[Editor’s updated note: My father Richard Nottage, former Secretary of Foreign Affairs and Trade of New Zealand (1991-9) as well as ambassador to Japan, Indonesia and Geneva (UN and WTO), died peacefully in Wellington on 11 October 2025, aged 85. After retirement in 2000 he was Deputy Chair of the Asia New Zealand Foundation and Inaugural Chair of the National Archives Council, as he was keenly interested in history especially in Asia. A full obituary is at https://www.legacy.com/nz/obituaries/thepost-nz/name/richard-nottage-obituary?id=59877600 and a video of Richard discussing the creation of the WTO is at https://www.youtube.com/watch?v=Rbu5Pvjs8SM. I am updating a blog posting below from 2011 in his memory, reproducing from https://www.nzlii.org/nz/journals/NZYbkIntLaw/2010/18.htmla book review we co-authored around then.]
[Original editor’s note: Below is an overview of an intriguing book with this self-explanatory title, reviewed by my colleague specialising in public international law, A/Prof Ben Saul; and a former Research Assistant at our Sydney Centre for International Law, Naomi Hart. Their Review was published in [2010] Australian International Law Journal 295-9. The full PDF version, including footnote references, is downloadable here.
My own Review of this book co-authored by Professor Neil Boister (University of Canterbury) and Robert Cryer (University of Birmingham), appeared in [2010] New Zealand Yearbook of International Law XXX. That Review [also reproduced below] is written with my father, Richard Nottage, who in the 1960s undertook post-graduate research into pre-WW2 Sino-Japanese political and economic history using primarily the full sets of Tokyo War Crimes Trial documentation donated to the University of Canterbury (by the New Zealand Judge on the tribunal) and to Oxford University. A shorter Review written by Richard alone, published in (November-December 2010) New Zealand International Review 27-28, is already downloadable here.]
The Tokyo International Military Tribunal: A Reappraisal
Neil Boister and Robert Cryer
[Oxford: Oxford University Press, 2008, 358pp. ISBN 978-0-19-927852-7 £63.50]
For 60 years there has been relatively little analysis in English of the International Military Tribunal for the Far East, abbreviated by the authors of this book as the “Tokyo IMT” because it conducted its war crimes trial in Tokyo over 1946-1948. This lack of attention to the Tokyo trial is true especially in comparison with its European counterpart, the Nuremberg trials over 1945-1946. There are several reasons for this, as suggested in this important new book (at pp 2 and 301). First, the extensive literature about the trial in Japanese is not well known outside Japan. Secondly, there is a degree of Euro-centrism in the scholarship on international criminal law. Thirdly, and uncomfortably for the Western powers, one Judge on the tribunal – Justice Radhabinod Pal from India – condemned atrocities by the Allies, especially the use of the atomic bomb. This dissension distinguished the Tokyo tribunal from its Nuremberg counterpart, which allocated blame exclusively to the Axis powers.
Given this lacuna in the literature on international criminal law and regarding the Tokyo IMT generally, a short explanation of the main aspects of the Tokyo War trial may assist. As helpfully outlined in chapter 1 of the book, the trial cannot be understood without some knowledge of the domestic politics and constitutional arrangements in pre-war Japan and their impact on Japan’s foreign relations from the 1920s – especially its expansion into Manchuria and China through the 1930s, Indo-China in 1941 and, after Pearl Harbor, into Malaya, Singapore, the Philippines, Indonesia and elsewhere in the Pacific. Atomic bombs were dropped on Hiroshima and Nagasaki on 6 and 9 August 1945 respectively. Russia declared war on Japan on 8 August and took over Manchuria. Japan surrendered on 15 August 1945, leading to the transformative US-led Occupation of Japan under a new Constitution.
