CHAPTER 2 The Shape of Justice Creating New Symbols of International Stature

Getting to the Legal Stage

Chinese and Japanese leaders were cognizant of the fact that war crimes trials were on the horizon at the end of World War II. This was a move that propelled the Chinese Nationalists to move with speed. However, China was in a bind because fundamentally the world did not highly estimate Chinese law; thus, many of its own elites constantly felt the need to trumpet that China actually had a rule of law and was not despotic. In 1932, the man who would serve as the Republic of China’s judge at the Tokyo Trial, Mei Ruao, penned a short piece in which he tried to defend Chinese law. The traditional notions of li and fa, the carrot-and-stick approach, he wrote, were much like natural law and positive law in the West. This was a brief attempt in a respected Western academic journal to deflect naysayers who believed that China had no history of legal affairs.² Much of this probably fell on deaf ears. The view that the system of Chinese law was somehow incapable of becoming modern did not only emanate from foreigners. One of China’s late Qing jurists, Ju Zheng, who later became eminent during the Republican era, also opined that Chinese law had a deep and broad history. Ju had studied law in Japan and over the years served in key posts in the KMT Party and government, including head of the Judicial Council (sifa yuan) in the early 1930s and then as minister of justice in 1934.³

But Ju also believed that in earlier times Confucian ideology had virtually subsumed law. This devolution ossified legal thinking through the ensuing dynasties. Ju Zheng assessed that the development of Chinese jurisprudence had stopped with the entry of the Great Powers into China. They created hybrid legal cities that, in Ju’s estimation, broke China’s system. The biggest culprit, which in the end destabilized Chinese law, was the law of extraterritoriality and the consular system of trials. The problem after the mid-nineteenth century, he estimated, was that whenever there was discord or disagreement with foreign merchants, they did not wish to resolve their problems in a Chinese court (although the Chinese thought this was a good idea at the time). And so, Chinese sovereignty took a blow. Officials in the late Qing era tried to change this, but it was only window dressing and not fundamental enough.⁴

Chinese pundits and scholars at the time may differ in their position and point to the issue that it was, in fact, Western bias that prohibited the late Qing dynasty from adapting to international change just as the West was implementing this iteration of new legal ideas. Ju Zheng estimated that foreign consular courts took away from China the opportunity to change its own system because there was no room for legal intellectual revision. There was no way for the system or professionals to adapt to social changes. Because Chinese legal practice mostly followed “formalities,” any attempts were usually made pointless by the changing circumstances. At the same time, the Chinese also could not just suddenly adopt Western law, to which they were not acclimatized.⁵ In the end, Ju Zheng’s idea was that China needed to reformat and rebuild its legal system to adapt to modernity. This entailed fomenting a revolution to establish new legislation and overcoming historical problems. The impediments were precisely defined as the ritualization of law and tradition that had taken over law, eliminating the real distinction between public and private law.⁶

Ju Zheng believed that extraterritoriality was the “alien” element of the Chinese legal system and that it hampered the independence and completion of a modern Chinese legal system. Because of this impediment, he asserted, China could not become an independent country.⁷ It was obvious to many that the abolition of extraterritoriality in 1943, and the potential for war crimes trials against the Japanese, was a moment ripe for the Chinese to fully implement an updated system of law. It also served as a way to prove to both the domestic and international populations that China was due the respect as a victorious ally in World War II, alongside the USSR, the United States, and the UK. Yang Zhaolong, another key jurist from the Republican era with a doctorate in law from abroad, was concerned about legal education in China. Yang assessed that prewar China faced two kinds of problems concerning legal education: the schools and the students. The management of schools was not sufficient, and there was no proper planning for the education students received, he complained.⁸

The war had pulverized China. Its judicial system existed but was sclerotic and neither adequately robust nor effective in many regions.⁹ China had not yet fully developed its own homogenous legal environment and was thus split into two competing schools for reform. On one side was the “yingmei (Anglo-American)” group, which was “represented foremost by the Soochow School of Comparative Law.” On the other side was a “rival legal culture, promoted by at least six law schools in Shanghai, [and] commonly known as deri (German-Japanese).”¹⁰ Soochow University (Dongwu University) was fundamental in China’s moves to seek justice against the Japanese because it supplied virtually the entirety of the Chinese legal staff employed for the Tokyo War Crimes Trial.¹¹ The albatross of competing legal philosophies, along with the additional burden of small numbers of staff within an enormous country dotted with innumerable sites of Japanese atrocities, created a problem. Chinese leaders from all political stripes wanted to upgrade their legal systems, show their prowess, and recover from the war to claim international victory.

