Competing interpretations of international law: Law and politics in the war crimes trials of Nationalist China, 1946–1949

Abstract This article challenges the prevailing view that after the Second World War, the war crime trials of Nationalist China were guided by the principle of ‘leniency and promptness’. This study reveals that the Ministry of National Defense (MND), the entity responsible for formulating war crime laws, had a desire for vengeance and sought to appropriate international law to bolster China’s hegemonic position. In contrast, the Chinese Supreme Court judges, influenced by their commitment to fostering a civilized state, interpreted the law in alignment with international norms, thereby curbing the MND’s vindictive intentions. As a result, the MND and the judiciary emerged as competing interpreters of international law. The study compares China’s War Criminal Trial Act of 1946 (WCTA) with the Nuremberg Charter, the Hague Conventions, and the legislation of other Allied states. When compared to similar legislative texts, the WCTA has the following distinctions: 1) it has an expansive scope, 2) it adopts a stricter liability, 3) it asserts extraterritorial rights for overseas Chinese, and 4) it promotes Chinese nationalism by encompassing racially Chinese as eligible victims of crimes against humanity. In contrast, the Judicial Yuan, which was responsible for unifying legal interpretation, limited the scope of the WCTA, hindered its promotion of Chinese nationalism, and restrained the political revenge on Taiwanese people by interpreting the WCTA per international law. This article traces the background of the Supreme Court judges making these decisions and demonstrates how their vision of ‘pursuing a civilized state’ triumphed over the MND’s impetus for vengeance.