Contested Visions of Justice: The Allied War Crimes Trials in Global Context, 1943–1958. Franziska Seraphim, Boston College; Kerstin von Lingen, University of Heidelberg; Wolfgang Form, ICWC Marburg; Barak Kushner, University of Cambridge, 25.07.2015–27.07.2015.
Reviewed by Lisette Schouten
Published on H-Soz-u-Kult (March, 2016)
Contested Visions of Justice: The Allied War Crimes Trials in Global Context, 1943–1958
Dr. Franziska Seraphim (Boston College), Dr. Kerstin von Lingen (University of Heidelberg), Dr. Wolfgang Form (ICWC Marburg), and Dr. Barak Kushner (University of Cambridge) organised a conference on Allied War Crimes Trials in Global Perspective that took place between September 25th and September 27th 2015 in Dublin at Boston College Ireland’s Conference Centre. Over the course of three days, historians, political scientists and legal scholars alike analyzed and compared the transnational interconnections among the political, administrative, legal and social mechanisms of Allied transitional justice measures in the reshaping of the post-war world after 1945.
Chaired by Franziska Seraphim, the first panel ‘International Collaboration in Administering War Crime Trials’ analysed the era of the Second World War and focused on the political will to pool legal expertise to conduct trials of Axis war criminals. This led to international collaboration in the area of war crimes investigations and prosecutions. The session subsequently highlighted the outcome of the program’s administration in the different theatres of war. The panel started with NARRELLE MORRIS (Curtin University / Perth, AUS) who, by taking the Australian national representation at the United Nations War Crime Commission (UNWCC) as an example, showed how the intentions of the UNWCC were hampered by cooperation problems between individual member nations and the UNWCC, often to the great exasperation of national representatives who were trying their hardest to make the UNWCC work. ROBERT CRIBB (Australian National University/Canberra, AUS) addressed the implications of politics for the war crime trial program within Mountbatten’s South East Asia Command (SEAC). He showed that whereas the trial process in South East Asia began with a determination on the part of the former wartime Allies to prosecute comprehensively, the scale of the task and the political realities in the region soon overwhelmed the magnitude of that ambition. This stemmed in no small part from the fact that the prosecuting powers—the old European colonial powers in the region—were only temporary holders of sovereign power, challenged by local independence claims. HAYASHI HIROFUMI (Kanto Gakuin University, JP) provided an in-depth factual overview of the organizational structures under the US War and Navy Departments, respectively, to clarify both the hierarchical/command and cooperative/liaison structures between the war crimes trials of Japanese in the Pacific region. Taking the prosecution of wartime crimes in Western Europe as a case-study, DEVIN PENDAS (Boston College, US) argued that the prosecution of axis criminality after WWII was initially part of a broader push for international legalism but quickly became a set of largely disconnected regional and national projects. The main reasons for this were Cold war national security concerns on the one hand and resistance of post-occupation states especially in Eastern Europe to an emerging “international” legal system on the other hand. TANJA PENTER (Heidelberg University, GER) outlined how in the USSR the prosecution of German war criminals and Soviet collaborators was used to support both domestic and foreign political interests. She pointed out that the Soviet war crimes trials strengthened the Stalinist regime’s efforts to appear as a state which followed international standards of law and justice, thus consolidating the government’s legitimation towards the Soviet population, and its intended role in the international post-war order.
After a lively debate on the importance of reconstitution and legitimation of sovereignty, international legalism, military power structures, and domestic competition for Allied transitional justice, the first day was concluded by a key-note lecture delivered by WILLIAM SCHABAS (Middlesex University, UK): ‘London 1941–1944: Conceiving the Permanent International Criminal Court’.
During the morning session of the second day, chaired by Barak Kushner, WOLFGANG FORM (ICWC, Marburg University, GER) explored different notions of state crimes and explained how Allied views on Axis state crimes found their way into the indictments of the International Military Tribunal (IMT) in Nuremberg and the International Military Tribunal for the Far East (IMTFE) in Tokyo. In his response, MATTHIAS ZACHMANN (University of Edinburgh, UK) examined the responses to the judgments given by the IMT and the IMTFE in Germany and Japan and subsequently pointed out how an orientalist image of Japanese society might explain the difference in the indictments of these tribunals. FRANZISKA EXELER (Free University Berlin, GER) showed how in the case of Soviet justice “the global” and “the national” intersected and overlapped, and how the development of international criminal law was pushed forward by a state whose own domestic legal system remained illiberal. She brought into the discussion photographs of local trials and analyzed their (propaganda) value. In her response, Tanja Penter raised the question of intra-Soviet interactions, namely in how far the local trials of war criminals and collaborators in the Soviet Union were independent of or influenced each other.