The legal foundations for punishing Japanese aggression took on a tangible form when the leaders of the United States, China and the United Kingdom adopted the Potsdam Declaration of 26 July 1945, later adhered to by the Soviet Union.. This provided for the punishment of Japanese ‘war criminals’, but not expressly for the establishment of an international criminal tribunal, nor for the prosecution of crimes against peace. These came six months later through “a time-fractured procedure by which General MacArthur, Supreme Commander for the Allied Powers [SCAP], promulgated the Tokyo International Military Tribunal’s Charter”.. Initially by a Special Proclamation on 19 January 1946, he established the Tokyo IMT for “the trial of persons charged individually or as members of organisations or in both capacities with offences which include crimes against peace, war crimes and crimes against humanity”.
The Tribunal’s Charter provided for the constitution, powers and procedures of the Tribunal itself, based largely on the Nuremberg Charter, as explained in chapter 2 discussing the Tokyo IMT’s ‘nature and jurisdiction’. The bench consisted of eleven members nominated by the respective Allied powers: the United States, Soviet Union, the United Kingdom, China, France, the Netherlands, Canada, Australia (with Justice William Webb of the Supreme Court of Queensland serving as the Tokyo Tribunal’s President), New Zealand, India and the Philippines. A sense of the Judges’ different backgrounds emerges gradually throughout this book, but more clearly in chapter 10 reviewing “the Tokyo IMT and legal philosophy” (at pp 277-291).
Chapter 3 shows how the selection of the 28 defendants was a problematic aspect of the Tribunal’s preparatory work. Boister and Cryer’s view is that the selection was too broad, as Japanese officials were charged merely by virtue of their position without reference to the nature or extent of their individual involvement in the war effort. But it was also insufficiently broad, as many prominent Japanese military, political and industry figures – including the Emperor, as well as individuals who had engaged in biological and chemical warfare – were not charged. The indictment, drawn from the authority of the Potsdam Declaration, Japan’s Instrument of Surrender and the Tokyo IMT Charter, was not well managed and over-ambitious. It revealed the prosecution’s basic conspiracy thesis that Japan – dominated by a militaristic, racist clique – sought, along with Germany and Italy, to rule the world.
Hundreds of individual charges were laid, many duplicatory, for crimes against peace (chapter 5), murder (chapter 6) and war crimes (chapter 7). The majority of the Judges on the Tokyo IMT extended liability to individuals if they shaped or influenced a war of aggression, whereas the Nuremburg Tribunal required individuals to have controlled or directed the war. The Tokyo IMT also took an expansive approach to the count of murder, defined as killing as part of an illegal war, whereas subsequent tribunals have punished for murder only when this amounts to a war crime or crime against humanity. The authors disagree with the Tokyo IMT on both points when discussing its overall ‘legal legacy’ (pp 301-311); but they note that several of the principles it established regarding war crimes were later adopted by international tribunals, such as the liability of a commander if lack of knowledge of a situation was due to negligence. The authors also criticise several views of the Tokyo IMT on ‘general principles of liability and defences’ (chapter 8), especially the (still controversial) notion that mere conspiracy to commit crimes against peace was punishable.
Boister and Cryer support most widespread criticisms of ‘the conduct of the trial’ (chapter 4), including some apparent bias on behalf of some Judges – including President Webb. However, they note that subsequent international war crimes tribunals are “run, like the Tokyo IMT, largely on an adversarial process and also take a non-technical approach to evidence” (p 310). They also warn that experience from the Tokyo Tribunal shows that time and other pressures tend to build up in favour of loosening evidentiary rules once written witness testimony largely replaces oral evidence (p 311).
Lastly, when the Tokyo IMT concluded its deliberations in 1948, sentencing practices were undeveloped and the Tribunal had minimal guidance from its Charter (chapter 9). Of the accused, seven were sentenced to death, sixteen to life imprisonment, one to 20 years and one to seven years imprisonment. In 1958 the surviving parolees were released unconditionally.
