We must determine whether it is realistic for a criminal prosecutor to undertake the task of a historian. . . History leaves room for doubt. It is a fluid project, a story in motion, which strives for a reconstruction of the past informed, understood, and therefore revised in the light of the present and even of the future. Justice, in contrast, imposes irreversible conclusions. It binds itself to a permanent and official interpretation of facts, often followed by irreversibly harsh consequences.
Madame Justice Louise Arbour, War Crimes and the Culture of Peace Footnote 1Since the end of the Cold War, the global community has resurrected a quest for international criminal accountability, which began with the International Military Tribunals (IMTs) in Nuremberg and Tokyo following the Second World War. As a result, the past decade and a half has seen international justice evolve at an unprecedented rate. In 1993 and 1994 respectively, ad hoc proceedings were established to prosecute crimes in the former Yugoslavia and Rwanda. In response to the perceived shortcomings of these ad hoc trials, a series of so-called ‘hybrid’ courts (i.e. tribunals with both domestic and international judges) were implemented between 1999 and 2001 to deal with war crimes in Cambodia, East Timor, Kosovo and Sierra Leone. This legal progression culminated in the establishment of a permanent International Criminal Court (ICC) in 2002. By superseding national interests, international courts purport to establish a ‘true’ narrative of events and punish those found ‘guilty’ of atrocities. The resulting ‘judgement’ is seen as having the potential to heal ruptured memories, deter future aggressors and guide a restoration of ‘normalcy’.Footnote 2
The path from criminal trial to effective reconciliation is one fraught with obstacles, however. Former Canadian Supreme Court justice and recently resigned United Nations High Commissioner for Human Rights, Louise Arbour, understands both the restorative potential and inherent challenges of international criminal justice better than most. In October 1996, the UN Security Council appointed Arbour Chief Prosecutor for the International Criminal Tribunals for the former Yugoslavia (ICTY) and for Rwanda (ICTR), a post she occupied for three years. In January 2001, Justice Arbour reflected on her time with the ICTY and ICTR in a keynote address to the University of Toronto. In her speech, quoted in this article's epigraph, Arbour described a fundamental paradox in the avowed aims of international criminal justice. On the one hand, courts make definitive judgements about the ‘truth’ of crimes and the ‘guilt’ of the accused. On the other, the judicial process results in an inevitably contested narrative. Froma Zeitlin has pointed out that historical ‘truth’ is not really contested in trials, the law is, but in international justice the line between history and law-making is significantly blurred.Footnote 3 In fact, education is one of the most important recognised aims of international proceedings. Yet as Arbour argues, the “irreversible conclusions” made in judgements can have “irreversibly harsh consequences”, a statement that calls into question the effectiveness of relying on tribunals as agents of reconciliation.
The disruptive potential of a judicially determined master narrative is powerfully illustrated by the International Military Tribunal for the Far East (IMTFE) held in Tokyo, 1946–1948. Nowhere is the divisiveness of the IMTFE more apparent than in its investigation of the ‘rape’ of Nanking by Japanese soldiers in the winter of 1937–1938.Footnote 4 In November 1948, the IMTFE issued what was meant to be the official, definitive ‘judgement’ of what happened in Nanking. The legal process employed to reach this judgement produced a disputed picture of the massacre instead. The resulting narrative confusion continues to inform how memory of Nanking is shaped, used and contested. This paper explores the construction of ‘Rape of Nanking’ narratives at the IMTFE. By demonstrating the inherently contested nature of narratives produced by adversarial legal proceedings, I argue that using courts as a panacea for postwar restoration and validator of traumatic narratives is both short-sighted and ineffective. This paper demonstrates that the IMTFE is a particularly inadequate example of exclusively trial-based post-conflict reconciliation. It is hoped, however, that the lessons learned from Tokyo's limitations will benefit the ongoing search for tenable models of international justice.
