¹ Arbour, Louise, War Crimes and the Culture of Peace (Toronto: University of Toronto Press, 2002), p. 35.CrossRefGoogle Scholar

² The reconciliatory value of a retributive judgement is a matter of ongoing debate. Payam Akhavan asserts that holding individuals accountable through international criminal proceedings is both valid and effective. Payam Akhavan, ‘Beyond impunity: Can international criminal justice prevent future atrocities?’ in The American Journal of International Law, Vol. 95, No. 7, pp. 7–31. Similarly, Brandon Hamber and Richard Wilson question nonretributive approaches to justice, arguing that “Calls for reconciliation may demand too much psychologically from survivors and retribution may be just as effective as reconciliation at creating symbolic closure.” Brandon Hamber and Richard A. Wilson, ‘Symbolic closure through memory, reparation, and revenge in post-conflict societies’ in Journal of Human Rights, Vol. 1, No. 1, p. 35. Increasingly, scholars such as Louise Arbour, Lucia Zedner, Mark Findlay, and Ralph Henham have advocated for a more collaborative approach to international justice that employs both retributive and restorative paradigms. Arbour, War Crimes and the Culture of Peace; Mark Findlay and Ralph Henham, Transforming International Criminal Justice: Retributive and Restorative Justice in the Trial Process (Portland, OR: Willan Publishing, 2005); and Lucia Zedner, ‘Reparation and retribution: Are they reconcilable?’ in The Modern Law Review, Vol. 57 (March 1994), pp. 228–50. This paper follows the lead of this latter school using the IMTFE as an example to prove that criminal justice alone is inadequate for meeting the demands of a post-conflict situation.

³ Zeitlin, Froma, ‘New soundings in Holocaust literature: A surplus of memory’ in Postone, Moishe and Santner, Eric (eds.), Catastrophe and Meaning: The Holocaust and the Twentieth Century (Chicago: The University of Chicago Press, 2003), pp. 197–8.Google Scholar

⁴ The ‘Rape of Nanking’ began when the Japanese army moved into the Chinese capital after a costly offensive in December 1937. Over the ensuing weeks, Japanese soldiers raped, murdered and brutalised thousands of Chinese civilians. The exact number of casualties from Nanking is still a matter of serious conjecture but estimates range from 50,000 to 300,000 civilian deaths making the Nanking massacre one of the deadliest atrocities of the Pacific War.

⁵ Maier, Charles, ‘Foreword’ in Fogel, Joshua A. (ed.), The Nanking Massacre in History and Historiography (Berkeley, CA: University of California Press, 2000), p. vii.Google Scholar

⁶ For a critique and summary of major ‘revisionist’ works, see Wakabayashi, Bob Tadashi, ‘The Nanjing massacre: Now you see it,. . .’ in Monumenta Nipponica, Vol. 56, No. 4, pp. 521–44.CrossRefGoogle Scholar

⁷ Daqing, Yang, ‘The malleable and the contested: The Nanjing massacre in postwar China and Japan’ in Fujitani, T., White, Geoffrey M., and Yoneyama, Lisa (eds.), Perilous Memories: The Asia-Pacific War(s) (Durham, NC: Duke University Press, 2001), p. 77.Google Scholar

⁸ A complete review of scholarship on the ebb and flow of historical remembrance and “amnesia” of the Nanking massacre is impossible here. For a representative sample, see: Buruma, Ian, ‘The Nanking massacre as a historical symbol’ in Feifei, Li, Sabella, Robert, and Liu, David (eds.), Nanking 1937: Memory and Healing (Armonk, NY: M. E. Sharpe, 2002), pp. 3–10Google Scholar; Fogel, The Nanking Massacre in History; Hicks, George, Japan's War Memories: Amnesia of Concealment? (Aldershot, UK: Ashgate Publishing Ltd., 1997)Google Scholar; Li, Peter (ed.), Japanese War Crimes: The Search for Justice (New Brunswick, NJ: Transaction Publishers, 2003)Google Scholar; Vera Schwarcz, ‘The ‘Black Milk’ of historical consciousness: Thinking about the Nanking massacre in light of Jewish memory’ in Li, Sabella, and Liu Nanking 1937, pp. 183–205; Masahiro, Yamamoto, Nanking: Anatomy of an Atrocity (Westport, CT: Praeger Publishers, 2000)Google Scholar; Yasuaki Onuma, ‘The Tokyo War Crimes Trial, war responsibility, and postwar responsibility’ in Li, Sabella, and Liu (eds.), Nanking 1937, pp. 205–36; Yoshida Takashi, ‘A battle over history: The Nanjing massacre in Japan’ in Fogel, The Nanking Massacre in History, pp. 70–133; Yoshida Takashi, ‘Refighting the Nanking massacre: The continuing struggle over memory’ in Li, Sabella, and Liu (eds.), Nanking 1937, pp. 154–83; and Takashi, Yoshida, The Making of the ‘Rape of Nanking’: History and Memory in Japan, China, and the United States (New York: Oxford University Press, 2006).Google Scholar

