The Shanghai Trials: Military Commissions, Torture, and the Surprising Origins of the 1949 Geneva Conventions

Most Americans know of the daring Doolittle Raid of 1942 but few know that it had a significant impact on the infrastructure of military law and indeed, international law. On April 18, 1942, in the first U.S. offensive action of the Pacific War, American pilots bombed Tokyo, doing little damage to military infrastructure but killing a number of civilians. Eight of the raiders were subsequently captured by the Japanese and tried for war crimes in a military commission – not in a regularly constituted court. Three airmen were executed and the others were imprisoned for the duration of the war, tortured, and often kept in inhumane conditions. After the war, the U.S. arrested and then tried the Japanese prosecutors, judges, and prison warden that had been involved in the raiders’ executions and imprisonment. What followed in 1946 was a “trial of a trial” in which U.S. Army lawyers in Shanghai accused the Japanese of failing to treat enemy war criminals fairly under international law. The Japanese officials were convicted of a number of crimes that have been in the news in the U.S. in recent years: torturing prisoners with waterboarding; keeping them in prolonged isolation; failing to provide them legal counsel of their choice, and using an ex post facto law for conviction. All of the Japanese were convicted and given stiff prison sentences, and the trials ultimately helped form the basis of the 1949 Geneva Conventions, which prohibited torture and the required that all criminal sentences be pronounced by “a regularly constituted court, affording all the judicial guarantees that are recognized as indispensable by civilized peoples.”