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Paper short abstract:

Did Japanese legal experts contribute to the escalation of violence against Chinese civilians in the Second Sino-Japanese War? This paper looks at the theories of Japanese international lawyers and their application by Legal Officers with regard to their impact on non-combatants in China.

Paper long abstract:

Unlike the Pacific War, the Second Sino-Japanese War for its longer part (until 1942) was an undeclared war. Considerations of law, logistics and ideology stood against declaring this conflict openly. And yet, it was the deadliest of all, and more fiercely fought than any other war that Japan conducted until 1945.

This paper proposes to explain how experts at the centre, especially international lawyers in Tokyo, squared the realities of war with the norms of their profession and the claim that Japan was, as always, the (only) civilized nation in the Far East that meticulously met its wartime obligations under the banner of international law. To do so, Japanese international lawyers in their publications and also internally in their advice to various ministries extolled the concept of a “factual war” (jitsu-jō sensō) that seemingly diverged little from an openly declared proper war. However, the litmus test always was how Chinese civilians fared in this “factual war”, under the conditions of total warfare and new technologies of annihilation. This paper explores how international lawyers took the massive aerial bombings of Chinese cities as occasion to redefine the role of non-combatants in modern warfare and, indirectly criticize the Japanese army for its tendency to wage total war against the Chinese population. Others desperately tried to avoid the concept of total war by trying to subsume contrary occurrences under the accustomed laws, with diminishing plausibility and professional integrity.

In a second step, this paper asks how these theories were put into practice by legal experts at the front. Based on field diaries, it particularly looks at how Legal Officers (hōmukan) who were active in China responded to the new concept of “factual war” in their daily work and how this affected the protection of civilians at the front and in occupied areas. Thus the overarching question of this paper is whether new developments in the theory and practice of Japanese law experts helped to contain, or actually condoned and contributed to the escalation of violence against civilians during the Second Sino-Japanese War.