⁹ Joshua A. Fogel, ‘Introduction: The Nanjing massacre in history’ in Fogel (ed.), The Nanking Massacre in History, p. 6.

¹⁰ Chang, Iris, The Rape of Nanking: The Forgotten Holocaust of World War II (Toronto: Penguin Press, 1997), p. 6Google Scholar. Chang spoils some fine research by jumping to conclusions and mislabelling or misrepresenting people, places and figures. Although many scholars hold negative views of Chang's work, the book is a captivating and chilling read that has raised the profile of the ‘Rape of Nanking’ and encouraged scholarship on the incident. The best summary of the controversy surrounding Chang is: Joshua A. Fogel, ‘The controversy over Iris Chang's Rape of Nanking’ in Japan Echo, Vol. 27, No. 1, pp. 55–7.

¹¹ Higashinakano Shudo, ‘The overall picture of the ‘Nanjing massacre'’ in Li, Sabella, and Liu, Nanking 1937, p. 110. See also: Higashinakano Shudo, The Nanking Massacre: Fact Versus Fiction: A Historian's Quest for the Truth, Sekei Shuppan (trans.) (Tokyo: Sekai Shuppan, Inc., 2005). Higashinakano's inclusion in Li, Sabella, and Liu's volume, which originated at a student-organised conference at Princeton University in 1997, demonstrates a rare effort to present ‘revisionist’ histories of Nanking alongside more traditional interpretations of the massacre. The idea of such collaboration may be commendable, but it also has the danger of legitimising ‘revisionist’ viewpoints and deepening tensions.

¹² Link's statement on the statistical debate that rages over the Nanjing massacre is poignant: “Did 300,000 people die, or only 10,000? Numbers can seem to be metaphors for the size of the wrongness involved, but in the end they cannot measure some of the important and probably unmeasurable questions about how painful the Massacre was to its victims.” Perry Link, ‘Foreword’ in Li, Sabella, and Liu, Nanking 1937, p. xvii.

¹³ Mark Eykholt, ‘Aggression, victimization, and Chinese historiography of the Nanjing massacre’ in Fogel, The Nanking Massacre in History, pp. 22–3.

¹⁴ Brook, Timothy, ‘The Tokyo Judgment and the Rape of Nanking’ in The Journal of Asian Studies, Vol. 60, No. 3 (August 2001), p. 673.CrossRefGoogle Scholar

¹⁵ Yamamoto labels his work “certainly ‘revisionist’ but not ‘denial’”. Yamamoto, Nanking: Anatomy of an Atrocity, p. 6.

¹⁶ Caruth, Cathy, Unclaimed Experience: Trauma, Narrative, and History (Baltimore, MD: The Johns Hopkins University Press, 1996)Google Scholar; and Levi, Primo, The Drowned and the Saved, Raymond Rosenthal (trans.) (New York: Summit Books, 1988)Google Scholar. Not all scholars agree that ‘speaking out’ is beneficial to victims. Mikaela Heikkilä, for example, argues that testifying in court may actually retraumatise some victims. Mikaela Heikkilä, International Criminal Tribunals and Victims of Crime (Turku/Åbo: Institute for Human Rights, Åbo Akademi University, 2004).

¹⁷ Henham and Findlay, Transforming International Criminal Justice, pp. xxiv, 300.

¹⁸ Arbour, War Crimes and the Culture of Peace, p. 34.

