Fully aware of the fact that the Tokyo trial is a failure, the author wrote this book “in the belief that an awareness of the absurdities and the inequities of the Tokyo trial will help us (Americans) to rethink some of our assumptions about American policy in Asia, about Japan, and about Indochina.” (p. xxii in 2001 Reprint Version)
Minear starts the book with a quote from Tojo “In the last analysis, this trial was a political trial. It was only victor’s justice.”(p. 3) This statement became the title of his book. The author mentions specifically that all justices were from the eleven nations which fought the war with the United States against Japan, and all the prosecutors were also from the same list of the nations.The trial took two and a half years to complete, and 818 court sessions were held, 419 witnesses testified, 779 affidavits were submitted, and the verdicts were announced on November 4 through 12, 1948.
The representatives of the Big Four gathered in London in August 1945 for drawing up a charter for the Nuremberg Tribunal, and agreed upon two new crimes, the crimes against peace and the crimes against humanity, which would be used for prosecuting German and Japanese war criminals.The U. S. government was against executive action for punishing war criminals because “it would be violative of the most fundamental principles of justice.” (p.9) Even though these two new concepts of crimes were not endorsed by other nations, Robert H. Jackson, representative of the U.S. in the conference insisted that the Big Four should have authority to establish such criminalities. (p.16)
The Charter for the Tokyo trial was an executive decree of General MacArthur which followed closely that of the Nurmberg trial. The charter called for the “just and prompt trial and punishment of the major war criminals in the Far East.” (p.21) The Tokyo trial tried only those defendants who were accused for the crime against peace. The defendants for conventional war crimes were tried where the criminal acts were performed.
The indictment stated “a criminal, militaristic clique,” dominant within the Japanese Government between January 1, 1928 and September 2, 1945, whose “policies were the cause of serious world troubles, aggressive wars, and great damage to the interest of peace-loving people, as well as to the interest of the Japanese people themselves.” The accused had formed a conspiracy whose “main object was to secure the domination and exploitation by the aggressive states of the rest of the world, and to this end to commit, or encourage the commission of, crimes against peace, war crimes, and crimes against humanity as defined by the Charter of this Tribunal…” (p.24)
There were seven challenges to the tribunal’s jurisdiction such as the authority given to the Allied Powers in the Charter, the illegality of aggressive wars, accusation of individuals’ responsibility in making national decisions, and the “ex post facto” (retroactive) nature of the crime used in the indictment. But, these challenges were rejected altogether by claiming the Charter was decisive and binding. (p.27) The verdicts were announced in November, 1948, with which all the surviving 25 defendants were found to be guilty of whom 7 were sentenced to death by hanging.
Reviewing the entire processes of the Tokyo trial, the author raises questions to the following points:
- Conspiracy: its definition and evidence
- The responsibility of individuals before international law
- Aggressive war: is the Pact of Pars of 1928 good enough to declare it as illegal?
- Aggression: How to define it?
- Retro activity: Is retroactive application of crimes acceptable?
- Negative criminality: Is boss responsible for not stopping subordinates’crimes?
- Selection of justices: How about some from neutral nations and what qualifications?
- The rules under which the justices operated
- The selection of the accused: Should not be confined to Japanese only
- Rules of evidence: The Charter allowed looser rules than most national rules
- The attack by the Soviet Union prior to Japan’s surrender was not considered
- Issue of self-defense was not considered on the case of Pearl Harbor
- American brutality including A-bombing was not taken up in the trial
Then, the author concludes that “I do hold a brief for justice even to enemies. I do not hold a brief for Tojo Hideki and his fellow defendants at the Tokyo trial. My purpose has been to examine the Tokyo trial — its law, its procedure, and its judgment — and in the course of that examination I have found the Tokyo trial highly defective…. I argue that Tojo and the others were misjudged at the Tokyo trial.” (p.177) Then he expressed serious concern on the American foreign policy in Vietnam where American soldiers were fighting at the time of his writing.