Chapter 7
“When the Emperor Violates the Law”
Mei Ruao was an ideal person to build a new China. He was a brilliant scholar and jurist with an unlimited future. With a strong jaw and neatly slicked-back hair, he favored urbane Western-style suits and round spectacles. Embarrassed at his youth as he rose fast, he sported a mustache to appear older. For modernizers hoping to propel a vulnerable China forward, he was exactly the sort of citizen required: rooted in his national traditions, superbly educated, curious about the outside world. In an old black-and-white photo—in a Republic of China file moldering in an archive in the lush hinterlands of sprawling Taipei—his gaze at the camera is direct and serious, as if braced for what is to come. His life, and even his afterlife, would span China’s harrowing twentieth century.
The vindication of China’s wartime suffering fell to Mei as its judge at the Tokyo trial. The only non-Western nation in the first rank of Allied powers, China was the sole Asian government guaranteed to lead in the punishment of Japanese criminality.[1] In 1944, the Allies had set up a commission to gather evidence of Japanese war crimes, based in the wartime Nationalist Chinese capital of Chongqing.[2] China charged forward with its own prosecutions of lower-level Japanese war criminals.
After the arrests of major Japanese leaders, including General Matsui Iwane, who was notorious for commanding Japan’s troops in China during the bloody crushing of Nanjing, General Douglas MacArthur widened the prosecution of war criminals into an international effort. On September 21, 1945, General Headquarters asked the Allies—especially the leading powers of China, the Soviet Union, and Britain—to propose suitable officials to staff the new international military tribunal, to be approved by MacArthur.[3]
Mei, a quicksilver young star of the Republic of China, would become a crucial figure at the Tokyo trial. More than anyone, he would ensure that the tribunal’s verdicts and final judgment would weigh the suffering of Asians, rather than merely condemning aggression against the United States as MacArthur would have preferred. Balancing his personal and national fury with his responsibilities as an international judge, he would shrewdly rally his fellow judges to convict and hang the Japanese officials responsible for the slaughter in Nanjing and elsewhere in China. Yet as Mei toiled in Tokyo, his country was being torn apart by civil war between the Nationalists and Communists. Soon he would have to choose between them.
Means of Ascent
Mei Ruao was born in 1904 in a suburban village near the city of Nanchang in the humid southeastern province of Jiangxi. Like many peasants, he took his family name from that of his village. The son of a farmer, he grew up in modest circumstances but with overwhelming expectations. His father, who cared deeply about education, could barely scrape together enough money to send one of his nine children to school; as the eldest son, little Ruao was the elect. Driven by his father, he studied at the forward-looking Jiangxi Model Primary School, doing so well that at the age of twelve he won a coveted place at Tsinghua College in faraway Beijing.
Tsinghua (Qinghua), today China’s premier university for engineering, was then more like an elite finishing school. With a regimented, military-style schedule, the school was a shock for a homesick boy from the provinces. He arrived amid revolutionary ferment, only a few years after the Republic of China swept away the decrepit Qing dynasty. Speaking a dialect, he struggled to learn the proper Mandarin required for higher learning. Worse, many of the classes were taught in English, which most of the students spoke, but which was completely unfamiliar to him. He rose at dawn to recite extra lessons near a lotus pond. With grueling effort, he excelled in his classes, became editor of the school newspaper, and founded a progressive organization along with several classmates who became early members of the Chinese Communist Party and prominent government leaders.[4]
“He was very strict with himself,” remembers his son, Mei Xiaoao, a personable man with spiky gray hair who works as an editor at an official newspaper. “He wanted to achieve something.” Tsinghua aimed to send its graduates to study in the United States, and in 1924, Mei Ruao for the first time left China to study at Stanford. He graduated magna cum laude and Phi Beta Kappa and followed that with a law degree from the University of Chicago in 1928.
Mei Ruao, the Chinese judge, outside the former Army Ministry where the Tokyo trial was being held
There are few details available about his American years, but he had good reasons to be wary of the United States. Despite its protestations about the inalienable rights of all men, the United States had held extraterritorial rights in China like any other wolfish European empire. Chinese people had been explicitly barred by nationality from the United States in the Chinese Exclusion Act of 1882; that discriminatory law was then extended, remaining in effect well into World War II. In another racist law, the United States in 1917 banned immigration from anyone born in countries in an “Asiatic Barred Zone,” except for Japanese and Filipinos.[5] Yet despite all that, Mei’s American sojourn left him with an abiding fondness for the country, its constitutional system, and its people, whom he warmly admired as friendly, open, fair, well educated, democratic, scientific, and efficient, although sometimes childishly naïve.[6] The politically awkward fact of his American affections is blotted out of Chinese remembrances of him today.