A ‘Great Divide’: Historiography of the Nanjing Massacre
The dangers of depending solely on a judicial process to establish a symbolic, ‘official’ narrative are illustrated by the historiography of the ‘Rape of Nanking’. Due in large part to the disjointed narrative set at the IMTFE, ‘Rape of Nanking’ literature is typified by divergence rather than consensus and defined more by vitriol and ideology than historical inquiry. Charles Maier has aptly labelled the Nanking massacre “the emblematic massacre of the Pacific War.”Footnote 5 As such, the incident occupies a central role in the periodic, highly politicised “history wars” between China and Japan, which have been especially heated since the 1980s when so-called ‘revisionist’ scholars began advocating and effecting change to the ‘masochistic’ content of Japanese textbooks.Footnote 6 Almost concurrently, in its post-Mao resurgence China has increasingly turned its gaze towards external rather than internal ‘enemies’. In the resulting contest for cultural, political and economic hegemony in East Asia, Japanese war crimes have become a useful tool of public manipulation for both Beijing and Tokyo. However, Yang Daqing reminds us that anger over these issues is not just an artificial product of political machination: the trauma of these crimes maintains a real, painful and lingering presence in the personal and collective memories of both countries. “At a fundamental level”, Yang writes, “the debate over the Nanjing Massacre can be seen as a contest between the memories of the victim and those of the perpetrator.”Footnote 7 The cumulative effect of these political, social and economic pressures is a narrative that is so polarised and rife with emotion that a substantial body of literature has emerged that is devoted solely to summarising and explaining the historiography of the Nanking massacre.Footnote 8
The polarity of Nanking scholarship is so entrenched that Joshua A. Fogel, a leading scholar in the field, suggests that, “No amount of discussion between the contending parties is likely to bridge this gap.”Footnote 9 This “gap” is particularly apparent in debates over just how many people were killed and raped by the Japanese in Nanjing. Iris Chang's research represents the predominantly Chinese side of the scale. Chang estimates that total deaths ranged from a “conservative” 260,000 to 350,000, and asserts that between 20,000 and 80,000 women were raped.Footnote 10 The other end of the spectrum is occupied by Japanese ‘revisionists’ such as Higashinakano Shudo who has concluded that “seven cases of rape was the entire scope of the Nanking Incident.”Footnote 11 This statistical debate is almost impossible to substantiate but it is unlikely that either side has it ‘right’. Moreover, as Perry Link avers, the ‘numbers game’ is offensive to the memories of those who suffered—and continue to suffer—from events in Nanking.Footnote 12
A handful of scholars trace the roots of these historiographical developments expressly to the IMTFE. Mark Eykholt intersperses his broader discussion of Chinese historiography on the ‘Rape of Nanking’ with excerpts of trial transcripts and concludes that the IMTFE both furthered and undermined how the massacre is historicised. On one hand, the IMTFE validated the existence of the incident and established a narrative of what happened. On the other, he argues that, “attempts to cover up and deny the Nanjing Massacre were part of each defense case” creating a ready-made tool of denial for Japanese ‘revisionists’.Footnote 13 Timothy Brook also uses IMTFE sources. Concentrating primarily on the IMTFE judgement and the dissenting opinion of Justice Radhabinod Pal from India, Brook's findings mirror those of Eykholt:
The IMTFE trial in Tokyo has been used as a touchstone to confirm and deny all manner of claims concerning the incident. Those who feel aggrieved over Japan's conduct toward China cite the evidence produced at the trial to authenticate the scale and brutality of the massacre. Those who feel that Japan and the emperor system have been unfairly blamed for the war in East Asia scour the trial proceedings for failures in logic and evidence that demonstrate to their satisfaction that the ‘Tokyo trial view of history’ is nothing but anti-Japanese distortion and fabrication. For both sides, the Tokyo judgment is fuel for ideological fire.Footnote 14
Although it differs in tone, Yamamoto Masahiro's Nanking: Anatomy of an Atrocity also uses IMTFE documentation to look at the Nanking massacre.Footnote 15 More sceptical about the atrocities than either Brook or Eykholt, Yamamoto's research on interrogation records from US Occupation archives is nevertheless an important example of how IMTFE narratives continue to shape scholarship on the Nanking massacre.
The works of Eykholt, Brook and Yamamoto therefore represent positive steps in Nanking historiography, particularly for recognising the important role played by the IMTFE in constructing a contested history of the massacre. Their treatment of the resulting narrative confusion as an inadvertent by-product unique to the IMTFE is less accurate, however. In fact, the production of a disputed narrative is necessarily inherent to adversarial judicial proceedings. Where the IMTFE faltered was in deliberately trying to reconcile a contested process into a monolithic judgement. The ramifications of this failure are particularly evident in the ongoing controversy over the ‘Rape of Nanking’, a controversy that reveals the ineffectiveness of relying solely on a criminal tribunal for post-traumatic reconciliation. This paper explores how trial processes in Tokyo inevitably led to a disrupted narrative and therefore failed restitution. Reconciliation as it is now conceived was never identified as an objective of the IMTFE; it was simply not an expected function of international justice at the time. My purpose therefore is not to pass unfair, retroactive judgement on the IMTFE. Instead, the trial is used as an example of the inadequacies of a purely retributive approach to accountability; one that holds enormous instructive potential for future manifestations of post-conflict justice.
Restoration or Retribution?
