Transitional Justice for Tōjō's Japan: The United States Role in the Establishment of the International Military Tribunal for the Far East and Other Transitional Justice Mechanisms for Japan after World War II

Abstract

This article, authored by Dr. Zachary D. Kaufman, is published by invitation in the Emory International Law Review’s symposium issue on “The Future of the International Criminal Court in Light of Recent Developments.” The article, based on a related lecture Emory Law School invited Dr. Kaufman to deliver on February 26, 2013, was recommended as “Worth Reading” in volume 8, issue 26 (March 24, 2014) of War Crimes Prosecution Watch, which is co-published by the Public International Law & Policy Group (PILPG) and Case Western Reserve University School of Law's Frederick K. Cox International Law Center.

Although the creation of the first international war crimes tribunal — the International Military Tribunal (IMT), also known as the Nuremberg Tribunal — has been the focus of significant scholarly attention, much less academic analysis has concentrated on the establishment of the second such body — the International Military Tribunal for the Far East (IMTFE), also known as the Tokyo Tribunal. To further fill this gap in the history of “transitional justice” institutions generally, and international war crimes tribunals specifically, this article documents and examines the United States government’s (USG) role in the origins of the IMTFE. Part I provides an overview of what is popularly known as “Tokyo,” discussing the negotiations leading to this transitional justice institution and then the trials themselves. Part II enumerates the transitional justice options the Allies generally and the USG specifically seriously considered and actually implemented for addressing Japanese suspected of perpetrating atrocities during WWII. Alongside the IMTFE, the Allies dealt with Japanese suspects through ad hoc Allied military tribunals, amnesty, and lustration. Part III assesses the USG role in the establishment of the IMTFE. Part IV explains several key developments in the process of establishing the IMTFE and other transitional justice mechanisms for postwar Japan. Finally, Part V concludes by reflecting on lessons learned from this case study of transitional justice.

Keywords: International Law, International Criminal Law, Transitional Justice, War Crimes Prosecutions, Amnesty, Lustration, Tokyo Tribunal, International Military Tribunal for the Far East, Nuremberg Tribunal, International Criminal Court, World War II, Diplomacy, U.S. Foreign Policy, United States, Japan