The main aim of this book is “to provide a legal analysis of the Tribunal in the hope that it will help renew interest in the Tokyo International Military Tribunal and thus contribute to a fuller understanding of international criminal law”. It revisits “the very jaded view of the proceedings” taken in Victor’s Justice: The Tokyo War Crimes Trial1 by an influential political scientist, Richard Minear (p 1). In our view, the authors of the present work – experts in public international law from the University of Canterbury (Boister) and the University of Birmingham (Cryer) – have convincingly fulfilled their primary objective. Boister and Cryer conclude that the trial undeniably had “weaknesses in a number of areas”, but they succeed in showing that some of “its determinations of law are of continued relevance and worth” (p 2) for contemporary international tribunals and international law more generally.2
The authors also candidly note two limitations of their work, yet the book serves two corresponding and wider purposes. First, Boister and Cryer point out that they do not read or write Japanese and therefore were “unable to engage fully with that scholarship” (p 3) – although they acknowledge the great assistance provided to them by Dr Noboyuki Murai by “investigating, summarizing and discussing” aspects of that literature in Japanese.3 Similarly, the authors do not hold themselves out as scholars of Japanese law or politics. Yet their work is interesting from those disciplinary perspectives as well.
Discussing the ‘political legacy’ of the trial in chapter 11, Boister and Cryer suggest that if indeed a major purpose was to vindicate the Allied cause and condemn Japanese imperialism, then the Allied cause was not well served as “the perception was that justice was not done” (p 322). They acknowledge that some therefore have seen the trial as a political failure that contributed to resurgent nationalism, but suggest that recent literature shows how the trial was used in more complex ways within the Japanese political process. Students of Japanese politics will not be surprised at the latter perspective, as numerous other examples show how government and non-state actors within Japan often have used ‘foreign pressure’ (gaiatsu) to expand or create domestic forces (naiatsu) for achieving their own policy preferences.4
For scholars more interested in Japanese law, the work of Boister and Cryer also offers tantalising new perspectives. Discussing the “didactic function that some of the prosecuting states asserted was the reason for the trial”, they note that early evidence indicated that this was not being achieved – “the trial tended to be watched by the accuseds’ families, law students, and ‘courtroom habitués’, while it took SCAP pressure to ensure coverage in Japanese newspapers” (p 315). Yet the educational objective was not just to instruct Japanese citizens about good and bad forms of political or economic organisation. Presumably, it also aimed to reinforce a broader shift towards ‘Western’ rights-based legal order that commenced in earnest after Japan reopened fully to the world with the Meiji Restoration of 1868. A more targeted program of legal reforms was already well underway during the post-War Occupation, steered by American lawyers within SCAP, beginning with the drafting and enactment of a new Constitution in 1947 that incorporated US-style features such as judicial review of legislation and a Bill of Rights.5
That constitutional reform also continues to generate controversy among historians over the degree to which the outcome was imposed by ‘foreign pressure’, with another parallel debate about the Constitution’s contemporary significance reflected in calls for constitutional amendments.6 A major sticking point nowadays remains the ‘peace clause’ in Article 9. It provides that “the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes”; to that end, “land, sea, and air forces, as well as other war potential, will never be maintained [and] the right of belligerency of the state will not be recognized”. One wonders what reciprocal influence there might or should have been between the drafting of Article 9 and the trial then underway in the Tokyo IMT dealing with Japan’s crimes against peace.