¹⁹ For victim-conscious justice see: Mikaela Heikkilä, International Criminal Tribunals. For overviews of recent developments in international criminal justice and international humanitarian law see: John Carey, William V. Dunlap, and R. John Pritchard (eds.), International Humanitarian Law: Origins and Challenges (Ardsley Park, NY: Transnational Publishers, Inc., 2003); Roelof Haveman and Olaoluwa Olusanya (eds.), Sentencing and Sanctioning in Supranational Criminal Law (Oxford: Intersentia, 2006); and Steven Roper and Lilian Barria, Designing Criminal Tribunals: Sovereignty and International Concerns in the Protection of Human Rights (Burlington, VT: Ashgate Publishing, 2006).

²⁰ For one of the most eloquent and personalised expositions regarding victim-rights, international criminal proceedings, and truth commissions see: Goldstone, Richard J., For Humanity: Reflection of a War Crimes Investigator (New Haven, CT: Yale University Press, 2000).Google Scholar

²¹ Erima H. Northcroft, ‘Memorandum for the Right Honourable the Prime Minister upon the Tokyo Trials 1946–1948, by the Honourable Mr. Justice Northcroft (17 March 1949)’ (Christchurch, NZ: Justice Erima H. Northcroft Collection, University of Canterbury).

²² Solis Horwitz, ‘The Tokyo Trial’ in International Conciliation, Vol. 465, November 1950, p. 475. For more information on participant views of the IMTFE see: James Burnham Sedgwick, Western Reaction to Allied War Crimes Operations in the Far East, 1945–1951: Apathetic and Insignificant? MA thesis (Christchurch, NZ: University of Canterbury, 2004).

²³ United States Department of State (USDS), The Trial of Japanese War Criminals: 1. Opening Statement by Joseph B. Keenan, Chief of Counsel. 2. Charter of the International Military Tribunal for the Far East. 3. Indictment (Washington, DC: United States Government Printing Office, 1946), p. 3.

²⁴ Occupation authorities relied on—and closely monitored—the Japanese press to harness the “re-education” potential of the IMTFE. Indeed, the Supreme Commander for the Allied Powers’ (SCAP) Civil Information and Education Section ran a Media Analysis Division to manage and supervise media coverage. The resulting ‘Hollywood’ atmosphere both invigorated and disgusted trial employees. For more see: Sedgwick, Western Reaction.

²⁵ International Military Tribunal for the Far East (IMTFE), Judgment, Chapter VIII (Christchurch, NZ: Justice Erima H. Northcroft Collection, University of Canterbury), pp. 1011–13.

²⁶ IMTFE, Judgment, Chapter X: Verdicts, p. 1180.

²⁷ Bernard, Henri, ‘Memorandum: Deliberations (28 April 1948)’ in Henri Bernard and B.V.A. Röling, Bernard and Röling on Judgment (Christchurch, NZ: Justice Erima H. Northcroft Collection, University of Canterbury), p. 1.Google Scholar

²⁸ IMTFE, Transcripts of Proceedings, in R. John Pritchard and Sonia Zaide (eds.), The Tokyo War Crimes Trial: The Complete Transcripts of the Proceedings of the International Military Tribunal for the Far East in Twenty-Two volumes (New York: Garland Publishing, 1987), pp. 41229–31.

²⁹ IMTFE, Transcripts, p. 40116.

³⁰ IMTFE, Transcripts, p. 40132.

³¹ IMTFE, Transcripts, p. 40134.

³² IMTFE, Transcripts, p. 40148.

³³ USDS, The Trial of Japanese War Criminals, p. 42.

³⁴ IMTFE, Transcripts, p. 4452.

³⁵ IMTFE, Transcripts, pp. 4452–3.

³⁶ IMTFE, Transcripts, p. 21434.

³⁷ Defence criticism of the IMTFE and its prosecutorial-bias lasted past the trial's end. Defence counsel George F. Blewett, for example, later wrote: “To a student or practitioner of international law, the Tokyo war crimes trial can only be a source of disquiet and uneasiness. Not only were basic departures from long-accepted Western legal traditions tolerated, but a patently double standard was applied to the leaders of the victorious and defeated nations.” George F. Blewett, ‘Victor's injustice: The Tokyo War Crimes Trial’ in American Perspective, Summer 1950, p. 291.

