Pu Ping: Remain Highly Vigilant Against Japan’s Risky Ventures and Firmly Defend the Post-War International Order — A Perspective from International Law
World War II was a battle of justice against evil between the Anti-Fascist Allied Powers and the Fascist Axis Powers. The great victory of the Chinese People's War of Resistance Against Japanese Aggression and the World Anti-Fascist War not only ended the atrocities of fascism but also laid the foundation for the post-war international order. Today, Japan has still failed to correctly reflect on its history of aggression. Since taking office, the new administration under Sanae Takaichi [1] has issued erroneous remarks regarding Taiwan that violate the one-China principle, wantonly discussed "collective self-defense," and cast covetous eyes on breaking the "Three Non-Nuclear Principles" [2]. These actions flagrantly violate international law and the basic norms of international relations, challenging China’s core interests and the post-war international order built upon the fruits of the victory of the Anti-Fascist War. Facing the current international situation interwoven with change and disorder, it is necessary to clarify the crimes of Japanese militarism and Japan's obligations as a defeated nation from the perspective of international law, to maintain historical justice and truth and prevent the resurgence of Japanese militarist forces.
The International Legal Foundation of the Post-War Order
The Cairo Declaration, the Potsdam Proclamation, and the Japanese Instrument of Surrender together constitute the international legal norms for reconstructing the order in East Asia and the world after World War II. They also serve as the international legal basis for Japan to return all territories stolen from China, including Northeast China, Taiwan, and the Penghu Islands.
On December 1, 1943, following the meeting of the heads of state of China, the United States, and the United Kingdom, the Cairo Declaration was released. It announced that the purpose of the three countries in waging war against Japan "is to restrain and punish the aggression of Japan." The three major Allies, together with other United Nations at war with Japan, would "persevere in the serious and prolonged operations necessary to procure the unconditional surrender of Japan." The declaration further stated: "Japan shall be stripped of all the islands in the Pacific which she has seized or occupied since the beginning of the first World War in 1914"; "all the territories Japan has stolen from the Chinese, such as Manchuria, Formosa [Taiwan], and the Pescadores [Penghu]," shall be restored to China; and "Korea shall become free and independent." The declaration affirmed China's sacred right to recover these areas.
On July 26, 1945, China, the United States, and the United Kingdom signed the Potsdam Proclamation, expressing the Allies' determination to "prosecute the war against Japan until she ceases to resist," urging Japan to surrender unconditionally, otherwise "the full application of our military power... will mean the inevitable and complete destruction of the Japanese armed forces and just as inevitably the utter devastation of the Japanese homeland." The Proclamation stated: "The terms of the Cairo Declaration shall be carried out and Japanese sovereignty shall be limited to the islands of Honshu, Hokkaido, Kyushu, Shikoku, and such minor islands as we determine." The Proclamation insisted on citing the terms of the Cairo Declaration, reiterating measures to combat militarism such as stripping Japan of its plundered territories, disarming it, punishing war criminals, and implementing occupation. After the Soviet Union declared war on Japan on August 8, it announced its accession to the Proclamation. On August 15, the Japanese Emperor expressed acceptance of the joint proclamation of the four countries—namely, the Potsdam Proclamation—in an imperial rescript broadcast to the nation. On September 2, 1945, Japan signed the instrument of surrender, declaring unconditional surrender, fully recognizing and fulfilling the terms of the Potsdam Proclamation, and unconditionally returning the Chinese territories it had occupied to China.
In short, the contents of these three important documents form a complete legal and jurisprudential chain. They clarify the fact of the war of aggression launched by Japanese militarism and its status as a defeated nation, announce specific measures for punishing Japanese militarism, and together constitute the international legal norms for reconstructing the East Asian and world order after World War II.
International Judicial Precedents for Punishing War Criminals
It was the consensus of the Anti-Fascist Allied nations during World War II that the criminals who launched the war of aggression must be tried by international tribunals.
On January 19, 1946, the General Headquarters of the Supreme Commander for the Allied Powers, acting under the authorization of the Allies, promulgated the Charter of the International Military Tribunal for the Far East. From May 1946 to November 1948, the International Military Tribunal for the Far East, composed of judges from 11 countries including China, the Soviet Union, the United States, the United Kingdom, and France, tried Class-A Japanese war criminals in Tokyo for crimes against peace, war crimes, and crimes against humanity. It sentenced seven to death by hanging, 16 to life imprisonment, and two to fixed-term imprisonment.
However, compared with the Nuremberg trials against Nazi Germany during the same period, the Tokyo trial's liquidation of Japan's crimes of aggression was not thorough enough. A considerable number of war criminals escaped punishment, and atrocities such as germ warfare, biological experiments on living humans, and chemical warfare carried out by the Japanese army were not included.