What Emerges from Juridical Competition?

Societies do not automatically embark on a path to seek justice in the aftermath of war or social revolution. There has to be a specific domestic push, or calculation, that urges forward this sort of action. Or the international community has to exert an influence. Previous conceptions of justice do not explain, however, even with all this effort, why a belief emerged that justice was not satisfactory concerning the war crimes trials in East Asia. Rather, we need to forge another idea, one where the notion of competitive justice reigned, to consider this judicial imbalance.

This competition in East Asia has a long genesis that influenced the evolution of the trials because these courtroom dramas were part of a much larger international trend. The Allies, or United Nations as they called themselves, responded to the horrors committed by the Axis nations in World War II in two ways. First, they encouraged states to commit themselves to international law. Second, with the Holocaust atrocities in mind, they established a legal system to punish these newly defined crimes. This practice was initially managed through the auspices of a new body based in London with a subcommittee in Chongqing, China, the United Nations War Crimes Commission (UNWCC). In a way, 1945 created an international juridical moment and a shared set of legal beliefs that using courts to mediate war crimes was the preferred process to end a state of war. This new strategy of using international law was a formula to transcend the obstacles of national law and forge new legal methods to pursue an individual for a crime that the international community assessed as heinous but that required a novel set of legal tools to bring to justice. We could use different language to discuss the same idea and see these trials as part of an international “economy of justice,” where countries gained legitimacy or the currency of being recognized as civilized by promoting their use of international law. This economy of justice was propped up through various legal transactions including the circulation of the objects of justice, namely Japanese soldiers, or the movement of legal staff that traded Japanese prisoners or information, oftentimes reluctantly. This pursuit of justice and the act of sharing memory and history have not stopped, so the trials and their verdicts retain a certain value within contemporary regional geopolitics.¹²

The issue of competitive justice is twofold. First, in the initial years after the war ended, officials and laymen involved with war crimes trials debated the question of the fairness of the trials (lopsided pursuit of victor’s justice or a quest for the truth?). It was a moment so pregnant with importance that the United States ignored the fact that extraterritoriality had been abolished in China in 1943. Infringing on Chinese sovereignty, and even before China had initiated its own trials, the US quickly implemented a series of ten different war crimes trials in Shanghai against close to fifty Japanese who had abused or executed downed US airmen.¹³ The trials all took place in a special section within Shanghai’s Ward Road Jail from January to September 1946. All the prosecutors, judges, legal clerks, defense attorneys, and so on were appointed by the US military.¹⁴ This jail later served as the site where the KMT pursued its Shanghai war crimes trials.

So keen were the Americans on moving quickly that the War Crimes Branch Office for the China Theater was already established in April 1945, and after V-J Day judge advocates were sent to Japanese POW camps in Mukden (now known as Shenyang), Beijing, Shanghai, Canton, Hong Kong, and later Taiwan. Former allied POWs were questioned and Japanese camp guards placed in custody.¹⁵ The men at these camps must have been eager to tell the story of their harrowing experiences. US general Jonathan Wainwright explained why. “Apparently it [Mukden POW camp] was built on the presumption that Japan would not only win the war but would keep many prisoners at work for years to come.” The men sent to that camp were told that if they behaved and worked diligently for the next “ten to twenty years,” after that “relatives from America would be permitted to visit them!”¹⁶

The rancor within American public opinion concerning the news of downed US airmen being unjustly executed should not be underestimated. Regardless, a US commission’s review of the Shanghai Trials was not overly convinced of the legality of the proceedings, or at least seemed skeptical of the pursuit of justice against lower-ranking Japanese officers.¹⁷ Controlling the postwar conversation about “justice” in newly minted military tribunals became a paramount policy for all the Allies to balance emotion and evidence. The same was true for needing to show the public which government could then, in turn, actually implement this justice. This sort of internal and external pressure to bring war crimes trials to the forefront of the public’s attention was palpable in East Asia and throughout the West.