During the discussion that followed CHEAH WUI LING (National University of Singapore, SIN) touched upon the different definitions of war crimes used by the Allied nations, the importance of nationality in prosecuting war criminals, and the question of differing audiences on local, national, and international levels. Devin Pendas commented on methodological issues, arguing that Allied war crimes trials should be examined from the perspective of jurisprudence and politics at different levels (comparative, transnational and international). Picking up on Form’s presentation, he raised for discussion the thorny issue of how to prosecute state crimes, that is, when the state, the source of legality, articulates norms that are criminal.
Kerstin von Lingen opened the third panel on the ways in which Cold War political competition influenced war crimes trials in Germany and China, as well as the United States and Soviet Union as emerging superpowers. ANNETTE WEINKE (Jena University, GER), showed how trials of Nazi war criminals were used by both West and East Germany for the specific political ends of claiming sovereignty by delegitimizing the other regime at the height of the Cold War. This culminated in the late 1950s when the GDR used its self-declared “guardianship” of Nuremberg to foster anti-fascist alliances among communist countries, while the FRG instituted the Central Investigation Committee of Nazi criminality in Ludwigsburg. BARAK KUSHNER (Cambridge University, UK) highlighted key moments in the evolution of Chinese justice against Japanese war criminals in Nationalist and Communist China and explained how they both attempted to shape their respective historical narratives. He addressed how the program of the Tokyo Trial influenced the ways in which China conceived of justice and consequently its own trials, and why China’s role in international tribunals has recently come to the forefront after a long period of dormancy. ELIZABETH BORGWARDT (Washington University/St. Louis, US) addressed the generally favourable assessment of the IMT in Nuremberg in stark contrast to the highly critical, if not outright dismissive reception of the IMTFE in Tokyo as different expressions of attempted projections of U.S. authority and legitimacy in the immediate post-war world. ANDREAS HILGER (Hamburg University, GER) clarified the political and ideological reasons in the Soviet Union for prosecuting German civilians and German prisoners of war differently under changing political conditions, as part and parcel of the general utilization of judicial means to support Soviet domestic and foreign policy.
During the discussion the participants deliberated about the FDR and GDR opinions of the Soviet trials, the issue of demonstrative vs. show trials and the false duality created between politics and justice in the relationship between the IMT and IMTFE. Participants argued that when one moves from procedural law to substantive law, justice is always political; the question is therefore about how much consensus exists about any given case. The Allies demonstrated a higher level of consensus on trials against Nazi leaders than those against Japanese Class A war criminals. The procedural concerns expressed at the IMTFE were only a pretext to cover the fundamental disagreements that existed between the different national legal teams on the nature and the character of criminality on the Japanese side.
The final panel, chaired by Wolfgang Form, was opened by SANDRA WILSON’s (Murdoch University/Perth, AUS) comprehensive overview of clemency for war criminals in the post-trial phase of the program. Wilson argued that this was the most dynamic and unpredictable period as well as the most political part of the whole war crimes trial process. Different opinions on key points such as detention locations or granting clemency fostered resistance by the German and Japanese governments and disagreements between and within the prosecuting powers. According to Wilson, changes in views on war crimes and war criminals and the perception of different interests were nowhere more evident than in the post-sentencing phase of the trials. Yet, this history has attracted much less attention in scholarly literature than the prosecutions themselves. HITOSHI NAGAI (Hiroshima City University, JP) linked the Japanese war criminals’ release in the Philippines with a set of mostly economic considerations. Focusing on the executive clemency for Japanese prisoners implemented by President Elpidio Quirino in 1953, Nagai reconstructed the context in which the release of war criminals furthered Philippine interests, not least of which was the negotiation of reparations payments by Japan. National security concerns, the importance of Japan as a trading partner, the forthcoming Philippine presidential elections, and Quirino’s own political philosophy were important factors that impacted both the reparations and the war criminals issues. KERSTIN VON LINGEN (Heidelberg University, GER) discussed the politics of release after WWII by placing the clemency campaign of German field marshal Albert Kesselring in the context of the German rearmament debate. This example showed that the quest for clemency was often linked with political campaigns; a wave of supporters in Germany, the UK and the US in the early 50s saw Kesselring’s case as paradigmatic when calling for an end to the Allied war crimes trials program in light of political benefits for the new German state (sovereignty and rearmament). FRANZISKA SERAPHIM (Boston College, US) made a case for the importance of the Allied Powers’ penal practices (their treatment of accused and especially of convicted war criminals through incarceration) in (occupied) Japan and Germany. This was not least so because it gave Japanese and Germans a measure of resistance to the Allied punitive policies while attending to the need for social integration, rehabilitation, and political self-legitimation as military occupations gave way to Cold War alliances. The punishment of Japanese and German war criminals in fact evidenced many parallels and similarities, from American penal policies to German and Japanese strategies of resistance.
