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

The Allies, including the USG, implemented the same three general transitional justice options—prosecution, amnesty, and lustration—for both Nazis and Japanese in the immediate aftermath of WWII. Several lessons emerge from this case study about the etiology of the IMTFE—one of the first and most significant, yet least studied, occurrences of transitional justice in history. Specifically, this chapter reveals that almost every major decision regarding the transitional justice method for addressing the principal Japanese suspected of committing atrocities during WWII was made primarily from a combination of political and pragmatic factors—as prudentialism would suggest. USG officials’ normative beliefs feature, sometimes inconsistently, as influences in very few of these decisions—cutting against legalism. The recent establishment of the IMT and the unfolding Cold War were ever-present factors driving U.S. foreign policy on this issue.

The USG, as the lead occupier of postwar Japan, had no choice but to “do something.” The USG’s initial pragmatic concern was thus the same as with the Nazis: the USG held in custody many of the principal Japanese and had to determine what to do with them. As with the Nazis, even keeping the Japanese imprisoned or letting them go would have been decisions to “do something”; the former would have constituted indefinite detention, and the latter would have represented implicit unconditional amnesty. Some USG officials, such as Hull, initially preferred summary execution for Japanese suspects. However, these USG officials later changed their minds or were overruled, and this transitional justice option does not seem to have been a popular or serious USG consideration with respect to Japanese. The recent establishment of the IMT prompted the USG to act similarly for comparable atrocities elsewhere in the world. Had the USG not acted consistently in the case of Japanese atrocities, it likely would have been vociferously criticized for being regionalist and racist.

Also consistent with their treatment of the Nazis, USG officials were conscious of the domestic political ramifications of their decisions. The American public demanded that Japanese be held accountable, especially after the Japanese government’s devastating sneak-attack on Pearl Harbor. USG officials, concerned about the developing threat of communism, sought to bolster American presence and influence in Asia—a battleground for the approaching ideological clash. Establishing and leading a high-profile transitional justice institution provided a clear opportunity toward that end.

The decision to prosecute many of the chief Japanese also was driven by a combination of political and pragmatic concerns. The IMT precedent again served as an important political factor. As with the decision to “do something,” the precedent of prosecuting atrocity perpetrators from Germany significantly influenced the decision to extend that precedent—independent of nationality, ethnicity, or location—to the Japanese case. Pragmatically, even if the USG prosecuted some of the Japanese, the USG still would have been able to pursue other options as well, such as amnesty and lustration, which were indeed instituted.

The USG’s decision to support an international military tribunal stemmed

from a combination of politics, pragmatics, and normative beliefs. Again, the IMT and the Cold War featured prominently. Pragmatically, the USG already had the IMT as a working model for a transitional justice system, which facilitated a quick application to Japan with minimal structural changes, under the assumption that all those who supported the IMT design for Germany would probably do so for Japan. Path dependency thus underlays this transitional justice decision.

At the same time, it is clear what pragmatic factor did not persuade the USG to support an international transitional justice option: burden-sharing. Given that the USG provided most of the staff and financial support for the IMTFE, involving other states in the process probably had little to do with the extent of the USG’s resource contributions. Instead, the USG supported an international tribunal because it wished to maintain positive political relations with wartime allies, especially in light of its increasingly troubled affairs with the Soviet Union. Prosecution through a broadly multilateral institution also promoted the legitimacy of the transitional justice process, especially at a time when other states criticized the USG for its dominant occupation of Japan. USG officials held a normative belief that states involved militarily with Japan should also be involved in peace efforts, including transitional justice, further driving the USG to favor a multilateral transitional justice option.

Just as with the U.S. role in transitional justice for Germany, the U.S. role in transitional justice for Japan reveals the limitations of certain explanatory factors. Most significant, it is apparent that normative beliefs played only a partial and inconsistent role. Although many USG officials felt obliged to hold Japanese accountable for their heinous crimes, they chose not to when they believed certain Japanese—including Hirohito, more than fifty Class A war criminals, and over 3600 officials, scientists, and physicians involved in human experiments—were potentially useful. The large number of Japanese the USG helped escape justice or addressed through lustration demonstrates that the USG was not committed to a principled conception of justice through legal prosecution, even for those suspected of direct involvement in planning and perpetrating offenses against Americans. Notwithstanding the lofty rhetoric the USG employed in establishing the IMTFE, the emerging Cold War, which had served as one of the principal factors driving the USG to establish the IMTFE, simultaneously chilled the USG’s enthusiasm for investigating and prosecuting some Japanese. USG officials envisioned greater benefit from an alliance with postwar Japan against the looming communist threat and to prevent the Soviet Union from obtaining advantages in weapons technology. Not until the Cold War thawed half a century later would the next ICT—the ICTY—be established.

 
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