Meaningful post-conflict restoration and recompense is increasingly being predicated on the linked phenomena of trauma and memory. Expanding scholarship on trauma has led to suggested prescriptions for the ‘problem’ of traumatic memory. Victims are encouraged to ‘speak out’ and ‘bear witness’ for the dual purposes of cathartic release and ‘passing on’ traumatic memory.Footnote 16 Perpetrator testimony is also being recognised as important, particularly as an acknowledgement of guilt, a symbol of accountability and a conduit of reconciliation.Footnote 17 In theory, a number of these ‘solutions’ are intrinsic to—if not explicitly recognised by—all criminal tribunals including the IMTFE. In practice, however, criminal proceedings have had limited success in meeting the emotional needs of affected societies, and international justice is now moving away from relying solely on trial-based restitution. As Arbour explains, the new ideal is “not only to expose and record individual guilt but to exploit the dramatic stage of the trial to construct the collective memories that may help cleanse both victims and perpetrators, indeed whole nations, of their brutal past.”Footnote 18 This more holistic view of criminality has led to the development of alternative approaches to international justice that prioritise victims-rights, foster collaboration and encourage a harmonious return to ‘normal’ society. As a result, retributive criminal proceedings are now being coupled with more adaptive, restorative practises in international justice.Footnote 19 The most publicised example of this shift away from IMTFE-style justice is the use of the Truth and Reconciliation Commissions (TRCs) in conjunction with criminal courts in Cambodia, Indonesia and Sierra Leone.Footnote 20
The IMTFE took place in an era when international justice was in its naissance. The ideals of reconciliation and restoration had not yet been conceived, let alone articulated. Although eyewitness accounts from victims and perpetrators were theoretically the preferred vehicles of narrative construction in Tokyo, no clear understanding of the cathartic value of ‘speaking out’ existed. Moreover, in practise the IMTFE relied on written and not in-person testimonies. Nevertheless, IMTFE jurists intuitively grasped the importance of the Tribunal and therefore saw four clear purposes for its record. First was to determine the guilt or innocence of the accused. Second was to create a didactic tool. As New Zealand judge Erima H. Northcroft explained to his Prime Minister, “The Tribunal's judgment has placed in the hands of the occupation authorities a document which could be of substantial assistance in the re-education of the Japanese people.”Footnote 21 Thirdly, individuals such as prosecutor Solis Horwitz believed the IMTFE presented a definitive history of Japanese aggression. “As a rich source of material covering practically every facet of Japanese history from 1928 to the close of World War II”, he wrote, “this trial is of major importance to statesmen, diplomats, historians, political scientists, economists, and psychologists.”Footnote 22 Finally, it was hoped that the trial's proceedings, evidence and judgement would deter future aggression. This ultimate purpose was given special prominence in the opening statement of Chief Prosecutor Joseph B. Keenan: “Our purpose is one of prevention or deterrence. It has nothing whatsoever to do with the small, meaner objects of vengeance or retaliation.”Footnote 23
Contemporary observers therefore saw delivering verdicts and establishing an ‘official’ narrative of Japanese ‘aggression’ as important legacies of the IMTFE. The verdicts delivered would sound the warning that perpetrators of such crimes would not escape punitive accountability. The standardised record would help inform the public—specifically the Japanese public—about the terrible extent of war crimes.Footnote 24 Together, it was hoped that the narrative and verdicts would deter future crimes and foster the peaceful transition of Japan from a totalitarian regime to a functional democracy. Ultimately, the IMTFE failed to achieve a number of these goals, a fact that is evident in the ongoing controversy over events in Nanking. Much of the IMTFE's ineffectiveness stems from its inconsistency as a ‘truth’ and ‘guilt’ determiner. The ensuing section uses examples from the IMTFE record to illustrate the limitations of relying on an inherently contested process—adversarial criminal proceedings—to construct what is intended to be a monolithic judgement narrative.
Nanjing Contested: Constructing Narrative at the IMTFE
Judgement at Tokyo
The IMTFE sought to establish an intractable account of what happened in Nanking through an inherently contested process. Although this aim is typical of any adversarial criminal trial, the socio-political ramifications of producing a disputed narrative were exaggerated by the IMTFE's status as a symbol of international justice. At the time, however, the tribunal was more concerned with the legal proceedings on hand than these broader issues. In November 1948, the IMTFE read its findings to the court. The ‘official’ narrative of events in Nanking established in this judgement read:
Japanese soldiers swarmed over the city and committed various atrocities. . . they were let loose like a barbarian horde to desecrate the city. . . Individual soldiers and small groups of two or three roamed over the city murdering, raping, looting and burning. There was no discipline whatsoever. . . Organized and wholesale murder of male civilians was conducted with the apparent sanction of the commanders on the pretense that Chinese soldiers had removed their uniforms and were mingling with the population. Groups of Chinese civilians were formed, bound with their hands behind their backs, and marched outside the walls of the city where they were killed in groups by machine gun fire and with bayonets.Footnote 25
The picture it painted was a strange blend of organised aggression and frenzied carnage; violence that was both systematic and systemic. The judgement also concluded that roughly 100,000 to 200,000 people died and approximately 20,000 women were raped in an “orgy of crime [that] started with the capture of the City on 13 December, 1937 and did not cease until early in February 1938.”Footnote 26
The narrative presented by the IMTFE judgement borrowed much—including language—from the prosecution case. Indeed, during the draft phases of judgement writing, Justice Henri Bernard from France chided his fellow judges saying that, “one could almost say that we will only review the prosecution argument.”Footnote 27 The final summation of the International Prosecution Section (IPS) in Tokyo stated: “Soldiers were let loose like a barbarian horde to desecrate the city. . .small bands of two or three or more Japanese soldiers roamed at will. . .[I]t was the killing, raping and looting of these soldiers that perpetrated the worst of the terrors on the city.”Footnote 28 The IPS summation also stated that once the Japanese were in control of the city, “an orgy of violence and crime by the soldiers began and continued for more than six weeks.”Footnote 29 The emphases added to the above quotations reveal how the judgement followed the prosecution narrative almost verbatim. The prosecution also played a determining role in establishing the chronology—“December 13, 1937 to February 6, 1938”Footnote 30—and scale—“not less than twenty thousand cases of rape”Footnote 31 and “approximately 260,000 the number killed”Footnote 32—of atrocities. Temporal and statistical estimates made by the prosecution were therefore legitimised by the IMTFE judgement and have since become entrenched as the ‘facts’ about what happened in Nanking. The overt parallels between prosecution arguments and the Tribunal's findings also open the IMTFE to accusations of one-sided ‘victors’ justice; a weakness that has been exploited by deniers of the Nanjing massacre. Although the IMTFE initiated this controversy unwittingly, its judgement presents a telling example of the inadequacies of using only retributive justice for post-conflict resolution.
