Limitation of the Tribunal

Both Nanjing Requiem and War Trash deal with post-war transitional justice as the war victims demand redress and conviction for the atrocities during wartime. After World War Two, Tokyo Trials are established to convict the war criminals, using the law court to pursue transitional justice for war victims. However, in Nanjing Requiem, pursuing transitional justice through war trials encounter two kinds of obstacles. First, only the victorious countries have the rights to claim justice and sentence the

criminals; the victorious countries cannot be convicted for their atrocities if these is any. Secondly, because of the international politics in Cold War, some war criminals who played crucial roles in the war have been intentionally spared, but some

volunteers who offered assistance and rescued the civilians are punished. For

12 Wing Tek Lum’s motivation to compose this poetry collection is similar to that of Ha Jin. As writers, they both appeal to literature to commemorate and claim justice for the victims in Nanking Massacre.

Although they did not undergo Nanking Massacre, they regard their works a kind of witness of the

example, the good deeds of the non-Chinese volunteers in Nanking Requiem and War

Trash have been forgotten and the miserable stories of the war victims have been

In Nanjing Requiem, when seeing Japanese bombers attacking the residential areas of Chinese civilians, Prof. Searle Bates says that “if Japan loses this war, some of them will be brought to trial” (14), which means that the possibility of pursuing justice depends on the outcome of the war, and only the lost side will be convicted.

Anling does not reply, because she has no confidence that China would finally win the war. When Yaoping, Anling’s husband, is offered a position in the puppet

municipality, he refuses because he worries that it would be considered a “treason and no one would forgive me for that. Imagine what would happen to me if China wins this war” (195). Although Yaoping is told that cooperating with Japan could prevent more damage and casualty, which is a strategy of “saving our country by taking a roundabout path,” the Chinese government does not accept this reason and condemn it as a pretext (195). Yaoping’s analysis reveals his dilemma between preventing more casualty through cooperating with Japanese troops or remaining loyal to China. To prevent his family from getting involved in the war, Yaoping chooses to leave China until the war ends. If the national sovereign proclaims that any cooperation with the enemy is treason, even for a good purpose such as rescuing people’s lives, it is still unforgivable in the eyes of the national sovereign. In War Trash, although many repatriated Communist soldiers remain firmly loyal to the Communist Party, they are all convicted of treason in the end just because they are once the captives in the enemy’s camp. In the two novels, national sovereigns have the absolute power to define loyalty and treason, and often overlook the cause and effect of the whole incidents, and oversimplify the complexity of moral choice and these people involved.

For a long time, these war victims under the oppression of national sovereigns lose any possibility to speak for themselves, and their stories are therefore gradually forgotten in the history.

In the two novels, the dominant sovereigns, such as the Chinese government after the war and the Communist Party, have the power to convict the military officers of the defeated country and the powerless repatriated soldiers. However, the crime and mistakes of the dominant would not be judged. In Nanjing Requiem, the Chinese authorities might have responsibility for or could be punished for the civilians’

casualty due to their wrong politics or orders. For example, Chiang Kai-shek left thousands of soldiers and civilians to perish in Nanjing. If he had evacuated the city before the arrival of the Japanese troops, the serious casualty could have been prevented.¹³ Minnie huffs “Chiang Kai-shek should be held accountable for this catastrophe,” and Eduard Sperling, a German who negotiates with Japanese troop for a cease-fire on behalf of the Chinese army, agrees that Chiang Kai-shek “should be court-martialed” (40). However, Rabe adds in an ironic tone, “the problem is that he’s the judge in his own court” (40). How can this case be evaluated in biopolitical sense?

