japan 1945-1955. She holds a Master of Arts in History in 2009 from Leiden University where she participated in the MA Europaeum Programme in European History and Civilisation (Leiden, Paris, Oxford).

Puppets, profiteers and traitors. Collaborator trials in the Netherlands Indies, 1945-1949

Esther Zwinkels, Leiden University

According to Philip Piccigallo, the outcomes of the Allied war crimes trials in Asia were determined by national policies and interests rather than the other way around. Closely related to the war crimes trials, are the trials against collaborators. However, these trials are often neglected in studies of decolonization as well as of war crimes trials, while they undeniably reflect political stands towards decolonization in colonial territories. The Netherlands Indies entered a war of decolonization against its own subjects after the Japanese surrender. Both the trials of war crimes and collaboration related to the Japanese occupation were thus held in a period in which the reestablishment of Dutch colonial power was at stake. This led to a mixed agenda of the colonial government to on the one hand deal with crimes committed in the past years and on the other hand to win support of the people for their return. A relatively high number of collaborator trials was the result.
This paper deals with wartime collaboration from the Netherlands Indies government’s perspective. The Netherlands Indies government distinguished various types of collaboration and treated them differently. Although all population groups were represented among the convicted collaborators, the focus will primarily be on Indonesian collaborators. Attention will be paid to political developments that shaped and affected the policies, and consequently, the outcomes of the trials.

About the speaker:

Esther ZWINKELS is a PhD candidate at Leiden University. Her thesis deals with the legal and moral questions of retribution and recognition which the Dutch government faced after the Japanese capitulation in Indonesia. It shows how the views of the government were put into practice by bringing war criminals and collaborators to trial on the one hand and decorating ‘war heroes’ on the other. Zwinkels’ publications include ‘Containing “potentially subversive” subjects: the internment of members of the National Socialist Movement in the Netherlands Indies, 1940-1946’ in: Christian de Vito, Helen Grevers and Ralf Futselaar eds., Internment, Incarceration and Detention. Captivation histories in Europe around the Second World War [forthcoming] and Het Overakker-complot. Indisch verzet tegen de Japanse bezetter op Sumatra 1942-1945 (Houten, 2011).

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