The Tokyo International Military Tribunal: A Reappraisal.

• Author: Hart, Naomi
• Position: Book review

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

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 putting a positive spin on it or by wholesale rejection of charges that it was an instrument of 'victors' justice'. Rather, they seek to remedy the dearth of scholarship on the Tokyo Tribunal (1) (compared to its Nuremberg cousin and later ad hoc international criminal tribunals) by finely reassessing its contribution and relevance to international law. (2)

The authors suggest two main reasons why the Tokyo Tribunal has eluded scholarly attention. First, the authors correctly pinpoint a degree of Eurocentrism 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, (3) 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. (4)

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. (5) 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. (6) 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. (7) The Tribunal further accepted that international law permitted victorious powers to try their adversaries, (8) although the authors note that the rhetorical salience of this criticism should caution...