Expansive interpretations of Article 9, resulting in Japan now having one of the largest armed forces (‘Self-Defence Forces’) in the world, began to emerge anyway from the Japanese government, some courts and commentators during the Korean War, and especially from around 1960 when the Japan- US Treaty of Mutual Security and Cooperation replaced the bilateral treaty of 1951.7 This arguably flexible approach to constitutional law interpretation had a major impact on jurists interpreting other legal norms in Japan, especially tort law and other provisions in the Civil Code, where a ‘balancing of interests’ approach to applying the law (rieki koryo-ron) became increasingly influential.8 As a whole, Japanese law remained comparatively open-textured during much of the post-War period. This may have undermined a strict version of the ‘rule of law’, although some argue that it supported community norms – both good and bad – better than in more legalistic societies such as the United States.9 Yet there has also been a strong undercurrent of more formalist or positivist approaches to law among jurists in Japan. A deluge of statutory amendments as well as large-scale reforms to the justice system over the last decade or so may favour that counter-tendency.10 Intriguingly, Boister and Cryer remind us that similar jurisprudential debates were apparent on the international law plane in Japan from the days of the Tokyo War Crimes Trial. The tension existed not only among the Judges on the tribunal, but also among the counsel. The leading American prosecutors adopted an avowedly ‘natural law’ approach, while most defence counsel – especially the Americans – responded with more formalistic arguments (pp 272-277).11
The second self-confessed limitation of the work by Boister and Cryer is that they are “lawyers, not historians” and that “the history and conduct of Japan in the run-up to and during World War II is highly controversial” (p 1). They do not enter substantively into those controversies. But the book is also valuable for those interested in this history. It draws renewed attention to a voluminous and unique body of documentation of great historical importance that sheds much light on Japan’s domestic politics during 1928-1945 and on its external relations in the Asia-Pacific region (especially with China) and globally. Speculating on the trial’s ‘historical legacy’, the authors observe that “an often overlooked aspect of the Tokyo IMT’s proceedings and their contribution to history is their record of evidence heard, rather than the judgments themselves”.. They also note the irony that “one of the things that the Tokyo IMT has frequently been criticized for, the admission of documentary evidence over live testimony, is one of the reasons its proceedings have historical value” – and indeed some present-day relevance (p 314).12
Indeed, for New Zealanders with a sense of history, the Tokyo IMT proceedings and their documentation have a particular significance. In 1962, as a Charles Upham scholar at Canterbury University, one of the present reviewers (Richard Nottage) wanted to write a thesis towards an MA (Hons) on some aspect of the Pacific War. The professor of history, Neville Phillips, suggested that the IMT papers might provide a basis for this. After the Tokyo IMT trial ended, the New Zealand nominee on the tribunal, Justice Erima Harvey Northcroft, had donated his nearly complete set of trial documents to the then Canterbury University College. In a letter of 27 January 1949 to the chairman of the Canterbury University College Council, conveying his bequest, Justice Northcroft wrote: “these [records of the trial] are not likely to be of value or interest to ordinary degree students, but may be of assistance to research students both in International Law and, more particularly, in History”. The bequest, one of the most complete sets of IMT documents in the world, contains some 380 volumes and 110,000 pages. In 1962, it was housed in several rooms of the old, then unused, Ilam homestead, which is now the University’s staff club.
The late Professor S A M Adshead, who had arrived recently from the UK to take up a lecturership in history, was assigned as thesis tutor to Richard Nottage. C W Collins, the Librarian, made the papers available and provided keys to the homestead. Adshead devoted weeks of his own time assembling the tribunal papers into an orderly form, and provided much valuable guidance and advice as Richard wrestled with a thesis entitled China and Japanese Politics 1934-39. Richard spent several months in 1962 alone in the grand old mansion, and was probably the first student or staff member to utilise this unique archive. Subsequently, in 1963-1965, he used the UK set of IMT documents while a post-graduate scholar at Oxford University, producing a thesis on the establishment of Japanese puppet governments in China (1935-1940) which was supervised by the late Professor Richard Storry. At that time little was known or written about the various ultimately unsuccessful attempts by local Japanese armies in China to establish puppet regimes there. Yet Japan’s political failure in China was a major cause of the Pacific War.
The Northcroft Collection was ‘re-discovered’ in 2005 by the manager of the Macmillan Brown Library, Jill Durney, and Jeff Palmer, the library archivist. They recognised its significance. It was inscribed recently on the Regional (Asia/Pacific) Register of UNESCO’s Memory of the World Programme, the first item from New Zealand to receive such recognition and a testament to the enormous value of the collection. It has also been identified as Canterbury University’s most urgent e-heritage project for archival scanning and full text digitisation.13 This will be of immense benefit for scholars and others in New Zealand, the Asia-Pacific region and beyond, as they seek to understand the on-going historical debates as well as the divisions and ambiguities in Japan about its culpability in the war. Fortunately the original Collection has survived the devastating earthquake that struck Christchurch on 22 February 2011.