Alongside school friends from Tsinghua who were also studying in the United States, he agitated for revolution among other Chinese foreign students, as well as earnestly setting up a research group on the theories of Sun Yat-sen (Sun Yixian), the revolutionary Nationalist who led the founding of the Republic of China. After finishing up at Chicago, Mei broadened his horizons with a European grand tour of London, Paris, Berlin, and Moscow, bookishly auditing classes in universities there. By the time he returned to China in 1929 after almost five thrilling years abroad, he had grown into a confident and sophisticated young man, well read in national and international journals, fond of Chinese opera, dedicated to tai chi for exercise, kindly and gently humorous.[7]
Mei believed that China’s government had solemn duties to its people. “I feel that politics in China has always been passive,” he later wrote in his diary. “As long as no one is staging an uprising and attempting to overthrow the Emperor, then it’s called a peaceful and prosperous time. As for the education and hygiene of the people, that was left to their own fortune and their own efforts.”[8] Working to educate the nation, he launched himself on a splendid academic career as a law professor at Nankai University and then Wuhan University. He taught and published on everything from U.S. and British law to the Napoleonic Code to Soviet revolutionary tribunals, as well as the constitutional debates raging in the Republic of China.[9]
His guiding light was the rule of law, which he saw as crucial for the new China’s progress. Mei expounded his philosophy of law in 1932 in a heartfelt article composed in hard-won, elegant English. Anticipating some of his thinking at the Tokyo trial, he laid out a theory of natural law and called for individual criminal responsibility. He argued for accountable, progressive government under law—an ideal which would cause him to run afoul first of the ruling Nationalists and eventually the Communists.
Mei argued that Chinese law was made up of two supplementary strands: fa, which he compared to positive law, dealing primarily with criminal justice; and li, typically applied to civil conduct, often taken to mean convention or moral discipline, but which he provocatively suggested was equivalent to natural law. He contended, “To a Chinese a violation of li was even more serious and more shameful than a violation of law.” When natural law alone could not maintain a peaceful society, it had to be given coercive power through positive law—resulting in a comprehensive system of criminal law evolving through successive dynasties. Decades before the famous debate between Lon Fuller and H. L. A. Hart over legal positivism, Mei made a case for a fundamental moral foundation for legal order.[10]
Mei believed that Confucian philosophy built a rule of law which rested on both positive law and natural law. For him, the Confucian ideal was to transcend the need for law by using education and moral discipline to harmoniously resolve the divisive disputes that curdled into litigation or crime. The broader progress of society, he wrote, comprised “the great emphasis laid by the Chinese, both in theory and in practice, on the rule of law.”
He asserted proudly that “the principle of Equality before the Law” was a leading feature of China’s legal system since the early eighteenth century, although in practice potentates had often defied the law. “It was a popular maxim in China that ‘when the emperor violates the law, he will be punished like a common citizen.’…This maxim was known to every Chinese and was deeply ingrained in the Chinese consciousness.” Mei stood in the tradition of Mencius, who had written centuries ago that a tyrant could be punished as a common thief or a felon.[11]
Mei would be entirely consistent when he later argued in Tokyo that Emperor Hirohito should have joined his underlings in the dock.[12] Japanese prime ministers, including Tojo Hideki, would find their fate in the hands of the judge who had written: “The prime minister was subject to the same rule of law as an ordinary plowman.”[13]
“Great Aspirations”
Mei rose as his country fell. As he was formulating his legal philosophy in September 1931, Japanese troops marched into Manchuria—eight years before Nazi Germany’s invasion of Poland would begin World War II.[14]
China fought back with what Generalissimo Chiang Kai-shek, the austere and calculating Nationalist leader, called “a long war of attrition.”[15] The most basic numbers are beyond comprehension. Some fourteen million Chinese would die in the war, with perhaps eighty million people displaced from their homes. Even controlling for the enormous size of China’s population—then about four hundred million—the country’s suffering was roughly proportional to that of the Soviet Union or Poland.[16] Some scholars put the toll at twenty to thirty million Chinese dead.[17]
