Monday, December 4, 2023

The fundamental legacy of the Nuremberg and Tokyo trials

Rwandan Callixte Mbarushimana (back-L) attends a hearing at the International Criminal Court in The Hague. Mbarushimana was charged with 13 counts of crimes against humanity and war crimes against Congolese civilians. 

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In these rather unfortunate days, some voices in Europe are trying to question the very fundaments of the antifascist legacy. Though such dangerous and highly destructive attempts are under way, this legacy is what finally made the Old Continent human and peaceful – a role model to admire and for the rest of us to follow.

These regrettable attempts at moral equivalence make it worth revisiting the Nuremberg and Tokyo trials, which are essential pillars of the Human Rights charter that was brokered after World War II and under the UN’s auspices. Consequently, the legacy of these trials is extraordinary and far reaching. They represent a core building block of what we call ‘Modern Europe’.

The importance of both post-war tribunals is hard to overstate and their reaffirmation is needed more today than at any other time since the end of the Second World War.

The American philosopher and historian Noam Chomsky once said, “For the powerful, crimes are those that others commit.” This was not the case for Germany and Japan after World War II. The victorious Allied powers established the world’s first international criminal tribunals to prosecute political and military officials for war crimes and other atrocities.

The four major Allied governments – the United States, the United Kingdom, France, and the Soviet Union – set up the International Military Tribunal in Nuremberg, Germany, to prosecute and punish major war criminals of the Nazi-led Axis allies.

The tribunal presided over a trial of senior Nazi political and military leaders, as well as several Nazi organisations. The less-well-known International Military Tribunal for the Far East was created in Tokyo following a 1946 proclamation by US Army General Douglas MacArthur, the Supreme Allied Commander in the Pacific.

That tribunal oversaw a series of trials that prosecuted senior political and military officials from the Empire of Japan for their role in committing atrocities during the Japanese domination of East Asia and the Pacific Islands from the mid-1930s to 1945.

The Nuremberg and Tokyo trials differed in several important aspects, including their origins, compositions, and jurisdictions. The Allied powers established the policy that international tribunals in Europe and in the Far East would focus on, most importantly, a decision on individual criminal liability for crimes against peace.

European Court of Human Rights President Guido Raimondi (R) and Soren Prebensen (L), the Deputy Grand Chamber Registrar, pronounce their judgment in the case of Russian opposition leader Alexei Navalny against Russia during a hearing in Strasbourg, France. EPA-EFE//PATRICK SEEGER

The Allied governments, specifically the US, sought this policy as a step towards organising an international legal system for discouraging future aggressors and averting the sort of war devastation that the Axis powers had caused. This American-policy was first presented during the Nuremberg trials and again repeated in Tokyo.

Legal scholars Luc Reydams and Jan Wouters have argued that “The Nuremberg and Tokyo charters were drafted by a handful of statesmen from the highest echelons of government for whom an international tribunal was not a goal unto itself, but a means to a very specific end.”

The Tokyo Charter, in particular, necessitated that the principal charges against the defendants be crimes against peace while also deeming charges on war crimes and crimes against humanity as discretionary. Therefore, a significant part of the court battles that took place at the Tokyo trials revolved around substantiating aggressive war charges, despite the fact that proof of Japanese wartime atrocities was, truth be told, likewise exhibited.

In June 1945, the day of the signing of the United Nations Charter at the San Francisco Conference, the delegations from the US, UK, France, and the Soviet Union negotiated in London the regulating principles for prosecuting war criminals. What is noteworthy about that agreement is that the respective heads of each delegation – the US’ Robert Jackson, Britain’s Sr David Maxwell Fyfe, Soviet Major-General Iona Nikitchenko, and France’s Robert Falco later all played prominent roles on the International Military Tribunal. The agreements that the four powers hammered out in London were later  reaffirmed and supported by President Harry Truman, Prime Ministers Winston Churchill and Clement Attlee, and General Secretary Joseph Stalin during their landmark trilateral meeting in Potsdam, Germany the summer after the defeat of the Third Reich.

The tribunal’s charter defined the tribunal’s constitution, functions, and jurisdiction . One judge from each of the Allied governments formed the Nuremberg tribunal. The Allied powers also supplied a team of prosecutors.

The Nuremberg Charter also provided that the International Military Tribunal had the authority to prosecute and punish persons who committed any of the following crimes: Crimes Against Peace (planning and making war); War Crimes (responsibility for crimes during war time); Crimes Against Humanity (racial or ethnic persecution); and Conspiracy to Commit Other Crimes.

