Fighting War with Law: Japanese Legal Officers, Military Courts and their Cases During the Asia-Pacific War

Wherever Japanese soldiers went on the Asian continent and in South Asia during the eight years that spanned the (hot) phase of the Asia-Pacific War, small bands of legal experts, so-called Legal Officers followed them. They formed the Legal Departments in the armies, fleets and units of the Japanese Imperial Army and Navy and their remit was to investigate, prosecute and judge crimes of soldiers and of civilians in occupied territories. Their ultimate purpose – as was the institution of military law and the judicial system in general - was predominantly strategic, namely to serve Japanese wartime goals through enforcing discipline of its soldiers as well as the cooperation of the “good civilians” in the local population. Military necessity thus was as much, or even more, important than considerations of procedural fairness or rule-of-law. However, depending on personal beliefs and inclinations of the Legal Officers, the wartime situation at the front and legal politics at the centre, practices of prosecution and adjudication could vary greatly.

This research project is intended as a twofold “biography”: More directly of the lives, careers and beliefs (if observable) of individual Legal Officers, their various roles – either as administrators and legal advisors at the army and navy Bureaus of Legal Affairs at the centre or as prosecutors and judges in the trenches – and their cases during the Asia-Pacific War as well as their transition and roles in the postwar years (if they survived). Chapters will focus on individual Legal Officers such as Ogawa Sekijirō, who went with the troops to Nanjing; Baba Tōsaku, who was an in influential administrator and legal advisor first and headed a Legal Department in Southeast Asia later; Hidaka Mineo, a prolific scholar of military law, who however was later tried and executed by the Allies for his role as legal officer in Singapore; or Ōyama Ayao, head of the Army Legal Affairs Bureau, who in the post-war years assisted the allies in their prosecution during the Tokyo Trial.

On a second level, the project also aims at an institutional “biography” of military courts and their practices during the Asia-Pacific War, as many of their personnel often remain faceless, did not have illustrious careers (or whose lives were cut short in the war, anyway) and did not leave personal reflections, but nonetheless had a tremendous impact on the lives of their fellow-soldiers (and civilians) through the legal practices of their departments and the decisions of their courts. Due to the overwhelming majority of numbers of courts-martial cases and the dire source situation regarding cases involving civilians, the study will focus on courts-martial practices (as a base line, as it were) and the standards they set for the permissible violence and breaches of discipline in their respective units.

Books (selected)

2017

• ed., Asia After Versailles: Asian Perspectives on the Paris Peace Conference and the Interwar Order, 1919-1933, Edinburgh: Edinburgh University Press (East Asian Studies Series), 2017. 256 pp.

2013

• Völkerrechtsdenken und Außenpolitik in Japan, 1919-1960 (The Japanese discourse on international law and foreign policy, 1919-1960), Baden-Baden: Nomos, 2013. xiv, 436 pp., index.

2009/2011

• China and Japan in the Late Meiji Period: China Policy and the Japanese Discourse on National Identity, 1895-1904, London: Routledge (Routledge / Leiden Series in Modern East Asian Politics and History), 2009 (Hardcover) and Jan. 2011 (Paperback). x, 238 pp., index.

Articles/Chapters

2024

• “The Drama of the Middle Power: Modern Japan’s Engagement with International Law”,in: Lena Foljanty and Naoko Matsumoto (eds.), Germany and Japan in a State of Exception and in the Total War of the 20th Century. Comparison of Jurisprudences. Heidelberg: Max Planck Institute for Legal History and Legal Theory (Global Perspectives on Legal History Series), forthcoming.
• “The Subversive Internationalist – Japanese Responses to the Paris Peace Conference and its Impact on Interwar and Wartime Political Performance”, in: Laurence Badel, Eckart Conze und Axel Dröber (Hrsg.), The Paris Peace Conference of 1919 and the Challenge of a New World Order, New York: Berghahn, forthcoming.

2020

• "Yokota Kisaburō. Defending International Criminal Justice in Interwar and Early Post War Japan", in: Fréderic Mégret/Immi Tallgren (eds.): The Dawn of a Discipline: International Criminal Justice and Its Early Exponents. Cambridge: Cambridge University Press, 2020, pp. 335-357.