The conference was concluded with a discussion on the comparative potential of the Allied war crimes trial program. Participants emphasized the importance of a quantitative in addition to a qualitative approach to post-WWII justice, as even basic statistics on the numbers of and reasons for convictions in Europe (in contrast to Asia) have not been comprehensively collected, making cross-regional comparisons difficult. While a good number of individual case studies especially on the European side are available, divvying out the sheer range of different actors and agencies in order to see the connections and disconnects in the global conduct and uses of war crimes trials in the making of the post-war world requires academic collaboration. The Allied war crimes program represents such a rich historical moment precisely because it encompasses both the last stage of the war and the beginning of the post-war. The participants agreed that post-WWII justice should be seen as a multi-dimensional phenomenon within an overarching global context, constrained by strong local dimensions.
Panel I: International Collaboration in Administering War Crimes Trials
Moderator: Franziska Seraphim
The London/Chongqing Hub: UNWCC as Global Coordinating Agency
Narrelle Morris (Curtin University, AU)
The Southeast Asia Hub: SEAC in Singapor
Robert Cribb (Australian National University, AU)
The Pacific Hub: SCAP” in Tokyo/Shanghai/Manila
Hirofumi Hayashi (Kanto Gakuin University, JP)
Western Europe: From Allied to National Administration
Devin Pendas (Boston College, US)
A Moscow Hub? The Soviet Extraordinary State Commission
Tanja Penter (Heidelberg University, GER)
Keynote Address by William Schabas (Middlesex University London, UK)
London 1941–1944: Conceiving the Permanent International Criminal Court
Panel II: Competing Notions of Criminality in Comparison
Moderator: Barak Kushner
The Problem of State Crime in Axis Regimes
Wolfgang Form (Marburg University, GER)
Response: Matthias Zachmann (University of Edinburgh, UK)
Soviet Justice betw. International & Domestic Law
Franziska Exeler (Free University Berlin / Cambridge University)
Response: Tanja Penter (Heidelberg University, GER)
Comparing National War Crimes Jurisdictions
Discussants: Henning Radtke ( FRG Supreme Court, GER)
Wui Ling Cheah (National University of Singapore, SIN)
Panel III: Cold War and Civil Wars as Contexts for Defining “Justice”
Moderator: Kerstin von Lingen
German-German Competition in Adjudicating Crimes of War
Annette Weinke (University of Jena, GER)
Chinese-Chinese Competition in Adjudicating Crimes of War
Barak Kushner (Cambridge University, UK)
Geopolitics & Justice: United States as Ascending Global Power
Elizabeth Borgwardt (Washington University, US)
Geopolitics & Justice: Soviet Trials as Cold War Missiles
Andreas Hilger (Hamburg University, GER)
Panel IV: Post-trial Negotiations for Clemency and Release
Moderator: Wolfgang Form
Topics of short provocation by the participants followed by a roundtable discussion
Review Boards, Clemency, and Parole
Sandra Wilson (Murdoch University, AU)
Reparations and the Economics of Release
Hitoshi Nagai (Hiroshima Peace Institute, JP)
Rearmament and the Politics of Release
Kerstin Von Lingen (Heidelberg University, GER)
Prisons and the Social Justice of Release
Franziska Seraphim (Boston College, US)
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Lisette Schouten. Review of , Contested Visions of Justice: The Allied War Crimes Trials in Global Context, 1943–1958.
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