The tribunal lasted from November 1945 to October 1946 and saw 22 Nazi political and military leaders indicted, including Hermann Goering, Rudolph Hess, Joachim von Ribbentrop, Alfred Rosenberg, Karl Donitz, Alfred Jodl, Wilhelm Keitel, and Albert Speer. 19 were found guilty and sentenced to death by hanging or up to 15 years’ imprisonment. Three of the defendants were found not guilty, one committed suicide before the trial, and one did not stand trial due to mental illness.

Unlike the military tribunal in Europe, its Far East counterpart was not created by an international agreement, but emerged from agreements aimed at prosecuting Japanese war criminals. In July 1945, the US, UK, and China signed the Potsdam Declaration in which stated that they “did not intend that the Japanese shall be enslaved as a race or destroyed as a nation, but stern justice shall be meted out to all war criminals, including those who have visited cruelties upon our prisoners.” The declaration also urged the Japanese government to “proclaim the unconditional surrender of all Japanese armed forces and to provide proper and adequate assurances of their good faith in such action.”

The war in Europe had, by that time, ended but the war with Japan was still in full swing when the Potsdam Declaration was signed. The agreement was not signed by the Soviet Union because it held out from declaring war on Japan until the United States dropped its second atomic bomb on the city of Nagasaki on August 9, 1945.

US State Department officials had favoured holding an intergovernmental conference to establish a special international tribunal, but a coordinating committee opted to use the authority of Supreme Allied Commander MacArthur, who was keenly mindful of the experience of US Chief Justice Robert Jackson at the London Conference, where he struggled to come to an agreement with the other delegations about the details of the Nuremberg Charter.

In December 1945, in Moscow, the US, UK, the Soviet Union, and China agreed to the basic structure for the occupation of Japan. MacArthur was granted authority to issue all orders for the implementation of the terms of surrender, the occupation, and control of Japan.

MacArthur later issued a special proclamation to establish an International Military Tribunal for the Far East, which was similar to the Nuremberg Charter, but provided MacArthur with the authority to assign judges from the countries that had co-signed Japan’s surrender – Australia, Canada, China, France, the Netherlands, the Soviet Union, the United Kingdom, the United States, British India, and the Philippines. Each of these countries also had a team of prosecutors.

As with the European tribunal, the Far East version had the jurisdiction to prosecute individuals for Crimes Against Peace, War Crimes, and Crimes Against Humanity, but also had jurisdiction over crimes that occurred over a greater period of time – from the Japanese invasion of Manchuria in 1931 to its subsequent surrender in 1945.

A total of 25 Japanese political and military leaders were tried by the court between May 1946 and November 1948. Japan’s emperor, Hirohito, and other members of the imperial family were not indicted. In fact, the Allied governments ruled that Hirohito could remain on the throne, albeit with a diminished status.

The Far East Tribunal did, however, find all of the defendants guilty and sentenced them to punishments that ranged from death to seven years’ imprisonment.

The Nuremberg and Tokyo trials contributed significantly to the development of international criminal law and served as models for a new series of international criminal tribunals that were established in the 1990s.

Moreover, the reference to “crimes against peace,” “war crimes,” and “crimes against humanity” in the International Military Tribunal Charter represented the first time when these terms were used and defined in an international instrument. These terms and definitions were also adopted in the Charter of the International Military Tribunal for the Far East, and have been depicted and expanded on in a succession of international legal instruments since that time.

The conclusions of the Nuremberg trials also served as models for the Genocide Convention of 1948, the Universal Declaration of Human Rights from the same year, and also paved the way for the establishment of the International Criminal Court.

The legacy of the Nuremberg and Tokyo trials is, in itself, extraordinary. Their importance is hard to overstate. Nuremberg and the international community’s experience with the ad hoc tribunals demonstrate that international justice doesn’t have to be perfect to be good. Holding up Nuremberg to an impossible or imagined standard is neither fair nor productive.

But we cannot forget that the Nuremberg and Tokyo trials and, fifty years later, the establishment of the International Criminal Court, aimed to safeguard peace in all regions of the world. The achievements of these important cases in elevating justice and law over inhumanity and war gives promise for a better tomorrow by paving the way to deal with international crimes.

As a result, the international system has made huge contributions to the birth and development of modern international law.

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