Defending the Indefensible: Defence Strategies and Prosecutorial Bias at the IMTFE
The IMTFE further undermined its legitimacy as a truth-constructor by actively prejudicing itself against the defence. Section IV, Article 13 of the IMTFE Charter stated that “the Tribunal shall not be bound by technical rules of evidence” and authorised the court to “admit any evidence which it deems to have probative value.”Footnote 33 This article inadvertently benefited the prosecution. It was generally more difficult for prosecution witnesses to attend the IMTFE than it was for defence ones. The victims of Japanese crimes had to travel long distances and make personal and economic sacrifices to get to Tokyo. The perpetrators, on the other hand, were readily accessible to authorities because they were either nearby or in custody for other war crimes. The bulk of the prosecution's evidence concerning Nanking (20 of 30 witnesses) was therefore based on the written affidavits of absentee witnesses, which had the advantage of being impervious to cross-examination. Conversely, the vast majority of defence witnesses (24 of 27) appeared in court, where they were subjected to vigorous cross-examination by the prosecution. Thus, whereas prosecution documents were admitted almost without question, defence evidence was contested from the start.
The incidental prejudice against the defence due to practical and logistical concerns was exacerbated by a more explicit inequality in how evidentiary rules were applied to both sides. The prosecutorial bias apparent in the IMTFE's handling of the Nanking massacre is particularly telling. The defence repeatedly objected to the preponderance of written—instead of verbal—evidence in the prosecution's case. These objections were almost uniformly rejected. In August 1946, American defence counsel William Logan voiced frustration with these setbacks:
The accused in a criminal case is entitled to be confronted by the witnesses, to see them, hear their testimony, and have the opportunity of cross-examination . . . [without this] to our mind the trial would result in anything but a fair trial because it would result in a battle of affidavits.Footnote 34
Although President of the Tribunal William F. Webb from Australia acknowledged that this was a “very important point”, he firmly concluded that “affidavits must be used to a larger extent here if this trial is not going to be prolonged for very many years.”Footnote 35 The dismissal of defence objections does not necessarily prove a bias, but the consistency with which similar objections by the prosecution were upheld by the Tribunal is more damning. In fact, during the defence stage of the trial, President Webb used expediency not as an excuse to allow documentary evidence, but rather as a reason to disallow it. “Documents of this kind are being repeatedly rejected”, Webb chastised the defence, “Time is wasted. I suggest you list them all, tender them in a bunch, have them objected to and rejected.”Footnote 36 Webb's terseness and his decision to unilaterally reject “bunches” of defence evidence reveal a clear predisposition towards the prosecution at Tokyo. This prejudice played a significant role in determining how an ‘official’ narrative of the Nanking massacre was constructed at the IMTFE.Footnote 37
In spite of these challenges, the defence at Tokyo managed to develop an enduring counter-narrative of events in Nanking. Cross-examination opportunities were limited. When given the opportunity, however, the defence was relatively successful at poking holes in the accounts of prosecution witnesses. The most effective approach used was to expose minute discrepancies in individual testimonies thereby implying broader inaccuracies. An exchange between defence counsel Ito Kiyoshi, prosecution witness Zhen Fubao (Chen Fupao) and President Webb in July 1946 is characteristic of the confusion caused by this strategy.
Ito: You have stated first that thirty-nine people were taken from the refugee area and that they were all civilians and then you say that most of them were civilians and then you say that some of them were civilians and then you say one you know in particular was a policeman. But which of these statements is true?
Zhen: They were all civilians in the refugees, all of these people. They were all civilians.
Ito: I cannot understand your answer. Did you get my question?
Webb: The answer is plain. He said they were all civilians. You must accept it.
Ito: Then when you say ‘most of them,’ or when you say ‘a number of them,’ are these phrases incorrect?
