The Second World War had a transformative effect on the development of international law. It continues to shape its practice and evolution. While the Nuremberg trials are often acknowledged as a watershed moment, however, scholars sometimes neglected the extent to which the post-war trials in East Asia shaped the development of international law and the process of decolonization. By breaking away from a ‘Eurocentric’ focus on the largest conflict of the twentieth century, we can see more clearly the enduring global legacies of the war.
By Kerstin von Lingen
This article is the fourth in our series commemorating the 80th anniversary of the end of World War II.
The twentieth century marked the development of the idea of ‘total’ war, which encompassed all areas of military and civilian life. At the same time, this was also the era that saw the first efforts to outlaw and punish armed violence. International humanitarian law contains within it the contradiction of viewing war as a legitimate means of interstate conflict, but at the same time the desire to protect the citizens of all states as far as possible from war-related violence. The foundations for its emergence were laid by intergovernmental agreements, but also by the interventions of transnational groups of actors which emerged in the second half of the 19th century, including for instance doctors and lawyers. At that time, civil society began to become involved in issues that were of supranational interest, increasingly supplementing or even replacing diplomatic contacts as the only means of international politics. Examples from this period include the founding of the Red Cross in 1863 and the two Hague Peace Conferences of 1899 and 1907.
The First World War, however, damaged confidence in Europe’s interpretation of “civilizing missions”; the Second World War discredited it once and for all. In view of the brutality with which the National Socialists had not only waged war on Europe, but also systematically persecuted and killed enemy civilians as well as their own citizens, the pre-existing instruments to adjudicate war crimes were no longer suitable. The extent of collaboration and the role of resistance movements also raised new legal issues.
Two international military tribunals were set up in an ad-hoc manner in Nuremberg and Tokyo to punish the crimes of the Second World War and pass judgement on the so-called ‘major war criminals.’ The trials represented a field of experimentation in legal and political terms, and led to the further development of standards in international law. As such,
the Statute for the International War Crimes Tribunal in Nuremberg, signed in August 1945 in London, became the basis for the new international law of war and served as a model for the Tokyo Tribunal.
The experiences of the International Court of Justice in Tokyo, which convened from 1946 to 1948, finally broadened the hitherto strictly Eurocentric perspective and transferred the applicable legal principles to a transnational level.
In the war crimes trials of the Second World War, the boundaries between victors and vanquished, between occupiers and occupied were often blurred, or shaped by the fact that states had experienced both roles.
In East Asia, the expectations of the victims of the war had to be reconciled with the political ambitions of the colonial powers – a factor that played no role in Europe and that became the first challenge to the new supranational principles established in Nuremberg. Consequently, in East Asia it was not justice, however defined, but the idea of re-colonizing the countries seized by the Japanese that tainted justice. There was, therefore, a primacy of politics over legal norms. The Netherlands and France, for example, sat in judgment over the Japanese occupiers – on behalf of the victims who did not have this right – and in doing so underlined their claim to political leadership in the region.
The position of the Netherlands was symptomatic for this double role: it was involved in the trials, first, as a European state previously occupied by the Germans, and second, as a colonial power that was on the victorious side against the Japanese occupying forces in East Asia.
In both cases, Dutch judges had to dispense justice against the occupiers. In Europe, however, the Netherlands had been affected directly as a nation state through the experience of military occupation, whereas in East Asia it was a matter of proxy advocacy for mostly Indonesian victims of Japanese rule. This ambivalent starting position led to equally ambivalent jurisdiction.
If one compares the results of both trials, however, it is noticeable that the Japanese crimes were punished much more severely than the German crimes.
Although the war crimes courts in the Netherlands handed down 14,528 sentences, these were predominantly directed against their own collaborators. Only 193 Germans were found guilty, 14 of whom received the death penalty, which was carried out only in five cases. In Indonesia, on the other hand, the Dutch courts handed down almost five times as many guilty verdicts: 969 Japanese were sentenced, 236 of them to death.
Two reasons explain this different treatment of those accused of war crimes. Firstly, Dutch policy in the metropolis focused on getting hold of the collaborators and punishing them for their “betrayal of the nation”. Secondly, the Dutch war crimes trials in Indonesia did not take place in a vacuum. Between 1945 and 1949, a bloody struggle for independence raged in Indonesia as the colony attempted to break away from the Netherlands. During this time, the colonial troops were often involved in crimes that were of a similar nature to those committed by Japanese officers facing trial at the very same time. Most of these Dutch abuses went unpunished. These double standards, which can also be found among other colonial powers in East Asia, permanently damaged their legitimacy and greatly accelerated Indonesia’s independence efforts.
Other countries pursued their own political interests in the context of the East Asian war crimes trials too. India, for example, used its involvement in the Tokyo Court to strengthen its claim for independence from Great Britian. During the trials, representatives of the country raised the fundamental question about the extent to which Japanese and colonial aggression differed from one another.
The Indian judge Radhabinod Pal, for example, demanded the acquittal of all defendants on the grounds that the Japanese war of expansion had been waged to liberate Asia from the Europeans.
He also emphasized how important the Japanese slogan “Asia for the Asians” was to him. With this view, Pal had a great influence on his fellow European judges and became particularly close friends with the Dutch jurist and scholar Bert Röling.
The Soviet Union under Stalin, on the other hand, saw the trials against the Japanese as a political vehicle to document its claim to power in East Asia and to bind China more closely to itself. China, for its part, pursued the trials primarily under the premise of presenting itself as a modern nation and thus taking what it considered its rightful place in the post-war structure of East Asia.
The experience of the ambivalence with which the war crimes trials were conducted, depending on the respective political interests that were at stake, had far-reaching consequences for the development of international humanitarian law: the idealism of the immediate post-war period, which had accompanied the founding of the United Nations in San Francisco in June 1945, quickly fizzled out. After a promising start in 1946, when a UN International Law Commission began drafting an international criminal code, the dream of a new era in which law and international organizations would be the key factors of world order came to a standstill in 1952 due to the escalating Cold War and the Korean War in particular.
Röling consequently drew a sobering conclusion from his work as a judge at the International Military Tribunal in Tokyo and as his country’s temporary special envoy to the United Nations. In 1960, he stated in a lecture at his home university in Utrecht:
“The position of a country determines the outlook of its lawyers and its judges, their evaluation of values and interests, their opinion about the meaning of treaty texts and their appreciation of a specific custom.” (Bert Röling: The Law of War and the national Jurisdiction since 1945, in: Hague Recueil (1960), p. 332.)
However, it was the experience of the flaws of Nuremberg, Tokyo, and the subsequent war crimes trials that paved the way for a readjustment of the legal foundations of international law. The rules for jurisdiction in cases of genocide, crimes against humanity, and war crimes were revised and finally laid down in the Rome Statute in 1998. This led to the founding of the International Criminal Court in The Hague in 2002.
European judges in East Asia – whether in Tokyo or in the colonies – gained a wealth of experience in the more than 5,700 war crimes trials that took place after 1945, and their knowledge returned with them to their home country’s universities or migrated to supranational organizations such as the UN.
In that sense, judges such as Röling can be regarded as the founding fathers of today’s transnational lawyers serving in the International Criminal Tribunals for Yugoslavia, Rwanda, and Cambodia. While the Second World War might gradually be receding in importance within Western European memory cultures, its ambivalent legacies in the field of international law are still with us and continue to be of pressing significance in our current era marked by the reality of large-scale conflict and war crimes.
Kerstin von Lingen is a historian and researcher, Professor at the Department for Contemporary History at the University of Vienna.