For Japan, the war concerned two historical issues: empire and the military battle for supremacy of East Asia. Maintaining success in that war of words continued to be important even after defeat. The competition was also on the information front. The Americans concealed data about some Japanese biological and chemical weapons war crimes to keep what they believed were vital military secrets for themselves during the start of the Cold War. The USSR, by contrast, opened one of the only trials on biological warfare in 1949, but the Americans denigrated it as “propaganda” in a bid to discredit it. The competition over justice spread to the trials and even the prevention of the dissemination of some trial records.¹⁸

An additional element of competitive justice centers on its significance. This is a conversation about justice received or denied, which never abated and continues to this day. East Asian authorities’ persistent attention to this problem demonstrates the emphasis the Allies (including the Chinese), former colonial subjects in East Asia, and the Japanese themselves attribute to being able to define the meaning of Japan’s empire and World War II. This historical moment has deep and contemporary political ramifications. Had the war been, as the Japanese propaganda emphasized, for the “liberation” of Asia? Had it been a war of liberty versus fascism as defined by the Chinese? Or was it more about colonial oppression as the Koreans later argued?

Bringing anyone to court in the chaotic symphony of postwar East Asia was far from easy, but the Western Allies did not hold out much hope to elicit justice in any form except in their own trials. Each government competed with the others in the region to prove its political legitimacy through the use of such trials. William Hamilton, an official at the Australian embassy at Nanjing, recalled in his memoirs “that all evidence about atrocities during the Nanking Incident would need to be provided by Europeans” because the Chinese exaggerated. A colleague of Hamilton’s, somewhat oblivious to the international changes since the start of the war, assessed that “the Chinese would be quite uninterested in war criminals; and that many Chinese did not dislike the Japanese any more or less than other foreigners.”¹⁹

The British concurred with the generally low Western opinion of Chinese legal savvy but were also wary that the Americans had already made brisk moves to pursue their own war crimes trials in China, as evidenced in Shanghai. The British were worried not only about the decline of their imperial holdings but also about their extensive imperial assets in both Southeast Asia and China, which were sorely needed as the postwar British economy foundered. Feeling the same pressure to bring forward their own trials, British officials made it clear in a confidential internal memo that they wanted to “uphold” British prestige in East Asia, and this meant holding war crimes trials even though they were not fully ready. The British aimed to do so by publicizing throughout China and the region “reports of all trials in Hong Kong of war crimes committed against British subjects there.”²⁰ From the early days of the postwar period, the pursuit of justice in East Asia served a range of stakeholders for a variety of competing national interests.

The popular notion of transitional justice revolves around gaining legal closure within a unified territory, among the same people who share a common language and relatively the same political outlook or at least future-oriented goals. When we zoom out to examine history more regionally, this framework does not fit.²¹ There were too many trials over a very large geographic space, which created very different dynamics among the numerous ruling agencies. War criminals were moved back and forth to testify, sometimes at several different trials. For example, former Manchukuo “last emperor” Pu Yi was put on the stand—as a loan from the Soviets where he was sequestered—for the longest of any witness at the Tokyo Trial. Several years later in December 1949, the Soviets again employed his testimony at their trial at Khabarovsk. He was finally trotted out for the cameras in 1956 by the Chinese communists in their last trials of Japanese war criminals in Shenyang, after the Soviets handed him over to the CCP in the summer of 1950. Sejima Ryūzō, a high-ranking Japanese officer of the Imperial General Headquarters, was also brought forward by the Soviets for legal display at the Tokyo Trial and then detained for eleven years at Khabarovsk in the USSR. Other witnesses and defendants showed up here and there, as did legal staff and a few judges. William Webb, the Australian chief of the Tokyo Trial, had led a team to investigate Japanese war crimes against Australian POWs in the last years of the war. The Chinese judge at the Tokyo Trial, Mei Ruao, later served as a consultant for the CCP investigations and trials in the 1950s, and many of the Japanese legal defense teams at Tokyo played important roles in the committee that analyzed redrafting Japan’s constitution in the 1960s.

