Beyond the Geneva Conventions: Lessons from the Tokyo Tribunal in Prosecuting War and Terrorism

Abstract

Although frequently the Global War on Terrorism (GWOT) is described as unprecedented, key aspects of the legal strategy of this conflict bear important similarities to earlier prosecutions of war criminals. This Essay provides historical context in which to evaluate the GWOT by comparing it to the prosecutions conducted by the United States and its Allies in Japan at the Tokyo Tribunal following World War Two. Although the two phenomena are quite different, they share important similarities. Both the GWOT and Tokyo blur the rules governing the initiation of a conflict from those that regulate military conduct during war, resulting in confusion over the boundaries of proper conduct in war making. Furthermore, the Tokyo Tribunal and the Global War on Terrorism employ an expansive conception of conspiracy that weakens the legitimacy of the trial process. Finally, the legacy of the Tokyo Tribunal demonstrates the long-range costs of legal overreaching in a climate where the law itself plays an important strategic and political role. In both the Tokyo Tribunal and the Global War on Terrorism, the U.S. government employs law to shape new political categories and to alter perceptions of wrongdoing and legitimate responses to it. The dubious historical legacy of the Tokyo proceeding bodes ill for the long-term success of the current U.S. legal strategy.