As a landmark practice of the post-war international criminal justice system, the Tokyo trial, together with the Nuremberg trial, created a precedent for holding individual war criminals criminally responsible through international judicial procedures. It holds significant jurisprudential and historical importance for punishing war criminals, eradicating the remnants of militarism, and comforting war victims. The two trials expanded the principles of international law regarding the punishment of war crimes. They possessed a sufficient legal basis in terms of procedural jurisdiction and legal application. Their foundation of legitimacy lies in the paradigms of procedural justice and substantive justice, making a huge contribution to promoting the progress of post-war international criminal justice.
Since the Meiji Restoration [3], Japan's ambitions for external expansion swelled, leading to a series of foreign wars of aggression, with militarist trends prevailing across all sectors of the government and society. The Tokyo trial brought various appalling war atrocities to light and exposed the countless crimes of Japanese militarism to the world. Through a trial lasting two and a half years and a large amount of conclusive and rigorous evidence, it meted out due punishment to the criminals who launched the war of aggression, upheld justice, and represented the common aspirations of all peace-loving people in the world. Post-war Japanese right-wing forces, which have experienced a resurgence, have long sought to downplay, deny, or even beautify the history of aggression, attempting to use an erroneous view of WWII history to slander the legitimacy and validity of the Tokyo trial. This precisely proves that the historical conclusions and historical perceptions of the Tokyo trial have become a legalistic and institutional barrier to curbing the Japanese right wing's attempts to overturn the verdict.
The "Peace Constitution" Under the Status of a Defeated Nation
The U.S. occupation authorities under MacArthur took over all supreme power in Japan after its defeat and promoted demilitarization and democratization reforms aimed at eliminating militarism.
On May 3, 1947, the Constitution of Japan, drafted under the leadership of the U.S. occupation authorities and implemented after minor revisions by the Japanese government and deliberation by the Japanese Diet, officially came into effect. This constitution consists of 11 chapters and 103 articles, marking Japan's transition from a pre-war militarist state to a modern state with a system of separation of powers. The Emperor's power was hollowed out, leaving him merely as a symbolic role for the Japanese state and people. Article 9 of Chapter II stipulates: "Aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes. In order to accomplish the aim of the preceding paragraph, land, sea, and air forces, as well as other war potential, will never be maintained. The right of belligerency of the state will not be recognized." This constitution was endowed with a strong pacifist color by Article 9, and thus is also known as the "Peace Constitution." To a large extent, Article 9 reflected the institutional constraints imposed by the victorious powers on the defeated nation to prevent the resurgence of militarism, and it was also a legal commitment Japan had to make to return to the international community at an early date.
The "Peace Constitution" prompted Japan to embark on a peaceful path of economic reconstruction and high-speed development in the early post-war period. However, with the onset of the Cold War and the outbreak of the Korean War, with U.S. support and on the grounds that the constitution does not deny the "right of self-defense," Japan established the "Police Reserve," which was reorganized into the "Self-Defense Forces" comprising land, sea, and air branches in July 1954. The non-armament principle of the "Peace Constitution" existed in name only under the practical demands of the Cold War. Since then, Japan has continuously broken through the restrictions of Article 9 by reinterpreting the "right of self-defense," running counter to the spirit of the "Peace Constitution." In the early 1990s, under the banner of making "greater contributions" to the new international order and seizing the opportunity of participating in UN peacekeeping operations, Japan achieved the overseas deployment of Self-Defense Force transport planes and minesweepers. In 2001, the Junichiro Koizumi cabinet used the "September 11 attacks" to pass the Anti-Terrorism Special Measures Law, opening the way for Japan to dispatch Self-Defense Forces overseas during wartime and expanding their scope of activity to the entire world. Shinzo Abe, who served as Prime Minister four times starting in 2006, made the deletion of Article 9 a core political task during his tenure, formulating a "constitutional amendment" timetable, lifting the ban on collective self-defense, and abandoning the "exclusive defense" policy. Although he did not achieve the goal of "constitutional amendment," he further weakened the constraints of Article 9 on Japan's military expansion. In essence, Article 9 is the constitutional guarantee to prevent the restoration of Japanese militarism. "Constitutional amendment" is not merely an internal legal issue of Japan, but involves whether the post-war East Asian order can be maintained. Japanese right-wing forces have placed the "Peace Constitution" in a precarious position, posing a serious threat to regional stability in East Asia and world peace and development.
The "Enemy State Clauses" to Prevent the Restoration of Militarism
Deeply reflecting on the war crimes committed by militarism is an obligation of international law that Japan must abide by as a defeated nation. However, it is difficult to uproot militarism from Japan's cultural genes. Since the post-war era, Japan has never thoroughly reflected on its history of aggression, and the social foundation for the growth of militarist forces still exists.
