[December 7th marks National Pearl Harbor Remembrance Day, so this week I’ll remember and AmericanStudy some histories related to the 1941 attack. Leading up to a special post on how we remember such infamous days.]
On the complex question of whether a military attack is also a war crime.
Although they are not as well-known as the concurrent Nuremberg Trials (perhaps because there wasn’t an excellent dramatic film made about them), the Tokyo War Crimes Trials comprised one of the most significant aftermaths of and responses to World War II in their own right. Convened in Tokyo by the International Military Tribunal for the Far East (IMTFE), an organization established by General Douglas MacArthur in a January 1946 proclamation, the trials took place in the city between May 1946 and November 1948. Per MacArthur’s charter the IMTFE was tasked with bringing to trial Japanese officials and officers charged with war crimes and other “offenses which include crimes against peace”; under that aegis nine senior political leaders and eighteen military leaders were prosecuted, and all of them (other than two who passed away from natural causes during the course of the trials) were found guilty and sentenced to death or imprisonment.
Many of the Tokyo trials’ focal war crimes fit that broad category straightforwardly enough: the rape of Nanking and similar mass atrocities; the beheading of prisoners of war and similar violations of international law; and so on. But a number of the accused were also charged with Class A war crimes (the category that focuses on “crimes against peace”) stemming from the Pearl Harbor attack: this group included Shigetaro Shimada, the Minister of the Navy who authorized the attack (and was convicted of a Class A war crime for it); and the attack’s mastermind, Chief of Naval General Staff Osarni Nagano (who died in prison during the trial). This paper by University of Virginia law student Jeffrey D. Fox makes the case for why the Pearl Harbor attack should indeed have been defined as a war crime by the IMTFE, and it’s a compelling case, starting with the lack of a war declaration or a self-defense justification for the attack, and including broader legal ideas in the era related to “waging aggressive war.” I’m no expert in wartime or international law, and so I’m willing to accept such arguments and this legal definition of Pearl Harbor as a Class A war crime.
And yet (a favorite third-paragraph opener of mine, as longtime readers know well). I know that the August 9, 1945 U.S. atomic bombing of Nagasaki took place in the midst of a declared war, but in every other way (as I wrote in this 2015 piece for Talking Points Memo) that bombing seems to me more criminal than the Pearl Harbor attack. It targeted almost exclusively civilians, for one thing (soldiers comprised an estimated 3% of the city’s 1945 population). And it was extremely aggressive and likely unnecessary, for another thing (the Truman administration gave Japan only two days after the August 6th Hiroshima bombing to figure out what had happened and surrender, and the U.S. military was already rehearsing the Nagasaki bombing on the second day, meaning that there really was no time for Japan to take action before this second bombing). I’m not suggesting that Nagasaki fits the legal definition of a war crime, necessarily; just that such categories and their applications, as is always and inevitably the case with any law, are influenced in no small part by who is framing them and in what contexts. I’m also not excusing Pearl Harbor in any way—simply noting that the contrast between it and Nagasaki is not as clear-cut as the Tokyo trials would suggest.
Next history tomorrow,
PS. What do you think?