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Home arrow Law arrow United States law and policy on transitional justice : principles, politics, and pragmatics


Perhaps the most shocking aspect of the transitional justice process in Japan is that the USG provided amnesty to thousands of individuals suspected of committing atrocities, including offenses planned and perpetrated against Americans. In the case of Hirohito, this policy can be explained by three political factors. First, the occupying authorities (especially MacArthur) were, according to legal scholar Mark Osiel, “convinced that the Japanese public, although willing to blame the Emperor’s underlings, would not tolerate the punishment and consequent dethronement of Hirohito himself.”200 Therefore, these USG officials imagined that indicting Hirohito would have provoked a violent insurgency in Japan, one that would have required vast resources to suppress. Second, other senior USG officials believed that Hirohito, as Japan’s emperor, was the “best ally” of the Allies’ occupation and would be essential to combating Soviet-led “communization of the entire world.”201 Third, some Allied leaders opposed Hirohito’s indictment, fearful that his removal would trigger a contentious succession struggle among his relatives, which would further complicate postwar reconstruction and reconciliation efforts.202

Some scholars suggest that an additional reason the Allies did not indict Hirohito before the IMTFE was his “figurehead” status, which would have effectively precluded accountability for Japan’s wartime atrocities.203 On the contrary, many thought that Hirohito’s indictment by the IMTFE would have been appropriate or even helpful. For example, in delivering their opinions, both Webb and Henri Bernard, the French representative on the IMTFE bench, suggested that the prosecution should have indicted Hirohito, and criticized the fact that he had been granted immunity.204 Scholarly research supports their contention that Hirohito was directly involved in the Japanese commission of atrocities during WWII.205

As with Hirohito, the USG’s provision of amnesty to more than four dozen Class A war criminals was driven by political considerations. The USG wished to facilitate Japan’s re-entry into the international community, particularly as a partner in the USG’s postwar efforts to prepare for rising tension with the Soviet Union.206 As historian James Bowen argues,

With the Cold War intensifying, the government of President Harry S. Truman felt that Japan needed to be moulded into an American ally and a bulwark against the spread of communism. Truman believed that these aims would be difficult to achieve if the Japanese people were alienated by

continuing prosecutions of their war criminals____The decision to halt the

prosecutions was entirely based on political expediency. It had nothing to do with issues of legality, morality, or humanity.207

Of these amnesties, Dower observes: “Ordinary people ... could be excused for failing to comprehend exactly where justice left off and political whimsy began.”208

The most unlikely group granted immunity may be the numerous Japanese involved in medical experimentation on humans. To be sure, providing de facto conditional amnesty to these suspected perpetrators was identical to the USG’s treatment of certain Nazi scientists (including some suspected of conducting medical experiments on humans) as well as counterintelligence and anti-communist assets. However, three distinctions merit attention. First, among the Japanese human guinea pigs were American POWs,209 whereas no similar allegation is made against Nazi scientists. Such offenses presumably would have bolstered the USG’s resolve to hold Japanese scientists accountable. Not doing so directly violated USG pledges that were both unilateral (such as Hull’s statement on April 12, 1943, and the USG’s September 6, 1945, “Statement of the Initial Surrender Policy for Japan”) and multilateral (such as the Potsdam Declaration of July 26, 1945) specifically warning that the Japanese would be severely punished if American POWs were mistreated. Second, the sheer number of Japanese involved in human experiments who were granted conditional amnesty was much greater than in the German case, where the number of Nazi scientists as a whole (including those suspected of conducting human experiments) offered immunity (over 1600) was a fraction of the amount of Japanese involved in just human experiments who were offered amnesty (over 3600). Finally, these Japanese were treated the opposite of how the USG handled certain other Nazis suspected of conducting medical experiments on humans. The USG convicted sixteen such Nazis in United States v. Brandt (also known as the “Doctors’ Trial”), the first case before the NMT, sentencing six to death and the remaining ten to prison terms ranging from ten years to life.210

Recently declassified USG documents and testimony from Japanese involved in or knowledgeable about the human experiments reveal that the USG was interested in the potential utility of the work of Ishii and other Japanese, however unethical, to the U.S. military.211 Senior USG officials felt that obtaining data from the experiments was more valuable than bringing those involved to justice, because the information could be used to advance the USG’s own weapons development program. USG officials also were concerned about preventing other countries, particularly the Soviet Union, from obtaining the data. Unlike Josef Mengele and some of his Nazi cohorts who performed similar experiments on humans but who were, according to a former U.S./DoJ official and an investigative reporter, “too well known for their war crimes” to become collaborators with the United States,212 the Japanese human experimenters were all relatively anonymous. As a result, the USG could pursue its strategy undetected, and USG policymakers could partner with implicated Japanese officials without much fear of a public relations backlash.213

The incipient Cold War—and the superpowers’ attendant desire to secure competitive advantages and scientific advancements—thus chilled the USG’s enthusiasm for investigating and prosecuting Japanese human experimenters. USG officials believed that their research would be useful in the arms race developing between the Soviet Union and the United States. Apparently untroubled by medical ethics—consistent with its own postwar human experiments in Guatemala214— the USG reasoned that it could keep its deal with involved Japanese secret. Even if it could not, the exchange would be worth the fallout. In other words, one can presume the USG genuinely believed it could benefit from the pain and death of Japanese victims of medical experiments, experiments that included Americans, and that the USG could maintain confidentiality over its profiting from the attendant misery and casualties. Regardless, one U.S. soldier who served in immediate postwar Japan argues that the U.S. deal with Japanese involved in wartime human medical experimentation was not only unethical but also unnecessary:

No matter what the American authorities believed those research papers contained, the objectives cannot possibly justify their actions. The research was in any case crude, backward, and barbaric. Any nation that had a monopoly on nuclear power certainly did not need this kind of research information—nor did we need to embarrass ourselves in such a despicable manner.215

And embarrass the USG this deal did. As Beigbeder argues, “the later discovery that the USA had secretly bargained with and granted immunity to the leaders of Unit 731 could only be taken as an affront to any human rights concern, besides making the USA a belated accomplice to a particularly odious war crime and crime against humanity.”216

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