2018

• "Loser's Justice: The Tokyo Trial from the Perspective of the Japanese Defence Counsels and the Legal Community", in: Kerstin von Lingen (ed.), Transcultural Justice at the Tokyo Tribunal. The Allied Struggle for Justice, 1946-48. Leiden, Boston: Brill, 2018, pp. 284-306.

2017

• “Sublimating the Empire: How Japanese Experts of International Law Translated ‘Greater East Asia’ into the Postwar Period”, in: Barak Kushner and Sherzod Muminov (eds.), The Dismantling of Japan’s Empire in East Asia: Deimperialization, Postwar Legitimation and Imperial Afterlife, London: Routledge, 2016, pp. 167-181.

2016

• “From Nanking to Hiroshima to Seoul: (Post-)Transitional Justice, Juridical Forms and the Construction of Wartime Memory”, Journal of Modern European History 14:4 (2016), pp. 568-584.

2014

• “TAOKA Ryoichi’s Contribution to International Legal Studies in Pre-war Japan: With Special Reference to Questions of the Law of War”, Japanese Yearbook of International Law 57 (2014), pp. 134-162.
• “Does Europe Include Japan? – European Normativity in Japanese Attitudes towards International Law, 1854-1945”, Rechtsgeschichte – Legal History 22 (2014), pp. 228-243.
• “The Reception and Use of International Law in Modern Japan, 1853-1945”, Zeitschrift für Japanrecht / Journal of Japanese Law 37 (2014), pp. 109-137.

2013

• “Race and International Law in Japan's New Order in East Asia, 1938-1945”, in: Rotem Kowner and Walter Demel (eds.), Race and Racism in Modern East Asia: Western and Eastern Constructions, Leiden: Brill, 2013, pp. 453-473.

2010

• “War and International Order in Japan’s International Legal Discourse: Attitudes among Japanese International Lawyers during the 1920s”, Review of Asian and Pacific Studies (Seikei University), vol. 35 (2010), pp. 103-120.

2009

• “Terra marique: die Rückkehr des Raums in der völkerrechtlichen Debatte Japans, 1989-2009” (Terra marique: the revival of spatial concepts in the Japanese debate on international law, 1989-2009), in: Iris Wieczorek and David Chiavacci (eds.), Japan 2009 – Politik, Wirtschaft und Gesellschaft (VSJF), 2009, pp. 113-133.

2008

• “Asianismus und Völkerrecht: Japans sanfter Übergang von der Großostasiatischen Wohlstandssphäre zu den Vereinten Nationen, 1944-1956“ (Asianism and international law: Japan’s easy transition from the Greater East Asia Co-Prosperity Sphere to the United Nations, 1944-1956), Comparativ: Zeitschrift für Globalgeschichte und vergleichende Gesellschaftsforschung 18:6 (2008), pp. 53-68.

Reviews

2018

• "Japan's Early Practice of International Law, 1870-1907", review of Douglas Howland, International Law and Japanese Sovereignty. The Emerging Global Order in the 19th Century (New York: Palgrave McMillan, 2016), in: Rechtsgeschichte – Legal History 26 (2018), pp. 483-485.

2016

• “Ungentle Civilizer: Treaties and Colonial War in 19th Century International Law”, review of Harald Kleinschmidt, Diskriminierung durch Vertrag und Krieg: zwischenstaatliche Verträge und der Begriff des Kolonialkriegs im 19. und frühen 20. Jahrhundert (Munich: Oldenbourg, 2013) in: Rechtsgeschichte – Legal History 24 (2016), pp. 487-489.

2008

• Review of Nishida Satoshi, Der Wiederaufbau der japanischen Wirtschaft nach dem Zweiten Weltkrieg: die amerikanische Japanpolitik und die ökonomische Nachkriegsreformen in Japan, 1942-1952 (Stuttgart: Franz Steiner Verlag, 2007), in: The International History Review 30:4 (2008), pp. 877-879.