Researchers in the history of international law should also note that there is a small selection of Tokyo IMT and related papers published in New Zealand in 1982.14 Of special interest amongst these is a paper assessing the Tokyo Tribunal dated 8 April 1949 written by the assistant to Justice Northcroft at the Tokyo trial, the late Quentin Quentin-Baxter. (He later served as a New Zealand diplomat, including a posting back to Tokyo; as professor of international and constitutional law at Victoria University of Wellington; and on the UN International Law Commission.15) Quentin-Baxter’s paper is a more succinct version of the lengthy report Justice Northcroft sent to New Zealand’s Prime Minister in March 1949, in which, amongst other things, he advocated the establishment of a permanent international criminal court. Quentin-Baxter wrote:
It is, therefore, one of the most important results achieved by setting up the Tokyo Tribunal that it conducted an historical enquiry into the actions of Japan and ascertained the proximate causes of those actions. There is set upon its findings a seal of authority and impartiality which cannot attend the work of any historian of recent events; for the Tribunal’s decision was reached upon all the available evidence and after the fullest opportunity had been afforded for the presentation of opposing views.
Readers of The Tokyo International Tribunal: A Reappraisal will be able to come to their own judgments on this particular conclusion. Overall, this meticulously well-researched, well-structured and generally well-written book certainly deserves a wide readership – not just among its primary target audience of international lawyers, but also among students of Japanese history, politics and law.
Richard Nottage CNZM; Deputy Chairman, Asia New Zealand Foundation; Chairman, Archives Council; former New Zealand Ambassador to Japan and Secretary of the Ministry of Foreign Affairs and Trade
Luke Nottage Associate Professor, Sydney Law School; Comparative and Global Law program coordinator, Sydney Centre for International Law (SCIL); Director, Centre for Asian and Pacific Law at the University of Sydney (CAPLUS);
Co-Director, Australian Network for Japanese Law (ANJeL)
This review draws partly on a shorter book review by Richard Nottage published in (November-December 2010) New Zealand International Review 27-28.
Neil Boister and Robert Cryer, The Tokyo International Military Tribunal: A Reappraisal
(Oxford University Press, Oxford, 2008), ISBN 978-0-19-927852-7, 358 pages
Reviewed by Naomi Hart and Ben Saul
Despite the explosion of scholarly interest in international criminal justice over the past two decades, there has long been relative inattention to its institutional roots in the Asia-Pacific region. In this important new book, Neil Boister and Robert Cryer revisit the work and legacy of the Tokyo International Military Tribunal (‘Tokyo Tribunal’). In reappraising its jurisprudence and historical significance, they do not set out to self-consciously rehabilitate the Tokyo Tribunal by positively spinning it or by wholesale rejecting charges that it was an instrument of ‘victors’ justice’. Rather, they seek to remedy the dearth of scholarship on the Tokyo Tribunal (compared to its Nuremberg cousin and later ad hoc international criminal tribunals) by finely reassessing its contribution and relevance to international law.
The authors suggest two main reasons why the Tokyo Tribunal has eluded scholarly attention. First, the authors correctly pin-point a degree of Euro-centrism in the production of international legal scholarship. Western scholars have tended to be more familiar with the European war and its protagonists than its Asia-Pacific equivalents, and the Japanese language scholarship about the Tokyo Tribunal is not well known outside Japan. Secondly, and uncomfortably for the western powers, one judge – Pal, the most vociferous dissenter – condemned atrocities by the Allies (especially the use of the atomic bomb), distinguishing the Tokyo Tribunal from Nuremberg’s exclusive allocation of wrongdoing to the Axis powers.