Zhen: Shall I repeat the story from the beginning?Footnote 38
From a legal perspective, these strategies ultimately proved unsuccessful: the accused were found guilty. The existence of such exchanges in the IMTFE record, however, helped obfuscate the narrative under construction at the trial. Defence challenges to the master narrative were further legitimised by the voluminous dissenting judgement of Justice Radhabinod Pal from India, which has been championed by the ‘revisionist’ cause since it was first translated into Japanese in 1952.Footnote 39 Evidently influenced by defence cross-examination techniques, Pal criticised the testimonies of Reverend John Magee and Dr. Xu Chuanying (Hsu Chuan-Ying): “Both these witnesses have given us horrible accounts of the atrocities committed at Nanking. It is, however, difficult to read this evidence without feeling that there has been distortions and exaggerations.”Footnote 40 The final defence summation, especially its challenge of burial records, was also influential in establishing a counter-narrative of the Nanking massacre. As Yamamoto Masahiro explains, “Scholars who deny the fact or discount the extent of the Rape of Nanking today still employ the same analysis the defense made at this occasion.”Footnote 41 By allowing a determined—if limited—defence, the IMTFE resulted in a muddled narrative that has proven ineffective in redressing the issues of the Nanking Massacre.
Xia Shuqin and the Human Legacy of a Contested Narrative
The legacy of contested narratives in Tokyo is reflected in how opposing sides depict the massacre to this day. A poignant example of this is the debate over what happened to the family of Xia Shuqin in December 1937.Footnote 42 This tale was first constructed by the prosecution through the testimonies of Xu Chuanying and John Magee. Xu Chuanying's description was halting yet evocative:
I went there myself with Mr. Magee. In that house there were eleven killed—three raped and two—there were two of the three, one is fourteen and one is seventeen. After raping, they put foreign stuff into the vagina and the grandmother showed me the stuff. The young girl was raped on the table; and while I was there the blood spilled on the table not all dry yet.Footnote 43
Magee's account was more articulate but equally as impassioned:
Only two children escaped out of the thirteen people in that house. A little girl of about eight or possibly nine told me the story. . . [Japanese soldiers] went into this room to the side of the court and there grabbed and started to strip two young girls, fourteen and sixteen. . . They then raped these girls I don't know how many times, and killed them. . . In another room, off the same larger courtyard, the mother was hiding under a bed with her one year old baby, and when the body was found there was a bottle pushed into the vagina of the woman. . .. The bodies had been carried out of the building by the time I got there, which was possibly six weeks afterwards, but the blood was spattered everywhere. . . If I had had colored film it would have shown blood spattered on the table where one of the girls was raped and on the floor where another person was killed.Footnote 44
Both testimonies are moving but their effectiveness is limited by a number of obvious discrepancies. These inconsistencies could indicate any number of things: the fallibility of traumatic memory; the pressures of testifying to a large tribunal; or simply poor witness selection and preparation of by prosecutors. Despite these irregularities, the prosecution used Magee and Xu's testimonies to construct a single damning narrative.Footnote 45
Strangely, the defence at Tokyo did not specifically address the incongruities of Magee and Xu's testimonies of what happened to the Xia family. Instead, it sought to attack the overall reliability of the witnesses’ statements by undermining other areas of their testimonies. Defence attorney Kanzaki Masayushi, for example, questioned the veracity of Xu Chuanying's account of the burning of the Russian Legation saying: “This morning you said that the building was totally burned. Now you state that you do not know whether it was completely burned down or not. . . Which is true?”Footnote 46 Kanzaki's co-counsel Ito tried to shift blame for atrocities on to fleeing Chinese troops and attempted to discredit Xu Chuanying's general credibility: “Do you not know of the Chinese custom whereby Chinese troops when they occupy a city, or flee from a city, they usually indulge in pillage and rape?”Footnote 47 When Xu's replies proved unsatisfactory to Ito, the attorney complained: “As far as my competency is concerned, I cannot get the facts or the truth from this witness, and so I regret that I'll have to terminate here.”Footnote 48 Similarly, in its final summation the defence painted Magee's testimony as incredible hearsay: “This witness told of many atrocious acts, but what he actually saw were only five cases, including one murder, two rapes, and two burglaries. It was made clear by cross-examination that the cases other than those given above were his own creation or hearsay.”Footnote 49 The tactics employed by the defence in Tokyo set the tone for future ‘revisions’ of the massacre.
Unlike the defence at the IMTFE, however, ‘revisionist’ historians in Japan focus their criticisms directly on the story of Xia Shuqin's family. Higashinakano uses sophistry to “discredit” Magee's version of events. “Normally”, he writes, “murderers are careful to kill all witnesses. Why were the children [Xia Shuqin and her sister] spared?” Higashinakano also uses a detailed analysis of the Xia household—complete with a “Family Structure Chart”—to “prove” that Magee's “eight-year-old survivor” could not have been Xia Shuqin.Footnote 50 Likewise, Xu Chuanying's assertion that “I went there myself” is dismissed out of hand because he is not actually mentioned in Magee's report. Higashinakano, like the defence in Tokyo, submits no new evidence to contradict Magee and Xu's testimonies. Instead, he contents himself with finding evidentiary discrepancies in IMTFE documents. His conclusion that these events “did not take place” is therefore unconvincing. Regardless of its effectiveness, however, the fact that research of this kind persists is indicative of the long-term limitations of the IMTFE's judgement on Nanking.