Locating the Nexus of Justice in East Asia

In contemporary East Asia a fierce battle between memory and history has solidified political camps on all sides of the debate. In part, this cementing of national opinion was paradoxically caused by war crimes trials. The courtroom is a place where documents and testimony are presented with the legal aim of establishing a factual base in veracity and then assigning blame. But public or even personal memory may not be something that can be authoritatively fixed by this process. In short, out of a mass inventory of details surrounding something that occurred, we select a limited supply of evidence and employ this in court. But hatred, forgetfulness, and other emotions are supposedly not at work in a legal tribunal as they are in the form of memory. Consequently, history and memory work in opposition on the legal stage. Moreover, trials do not conclude with the incarceration or execution of the guilty prisoners. Tribunals continue on as experience remembered by those who participated in the process. In fact, while the pursuit of justice may have truly begun with the trials, the ramifications endure long after.

While it is challenging to holistically analyze the similarities and differences among the several thousand trials of Japanese war crimes across half the globe, we can make a few generalizations. The charges of the USSR against the Japanese remain somewhat ambiguous given the lack of archival access but were mostly focused on the killing of civilians, which is also in part what the CCP trials were about. US trials focused on the abuse of POWs in detention centers and similar atrocities on the battlefields. KMT and the Filipino courts centered on abuses of prisoners and the massacres of civilians who opposed Japan; the British, Australian, French, and Dutch trials, meanwhile, mainly pursued abuses of those in POW camps and the abuse of civilians.²² When the trials are looked at geographically we can see similarities but also differences depending on where in the former empire any given Japanese soldier was arrested. An examination of these colonial to postcolonial and competitive connections reveals the web of legal information and technology that also made the evolution of the trials possible. These flows are observable in the movement of internationally educated judges who took part in more than one war crimes trial, as well as the prosecutors who shared information, including the interpersonal relationships and layers of employment of legal staff, defendants, and witnesses among the countries involved. For example, in one surreal moment in 1946, after the Tokyo Trial had begun, Judge Mei Ruao invited to dinner members of the prosecution investigation team who were also in Shanghai gathering evidence. The Chinese lead prosecutor from the trial, Xiang Zhejun, joined the meal, compounding what was an unusual rendezvous because it contravened most legal practices where judges normally separate themselves from trial staff.²³ Countries could not fully operate trials on their own and needed to share data and prisoners behind the scenes to implement actionable justice. The fact that this information network later lent itself to the construction of commemorative symbols and sites of memorialization is intimately tied into regional politics owing to the legacy of the trials and the relationship among locations that meted out justice. All these elements have a large impact on today’s East Asian societies.

Our overemphasis on national history and its connection to justice has blinded us to what was happening regionally, and we need to acknowledge that victors are not the only ones who write history. The history of justice reminds us of how we have ignored the centrality of the history of defeat in East Asia. The trials of Japanese war criminals from 1945 to 1956, the legal precedents set by such trials, and the political forces that then created and reinforced this memory through public ceremonies and popular culture demonstrate that the manner in which law resolved Japanese imperial responsibility continues to exert a deep force on contemporary political relations.²⁴

In some measure the trials did pursue the truth about the nature of Japan’s imperial reign. But they were also certainly employed to demonstrate which authority was now back in power. When examining the postwar trials of Japanese war criminals, we should keep in mind that legal proceedings served several simultaneous goals but also bestowed a set of memories enshrined in legal verdicts onto a variety of national histories—Korean, Taiwanese, Chinese, French, British, and so forth—and, of course, Japanese national memory.

The memoirs of Kaya Okinori, Japanese wartime minister of finance, convicted Class A war criminal, and postwar minister of justice, reveal how justice and the memory of empire remain intertwined. In his reminiscences, Kaya wrote that he believed he bore no legal responsibility for war crimes but was burdened with the weight of political morality. Kaya admitted he felt most responsible for the start of the war, which he meant as Japan’s official war with the West from December 1941. He seemed oblivious to the issues of empire and thus ignored the long years of Japanese aggression in China that predated 1941. This occlusion allowed him to avoid taking into full account the poison gas warfare issue or many atrocities against Chinese peasants because it remained outside of his narrow window of liability. In its defeat, Japan suffered greatly, Kaya recalled, and the people endured sacrifice and tragedy. That is the responsibility he felt. What he failed to acknowledge, however, were the larger legal issues concerning what the Japanese did to others under the guise of empire.²⁵