In wartime, Mei’s conspicuous talents attracted the attention of the Nationalist government. In 1934, despite some private misgivings, he joined the Kuomintang (Guomindang), the National People’s Party led by Chiang. Groomed for greatness, he was sponsored for party membership by Sun Ke (also known as Sun Fo), a top government official who was the son of Sun Yat-sen. Mei’s personnel file extolled his character: “Upright ideologies, great aspirations and bearings, capable and experienced, dignified and elegant presence, talkative, sociable, erudite, with much to offer in the subject of social sciences.” This file cryptically added that his sole imperfection was “mediocre virtues.”[18]
Basking in the patronage of the Nationalists, Mei taught American, British, and international law at the Central School of Politics, an elite academy training senior civil servants. He served the Ministry of Judicial Administration by training judges, was appointed legal adviser to the Interior Ministry, and was named editor of a journal of international politics which advocated resistance to Japanese aggression. He became a legislator in the Legislative Yuan in the capital city of Nanjing, eventually rising to be acting chair of its foreign affairs committee.[19]
As Mei explained in an influential Shanghai journal, he saw himself as part of a century-old reform movement which, since the searing experience of the first Opium War, held that China could only withstand the onslaught of British and Japanese imperialism by learning from Western civilization, particularly constitutional government. At a time when many were tempted by party dictatorship, he argued that German- or Italian-style fascism was unlikely to succeed in China. Instead, championing a Nationalist proposal to secure “the Fundamental Rights and Duties of the People,” he argued that constitutional government would help make China “a full-fledged modern State” by establishing “the Rule of Law.”[20]
In July 1937, after a clash between Chinese and Japanese troops at the centuries-old Marco Polo Bridge on the outskirts of Beijing, Imperial Japan launched a massive invasion of the rest of China.[21] For over four years, the Chinese would fight almost entirely alone, until the Japanese attack on Pearl Harbor brought the United States into the war. Its government was led through the war by Chiang, whom Martha Gellhorn, the American war reporter, found “immensely intelligent, gracious and I thought inhuman.” His “will to power was a thing like stone; it was a solid separate object which you felt in the room.”[22]
Despite Chiang’s disdain for the “Japanese dwarfs,” their military was far more modernized and better equipped, outfitted with armor, artillery, and bombers.[23] They swept into Beijing (then temporarily called Beiping), Tianjin, and the crucial port city of Shanghai. The battle for Shanghai, which drew global attention to Chinese resistance, was the bloodiest since Verdun or the Somme.[24] Victorious, the Japanese mostly maintained the French Concession there but, as the visiting British poet W. H. Auden and novelist Christopher Isherwood noted months afterward, reduced the Chinese neighborhoods to a “cratered and barren moon-landscape.”[25] Weeks into the invasion, Japanese bombers began pounding the Nationalist capital at Nanjing, keeping it up for months. Chiang and his government were forced to flee westward. Chinese troops were ordered to abandon the capital. On December 13, in a thunder of artillery and machine guns, the great city fell.[26]
For a month, Japanese troops marauded through Nanjing in a campaign of massacre, rape, arson, and looting. Many Chinese soldiers, hoping to save their lives, gave up their weapons even before the Japanese entered the city; yet huge numbers of these unarmed men were rounded up and killed.[27] In practice, almost any Chinese man could become a target. Some Japanese soldiers, apparently confident that their deeds would meet with approval back home, sent snapshots to their loved ones of beaming Japanese troops alongside naked Chinese women, or of Japanese soldiers swinging swords at the necks of Chinese prisoners.[28] In the hospital, a little boy, perhaps seven years old, died from four bayonet wounds.[29] Sexual violence was shockingly pervasive.[30] As one Chinese doctor wrote, “Streets turned red, and corpses obstructed the currents of the river.”[31]
The atrocities, although abated in scale, continued for half a year. This was neither a chaotic spree nor a berserker fury; Japanese officers boasted of their firm hand over their men, reinforced by prominent visits from senior officers, including General Matsui Iwane.[32] The early estimates by Western observers reckoned a death toll of forty thousand, and accounting based on burials soon pushed the number closer to two hundred thousand. Today the Chinese government promulgates an official figure of three hundred thousand dead, while Japanese extremists falsely deny that there was a massacre at all. Yet there is no serious doubt that Nanjing was one of the cardinal horrors of World War II.[33]
Displaced Chinese civilians gathered to receive relief funding at the headquarters of the International Committee for the Nanking Safety Zone, set up by foreigners to shelter civilians from Japanese troops. The worst massacres were over, but killing still continued in Nanjing when this photograph was taken in February 1938.