³⁸ IMTFE, Transcripts, pp. 2612–13.

³⁹ Brook, ‘The Tokyo Judgment’, p. 677.

⁴⁰ Radhabinod Pal, International Military Tribunal for the Far East: Dissentient Judgment (Calcutta: Sanyal & Co., 1953), p. 607.

⁴¹ Yamamoto, p. 209. The defence summation reasoned that the burial rates (the number of victims buried per day) reported by burial ‘parties’ were physically impossible. “Let us cite some examples indicating the figures in these exhibits to be fraud and incredible. . . The ‘Chung’ burial party buried 404 corpses during its work from the 26th to the 28th of December 1937, that is to say, it had buried 130 corpses a day, on the average, but the said party buried 26,612 of them. . . from the 9th to the 18th of April 1938 and the average of its work amounted to 2600 corpses a day. If you compare the above-mentioned amount of work in December 1937 with that in April 1938, you find the exaggeration of statement and the unreliability of the figures.” IMTFE, Transcripts, pp. 47271–2. Contrary to Yamamoto's contention that this argument is “logical, elaborate, and persuasive”, the defence made no attempt to account for the technology used by the burial parties. Moreover, it skirted any detailed discussion of whether or not the number of people working for the burial party changed over time.

⁴² Xia Shuqin was not mentioned by name or present at the IMTFE, but she is now believed to be the “eight year old” girl of Magee's testimony.

⁴³ IMTFE, Transcripts, p. 2572.

⁴⁴ IMTFE, Transcripts, pp. 3911–12.

⁴⁵ In its summation, the prosecution used “what occurred at No. 7 Sin Kai Road” as a “typical” example of Xu Chuanying's testimony—and Japanese actions in general. After quoting Xu, the summation continued saying that “Magee in his testimony confirms this statement and gives additional details of the incident.” IMTFE, Transcripts, pp. 40135–6.

⁴⁶ IMTFE, Transcripts, p. 2588.

⁴⁷ IMTFE, Transcripts, p. 2593.

⁴⁸ IMTFE, Transcripts, p. 2597.

⁴⁹ IMTFE, Transcripts, p. 47263. Magee's testimony offers an example of how cross-examination can alter a witness’ believability. Magee was an ordained minister and influential member of the International Committee for the Nanking Safety Zone, which was organised by foreign residents in Nanking to harbour refugees from the violence. On the surface, therefore, he had the makings of a ‘star’ witness for the prosecution. Because of his manifest outrage towards the Japanese in Nanking and his penchant for soliloquy, however, the defence in Tokyo was able to paint a lasting image of Magee as unreliable. In the case of Xia Shuqin, at least, this reputation seems unfairly levelled on Magee. Although ‘revisionists’ since have found inconsistencies in Magee's account of the incident, it is hard to doubt his presence in the Xia house since he documented what he found in a black and white film as part of a series of footage that was later smuggled out of Nanking. Curiously, these films were not screened at the IMTFE.

⁵⁰ Higashinakano, The Nanking Massacre: Fact Versus Fiction, pp. 156–62.

⁵¹ Zhigeng, Xu, Lest We Forget: Nanjing Massacre, 1937, Zhang Tingquan and Lin Wusun (trans.) (Beijing: Chinese Literature Press, 1995), p. 144.Google Scholar

⁵² Schwarcz, ‘The ‘Black Milk’ of historical consciousness’.

⁵³ Xu Zhigeng, Lest We Forget, p. 17.

⁵⁴ Yang Daqing, probably the leading Chinese scholar on Nanking, writes that “There has been a tendency among some Chinese writers to equate previous conclusions (or verdicts) on the Nanking Massacre with ‘historical facts,’ off limits to reinterpretations.” Yang Daqing, ‘Toward a common historical understanding: The Nanking massacre as a challenge of transnational History’ in Li, Sabella, and Liu, Nanking 1937, p. 243. Two of the most typical works of this kind are Iris Chang's The Rape of Nanking and Xu Zhigeng's Lest We Forget.

