Book Review | When an Adored Villain Gets His Day in Court

By | Jan 14, 2024
Book Review, Winter 2024
Two books side by side with a blue background. "Judgement at Tokyo" on the left, "France on Trial" on the right

Judgment at Tokyo: World War II on Trial and the Making of Modern Asia
By Gary J. Bass
Alfred A. Knopf; 912 pp.

France on Trial: The Case of Marshal Pétain
By Julian Jackson
Harvard University Press; 480 pp.

Fifty years ago this March, President Richard Nixon was named an unindicted co-conspirator in the plot to cover up the Watergate burglary. Five months later he resigned, and a month after that he was pardoned by his successor. Nixon put in a short, self-imposed spell of absence from the public arena before re-emerging as a retired wise man and author of books dispensing his non-criminal insights to admirers. The Nixon pardon inspired much debate over the immunity of the presidency, the absence of a persuasive statement of contrition and the unseemliness of his fellow conspirators’ going to prison while he went on speaking tours. These are debates that resonate as Donald Trump faces both criminal indictments and a plausible chance of returning to office.

Nixon then and Trump now epitomize the American version of a problem addressed by two other countries, Japan and France, in the wake of World War II: What becomes of the national leader deemed guilty of actions (in these cases, in wartime) that would land his followers in the slammer or worse, but whose popularity is such that punishing him would risk political upheaval or a “lost cause” movement worthy of defeated southern Confederates? Two new books, each focused on a historic trial, seek to answer the question.

Judgment at Tokyo is Gary J. Bass’s exhaustive (more than 900 pages) and gripping history of the tribunal that, from 1946 to 1948, tried and convicted 25 senior Japanese politicians and military officers of the most serious war crimes. Among those crimes were the abuse of POWs, the campaign of rape and murder in the Chinese city of Nanjing (then the capital, and then called Nanking) as well as abuses of civilians in other Chinese cities, and the surprise attack on Pearl Harbor.

Julian Jackson’s France on Trial tells the story of the trial in liberated Paris in 1945 of Marshal Philippe Pétain, the French hero of World War I who, after Nazi armies overran France in June 1940, became prime minister and signed an armistice with Germany that left him in charge of a rump government in part of southeast France, based in the spa city of Vichy. (Resisters had fled to London or North Africa.) Promoted to the elite rank of maréchal in World War I, Pétain was loved by the French—especially by the kind of perennially reactionary French who were royalists during France’s revolutionary and republican eras, clerical when the government was secular, or anti-Dreyfusard when the Jewish Army Captain Alfred Dreyfus was cleared of phony espionage charges. Pétain had been ambassador to Spain in the 1930s and seems to have found Franco’s right-wing autocracy congenial. His Vichy regime replaced the revolutionary slogan, “Liberty, Equality, Fraternity,” with “Work, Family, Fatherland.”

There were many differences between the two trials but also similarities. In each case, justice came custom-tailored. A special court had been assembled for each trial: The Japanese defendants were tried by 11 judges representing countries that had been at war with Japan, while Pétain was tried by a French jury composed half of members of the French Senate and half of members of the wartime resistance. Lurking behind each trial was an imperious figure, part military, part political and in no part judicial.

General Douglas MacArthur, the supreme Allied commander in occupied Japan, empaneled the Tokyo trial and enjoyed some authority over it. His most important exercise of that authority was to preclude the indictment of the semi-divine Emperor Hirohito, who, by any rational standard, shared responsibility for war crimes committed by the men who served him.

MacArthur’s reasoning was that the very cohesion of Japanese society, and with it the acceptance of defeat and occupation, would likely come undone if the emperor, a man the Japanese believed to be descended from the sun goddess Amaterasu, were treated as a merely human criminal.

This political consideration was hardly the only one to influence the Tokyo trial. Bass’s account describes judges conferring with their home governments; two judges who had been victims of crimes alleged in the case (the Chinese jurist had survived Japanese bombing of his city, while the Filipino one had been on the Bataan death march); an American chief prosecutor whose British colleagues regarded him as both incompetent and inebriated in court; and the chutzpah of the Allies—who had firebombed several Japanese cities and dropped atomic bombs on two of them—charging the Japanese with assaults on civilian populations. This is not a picture of justice as we know it. Japanese troops were a fair match for Hamas when it came to wartime cruelties, but the man in whose name such cruelties were committed—and whose imprimatur graced Japanese campaigns of conquest—was safely at home in the Imperial Palace, protected from any kind of justice.

MacArthur, in his high-handed approach to the trials, could serve as the illustration for the dictionary definition of “imperious.” Similarly, the French Larousse entry for the same concept might easily show Charles de Gaulle, the French general who—when Pétain signed the armistice and set up shop as a German puppet in Vichy—had fled to London, declared himself leader of the Free French and spent much of the rest of the war making eloquent speeches to his countrymen via the BBC.