Japanese forces swept as far inland as Shanxi, Henan, and Hunan provinces, as well as parts of the south. Because Japan had a policy of treating the China campaign as an “incident” rather than a war, its troops treated captured Chinese not as prisoners of war entitled to lawful protection but as “bandits,” with large numbers of them killed or harshly mistreated. Chinese civilians were rounded up and used for labor.[34] Rape was widespread and institutionalized across occupied China, with 280 “comfort stations” set up throughout the country for the sexual gratification of Japanese soldiers.[35] From January 1938, Japan refused to deal with the Nationalists, calling both for the extirpation of Chiang’s government and the creation of a “new order” in Asia.[36] In 1941, Japan began a devastating counterinsurgency campaign against mostly Communist base areas, known as the “three alls” policy: kill all, burn all, loot all. To root out guerrillas real or imagined, villages were burned, crops torched, and countless men killed.[37]
For years, Chiang went so far as to accuse Japan of what today would be called genocide, warning that Japan “is bent upon the destruction of our country and the extermination of our race,” or denouncing “the Japanese design to exterminate our race.”[38] This overheated accusation would not make it into the indictment or judgment at the Tokyo trial. Still, demanding that “Japanese bandits” not go unpunished, he paved the way for war crimes trials by speaking of “the vital importance of…honoring treaties and international law.”[39]
Some of the direst calamities of the war came from an infernal combination of Japanese assault and Chinese misgovernment.[40] To hold off Japanese troops, Chiang’s government made a frantic and callous decision to blow open the dikes of the Yellow River in central China, unleashing a flood which spread disease and starvation that proved lethal for as many as half a million Chinese peasants.[41] Worst of all was a terrible famine in Henan province starting in 1942, sparked by new wartime taxes paid in grain.[42] The resulting starvation ultimately claimed some four million lives. “In the Henan famine area, people are starving, dogs and animals are eating corpses,” wrote a shocked Chiang in his diary.[43]
China’s ordeal won widespread Allied sympathy. Henry Luce, the son of American missionaries in China, used his clout as publisher of Time and Life—with a combined wartime circulation of some five million—to extol China and Chiang.[44] The U.S. War Department got the director Frank Capra to devote one of the propaganda films in his Why We Fight series to the Chinese resistance. His film, seen by some four million Americans, glorified China as an ancient, peaceful, and freedom-loving republic beset by the fanatical legions of Japan’s god-emperor. It made an appeal to American sensibilities that was literally Capraesque: blurring Sun Yat-sen’s ideals with those of George Washington and Abraham Lincoln.[45] W. H. Auden, having braved Japanese bombing raids on his tour of Shanghai, Nanchang, and other cities in southern China, composed elegiac sonnets: “maps can really point to places/ Where life is evil now./ Nanking. Dachau.”[46]
Mei’s parents and grandparents, like millions of other Chinese civilians, escaped into the interior. Soon before the Japanese stormed Nanjing, Mei had to flee inland with the remainder of the Nationalist government.[47] He arrived at the wartime provisional capital at Chongqing, in the humid, foggy mountains of Sichuan province. But this was no safe haven, with the ill-defended city—swollen with desperate hordes of displaced people—suffering some of the worst Japanese bombardment of the war. From February 1938 to August 1943, concentrated bombing would claim some twelve thousand Chinese lives, almost all of them civilians. The Japanese used fragmentation and incendiary bombs, which blew people to pieces and spread wildfires throughout the city. Residents lived in terror of air raid sirens and the drone of Japanese warplanes, shaken by the ear-shattering crash of incoming Japanese bombs and Chinese antiaircraft fire.[48]
“In Chongqing, there was terrible bombing,” remembers Mei Ruao’s daughter, Mei Xiaokan, a successful lawyer. “They often had to flee to shelters. So he hated the Japanese invasion.” His son, Mei Xiaoao, notes that his father did not like to talk about the war, but other relatives who were with him in Chongqing had horrific memories. Refugees unaccustomed to the steamy Sichuan climate perished from infectious diseases. People tried to hide from the bombers in caves bored into the rocky cliffs.[49] “Many people died in the caves because there were too many people and not enough oxygen,” Mei Xiaoao says, in what seems to be a cleaned-up version of a grimmer reality: people were sometimes trampled in the stampede to reach shelter. “Some died because buildings fell on them because of the bombing.”
There was one wartime consolation in battered Chongqing: a friend introduced Mei Ruao to a capable, perfectionist, studious young woman from a small town. She had wanted to go to university, but as part of a large family, had no chance to do so; she had managed to go to high school in Shanghai. She was working as a bank teller; to meet her, Mei’s friend sent him to pretend to open a bank account. They would later marry and then after the war have two children, setting a cerebral example for them. “He didn’t push us to study,” recalls Mei Xiaokan, “but he was reading all the time.”
