Law without Mercy: Japanese Courts-Martial and Military Courts During the Asia-Pacific War, 1937-45

Project Information

LawWithoutMercy

Grant agreement ID: 819892

DOI

10.3030/819892

Project closed

EC signature date 5 April 2019

Start date 1 October 2019

End date 31 March 2026

Funded under

• EXCELLENT SCIENCE - European Research Council (ERC)

Total cost

€ 1 697 776,00

EU contribution

€ 1 697 776,00

Coordinated by

FREIE UNIVERSITAET BERLIN
Germany

Periodic Reporting for period 3 - LawWithoutMercy (Law without Mercy: Japanese Courts-Martial and Military Courts During the Asia-Pacific War, 1937-45)

Reporting period: 2022-10-01 to 2024-03-31

Summary of the context and overall objectives of the project

This project investigates the role that Japanese military justice (courts-martial and military commissions) played in the relative escalation or containment of violence during the Asia-Pacific War, 1937-1945. During these years, Japan fought a war of attrition in China since 1937 that soon moved southwards and eventually led into an all-out war with the US and its allies starting in 1941. At the height of the conflict, the Japanese wartime empire extended from Sakhalin to New Guinea, and wherever Japanese soldiers went, the Japanese military "Legal Departments" went with them.

The role of these departments was threefold: to court-martial delinquent soldiers for breaches of conduct and crimes (such as insubordination, desertion or rape); to hold trials over the civilian population in occupied territories for violation of martial law (e.g. sedition, espionage or sabotage); and to judge so-called enemy soldiers that were captured for “grave war crimes” (especially US airmen for bombing Japanese cities) and misdemeanours during captivity.

Through the investigation of court cases in these areas and the analysis of official reports, personal papers of the military judges involved and other sources, this project seeks to explain a persisting contradiction that lies at the heart of Japan’s involvement in the Second World War (and, indeed, much of modern warfare since then): Although Japan prided itself to apply the laws of war to the letter in its early wars (particularly in the Russo-Japanese War of 1904/05) and although it officially declared its intention to do so again during the Second World War, Japan’s war actions saw an unprecedented escalation of violence, not only between enemy combatants, but particularly also towards the civilian population of China and Southeast Asia. All the while, Japanese legal officers in the army and navy adjudicated Japanese soldiers and local civilians in the war zones with often meticulous attention to factual detail and bureaucratic procedure.

A central hypothesis of this project, therefore, is that law and violence in this war did not necessarily constitute a natural contradiction, but that military justice often followed “military necessity” that sought to render violence even more effective through standardisation and procedure, in the latter case constituting a form of violence in itself.

The findings of this project therefore not only offer insights into the escalation of violence during World War II, but also the complex relation of law, violence and war even today.

Work performed from the beginning of the project to the end of the period covered by the report and main results achieved so far

Starting in October 2019, the Principal Investigator (Prof. Urs Matthias Zachmann, Freie Universitaet Berlin) formed a team of experts on Japanese military history and mass violence during the Asia-Pacific War: Dr Tino Schölz is an expert on the social and ideological history of the Japanese imperial army; Dr Kelly Maddox specialises on Japanese warfare and civilian-targeted violence in Southeast Asia. Nicolas Stassar trained in modern Japanese history, especially military and media history.

As joint research actions, the research group identified the source corpora central to this project (judgements, official reports and statistics, field diaries and personal papers of legal officers, POW surveys and testimonies etc.) and their whereabouts in Japanese, Chinese, American and European archives and collected, despite pandemic conditions, an extensive body of source material.

From among these, the team translated core documents on the normative foundations and the practices of Japanese courts-martial and military commissions (e.g. the Army Penal Code, the Court Martial Law, martial laws of the armies etc.), as well as two field diaries of courts-martial and their judgements in order to understand the daily workings and practices of this system in action. The translations form the core of two source volumes to be published in 2023 and 2024.

Individually, the PI investigates the role of legal officers in wartime justice. He prepared a survey of all legal officers active during the Asia-Pacific War, as well as a detailed study of a field diary written by a legal officer in China as one of several case studies. Dr Schölz focuses on institutions of discipline and soldiers’ delinquency in the Japanese army. For this, he collected extensive statistical material on crimes by soldiers and their punishments, and prepared a long-term study of the Japanese court-martial system as a core institution for disciplining soldiers. Dr Maddox studies military justice and policing as instruments of power in the Japanese-occupied territories of China and Southeast Asia. She conducted an in-depth study of the various martial laws in occupied territories, and also translated and analysed material on the military and civilian judicial system in the Philippines. Nicolas Stassar investigates the judicial treatment of POWs in Japanese captivity. For this, he collected extensive material on POWs’ experience of punishment in Japanese camps and mapped the law’s role in this process, particularly in the case of the Hakodate camp.

Progress beyond the state of the art and expected potential impact (including the socio-economic impact and the wider societal implications of the project so far)

Prior to this project, very little research in Japan, and practically none outside, had been done on the Japanese military justice system. One reason traditionally given for this was the relative lack of sources, the majority of which was believed to have been destroyed during or immediately after the war. However, our research group succeeded in locating and collecting substantial bodies of sources that have survived in Japan, as well as in other locations (Hong Kong, Europe, the US).

Our analysis of these sources so far revealed the intensely bureaucratic and procedure-oriented nature of Japanese military justice. However, contrary to our expectation and the popular image in Japan, the courts-martial system was by international comparison fairly moderate towards soldiers both in terms of trial numbers as well as punishment.

Trials showed an overwhelming emphasis on internal discipline, at the sacrifice of civilian life, bodily integrity and property. The low numbers were partly due to personnel shortages, but also because judge advocates often identified with the war aims and, in any case, were constantly reminded to place military necessity above intrinsic legal standards. Judge advocates thus constantly toed the fine line between containment and apology of Japanese wartime violence.

The instrumentalisation of law for the purposes of war becomes even more pronounced in the role of martial law in occupied territories: Particularly in Southeast Asia, the field police and the military commissions used martial law as a tool of power, not only to protect military objectives, but also as a tool of governance by deterrence. However, as trials of enemy POWs show, this was not a wholly uni-directional process, and subjects of trials did have, and used their agency to navigate the laws and regulations of Japanese military justice for their own interests and agendas.

As result of this project, we expect to be able to give a full analysis of how the Japanese military justice evolved during the Asia-Pacific War in response to the wartime situation, both on the normative level as well as reflected in its judicial practices in China and Southeast Asia towards soldiers, civilians and enemy POWs.

We also hope to explain how military justice shaped Japanese wartime violence, and to what extent military justice in itself constituted a form of wartime violence. Our findings will be supported by quantitative data as well as illustrated by a wide variety of case studies of judicial practices and judgements.

Japanese court-martial judgement, Shanghai 1938 (National Archives of Japan)