⁵⁵ It is not surprising that no official record of Xia Shuqin's account was made at the time of the incident. She was, after all, a physically and emotionally scarred young girl. The IMTFE sat almost ten years after the ‘Rape of Nanking’ began, however, by which time Xia Shuqin would have been a young adult; capable, in age at least, of bearing witness to her trauma and potentially benefiting the experience.

⁵⁶ Pal, Dissentient Judgment, p. 609.

⁵⁷ IMTFE, Transcripts, p. 2568.

⁵⁸ IMTFE, Transcripts, p. 2569.

⁵⁹ IMTFE, Transcripts, p. 2595.

⁶⁰ See for example: Feldman, Shoshana, ‘Education and crisis, of the vicissitudes of teaching’ in Caruth, Cathy (ed.), Trauma: Explorations in Memory (Baltimore, MD: The Johns Hopkins University Press, 1995), pp. 13–60Google Scholar; Dominick LaCapra, ‘Holocaust testimonies: Attending to the victim's voice,’ in Postone and Santner (eds.), Catastrophe and Meaning, pp. 209–31; Schwarcz, ‘The ‘Black Milk’ of historical Consciousness’; Watson, Rubie, ‘Memory, history, and opposition under state socialism: An introduction’ in Watson, Rubie S. (ed.), Memory, History, and Opposition Under State Socialism (Santa Fe, NM: School of American Research Press, 1994), pp. 1–20Google Scholar; and Zeitlin, ‘New soundings in Holocaust literature’, pp. 173–208. Mikaela Heikkilä has directly advocated for greater attention to victims’ needs in international criminal tribunals. Heikkilä, International Criminal Tribunals.

⁶¹ Arthur Kleinman has argued that victims of trauma need an environment of “trust” before speaking out about their experiences. The absence of this at the IMTFE and in courts in general is patent. Kleinman, Arthur, Writing at the Margin: Discourse between Anthropology and Medicine (Berkeley, CA: University of California Press, 1995).Google Scholar

⁶² IMTFE, Transcripts, p. 2606.

⁶³ IMTFE, Transcripts, p. 2281.

⁶⁴ IMTFE, Transcripts, p. 4450.

⁶⁵ Alexis Dudden and Mizoguchi Kozo, ‘Abe's violent denial: Japan's Prime Minister and the ‘Comfort Women'’ in Japan Focus, 1 March 2007, http://news.bbc.co.uk/1/hi/world/asia-pacific/1047188.stm (accessed 9 March 2007); Hidenori Ijiri, ‘Sino-Japanese controversy since the 1972 diplomatic normalization’ in The China Quarterly, Vol. 124, December 1990, pp. 639–61; John Nelson, ‘Social memory as ritual practice: Commemorating spirits of the military dead at Yasukuni Shinto Shrine’ in The Journal of Asia Studies, Vol. 62, No. 2 (May 2003), pp. 443–67; and Kenneth B. Pyle, ‘Japan besieged: The Textbook Controversy: Introduction’ in Journal of Japanese Studies, Vol. 9, No. 2 (Summer 1983), pp. 297–300.

⁶⁶ ‘Nanjing survivor sues Japanese authors’ in BBC News Asia-Pacific website http://news.bbc.co.uk/1/hi/world/asia-pacific/1047188.stm (accessed 23 April, 2007). See also: ‘Nanjing massacre survivor wins lawsuit against Japanese’ in People's Daily Online (English) website http://english.peopledaily.com.cn/200608/23/eng20060823_296084.html (accessed 23 April, 2007).

⁶⁷ Eykholt, ‘Aggression, victimization, and Chinese historiography’, p. 49.

⁶⁸ Brook, ‘The Tokyo Judgment’, p. 674.

⁶⁹ Vera Schwarcz, ‘Strangers no more: Personal memory in the interstices of public commemoration’ in Watson, Memory, History, and Opposition, p. 50.

⁷⁰ Although the IMTFE was partially a response to the international community's decrial of atrocities and war crimes, its main purpose was to condemn Japanese leaders for crimes against peace and for waging a war of aggression in Asia. It is possible that the Tribunal's pre-occupation with crimes against peace explains its shortcomings in dealing with cases such as the ‘Rape of Nanking’. Neil Boister, correspondence with author, 17 May 2007.

⁷¹ USDS, The Trial of Japanese War Criminals, p. 1.