The Fourth Policeman
After Pearl Harbor, Life provided its readers with a racist’s guide on “how to tell Japs from the Chinese,” so that Americans seeking to beat up Japanese Americans would be able to “distinguish friendly Chinese from enemy alien Japs.” Luce’s magazine contrasted a photograph of a glowering Tojo Hideki with one of a benevolent Chinese economics minister: “His complexion is parchment yellow, his face long and delicately boned, his nose more finely bridged.” “Chinese wear rational calm of tolerant realists,” Life explained. “Japs, like General Tojo, show humorless intensity of ruthless mystics.”[50]
Finally entering World War II, the United States saw China as crucial to winning the war and then the postwar.[51] The vast, impoverished country proved to be a sinkhole for the Japanese invaders, who had poured in roughly a million troops with no end in sight. The Allied strategic nightmare was that a weary Chinese government would cut a separate peace with Japan or simply collapse; Japan could then turn its full power against the Americans. For four years after Pearl Harbor, it was China’s desperate, dogged resistance that made it possible for the Allies to advance on other European and Pacific fronts.[52]
Envisioning the globe after the war was won, the Americans hoped to see a renewed China replace Japan as a dominant power in Asia. China—a non-European, non-white, anticolonialist country—would stand alongside the United States, Britain, and the Soviet Union as one of Franklin Delano Roosevelt’s “four policemen” guaranteeing postwar order.[53] For Winston Churchill, an ardent enthusiast for the British Empire, that fixation on an anticolonialist China was “the great illusion.”[54] Chiang himself recognized the wishfulness of American thinking. “China is the weakest of the four Allies,” he noted, acidly assessing his partners. “It’s as if a weak person has met a kidnapper, a hooligan, and a bully.”[55]
The Americans supplied and trained China’s ragtag armies, pouring in military and economic aid. In 1943, the Roosevelt administration signed a treaty relinquishing U.S. extraterritorial rights in China, while securing China a spot as one of the four great powers calling for a new world organization to undergird a postwar peace.[56] At the White House’s urging, Congress began to dismantle the laws barring Chinese immigration and naturalization, allowing a small quota of Chinese into the United States.[57]
Behind closed doors, the Roosevelt and Truman administrations were frustrated at Chiang’s corrupt, ineffectual, and autocratic government, and its ill-trained and sometimes mutinous armies. Still, Chiang was invited to join Roosevelt and Churchill at the Cairo conference in late 1943, which laid out a vision for postwar Asia. His was conspicuously the only non-white face among the Allied chiefs. At an old Giza hotel with a view of the Pyramids, he pressed for a postwar liberation from European imperialism, winning genial support from Roosevelt and fuming opposition from Churchill.[58] The generalissimo secured Roosevelt’s agreement that all lands seized by Japan from China should be returned, including Manchuria and Formosa (Taiwan).[59] After leaving Cairo, Chiang highlighted the Allied agreements for “the punishment of war criminals in the East and West.”[60]
Throughout the war, China was the most anticolonialist voice among the Allies, frequently clashing with the British. Chiang rallied Asian peoples against Western and Japanese imperialism alike.[61] Soon after Pearl Harbor, he visited India to urge Jawaharlal Nehru and other freedom campaigners to join with China in building an anti-imperialist Asia.[62] He urged Roosevelt to get Britain and Holland to promise independence for their colonies, as the United States had already done for the Philippines—the only real way, Chiang argued, to secure the support of colonized Asians for the Allied war effort.[63]
In early 1944, Japan launched a vast new offensive to knock China out of the war.[64] By one plausible estimate, at least a hundred thousand, and probably a quarter of a million, Asian noncombatants were perishing every month in the final year of the war. Among them, a hundred thousand Chinese could have been dying monthly.[65]
Red Star Over China
For Chiang Kai-shek, there were really two wars: against enemies foreign and domestic. In addition to the Japanese, his Nationalists were waging a bitter fight against the Chinese Communists, which was spiraling toward civil war.[66] The generalissimo denounced the Communists as subversive opportunists hijacking Sun Yat-sen’s revolution, jackals claiming credit for the military achievements of Nationalist China’s army, and fanatics promoting Soviet policies which had cost hundreds of thousands of Soviet lives and would claim millions of Chinese.[67]
For a decade, Chiang sought to wipe out “the Communist-bandits” before the Japanese threat forced him into a precarious truce in 1937.[68] To resist the Japanese, the Communists fought under the nominal authority of the Nationalists in an uneasy national effort.[69] Yet to the generalissimo, the Chinese Communists remained at least as much a menace as the Japanese or their Chinese collaborators.[70]
With Japan’s invasion, Mao Zedong, previously only one of the prominent Communist leaders, established himself as paramount.[71] The Communists matched the Nationalists in excoriating the Japanese invaders.[72] In the years of the united front, Communist official media often recycled news articles about Japanese atrocities from the Nationalists’ news agency.[73] The Communist mouthpiece, Xinhua Daily, joined in popularizing a story—notorious to this day in Chinese memory and taught in textbooks, despite widespread doubts about its veracity—that two sword-wielding Japanese lieutenants had engaged in a killing competition during the sack of Nanjing, won by the officer who killed 106 Chinese, one more than his rival.[74] After the fall of Nanjing, the two top Communist military chiefs, General Zhu De and General Peng Dehuai, wrote that the enemy “raped and looted, killed the young and able-bodied, and burnt flesh and bones to ashes.”[75]
Mao rankled at having his revolutionary troops subordinated to Chiang as part of the national army. He pressed his supporters to abandon cooperation with the Nationalists, planning for a nationwide proletariat resistance against Japan.[76] By 1941, when the united front of Chiang and Mao essentially collapsed, the two main Communist military forces—the storied Eighth Route Army and the New Fourth Army—had grown to some four hundred and forty thousand troops.[77] The Communist slogan in Yan’an became “Struggle against Japan and Chiang Kai-shek.”[78] By the middle of 1944, Communists and Nationalists were often more concerned with fighting each other than the Japanese.[79]
Chiang relied increasingly on brute coercion and failed to reach out for a wider Nationalist base.[80] Clear-eyed observers such as Theodore White of Time despaired of the Nationalists, repelled by their secret police and censorship, despite exhortations from his boss Henry Luce.[81] After Auden’s visit to China, the poet decided that the country’s future lay with Mao (although he would later regret that). He concluded, “It is, surely, the first maxim of realpolitik that, whatever one’s ideological preferences, one must never back a certain loser.”[82]
Mei sided with the loser.