Kaya was a high-ranking member of the Japanese leadership involved in the liaison conferences between the wartime imperial military and the government. Even though he was adamantly against the war with the United States, he was still in a position to have stopped it. He failed and thus felt responsible, he claimed. He asked his readers: How should that responsibility be dealt with? Should I have committed suicide in atonement? “No, I would return to be a normal citizen and work hard for the country,” he penned.²⁶ Kaya never set out to elaborate more clearly how that responsibility would be dealt with and only commented on how the West harshly adjudicated Japan in war tribunals, never China or the other aggrieved Asian countries. He was indignant that the charge of “war of aggression” was never defined to his satisfaction. Were the Allies the ones to sit in judgment? he asked. The implied answer was no. According to Kaya’s logic, the UK, France, and the Netherlands all previously used their militaries to take colonial lands, so what were their qualifications to judge Japan? It is not an invalid historical question, but it is also not a legal defense that lets Japan off the hook. One of the infuriating realizations with this sort of benign plea of mea culpa is that Kaya and those who followed him never really get around to explaining who was responsible for Japan’s innumerable atrocities committed in the name of empire and war. In a sense, Kaya remained focused on issues that dealt with leaders who led Japan to war, Class A crimes. He appears incapable of considering the long list of Japanese BC class war crimes and thinking about either their origin or impact in the empire and during the war.

Framing history in this way allowed Japanese in a variety of leadership positions to avoid discussing atrocities in Asia. Instead, they drew their inspiration from wartime propaganda that grew more potent after 1941 when Japan supposedly could no longer avoid a war that had become in their words “inevitable.”²⁷ Harold Isaacs, a longtime American journalist in East Asia who reported from many corners of the region during the 1930s and 1940s, noted this. In his assessment, immediate postwar Japan really had not been forced to change much. In 1947, he wrote, “Imperial Japan survived its defeat. The empire was lost, industries crippled, cities laid waste, but the social regime still stood. No groundswell rose from amongst the people to topple it. No anger rising among its millions of victims at home shook its foundations.”²⁸ How did this come about? he asked. In a slightly acerbic tone, Isaacs observed that the US occupation forces required change but not too much. Japanese financiers, politicians, and bureaucrats were at first scared of what they would have to do to satisfy the American conquerors but quickly understood that the new world order needed Japan. “After their first fright and uncertainty, they soon realized that the results would not be as ruinous as they had feared. In the realm of political power they had to clip a little of the divinity off the edges of the imperial myth, but otherwise they could preserve the essence of their social and political system.”²⁹

Kaya admitted that the real pity was that Japan did not conduct its own war crimes trials. This was precisely one of the potential flaws in the postwar adjudication of justice. The former minister for justice rightly noted that true war responsibility could not merely be dealt with by managing a series of tribunals, and his postwar life is evidence of this.

The Weaponization of History and the Memory of the Empire in Japan

Insight into the war and its resolution can be grasped by envisaging how the Allies required Japan to restructure and fit into a new and shifting international order in which the failed Japanese empire was no longer dominant. The Allies monopolized the investigations into the causes behind World War II and the tracking of the legal routes of inquiry to punish those they held responsible. The Japanese, too, fought to influence the outcome of these international war crimes trials. In September 1945, the first postwar Japanese Cabinet called for Japan to hold its own trials. Japanese officials were keen to prove to the world that their nation had suddenly changed from a month prior. On September 15, 1945, the Manchester Guardian reported Japan’s first postwar prime minister, Higashikuni Naruhiko, pleading with the United States to “forget Pearl Harbor,” because “the Japanese people now intend to be entirely peaceful.”³⁰ A by-product that cleaved the Japanese away from thinking about their own war crimes was the manner in which the Allied occupation shaped Japan, allowing Emperor Hirohito to serve as a figurehead, defanged of any sort of power, but nonetheless remaining on the mantle of leadership as a symbol of the state. The emperor faced a personal struggle in dealing with the concept of war criminals since at its roots the war had been fought in his name. On December 10, 1945, he voiced to his confidantes that while from the American point of view they might be seen as war criminals, for “our country they were individuals who rendered distinguished service” to the empire.³¹ He would ultimately grow to regret this statement, and decades later he vowed to no longer make official visits to the Yasukuni Shrine after war criminals were enshrined there.