Pétain was 88 when Paris was liberated in 1944. A generation of French men and women had grown up knowing his face and his reputation as victor at the Battle of Verdun. His defense lawyers argued that the armistice he signed in 1940 had saved France from further battlefield losses and from being reduced to the political condition of Poland. Prosecutors countered that Denmark, Holland and other defeated European countries had also been overrun but had not signed on as junior partners of Nazi occupying forces. The charge against Pétain was treason, the evidence was strong, the jury was stacked against him and the punishment was death. Unlike Emperor Hirohito, Pétain made no claim to divine ancestry, but he remained a mortal object of worship for many of the French. There was a reasonable fear that the very announcement of his death sentence might lead to riots.

The ambivalence of the jurors about sentencing such a man to death was shared by de Gaulle, head of the provisional government. The jury recommended leniency for the old war hero turned quisling, and de Gaulle, to no one’s surprise, reduced the sentence from death to life imprisonment (Pétain died of natural causes in 1951). Thus, the main architect of France’s national policy of collaboration had been formally convicted and the French people had been spared the spectacle of his public degradation and demise, not to mention further discussion of their past enthusiasm for him.

In retrospect, de Gaulle would later call the trial political, and there was no shortage of things to criticize. As Jackson points out, Vichy’s abject accommodation to German needs led to a roundup of Jews above and beyond what the Nazis had actually demanded. This was not mentioned in Pétain’s trial, where the only Jewish witness was the prewar prime minister Léon Blum, who gave the most eloquent testimony of the trial but did not speak for or about France’s Jewish community under Vichy. Decades later, when Vichy’s role in the Shoah became widely publicized, polls showed broad disapproval by the French public but, even through the 1990s, strong support for the armistice that Pétain had signed.

A colossal omission also figured in the Tokyo trials. A secret Japanese laboratory in China had developed biological weapons, some of which were dropped on Chinese cities during the war, causing outbreaks of bubonic plague. Mention of this was kept out of court, as U.S. intelligence, mindful of the Cold War that was getting underway, was too interested in the lab’s secret work.

These two stories of inconveniently adored villains and the systems devised to try them provide little guidance for the future. This, from the Department of Unintended Consequences: In the Tokyo trial, the Indian judge, Radhabinod Pal, refused to convict anyone, denying the tribunal the unanimity that had typified the earlier Nuremberg trials of Nazi leaders. Judge Pal declared that the Japanese Empire was no less legal than the empires represented in the prosecution. The Allied war effort, he argued, had been racist; Imperial Japan had stood for, to use his phrase, Asia for Asiatics (a formula that ignored the worst excesses of Japanese war crimes, in China) and Hiroshima and Nagasaki were outrages at least as criminal as Japanese misdeeds. Pal became a folk hero to right-wing militarists in Japan, where a monument to him features a quotation he cited in his dissenting opinion. In time, it says, “justice…will require much of past censure and praise to change places.” Astonishingly, the words quoted by this avowed foe of racism are from Jefferson Davis.

By way of contrast, Emperor Hirohito, who enjoyed courtesies from General MacArthur that the general typically denied the American presidents he ostensibly served, repaid the favor. The god-king transitioned to the role of constitutional monarch and symbol of a Japan reborn and peaceful.

As for Marshal Pétain, his imprisonment was spent on the Ile d’Yeu, a small island off the coast of Brittany: part incarceration, part exile. Legal restrictions and geography limited his contact with visitors and supporters. His cause faded, as did his memory.

One of the arguments against prosecuting Richard Nixon 50 years ago was that it would mire American politics in the past. The political writer Richard Reeves opposed that view but later changed his mind. He told me in a 2006 interview that President Gerald Ford, who issued the pardon, had reasoned that “the country couldn’t be governed if Nixon was being dragged from courtroom to courtroom.” Reeves said he had laughed at that reasoning at the time of the pardon but that, after living through such national media obsessions as O.J. Simpson’s trial and Monica Lewinsky’s affair with Bill Clinton, he had come to the conclusion that Ford was right. Not trying Richard Nixon was a political decision that placed pragmatic concerns of governance over justice, and probably a wise one. But while Nixon resigned to avoid the political-judicial ordeal of impeachment, knowing the Senate would likely remove him from office, more recently we’ve seen Donald Trump submit to impeachment twice and emerge lionized by his followers. We have yet to see whether the pursuit of a criminal conviction of Trump will succeed or whether, if it does, it will leave him marginalized or magnified on the American political stage.

Robert Siegel is Moment’s special literary correspondent.

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