Proud of the Nationalists for shaking off European imperialism, Mei declared his fealty to Sun Yat-sen’s philosophy. Under the leadership of his powerful patron Sun Ke, the Legislative Yuan drafted a constitution, which Mei outspokenly defended in a public address in 1944—as Japan was waging its new offensive to drive China out of the war. His patriotic beliefs aligned with the domineering Nationalist party line. As his public profile grew under an authoritarian government, his oratory became flecked with the bromides of a Nationalist party hack.
Plenty of foreigners doubted that China could sustain democracy; the American war correspondent Martha Gellhorn sneered, “I felt that it was pure doom to be Chinese; no worse luck could befall a human being than to be born and live there.”[83] Yet Mei presented China as one of the world’s great democracies. Sun Yat-sen, he said, “aims to make China a state ‘of the people, by the people and for the people’ ”—quoting from Abraham Lincoln at Gettysburg. He believed that rights were perfectly at home in China, not a foreign imposition alien to the country’s cultural traditions or level of socioeconomic development.[84] He was proud of proposed constitutional rights to freedom of speech, the press, religion, association, migration, and more: “we have whatever Europe and America have. We have everything.” Indeed, he thought that Chinese republicanism was more comprehensive: “Democracy in the West only pursues political equality, but the Three Principles of the People”—Sun Yat-sen’s credo of nationalism (minzu zhuyi), rights of the people (minquan), and people’s livelihood (minsheng)—“also demand international, interracial, political, and economic equality.”[85]
This was overstated. Chiang Kai-shek, whose authoritarian instincts were obvious, believed that individualistic Western liberalism was against “the spirit of China’s own civilization.”[86] Like much of the Nationalist leadership, Mei had a paternalistic view of governing the unready masses.[87] He wrote that during a “period of political tutelage, our party stands in the position of a nanny, exercises political power on behalf of the people and trains people to use their political power. When the people are prepared, constitutional democracy will ensue. Our party will naturally stop practicing dictatorship and no longer stay in the position of a nanny.” (That period of political tutelage would keep slipping forward year after year.)[88] Again he invoked the American example, although mangling and misattributing a quotation: “Recall that when the U.S. Constitution was just passed, Madison and Jefferson, the great politicians of that era, looked at each other with a sigh and said, ‘We have a critical task for the future. Waste no time to educate our masters.’ This line is highly applicable to us today.”[89]
When peace came at last in August 1945, China’s battered government struggled to establish control over Japanese-occupied areas, punish or pardon the colossal numbers of Chinese who had collaborated, get millions of refugees home, rebuild the cities and countryside, kick-start a ruined economy, build democracy and the rule of law, and heal a traumatized society.[90]
China’s war crimes trials would draw a line between Japan’s criminals and its blameless masses. During the war, Chiang had declared, “Much as we hate the Japanese militarists, we have no intention of harboring undying hatred for the innocent Japanese people.”[91] By not insisting on too sweeping a purge of Japan, the Nationalists could maintain a functional Japanese state as a counterweight to China’s Communists. After wiping out Japan’s militarists, the generalissimo said, postwar government should be “left to the awakened and repentant Japanese people to decide for themselves.”[92]
The Republic of China swept up Japanese soldiers, industrialists, expatriates, and what it termed ronin—masterless samurai—as suspected war criminals, thrown into detention camps. For the major leaders, China was glad to participate in an international court—what would become the Tokyo trial. For “ordinary war criminals,” China set up military tribunals at the front. The accused Japanese would usually face five military judges—in uniform and wearing swords—and a military prosecutor, sometimes helped by two judicial officials from the local province. The accused could pick their defense lawyers; those who did not would be assigned public defenders. Their trial and punishment would proceed according to the Chinese military’s criminal code and international law, including the Hague and Geneva conventions and an international ban on opium.[93]
China’s most prominent court was a military tribunal in Nanjing, which hastily convicted and executed several Japanese officers for the massacre there. The audience yelled “Down with Japanese imperialism!” and “We want our blood debt paid in kind!”[94] The court estimated the death toll there at three hundred thousand—the official figure used today by Communist China.[95] Harmonizing with the Allies, the Republic of China treated the planning and waging of aggressive war as a crime against international treaties or guarantees, even incorporating the American concept of a criminal conspiracy. It swiftly adopted the category of crimes against humanity. Following the standard that would be established at Nuremberg, war criminals would not be exempted for following superior orders, doing their duty, or carrying out government policy. Japanese suspects were charged with a dizzying array of war crimes: murder, massacre, rape, torture, executing hostages, starving civilians, abducting women for forced prostitution, enslaving people, using poison gas, pushing opium, and bombarding hospitals. Those found guilty could face the death penalty or life imprisonment.[96]