The emperor’s role in Japan’s defeat vexed many nationalists, like Tokutomi Sohō. Tokutomi’s life and career mirrored the rise and fall of Japan’s imperial era from 1863 to 1957. He had begun as an angry young turk of the Meiji era who pushed Japan to modernize. A prolific and influential journalist, by the 1920s Tokutomi’s tone had grown strident as an imperial nationalist. Having long supported the military aims with deep ties to the imperial leadership, Tokutomi initially considered suicide after surrender, afraid of being arrested as a war criminal. While waiting for his expected demise, he simultaneously decided to examine the origins of Japan’s defeat. In his personal diaries he was extremely critical of the lack of leadership, particularly from the emperor, and an absence of clear goals from the military.³² Tokutomi’s concerns about the defeat did not go unnoticed. Nakasone Yasuhiro, one of Japan’s postwar conservative leaders who rose in the ranks of politics from the 1950s, visited Tokutomi several times in the early postwar period to hear his thoughts on Japan’s imperial failure and its future.³³

Nakasone was not a run-of-the-mill conservative. In his memoirs, aptly subtitled “as a defendant in the court of history,” Nakasone assessed that Japan’s war against the West should be differentiated from its war in Asia. The former was a war of self-defense, the latter a war of aggression. This, in turn, colored his perception of the Tokyo Trial as improper because it did not distinguish between these events.³⁴

While Tokutomi and others voiced disappointment toward the emperor, some saw a moment to retake the throne amid the tectonic political shifts. During those uncertain times, everything was up for grabs, including the role of emperor. In what was a very popular story at the time, many believed the position was essentially democratized because the emperor had renounced his divinity, or at least the palace was open to being challenged given the emperor’s failure to protect the nation. This meant others could potentially lay claim to it. Over the next few years, about nineteen pseudo emperors announced in the Japanese media, “I am the true emperor.” Most were crackpots, some had interesting historical claims, and others were confused by differing interpretations of what democratizing Japan signified.³⁵

We can see a situation where, until the nation surrendered, the Japanese had written their own war history. Suddenly, with the imperial fall, Japan’s war history was forced to undergo a massive revision to be retold and explained to the population in an entirely different format by the victorious occupiers. Toward the end of the war, printing supplies and paper had dwindled to such short supply that newspapers were limited to two sheets with poor ink quality at that. As the Americans took over, the situation changed abruptly. On December 8, 1945, Japanese newspapers began to publish much longer four-page exposés of the war at the behest of SCAP, the occupation authority under the United States. New radio shows appeared as well, informing the population of a new “truth” about what had happened during the war.³⁶ However, this news in the Japanese media was clearly identified as American produced. It was denoted as a foreign interpretation of Japan’s war, which helps explain why the newer historical interpretation was not believed. In addition, the new war history ran counter to the daily hardships of millions of Japanese. The gap was never more apparent than in the grand narrative the Tokyo Trial tried to reveal of the larger war but which did not fit with the more personal experiences of people on the ground. Japanese recalled sending family members to the front, or children and families escaping from the cities to the countryside as US air raids grew and fear of the bombing increased. In the end, the US version of the Pacific War did not mesh with Japanese recollections and experiences. Japan seemed incapable in the early years of prioritizing the experience of others in the way that Nguyen described as “just memory.”³⁷

Frequently, even the archival records of the trials turned into political footballs, bandied back and forth by nations eager to use them as blunt instruments when drafting new peace treaties and trade stipulations with postwar Japan. The Japanese side tried to secure the records of the war crimes trials initially after they took place but encountered persistent resistance from the Allies. These impediments later convinced the Japanese that the trials were a clear form of victor’s justice and that the Allies were hiding something nefarious. Australia, perhaps the most egregious holdout, continually balked and did not publicly release the archives of its war crimes trials against the Japanese until years later. Ostensibly, this was because it feared feeding the frenzy of “victor’s justice” baiting in Japan. The Australian government was anxious because “almost all of the trials of ‘B’ and ‘C’ class criminals have elements appearing on the face of the records which would provide a hostile reader with anti-Australian ammunition.” Australian officials worried that “we should therefore be wary of providing adverse propaganda against ourselves.”³⁸

