From nanking to Hiroshima to Seoul: (Post-)transitional justice, juridical forms and the construction of wartime memory

Abstract

History still looms large in the politics of East Asia. Rather than settling into a modicum of consensus, debates on how to understand and commemorate the Second World War even seem to gain in intensity and emotionality with the passage of time. Nowhere is this more apparent than in the debates on landmark cases of (post-) transitional justice, particularly the Tokyo Trial of 1946-1948 and later, more recent trials. This article seeks to point out the role which jurists and juridical forms play in shaping the historical narratives of the trials and in proliferating their contentiousness. Thus, the perspective of Japanese jurists at the Tokyo Trial betrays an ingrained scepticism towards international law as an absolute standard and the agnostic rejection of any higher juridical authority to establish historical truth. As a consequence, jurists at the Atomic Bombing Trial of 1963 tried to regain autonomy by creating an alternative narrative against a hegemonic, but absent party (the US). This practice has become a standard procedure in East Asia, as can be seen in the Comfort Women decision of 2011 and related cases in Korea and the Philippines. Common to all these cases is their inherently adversarial structure. This juridical form has a number of consequences for understanding the role of the involved parties, the legal and epistemic limitations of the truth they establish and the equally limited function of trials to act as substitute for genuine reconciliation.