‘Official’ trial narratives can also be accepted too readily. Once the story of Xia Shuqin and her family was entered into the IMTFE record it became a ‘truth’ for subsequent histories. One of the most notable examples of this is the description of events provided by Xu Zhigeng's powerful, though certainly politicised, Lest We Forget: Nanjing Massacre, 1937:
When she came to, she was in great pain, and feeling her body she found blood on her left shoulder, the left side of her waist and her back. She had three bayonet wounds. She rose painfully from the bed and found her second sister lying naked by the bed; there was blood on her thighs and lower abdomen. She closed her eyes as she shook her second sister, a twelve-year-old, and called her name, but the girl who had obviously been raped, did not move. She then saw her eldest sister lying on the table, her hair dishevelled and legs dangling. At sixteen, she was a tall, pretty girl who had been engaged. . . She found her mother lying by the table in the central room. She had also died naked, her whole body covered with blood. Her breasts had been cut off by the raiding Japanese soldiers. Her baby sister had been crushed to death in the courtyard.Footnote 51
Told through the eyes of Xia Shuqin, Xu's dramatised approach attempts to give ‘voice’ to victims in Nanking. If it is acknowledged as fictive, this literature cum history style can be effective for dealing with trauma. Vera Schwarcz, for example, uses literature to explore depths of traumatic feeling that lie beyond the reach of most histories.Footnote 52 Such works can help us understand the emotional truth of atrocities without necessarily obviating historical truth. Xu's study, however, is highly problematic. His claim to be “always faithful to facts” is particularly questionable given that the book's publisher, the Chinese Literature Press, is a recognised mouthpiece of the CCP government.Footnote 53 Xu Zhigeng's uncritical acceptance and embellishment of IMTFE testimony illustrates the reductive dangers of a trial-constructed master narrative.Footnote 54
The case of Xia Shuqin and her family is therefore indicative of both the futility of relying on an adversarial process to produce an intractable ‘judgement’ of traumatic events and the susceptibility of traumatic memory to political manipulation. Xia Shuqin's name is not mentioned at the trial, nor did she testify either in person or through an affidavit. The ‘absence’ of specific reference to Xia Shuqin or her suffering in both the ‘official’ and counter narratives of the IMTFE reveals an unfortunate legacy of the trial: its failure to meet victim-needs.Footnote 55 This failure was the result of unawareness not intent, but this does not mean that it was completely inadvertent. Rather, it was symptomatic of using only criminal proceedings to establish truth and justice.
Silencing Victim ‘Voice’ at the IMTFE
One way the IMTFE failed to meet the needs of victims was by diminishing their ability to ‘speak out’ in a meaningful way. The most evident example of this is the active role played by the Tribunal in enforcing ‘objectivity’ by suppressing emotion in testimonies. Witnesses were expected to present their accounts in a calm, detailed and detached manner. Indeed, emotion was often equated to inaccuracy at the IMTFE. In his dissenting opinion, for example, Pal questioned traumatic memory in general, writing:
If we proceed to weigh the evidence carefully we shall find that in many cases the opportunity for observing the happening must have been of the most fleeting kind; yet the positiveness of the witnesses is sometimes in the inverse ratio to their opportunity for knowledge. In many cases, their conviction was induced only by excitability which perhaps served to arouse credulity in them and acted as a persuasive interpreter of probabilities and possibilities. All the irrelevancies of rumours and canny guesses became hidden under a predisposition to believe the worst, created perhaps by the emotions normal to the victim of injury.Footnote 56
The Tribunal took steps to referee witness “excitability”. A series of exchanges between President Webb and Xu Chuanying provides a telling example of this. When asked to describe how women were treated by the Japanese in Nanking, Xu's reaction was emotional: “The action of the Japanese soldiers toward women are [sic] even worse, and we can never dream of in this civilized world”, he replied. “The Japanese soldiers—they are so fond of raping—so fond of women—that one cannot believe.”Footnote 57 Almost immediately Webb moved to curb Xu's outrage reminding him that “You must be satisfied simply to tell us how the Japanese treated the women in Nanking.”Footnote 58 Later, under cross-examination Xu grew frustrated and he responded to several interjections tersely: “I haven't finished yet” or “let me finish.” In response, Webb's reproofs became more direct: “The witness must endeavour to keep calm and be satisfied to answer the questions.”Footnote 59 In light of recent works advocating for the intertwining of emotional and ‘objective’ approaches to remembering traumaFootnote 60 it is easy to disparage the emotional barrenness of the IMTFE. However, Webb's actions were in line with both judicial practise of the era and the Tribunal's attempt to render an ‘objective’ narrative of Japanese crimes. The fault, therefore, lies not specifically with the IMTFE but rather with adversarial criminal proceedings that privilege cold ‘facts’ over emotional resolution.