End of Empire and the Competition to Recolonize and Decolonize

The fall of the Japanese empire was the initial trigger for the start of the reordering of the world order in East Asia, what has been deemed the Cold War in the West. The structure of the war crimes trials and the narrative they offered subsequent generations shaped the story of how the war ended and where war responsibility was located. It was the end of Japan’s dominance across the regions that also lit the initial fuse of imperial destruction for the European colonial powers in East and Southeast Asia. Japan’s end of empire was not just about a military defeat but also about a dual structure of decolonization. To offer just one example, this imperial downfall meant that France would spend nearly a decade trying to regain Indochina (composed of Vietnam, Laos, and Cambodia), leading to a whole series of destabilizing wars that successive historians have labeled the first and second Indochina wars. These battles between the French and the Vietnamese continued until 1954 when the Geneva Conference paved the way toward new accords and a plan for a peace treaty. However, even this war over independence from France did not cease with the French withdrawal, because the United States had become increasingly involved. The key feature is to consider how long the impact of Japanese colonization in Southeast Asia led to the conflicts we continue to see in the region today.

We need to examine how imperial violence and World War II slid into the subsequent civil wars all throughout the region where the Japanese empire reigned supreme. Accordingly, the legacy of that imperial control wielded an immeasurable influence on the following decades. But while the facade of empire had crumbled, the remnants of the old networks of power and political legitimacy took a while to be reestablished and reconstructed.³⁹ We are dealing with the consequences of violent alteration of both the physical environment and geographical boundaries, but the thick continuities associated with colonialism, migration, industrialization, and technology also complicate the relationship between imperialism and subsequent decolonization. Japan’s surrender involved all sorts of administrative and military machinations among the various authorities to ensure their upper hand in the initial power vacuum.

The Cold War paradigm in East Asia is problematic because it does not mimic the situation in Western Europe. The Cold War is a topic of great debate—when did it start, has it ended, and what exactly was it are topics of deep concern to many historians, politicians, policymakers, and military leaders. Some define it as the moment when the US military presence grew dominant as the new postwar superpower. Others see it as a legacy of communist versus capitalist camps within Europe as the Marshall Plan went into effect to save Western Europe from potentially falling into post–World War II economic ruin. A few researchers believe the Cold War to have started the moment the United States dropped the first atomic bomb on Hiroshima, not in a bid merely to conquer Japan but as a stern message of warning to the Soviet Union. This book does not attempt to provide a definitive answer to this conundrum. Instead, I offer an alternative way of conceiving how the Cold War took shape in East Asia. More importantly, I suggest that to really grasp what the Cold War was in the Asian region of the globe, we need to place the end of the Japanese empire at the center of it and analyze what happened in light of that failure. Ian Buruma paints 1945 as an international Year Zero, when the world emerged from the “wreckage” of World War II. He depicts the ensuing battle against hunger, revenge, and repatriation in what he calls “draining the poison” of demilitarization.⁴⁰ That aspect may be accurate, but I believe continuities remained strong from wartime to post-surrender East Asia owing to Japan’s imperial legacy, and these structures set the regional postwar history apart from the Europe story.

The great irony of the postwar period in East Asia (defined as Japan, China, Taiwan, and North and South Korea) is that Japan’s surrender brought peace to its home islands but little to the rest of its former empire. One way to unbraid the tangle of political relations, or the forging of new ones, is to accept the idea that “a chronology that prioritizes the cold war is a partial one and explains little about non-geopolitical aspects of international relations or about transnational movements.”⁴¹ A lingering question concerns the Eurocentric paradigm of the Cold War and trying to use it to understand East Asia. The West has become the standard model to examine history, defined essentially as two ideologically opposed nuclear superpowers in a standoff. This was mirrored in the alliances, both political and economic, of the subparties that attached themselves to their master states. However, in Asia that system never held. Parties outside of these liberal or Marxist-Leninist camps have always existed—for example, the PRC. Initially, China said it was “leaning to one side” and joining the Soviet bloc, but that adherence was fairly short-lived and ended in military acrimony between the former allies. In addition, in East Asia the liberal-capitalist camp versus the Marxist-Leninist camp as a divided world order never really held.