In the end, though, Nationalist China would only manage to charge a tiny fraction of the Japanese troops who could have been indicted. When Japan surrendered, it left stranded some 1.2 million soldiers in Manchuria and 1.5 million in the rest of China. Yet the Nationalist government had to worry about getting these dangerous Japanese troops out of China—a task that would be delayed by a sweeping push for justice. Chinese courts would prosecute approximately 850 defendants for conventional war crimes and crimes against humanity. Of those defendants, 350 were acquitted, while 355 were sentenced and 149 were executed. (Most of these defendants were Japanese, but included 173 Taiwanese, as well as some Koreans—subject peoples of the Japanese Empire who had participated in its war.) This effort would come to an end in 1949 when the Communists swept the Nationalists from power. All told, despite the magnitude of Chinese suffering, the Americans and Australians each prosecuted more Japanese for war crimes or crimes against humanity. So did the British and Dutch, reasserting their colonial grasp in Asia. China handled a small portion of the total of 5,700 Japanese defendants charged in Allied national courts, and of the 984 of those who were executed.[97]
“Idiotic Virtue”
The Communist Party asserted that the war had been won thanks to its “leading role,” belittling the Nationalists as bungling cowards or outright traitors.[98] Chiang’s magnanimity toward Japan left the Communists an opening. Mao’s underlings rebuked the Nationalists for moving too slowly to arrest and prosecute war criminals, accusing them of truckling to the Japanese.[99]
During most of the Japanese invasion, though, the Communists had been more circumspect. While angrily denouncing a villainous Japanese clique of warlords and zaibatsu bosses, that Communist line did not imply eagerness for war crimes trials.[100] The Communists shunned the international laws of war and had made few references to war crimes trials until after Nazi Germany’s surrender.
The Chinese Communist Party saw the laws of war as a foolish constraint on its own revolutionary brand of warfighting.[101] Referring to a feudal warrior who had chivalrously refused to attack a vulnerable enemy force, Mao declared, “We are not Duke Xiang of Song and have no use for his idiotic virtue and morality.”[102] In Zhu De’s wartime writings, he only once condemned the Japanese for violating international law, warning in 1938 that Japan might be about to drop bacterial bombs in northern China—an apparent reference to Unit 731, the secretive Japanese army unit in Manchuria that had launched aerial attacks on some Chinese cities and was preparing for more.[103]
The revolutionaries did not bother with procedural justice in courts of law. Although Mao wanted to publicize Japanese atrocities to “capture the attention of the whole world to punish Japanese fascism,” he said nothing about prosecutions.[104] In an important speech late in World War II, he excoriated “the double pressure” of the Japanese aggressors and the Nationalist government, but did not mention war crimes trials in remaking Japan.[105] The businesslike wartime records of Zhou Enlai, the redoubtable revolutionary leader who would become the first premier of the People’s Republic of China, barely mention Japanese war crimes, except once instructing Communist cadres to highlight enemy atrocities to foreign journalists.[106] General Peng Dehuai, who would become China’s commander in the Korean War, recounted gruesome tales of the Japanese disemboweling civilians, burning people alive with kerosene, and jabbing hooks into anuses: “Blood debt has to be compensated with blood!”[107]
The Chinese Communist Party’s vision of postwar justice was heavy on revenge and short on legal procedure. The Xinhua Daily raged, “Inhuman perpetrators must suffer revenge!…The only way to eliminate fascist invaders is to thoroughly annihilate these war criminals!”[108] The Communists scorned Allied legal prosecutions of German war criminals as sluggish, demanding that all Japanese fascists and their Chinese collaborators immediately face severe punishment. They envisioned popular denunciation by the masses, as in Communist public trials for those who deviated from the party line: “Mobilize the people, give them all types of freedom, let them report and openly judge war criminals.”[109]
When Japan surrendered, the Chinese Communists offered their own list of war criminals, which covered many of the same names as the Nationalists, including Tojo Hideki and General Doihara Kenji, who was loathed among the Chinese as an architect of the conquest of Manchuria.[110] Although Hirohito was not on their blacklist, the Communists demanded that he be deprived of power in order to eradicate fascism.[111] The Communists fixated on General Okamura Yasuji, who had “carried out the so-called Three-Alls policy (burn all, kill all, and loot all) against soldiers and civilians”—atrocities particularly resented by the Communists for their impact on their own guerrilla war effort.[112] Believing that the roots of fascism lay in capitalist industry, Communists compiled a long list of “zaibatsu leaders and military supply capitalists” to be purged and punished, including chiefs of vast business enterprises such as Mitsubishi, Mitsui, and Sumitomo. One of those named was Kishi Nobusuke, who had served as a vice minister for industry in the Japanese puppet regime in Manchuria, known as Manchukuo—one of five men, including Tojo Hideki, who dominated Japanese-controlled Manchuria as it brutalized Chinese workers.[113] A slim, long-faced man with a weak chin, Kishi became a member of Tojo’s cabinet at the time of Pearl Harbor and then vice minister of munitions. A Chinese Communist organ commented, “He was a giant figure in the enemy bureaucracy’s radical faction and had close communication with the radical faction among young military officers.”[114]