Victim ‘voice’ was also suppressed in a more fundamental way by the selectivity of lawyers. Prosecution and defence teams chose witnesses who best fit into the narratives they were developing. Only testimony with the most conforming, instructive and probative worth was included. This selective process ‘silenced’ thousands of victims whose testimonies were either not sought or not used. In fact, out of the tens of thousands of possible victims and witnesses, the prosecution used the direct testimonies of only thirty witnesses, two-thirds of which were represented in written affidavits. In total, the voices of only ten prosecution witnesses were heard in curia at Tokyo regarding events in Nanking; and just three of these had actually experienced physical violence at the hands of the Japanese. Thus, only three victims—Liang Dingfang (Liang Ting-fang), Sheng Deyi (Sheng Teh-yi) and Wu Zhangde (Wu Chang-teh)—were given the symbolic opportunity to ‘speak out’ publicly and confront their ‘aggressors’. Each of these men was a “lone” survivor of mass murder reprisals on civilians accused of being soldiers in “disguise”. No single rape victim testified. The voices of thousands of female victims of the ‘rape’ of Nanking were therefore noticeably—and selectively—silenced at Tokyo.
The general ‘silence’ of victims was furthered by the fact that witnesses were rarely able to tell their ‘whole story’ to the IMTFE. Those who appeared in person were subject to confrontational cross-examination by defence attorneys determined to either question the reliability of accounts or to have the evidence declared “irrelevant” or “immaterial”, hence “inadmissible”. This adversarial approach transformed a potentially restorative opportunity into an unwelcoming, impersonal, and likely unfulfilling experience for victims.Footnote 61 The dehumanising nature of testimony at the IMTFE is clear in an exchange between David Sutton of the prosecution, defence counsel William Logan and President Webb during the testimony of Wu Zhangde:
Sutton: I would like to ask the witness if he will exhibit to the Court the wound in his back, which the affidavit states he received at the hands of a Japanese soldier.
Logan: If the Tribunal please, the defense objects to any such exhibition.
Webb: The defense is not really concerned. We do not wish to see the wounds.Footnote 62
This is notable both for Webb's desire to keep sensationalism out of the trial and for the complete absence of Wu Zhangde's opinion on the matter.
Written affidavits proved particularly malleable in the hands of both prosecution and defence lawyers. This is apparent in another exchange between defence counsel and President Webb. On 29 August 1946, defence Attorney Alfred Brooks objected to omissions made by the prosecution regarding a witness’ affidavit, saying: “The point that I am making is that the prosecutor should be under the instruction that. . . any act inconsistent with a genuine desire to have the whole truth revealed is prohibited.”Footnote 63 Webb's emphatic response is indicative of how little the “whole truth” was valued by the Tribunal: “Let it be understood, let everybody in court know. . . you can use it [selectivity] when your time comes to present your evidence.”Footnote 64 This response reveals not only that selective use of testimony was permissible in Tokyo, but also that due to time constraints it was encouraged. Inevitably, the result was the formation of multiple—and contested—narratives, dehumanising and emotionless proceedings and a legacy of inadequate victim reconciliation.
Conclusions
It is clear that the IMTFE failed to deliver a convincing, intractable judgement of what happened in Nanjing in late 1937 and early 1938. It is also clear that failing to do so has resulted in a highly politicised and virulently contested historiography on the subject. The recurrence of the trauma in the personal and collective memories of China and Japan speaks volumes of the IMTFE's ineffectiveness in facilitating postwar reconciliation between the victims and perpetrators of the ‘Rape of Nanking’. The level of tension and anguish that Nanking continues to engender is also testament to just how deep the scars left by the massacre are. The long-lasting nature of the physical and emotional damage wrought by the incident is perhaps its most tragic legacy.