In re-examining the Tokyo Tribunal, the authors interrogate but largely support the Tokyo’s Tribunal’s findings in relation to its own jurisdiction. The authors conclude that it had a sound basis in Japan’s acceptance of the Potsdam Declaration (of July 1945) in its instrument of surrender of August 1945. The Tribunal rejected defence submissions that Japan’s surrender was conditional and did not allow for the tribunals envisaged by the Potsdam Declaration or, at least, for jurisdiction to extend to acts committed all theatres of war. Instead, the Tribunal found that the Allies had ultimate and unreviewable power to interpret the scope and effects of Japan’s instrument of surrender. One wonders, of course, whether such acceptance can truly be considered consensual in circumstances where the Allies had demanded, and were militarily capable of securing, Japan’s unconditional surrender.
The Tribunal also denied that it was essentially an American tribunal rather than an international one, by finding that General Macarthur was acting as an agent of the Allies collectively. The Tribunal further accepted that international law permitted victorious powers to try their adversaries, although the authors note that the rhetorical salience of this criticism should caution framers of subsequent tribunals against appearing to exact victors’ revenge. The Tribunal further rejected arguments that it lacked subject matter jurisdiction because the crimes enumerated in its Charter were not crimes under international law. Instead, in a bold stroke for the rule of law, the Tribunal decided that it would simply refrain from convicting defendants of crimes which did not exist, irrespective of their Charter basis.
While accepting the soundness of the Tribunal’s conclusions, the authors criticise the Tokyo Tribunal for its often summary dismissal of objections to jurisdiction, which served only to undermine the Tribunal’s credibility and perceived impartiality. The authors observe that that although the International Criminal Tribunal for the former Yugoslavia (‘ICTY’) thoroughly dealt with objections to its own jurisdiction, the tribunals for Rwanda and Sierra Leone have mimicked the all-advised practice of dealing with them perfunctorily.
The more problematic aspect of the Tokyo Tribunal’s preparatory work, according to the authors, was its selection of the defendants. They contend that the selection was both overbroad (as Japanese officials were charged merely by virtue of their position, without reference to the nature or extent of their individual involvement in the war effort) and insufficiently broad (as many prominent Japanese military and political figures, including the Emperor, as well as individuals who had engaged in biological and chemical warfare, were not charged). These shortcomings, as well as the fact that nobody participating in the Allied war effort was prosecuted, undercut the Tribunal’s legitimacy.
In terms of the fairness of the Tokyo Tribunal’s criminal procedure, the authors support various well-known criticisms: defendants had no right to be present at trial; there was no protection against contamination in cases with more than one accused; English translations of documentary evidence were inconsistent or ambiguous; judges were often withdrawn or replaced partway through trials; and credible judicial bias was exposed through questioning by the bench.
Even so, the authors properly contend that these shortcomings do not render the Tokyo Tribunal a worthless topic of inquiry. Some of its procedures, such as its flexible and non-technical approach to admitting evidence, continue in modern tribunals. More importantly, the Tokyo Tribunal can provide lessons for the framers of subsequent tribunals in crafting more robust procedural guarantees.
For the authors, one of the most important and under-explored contributions of the Tokyo Tribunal is its impact on developing the jurisprudence on substantive crimes and conceptions of criminal liability. They reject assertions that the Tribunal either copied the Nuremberg judgments so closely that it added little value to the jurisprudence, or that its conclusions were so fractured and inconsistent that no cohesive conclusions can be derived from them.
As regards crimes against peace, the Tokyo Tribunal affirmed the Nuremberg finding that there was a valid prohibition under international law on wars of aggression, which could be punished retrospectively. Unprovoked attacks to acquire territory constituted aggression and could attract not only state but individual liability. The Tokyo Tribunal found that an individual breached this prohibition if they ‘shape[d] and influence[d]’ a war of aggression, departing from Nuremberg’s substantially more onerous requirement that an individual must have ‘control[led] and direct[ed]’ the war to be liable. The authors prefer the Nuremberg approach – which has been adopted by subsequent tribunals – since the Tokyo approach renders liable too many individuals with relatively remote involvement in the war.
