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Monday, Aug. 27, 2001


U.S. wants justice for all -- except itself

NEW YORK -- On Aug. 2, the International Criminal Tribunal for the Former Yugoslavia convicted Bosnian Serb Gen. Radislav Krstic of genocide. But even before the verdict, the Bush administration had made clear its opposition to the effort to create an International Criminal Court, which would broaden the scope of jurisdiction from specific to universal. As the July 13 New York Times dispatch from the United Nations put it, the Bush administration may even "work actively to reverse international support" for the court.

Richard Minear's "Victor's Justice," the third printing of which the University of Michigan Press has recently issued, may throw some light on the apparently unjustifiable U.S. position. The book was "the only monographic treatment in Western languages" of the Tokyo Trial when Princeton University Press published it in 1971. It retains its almost exclusive importance today.

For those who think of the Tokyo Trial mainly as just another indicator of Japan's "inability to come to terms with its wartime past," the one great surprise may be that international law at the time was too shaky for the types of crimes that the Big Four decided to prosecute. While working for what would become the London Agreement, in August 1945, Britain, for one, expressed the view that many of the actions targeted for punishment "are not war crimes in the ordinary sense, nor is it at all clear that they can properly be described as crimes under international law."

Accordingly, given the choice between "executive action" and judicial proceedings, Britain would opt for "execution without trial." As Samuel Rosenman, Roosevelt's special envoy, put it memorably, the British leaders were "determined in their opposition to a trial -- they wanted to take the top Nazi criminals out and shoot them without warning one morning and then announce to the world that they were dead."

It was the United States that insisted on judicial proceedings, and prevailed. But that did not change the shaky legal grounds of the London Agreement. The short document provided for the Nuremberg Charter, which the Tokyo Trial followed with little change.

Robert Jackson, who occupied top U.S. legal positions as attorney general, associate justice of the Supreme Court and the American representative at the London Conference before becoming U.S. prosecutor at Nuremberg, was perfectly aware of the legal "pitfalls" the Big Four faced. As a result, he argued for the right to codify international law where little or none existed. In so doing, he brought in what Minear characterizes as "a highly dubious standard."

"We can save ourselves from those pitfalls," Jackson asserted, "if our test of what legally is crime gives recognition to those things which fundamentally outraged the conscience of the American people."

That approach was comparable, Minear reminds us, to the 1935 Nazi law that had "aroused so much antagonism among the Allies." The law defined an action as punishable according to "a penal law and the sound perception of the people." What appalled the Western legal mind, of course, was the "sound perception" part of it. The Western ideal has been, as U.S. President John Adams put it, "a government of laws, and not of men."

Because of the paucity of international law, the Allies ended up "putting (German and Japanese) people on trial in a quasi-judicial proceeding," as Jackson phrased it when he was more focused on the legality of it all.

Porous legal notions ran the gamut of charges brought against Germany and Japan. "War crimes," which were before then limited to such things as treatment of prisoners of war, had to be given new meanings. One of the two other categories of charges, "crimes against peace, "was based on the notion of conspiracy, which Clarence Darrow once called "this worn-out piece of tyranny, this dragnet for compassing the imprisonment and death of men whom the ruling class does not like." The other category, "crimes against humanity," defined as "inhumane acts," was too amorphous to make any legal sense. These two categories were entirely new notions, with no precedent in international law.

The idea of holding individuals responsible for acts of government had no precedent, either. As to "war of aggression," Minear reports: "Only one year before the London Conference, three of the Big Four had gone on record that aggressive war was not in itself a crime." Concerning "negative criminality," to wit, the proposition that a commander, let us say, ought to be punishable for failing to prevent his men from committing certain acts, the American representatives of the Commission of Responsibilities at Versailles, in 1919, were "unalterably opposed." And so forth.

The day the London Agreement was signed, Aug. 8, 1945, was fateful. That day the Soviet Union declared war on Japan in violation of the peace treaty it had with Tokyo. Two days earlier, the U.S. had dropped an atomic bomb on Hiroshima; one day later, it would drop another on Nagasaki.

The Big Four had, of course, carefully excluded their own wartime actions from the upcoming criminal prosecution. This, plus the disregard for international law, compelled Radhabinod Pal, one of the 11 judges to sit on the Tokyo Trial, to suggest that "only a lost war is a crime."

To argue that the Tokyo Trial may have been a miscarriage of justice puts you in peril. When "Victor's Justice" was first published, Minear had to state clearly, "I do not hold a brief for Tojo Hideki and his fellow defendants at the Tokyo trial." One imagines that statement has hardly made his position tenable. In his new preface, Minear describes both subtle and not so subtle attempts to discredit Pal over the years. The only jurist on the panel who specialized in international law, Pal was also the only one who found all the accused not guilty.

Yet, as Minear points out, if the issues the Tokyo Trial raises were relevant during the Vietnam War, they remain equally relevant today, as is clear in the American resistance to the establishment of an International Criminal Court. The difficulties that the U.S. foresees for itself may be discerned from the position of the Clinton administration. It generally supported the idea of creating such a court, but wanted to exempt all Americans from prosecution in the event such a court were created.

Republican Congressman Tom DeLay has gone a step further. In May he introduced a bill called "American Servicemembers' Protection Act." It would exclude Americans from prosecution by an international criminal court "to which the U.S. is not party."

Hiroaki Sato is a translator and essayist who lives in New York.

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