The judge here is similar to Schmitt’s sovereign, who can claim “the state of

exception” in an urgent situation to suspend the application of the law in the name of security. Therefore, the sovereign can manipulate the law to justify himself,

preventing himself from taking legal responsibility. In the state of exception, a void of law, no accusation against him could be made. Therefore, from biopolitical

13 In The Rape of Nanking, Iris Chang states that Chiang Kai-shek only planned a temporary resistance against Japanese troops in Nanking so as to retreat the central government officers (69). The non-Chinese figures of Nanking Safety Zone attempt to negotiate a three-day-cease-fire for the non-Chinese troops to evacuate from Nanking. However, Chiang Kai-shek “promptly rejected it” (73). When the Chinese troops fought against the Japanese in Nanjing, Chiang Kai-shek delivered a rush order to retreat the remaining troops. However, at that time, it was too late for the troops to retreat orderly, but the evacuation became “a rout” (74). Iris Chang comments that Chiang’s order “resulted in one of the

perspective, Rabe’s words imply the impossibility for Chiang Kai-shek to “be the court-martialed,” because he can make himself unchallengeable within the legal system.

The similar case also happens in War Trash. However, this time it is not the inequivalent power relation between the victorious and defeated countries, but the relation between the Communist Party and their repatriated Communist POWs. The Communist soldiers are accused of treachery as they did not sacrifice themselves in the battlefield but get captured by their enemy. The Communist Party has the utmost power to criminalize and punish its soldiers for their failure, but it does not allow its soldiers to question its own mistakes. Actually, these Communist soldiers are captured partly because of the Communist’s inappropriate military tactics and orders, which implies that the Communist authorities should be responsible for the soldiers’ military failure as well as their misery in the POW camps. However, the Communist sovereign uses an arbitrary ideology to stigmatize all the repatriated soldiers as traitors and does not accept any reason for their captivity. The Communist Party announces to these repatriated soldiers: “you must blame yourself for your captivity and must not attribute it to any external cause” (342). Even though these soldiers launched “some resistance activities in the prisons, they (resistant activities) mainly originated from your need for survival” (341). Chang Ming, a repatriated soldier, in order to defend for Yu Yuan, lists all Yu Yuan’s contribution to the Party and questions the Communist officers: “what else do you need to prove a comrade’s loyalty to the Party? The Party told him to die, and he went to die” (343). However, no matter how much he tries to reason with the officers, Chang Ming cannot convince them and ends up being labeled

‘a counterrevolutionary.’ Within the legal system, the sovereign has the paramount power to justify all his order, and silence all the excluded Other.

Furthermore, the realization of transitional justice after the war is easily influenced by the post-war political situation. In Tokyo Trials, the punishment of many Japanese primary war criminals are intentionally lessened, because “the U.S.

government meant to downplay the trial and avoid antagonizing the Japanese

populace so that Japan would become a staunch anticommunist country” (299). Here the political interests of a nation come before the pursuit of transitional justice. After the Communists take over China, the Chinese characters who had cooperated with the members of the Safety Zone Committee are persecuted in the name of the

collaborators with American imperialism because after the war China and America turn into enemies during the Cold War. These Chinese become the victims due to changeable international politics. When these Chinese are accused of betraying China, they cannot even justify for themselves that what they did was for protecting the civilians’ lives from the enemy’s atrocities.

Moreover, although Anling and some members of the Safety Zone Committee come to Japan to attend the war crimes trials, “the Chinese side had little material evidence to support our charge because during the war nobody had expected to face these criminal at such trial” (299). Thanks to the non-Chinese volunteers in the Safety Zone who preserve paperwork, photographs, medical records, the German’s secret report and footage, “the court could make a fair assessment of the crimes perpetrated by the Imperial Army” (299). Otherwise, it would be impossible to pursue transitional justice through war trials.

From Benjamin’s perspective, the war trials are the application of law-preserving violence to establish an order to prevent the same catastrophe in the future, but the way it functions is in fact another kind of violence. Perhaps Tokyo Trials can prevent similar tragedies in the future, but whether it can claim transitional justice for war

victims is controversial. In Agamben’s opinion, the legal system, including war trials, is one of the mechanisms for the sovereign to govern the life, so the legal system is exercised to attain the sovereign’s political interests, rather than the transitional justice for war victims.

In sum, in Nanjing Requiem and War Trash, two difficulties would impede the pursuit of transitional justice through war trials. One is that only the victorious countries can trial the war criminals but they will not be convicted for their own war crimes. The other is that the criteria of conviction change according to the political interests of the international environment at that time and human rights and

transitional justice might be sacrificed for securing certain national benefits.