As the Allied occupation of Japan began, the Chinese Communist Party decried a “lenient” American attitude toward Japan—attacks which also discredited the Nationalists. The Xinhua Daily condemned the Americans for working with the Japanese authorities: “the punishment of war criminals cannot be carried out through a government composed of war criminals.”[115] Since MacArthur was targeting Tojo’s entire Pearl Harbor cabinet, the Communists demanded the same for the whole cabinet which had invaded China in 1937. The Xinhua Daily complained that the first American lists of war criminals only included Tojo’s cabinet at the time of Pearl Harbor and army leaders responsible for the Bataan death march, while overlooking those Japanese responsible for aggression in Manchuria, Shanghai, and China: “None of the war criminals who, since the 9/18, 1/28 and 7/7 incidents, engaged in burning, looting, killing, raping, wanton bombing and torturing of civilians and prisoners of war to death in the Chinese battlefield are included.”[116]
All the World’s a Stage
Mei Ruao’s appointment as China’s judge at the Tokyo trial came about haphazardly, typical of the slapdash postwar functioning of the Republic of China. The Nationalist military quickly admitted that they could not readily find someone who was both proficient in law and had excellent English, instead proposing a thirty-five-year-old colonel with no legal training and a cavalry major whose grandest achievement appeared to be meeting Chiang Kai-shek.[117]
The military command asked, “Is familiarity with law a necessary qualification when we select this military officer?”[118] With exasperation, the Foreign Ministry replied that “proficiency in law should be a necessary qualification” for a war crimes tribunal. To its embarrassment, the Foreign Ministry could only come up with two names, rather than the five requested.[119]
The first name floated was Xiang Zhejun. From Hunan province, he had been educated at Tsinghua and then Yale College, where he had been president of the Yale Cosmopolitan Club, an idealistic group dedicated to resolving international disputes peacefully. He had graduated from George Washington University’s law school—a rare Asian face in Washington during a time of ubiquitous American discrimination against Chinese. Returning home, he had risen to be chief prosecutor of Shanghai’s high court. When the Japanese had stormed into Shanghai, he had fled to the countryside pretending to be a paper merchant, sheltering with his family in Hunan.[120]
The second name was Mei, an academic without any courtroom credentials.[121] Despite his glaring lack of practical judicial experience, Mei was backed by the Foreign Ministry, wanting names who were well known to American lawyers.[122] The Chinese government initially neither knew nor cared whether Mei or Xiang was meant to serve as prosecutor or judge. Both men were personally picked by Chiang Kai-shek himself.[123]
The Nationalist government could have been forgiven for not being sure whether legal qualifications mattered. V. K. Wellington Koo (Gu Weijun), a former prime minister and foreign minister now serving as ambassador to Britain, was mystified by the legal basis for the international war crimes tribunal. Frustrated that the United States had never convened a discussion on the court, Koo preferred an Asian equivalent to the London agreement—the deal signed by Britain, France, the Soviet Union, and the United States establishing the charter for Nuremberg. That would have given China a better chance to shape the court. “What law or jurisdiction applies to the international court proposed by the American government remains questionable,” Koo noted. He presciently warned, “As for crimes against peace and humanity, whether the court has jurisdiction is likely to cause a chaotic debate.”[124]
The Chinese government rushed Xiang Zhejun to Tokyo early in 1946, flying him from Shanghai on a U.S. cargo plane.[125] Yet Mei was reluctant to take the assignment. After the displacements of the war, his family was about to return to his hometown and he did not want to leave them again for another sojourn abroad. And he worried about his own lack of judicial experience.
China’s vice foreign minister exhorted him, “There is no need to refuse again.” He was summoned to Chongqing to talk to his mentor Sun Ke, the head of the Legislative Yuan.[126] As Mei later remembered it, Sun beseeched his reluctant protégé, “This opportunity arises only once in a thousand years, and it is not only interesting and valuable but also allows you to mark your name in history.” Just half a year ago, Sun pointed out, areas near the provisional capital of Chongqing were falling to the Japanese; it had been hard to imagine feeling proud of themselves, as they did now. Mei replied philosophically that the rise and fall of nations was unpredictable, almost like a drama. Sun replied in a Shakespearean tone that the world was always a stage and history was nothing more than a series of dramas. “Since it is a drama,” he asked, “why can’t you play a role in this scene?” At last, Mei yielded and agreed to go to Tokyo.[127]
He raced to Shanghai, sped on to Tokyo on a U.S. transport plane swiftly approved by General Headquarters.[128] “Really,” Mei wrote in his diary, “I have taken up a role, and this scene will start in no time.”[129]