It has now been over seventy years since Japanese atrocities began in Nanking but its trauma remains raw in the societies of both victims and perpetrators. Public and political disputes between China and Japan over war memory have flared periodically since the early 1980s. They began with the first “textbook controversy” in 1982 when Japanese ‘revisionists’ started questioning the veracity of incidents such as the Nanking massacre. A number of specific controversies emerged over the last two decades including large anti-Japanese student demonstrations in China protesting visits by prominent Japanese officials to the Yasukuni memorial shrine (which includes the remains of a number of war criminals). In March 2007, Japanese Prime Minister Abe Shinzo caused a stir by effectively denying the existence of forced sexual slavery—the ‘Comfort Women’ system—in the Japanese imperial army during World War II.Footnote 65 In response the Chinese government has waged a memory war of its own to ensure that Japanese crimes are never ‘forgotten’. In 1985, for example, it built the Nanjing Massacre Memorial, which serves as both a museum and archive. Individual victims also continue to suffer both publicly and privately. In November 2000, Xia Shuqin filed a lawsuit against two Japanese ‘revisionists’—Matsumura Toshio and Higashinakano Shudo—for defamation. The authors both deny the credibility of Xia's story. In August 2006, a Nanking court ordered the two Japanese authors in absentia to pay Xia 1.6 million yuan in damages and to proffer a public apology. Xia's statement to a news conference at the time of her suit gives apt testament to the human toll of failed postwar reconciliation between China and Japan: “What angers me the most is that they claim I am a false witness. This is unbearable. . . I am a witness to history and I want to serve notice that Japan's history cannot be denied.”Footnote 66
So far this paper has concentrated on the limitations of the IMTFE, particularly its production of a contested narrative. We have seen that the production of contradictory narratives is an inherent by-product of adversarial criminal proceedings. As the IMTFE case illustrates, imperfectly formed—or received—‘official’ narratives can have significant social, political, economic and security ramifications. Moreover, monolithic narratives also invariably lead to counter-narratives; both kinds of record can diminish individual experiences. In the case of the IMTFE at least, it is clear that relying solely on a judicial process for post-conflict, post-traumatic reconciliation is severely limited. If a judicially derived narrative is inherently contested, and a contested narrative is inherently inadequate, is a master narrative of traumatic events necessary or even possible?
To a certain degree, I think it is. Officially condoned ‘memories’ of trauma may be susceptible to manipulation, obfuscation and homogenisation but this does not mean that they are devoid of all pedagogical use. Such narratives can help people grasp what happened. Mark Eyholt, for example, concludes that “focus on numbers and actual atrocities keeps the [Nanking] Massacre within the bounds of human understanding, thereby maintaining specific identity with human suffering and death.”Footnote 67 There is also unquestionable symbolic worth in bringing transgressors to ‘justice’. As Brook contends, “While it [the IMTFE] imposed constraints on how the story of the war could be told and in whose favour, it also made a judgment, however problematic, possible.”Footnote 68 Moreover, there is commemorative value in making such narratives public. Vera Schwarcz, an author who has delved deep into both Chinese and Jewish memory of trauma, asserts that public commemoration—in official narratives, museums, memorials, etc.—has the positive effect of “solemnizing the past”.Footnote 69 It seems that in the long run, therefore, historical remembering must exist—and be recorded—to counterbalance the very human capacity of ‘forgetting’; even when this ‘forgetting’ is welcomed as a coping mechanism.
Despite its shortcomings, or perhaps because of them, the IMTFE's treatment of Nanking holds broad instructive value, particularly for current and future war crimes investigations. Events in Nanking are in many ways analogous to mass atrocities in more recent conflicts. Caution must always be employed when comparing incidents of human tragedy, especially mass trauma. Nevertheless, what happened in Nanking foreshadowed later tragedies in the former Yugoslavia, Rwanda, Sierra Leone and Sudan. Like these recent atrocities, the bulk of the violence in Nanking was ethnically motivated and highly personalised. Also, like tragedies of today's world, Nanking suffered while the world watched. Thanks to relatively widespread media coverage and an ongoing presence of foreign observers, international condemnation of the incident was also notable. By the War's end, international opinion felt strongly that something had to be done about the ‘Rape of Nanking’ and other Japanese atrocities. The IMTFE was selected, designed and implemented in part to respond to this call for accountability.Footnote 70
Through the unflattering lens of retrospection, it is evident that the IMTFE failed to redress the wrongs of Nanking. Failure to do so stemmed from the inherent difficulties of concentrating reconciliation efforts in the hands of a single criminal court. Criminal proceedings are but one way of effecting post-traumatic reconciliation, however, and alternative approaches are now being discussed and employed worldwide. There is, of course, no guarantee that a more restorative approach to accountability for the ‘Rape of Nanking’ would have been more effective than the IMTFE. Nevertheless, the trial's problems suggest that greater delineation between the seemingly contradictory objectives of international criminal justice—truth and guilt, accountability and reconciliation, retribution and restoration—is needed before the needs of affected societies are met by post-conflict justice. Although these needs were neither recognised nor met in Tokyo, acknowledging the IMTFE's limitations may save others from the same fate in the future. In his opening statement, Chief Prosecutor Keenan asserted that the IMTFE was important “to the unborn generations of every nation, because these proceedings could have far-reaching effect on the peace and security of the world.”Footnote 71 If the trial's shortcomings are properly investigated Keenan's words will transform from bravado to prescience. By ‘remembering’ its failures, lessons learned from the International Military Tribunal for the Far East may yet salvage its legacy from one of division to one of conciliation.
Acknowledgement
This paper's genesis was a seminar taught by Dr. Alison Bailey at the University of British Columbia's Institute of Asian Research. I am grateful to my fellow students Heather Hanrahan, Marie O'Connor and Tomoe Otsuki for our discussions on trauma, narrative-construction and memory. Professor Bailey's input on early versions of this paper was both invaluable and greatly appreciated. I am also deeply indebted to Dr. Diana Lary at the University of British Columbia and Dr. Neil Boister at the University of Canterbury for insightful draft commentaries. I bear full responsibility for any errors.