East and Southeast Asian countries after the end of World War II were busy shedding their imperial colonial heritage and forming their countries independently for the first time. These countries did not toe either ideological line, with the exception of Japan. When we think of North and South Korea, or Taiwan, none of them were democratic but rather built on state-led development under an autocratic leader. It was the same in Southeast Asia with Indonesia and Vietnam. Western Europe was already industrially advanced, whereas most of Asia was not, apart from Japan. The vast imbalance in East Asia between an already industrialized and international Japan and its partners in the region, which were neither, was a yawning chasm. We do not see such imbalances in Europe, unless we move from Western to Eastern Europe, where this gap was also very apparent.⁴² In fact, “large parts of Northeast Asia, in particular, including the People’s Republic of China (PRC), the Russian Far East, and North Korea, remain decisively outside the American imperium, and have never been part of it.”⁴³

At the same time, division in East Asia has not ended, which then calls into question Western pronouncements that the Cold War has ended. North Korea remains isolated with only a few international countries willing to host diplomatic relations—importantly not among them are South Korea and Japan. Moreover, the Korean peninsula remains split, in part, owing to the legacy of Japan’s colonial rule and Chinese/Soviet support of the north. The Korean minority issue of citizenship in Japan remains unresolved, as do many border issues within East Asia. These divisions are the result of quickly managed occupation policies that strove to repatriate specific ethnicities from across the wide expanse of the former Japanese empire.⁴⁴ The sediments of time remain in place more than seventy years after the end of World War II, not to mention the issue of Taiwan and its tense relationship with mainland China—is it a renegade province or an independent country? The legacy of Japan’s empire in East Asia ran deep and laid extensive roots into the various societies it touched. In East and Southeast Asia the transformation was palpable with the creation of a whole panoply of decolonized states after Japan’s fall.

Postimperial Changes

Three crucial transformations in East Asia, which occurred after August 1945, help us grasp the political dynamics that prevented war crimes trials from forming a base for reconciliation in the region. This narrative aids a larger understanding behind the meaning of how and why justice was stymied in postwar East Asia. First, Japan ceased to be an empire but crumbled and needed to be dismantled. This “un-building” of empire was a process fraught with difficulty and came at the same time when other nations were forming or struggling with reasserting themselves against reimposed European colonial rule and the impositions of what became the Cold War in the West. For Japan and its former occupied lands, this transformation entailed all the intricacies of reverse engineering empire—taking apart in a very short time what had previously been under Japanese control. The small geographic space of Japan now had to absorb back into itself all the expansion of empire that it had created and decide what to discard. Who would it protect, and which elements would it sacrifice for the nation?⁴⁵ Second, the use of legal court decisions about the Japanese past, produced in China and elsewhere in war crimes trials, would come to represent the various national set of memories on which foreign policy was built. However, these legal precedents were produced by a China that was relatively new to international proceedings and opposed by a Japan that had a much deeper, albeit somewhat ambivalent, understanding of international law. How the legacy of these trials evolved—including their omission from history for more than thirty years in China and Taiwan, and a Japanese government reluctant to reflect on its own past—has left deep scars on the present state of affairs and political relations in East Asia. Third, the manner in which the war was lost was uneven throughout East Asia and was quickly supplanted by colonial goals of the European powers, so the interaction of the trials on a regional level is necessary to consider. We cannot understand East Asia only by looking at the Tokyo Trial, nor can we figure out what went wrong only by examining, for example, lesser-ranked trials conducted by the British in Hong Kong or the French in Saigon. What we need is a more holistic overview of how these trials exerted pressure within a common and connected international system to shape the current state of conflicting political views.

These points might seem insignificant, but they are not. In fact, one’s political stance on the Tokyo Trial defines a whole generation in Japan, pits leaders against Japan on the Korean peninsula, and is the basis of how the CCP on mainland China generates a major source of its contemporary legitimacy. Understanding the legacy of war crimes trials in East Asia is a crucial conduit through which we can come to understand how and why the region is politically divided as it is today and what the origin of the historical friction is that continues to cause discontent. The situation in East Asia was about both empire and war and shaped the postwar search for justice in a very different manner from the European continent.