Part 1.
“This war ends in a courtroom. The world
needs to know what these men did so that it can never happen again.” That line
appears in the film Nuremberg, which recounts the historical Nuremberg
Tribunal, also known as the International Military Tribunal (IMT). The
sentiment has not aged well; nevertheless, its legacy, despite the critique that
it represented “victor’s justice”, has helped shape international criminal
law—eighty years since the hanging of ten Nazi leaders on 16 October 1946 and
the suicide of Hermann Wilhelm Göring, the highest‑ranking defendant, in his cell the night before.
Nuremberg Tribunal: Partial Justice
The Nuremberg Tribunal set an important
precedent and left a lasting imprint on subsequent war‑crimes courts. The trial’s focus on individual accountability helped satisfy, to some degree,
a public sense that justice had been served. That sense of justice, however,
has been criticized as “victor’s justice.” The trial was convened by the Allied powers, and each of the four
Allied nations appointed judges to the International Military Tribunal (United
Kingdom, United States, France, and the Soviet Union). At the same time,
comparable Allied actions—such as strategic bombing campaigns and certain
detention policies—were not prosecuted at Nuremberg. Thus, while the Tribunal
established the principle that individuals, including state leaders, could be
held criminally responsible, the fact that there were no prosecutions of Allied
officials is evidence of partial justice.
Furthermore, despite the Tribunal’s
important contribution to the development of international criminal law and
human rights, its legal foundation has been criticized as weak because some of
the crimes charged were not clearly defined as international crimes at the time
they were committed. In the proceedings held between 20 November 1945 and 1
October 1946, defendants were prosecuted for offenses—such as “crimes against
peace”—that were articulated in instruments and indictments created after many
of the alleged acts took place.
"Nonetheless, allegations of hypocrisy and selective prosecution have tainted the Tribunal.
The Tribunal charged defendants with four
main crimes. First, conspiracy to commit crimes, meaning participation in a
common plan to commit the other three following offenses explained next.
Second, crimes against peace, which include planning, preparing, initiating, or
waging aggressive war. Third, war crimes, meaning violations of the established
customs and laws of war, such as the mistreatment of prisoners or civilians.
Lastly, crimes against humanity, which consist of widespread or systematic
atrocities—murder, extermination, enslavement, and persecution—directed against
civilian populations for political, racial, or religious reasons.
Of 24 indicted, 22 were tried; the Tribunal
sentenced 12 to death (10 executed), three to life, four to long terms, and three
were acquitted. Many perceive the trial as more retributive than judicial;
however, historians and legal scholars generally view that the Tribunal
established crucial precedents—individual criminal responsibility, the
rejection of sovereign immunity for atrocities, and the principle that state
leaders can be held accountable. Nonetheless, allegations of hypocrisy and
selective prosecution have tainted the Tribunal: Allied wartime actions were
largely ignored, undermining claims of impartiality and fostering perceptions
of politically motivated justice.
The Tokyo Trial: Selective Prosecution
The International Military Tribunal for the
Far East (IMTFE), commonly known as the Tokyo Trial, opened on 29 April 1946 to
try leaders of the Empire of Japan for offenses comparable to those prosecuted
at Nuremberg. Twenty‑eight high‑ranking military and political figures were indicted and tried. The
tribunal included judges from Asian countries, namely China, the Philippines,
and India, in addition to the principal Allied powers. Unlike at Nuremberg, the
IMTFE’s indictments
placed particular emphasis on crimes against peace—the planning and waging of aggressive war.
Not surprisingly, many observers conclude that the trial repeated Nuremberg’s
flaws of victor‑driven justice
but it attracted even sharper criticism for political motives and selective
prosecution.
Seven defendants were executed by hanging
on 23 December 1948; sixteen others received life imprisonment and the
remaining defendants were given shorter terms or other penalties. Emperor
Hirohito never appeared in the courtroom as a defendant or witness. The Tokyo
Trial has been widely criticized as politically orchestrated, a perception
reinforced by, among other factors, the immunity of the emperor and his closest
imperial collaborators.
"Hypocrisy and selective prosecution were more telling in the Tokyo Trial.
Another notable omission from prosecution
was Japan’s strategic bombing campaigns in Asia. Many observers argue the
omission reflected a deliberate reluctance to prosecute Allied strategic
bombing—most controversially the atomic bombings of Hiroshima and Nagasaki. By
then, Western powers were already entering a new geopolitical struggle—the Cold
War. It was feared that major structural upheaval in Japan could create
openings for communist movements. Balancing geopolitical interests therefore
shaped Allied policies and in this context, preserving the Japanese imperial
family in exchange for political cooperation was regarded as a strategic
decision.
Hypocrisy and selective prosecution were
more telling in the Tokyo Trial. In his opening statement on 4 June 1946, Chief
Prosecutor Joseph B. Keenan charged that Japan had planned, prepared,
initiated, and waged aggressive war that destroyed human life and threatened
democracy and freedom.
… the wars which they were planning and for which they
were preparing and which they initiated and waged could result in nothing else
than wholesale destruction of human lives, they were determined to destroy
democracy and its essential basis, freedom and the respect of human personality,
they would determine that the system of government of and by and for the people
should be eradicated …
Certainly, that statement contradicted the
actions of Western powers, which at the time were still using military force to
suppress anti‑colonial
uprisings, including Dutch operations against Indonesian independence fighters.
Ironically, efforts to retain colonial possessions involved atrocities and
practices that mirrored the war crimes the Allies accused the Japanese Empire
of committing.
Further contradicting Keenan’s moral
framing, communist uprising in postwar Japan was met by violent repression and
human rights violation, followed by crackdowns on labor unions and mass
dismissals. These purges, known as The Red Purge, backed by SCAP directives, crushed
leftist movements to maintain the balance of geopolitical power. The purges and
the subsequent commutation and release of many Tokyo‑Trial convicts demonstrate how Cold War geopolitics subordinated
legal accountability to strategic aims, demonstrating the inherently political
nature of the trial.
"Cold War geopolitics subordinated legal accountability to strategic aims ...
Mirroring the Nuremberg Tribunal, the Tokyo
Trial did not treat sexual violence as a distinct category of crimes against
humanity; instead, sexual violence was prosecuted within broader war‑crimes and crimes‑against‑humanity counts rather than as a standalone legal category. The Tokyo
Trial examined the mass rapes associated with the Nanjing massacre as part of
its case against Japanese leaders, but the tribunal did not develop a separate
doctrinal treatment of sexual violence.
More on sexual violence in Nuremberg
Tribunal and the Tokyo Trial will be discussed in Part 2. The second part will
also address moral, legal, and political issues concerning both trials.
Image: Harvard Gazzette, 2003
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