In relation to the crime of murder, the Tokyo Tribunal accepted that killings as part of an illegal war constituted murders. The authors agree with those judges who dissented from this conclusion on the basis that the lex specialis which prevails during wartime – the law of armed conflict applicable in all conflicts (whether legal or illegal under the jus ad bellum) – grants belligerents the right to engage in hostilities which may result in killings, provided that they comply with the laws of war. They applaud subsequent tribunals’ decision to discard this category of crimes, commenting that murders should instead be punished only when they can be characterised as war crimes or crimes against humanity.
As for war crimes, which received less attention than crimes against peace, the Tokyo Tribunal largely adopted Nuremberg’s definitions and interpretations. It also, however, established several rules which have been adopted by subsequent tribunals. For example, the ICTY has accepted that de facto rather than de jure control over armed forces may attract liability for war crimes; and that it is not a defence that a commander did not know of a situation where that lack of knowledge was the result of negligence.
Concerning criminal liability, the authors discuss the Tribunal’s finding that civilians can be liable under the principle of command responsibility and argue that the Tribunal did not provide sufficient appreciation of relevant defences. The authors’ most damning analysis, however, relates to the Tribunal’s acceptance that conspiracy to commit crimes against peace attracted international criminal liability. First, there was – and remains – no consensus that conspiracy to commit an international crime is punishable, an issue which indeed has dogged American military commissions at Guantanamo Bay since 2001. Further, even if liability did exist, the Tokyo Tribunal abdicated its responsibility to assess every individual defendant’s culpability. Instead, it uncritically adopted the prosecution’s narrative of a Japan committed to expanding territorially over several decades and attributed liability based on defendants’ position in the state apparatus.
Concerning sentencing, the authors argue that sentencing practices were underdeveloped and have evolved significantly since the Tokyo Tribunal. That Tribunal did not have a distinct sentencing phase, did not consider aggravating or mitigating factors, and was offered minimal guidance by its Charter as to appropriate sentences. Moreover, the Tribunal did not provide reasons for its wholly discretionary sentencing. The statutes of modern tribunals offer sentencing guidelines, including how tribunals should account for mitigating and aggravating factors, and do not allow capital punishment. Other than the precedent it established for imposing life imprisonment for war crimes, which has been subsequently adopted, the Tokyo Tribunal’s primary function is as a point of contrast to modern sentencing practices.
In summarising its legacy, the authors argue that the Tokyo Tribunal’s significance transcends its technical impacts on jurisprudence and procedure. First, it provided an opportunity to gather and catalogue vast documentary sources on the Asia-Pacific War, potentially serving an invaluable historical purpose. Its achievement of this purpose was, however, limited: the judgments were often inconsistent in their factual conclusions, and judges were highly selective in the evidence they accepted, resulting either demonising or eulogising Japan’s role in the war. The fact that the Emperor was never prosecuted, and that Japanese crimes against Asians (in Korea, China and the Philippines) went unpunished, render the historical record woefully incomplete.
Nonetheless, the authors contend that the Tribunal is ripe for analysis because it reflects the ongoing historical debates about Japan’s culpability in the war, even if did not provide a comprehensive or accurate chronicle of it. While the Tribunal was designed to serve an educative purpose in Japanese society, its didactic promise remains unfulfilled: deep divisions and ambiguities persist in Japan about the country’s culpability. The Diet’s numerous apologies contrast with nationalistic appeals for a ‘correction’ of the historical narrative and the disparate responses to official visits to the Yasukuni shrine. The value of studying the Tokyo Tribunal lies in uncovering the origins and meanings of these debates.
Neil Boister and Robert Cryer have made an important and timely contribution to re-evaluating the Tokyo Tribunal. Their research is meticulous and wide-ranging (including Japanese sources), their reasoning nuanced and rigorous, and their conclusions persuasive. They acknowledge the flaws of the Tribunal, while emphasising its salutary dimensions. Their book is of historical importance, but is not limited to history: it provides lessons about the purposes and nature of international criminal justice during a time of its rapid expansion and evolution. This book is fine scholarship and essential reading for anyone concerned about where international criminal law has come from – and where it is headed.