In 1945, when the Anti-Fascist Allies formulated the Charter of the United Nations, they included restrictive "Enemy State Clauses" to prevent fascist countries from launching wars of aggression again. These are composed of Article 53, Article 107, and Article 77, paragraph 1(b) [sic: (c)] of the Charter. Article 53 stipulates: if a defeated nation from WWII embarks again on a path of external expansion and aggression, any regional arrangement may, "at the request of the Governments concerned," use force against it without the authorization of the Security Council. Article 107 stipulates: victorious nations may take action they deem necessary against any enemy state of WWII without UN authorization. Article 77, paragraph 1(c) provides for the trusteeship or disposal of territories detached from enemy states. Although some member states have suggested deleting the "Enemy State Clauses"—especially in the 1990s, when Japan and other countries increased diplomatic efforts to delete them in pursuit of permanent seats on the Security Council—the procedure to delete the "Enemy State Clauses" has never been initiated. That is to say, from a legal perspective, the "Enemy State Clauses" remain part of the UN Charter.
In fact, Japan's status as an "enemy state" today does not depend on the clauses still retained in the Charter, but on Japan's own choices. When Japan strives to deny the constraints of international documents such as the Cairo Declaration and the Potsdam Proclamation, and does its utmost to break through the suppression of militarism by the Tokyo trial and the "Peace Constitution," it chooses to be an enemy of historical truth and justice. When Japan ignores international morality, insists on overturning the verdict on the war of aggression, and unscrupulously pursues "military normalization," it chooses to be an enemy of the victorious nations of the Anti-Fascist Alliance. From this perspective, the "Enemy State Clauses" are not just provisions to knock back Japanese right-wing forces, but are legal weapons to ensure that the historical view of WWII is not distorted or tampered with.
The Four Political Documents that Constitute the Basis of China-Japan Relations
Since the normalization of diplomatic relations in 1972, there have been four important bilateral political documents: the 1972 China-Japan Joint Statement, the 1978 China-Japan Treaty of Peace and Friendship, the 1998 China-Japan Joint Declaration, and the 2008 Joint Statement on All-round Promotion of Strategic and Mutually Beneficial Relations. These four political documents stipulate the various principles that must be followed for the healthy development of China-Japan relations and constitute the political and legal foundation of the relationship between the two countries.
The China-Japan Joint Statement states: "The Japanese side is keenly conscious of the responsibility for the serious damage that Japan caused in the past to the Chinese people through war, and deeply reproaches itself," "The Government of Japan recognizes the Government of the People's Republic of China as the sole legal Government of China," and "The Government of the People's Republic of China reiterates that Taiwan is an inalienable part of the territory of the People's Republic of China. The Government of Japan fully understands and respects this stand of the Government of the People's Republic of China, and it adheres to its stand under Article 8 of the Potsdam Proclamation."
The China-Japan Treaty of Peace and Friendship confirms: the China-Japan Joint Statement is "the basis of the relations of peace and friendship between the two countries and that the principles enunciated in the Joint Statement should be strictly observed."
The China-Japan Joint Declaration comprehensively summarizes the positive and negative experiences and lessons in the course of interactions between the two countries, stating: "Both sides believe that facing the past squarely and correctly understanding history is an important foundation for developing China-Japan relations."
The Joint Statement on All-round Promotion of Strategic and Mutually Beneficial Relations reiterates that the three previous political documents constitute the political foundation for the stable development and future-oriented opening of China-Japan relations and confirms the continued adherence to various principles of the three documents.
The position of the four political documents on the Taiwan question is consistent and clear. The Japanese government's commitment to adhere to the position of the Potsdam Proclamation means it must abandon the erroneous theory that "the status of Taiwan is undetermined." Sanae Takaichi's public signals in the Diet attempt to intervene in the Taiwan question by force. This is the product of the long-term and radicalized strategy of "using Taiwan to contain China" persistently pushed by Japanese right-wing forces. It exposes the adventurous and threatening nature of the dregs of Japanese militarism and sounds an alarm for regional and even global peace and security.
Countries and peoples in the Asia-Pacific region that once suffered from Japanese aggression should unite to oppose the blatant trampling of historical justice by Japanese right-wing forces. Peace-loving countries and peoples throughout the world should remain highly vigilant against Japanese militarism taking risks. General Secretary Xi Jinping pointed out in his important speech at the meeting commemorating the 80th anniversary of the victory of the Chinese People's War of Resistance Against Japanese Aggression and the World Anti-Fascist War: "History warns people that the future of humanity is shared. Only when all countries and all nations treat each other as equals, live in harmony, and watch out for each other can they maintain common security, eliminate the root causes of war, and prevent historical tragedies from recurring!" Adhering to the correct historical view of WWII, defending the post-war international order, and resolutely striking against the adverse current of summoning the soul of militarism [4] is not only about respect for history but also points toward the future development direction of the international community and human civilization.