Background

Nuremberg Trial

  • series of 13 military tribunals from 1945~1949 held in Nuremberg, Germany
  • held by the International Military Tribunal (formed by Allied nations) to prosecute prominent political, economic, and military leaders of Nazi Germany who participated in the Holocaust and or perpetrated other war crimes
  • basis of the Nuremberg trials was established on August 8, 1945 by the London Charter of the International Military Tribunal (IMT)
  • 4 categories of charges [definitions from the Principles of International Law recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal, with commentaries (1950) ]
  • crimes against peace: Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances; Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i)
  • crimes against humanity: Murder, extermination, enslavement, deportation and other inhuman acts done against any civilian population, or persecutions on political, racial or religious grounds, when such acts are done or such persecutions are carried on in execution of or in connexion with any crime against peace or any war crime.
  • war crimes: Violations of the laws or customs of war include, but are not limited to, murder, ill-treatment or deportation to slave-labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war, of persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity.
  • conspiracy to commit crimes of peace, war crimes, and crimes against humanity
  • the first and best known trial of the Nuremberg trials:
  • 24 defendants (including Nazi Party officials, German industrialists, lawyers, and doctors) were chosen to represent the Nazi diplomatic, economic, political, and military leadership
  • a couple defendants died/committed suicide during the trial
  • defendants could choose their own defense counsel
  • the four main Allied nations, the UK, the US, the USSR, and France each appointed a judge and a prosecution team
  • American Robert Jackson was the chief prosecutor argued his case based primarily on Nazi written documents rather than rely on eyewitness testimonies, so that the trial could not be accused of using biased or tainted evidence
  • judges delivered their verdict on October 1, 1946
  • 3 out of 4 judges were needed for conviction
  • 12 defendants were sentenced to death, 3 defendants were sentenced to life imprisonment, 4 defendants were sentenced to prison terms of 10~20 years, and 3 defendants were acquitted
  • Nuremberg trials revealed many details about the Holocaust, including details about Kristallnacht, the Warsaw Ghetto, Auschwitz, etc.
  • there were many subsequent trials after the International Military Tribunal at Nuremberg, but the Nuremberg Trials remain the first and most famous war crimes trial
  • regarded as an important step toward the establishment of a permanent international court
  • set precedent for dealing with later crimes against humanity i.e. genocide
  • many questions are raised, however, over the legitimacy of the trials and the suitability of the verdicts

Tokyo War Crimes Trials

At the Moscow Conference held in December 1945, after the end of WWII and Japan’s surrender, the USSR, the United Kingdom, and the United States agreed to a basic structure for the Allied occupation of Japan and granted the Supreme Commander of Allied Powers in Japan, U.S. Army General Douglas MacArthur, the authority to “issue all orders for the implementation of the Terms of Surrender, the occupation and control of Japan, and all directives supplementary thereto.”

On January 19, 1946, MacArthur, General MacArthur established the International Military Tribunal for the Far East (IMTFE) in Tokyo, Japan through a special proclamation. MacArthur also approved the Charter for the International Military Tribunal for the Far East (CIMTFE), which closely followed the Nuremberg Charter in setting out the composition, jurisdiction, and functions of the tribunal. MacArthur then appointed a panel of judges from eleven Allied nations: Australia, Canada, China, France, India, the Netherlands, New Zealand, the Philippines, United Kingdom, United States, and the Soviet Union. The chief prosecutor Joseph B. Keenan, appointed by U.S. President Harry S. Truman, led the prosecution team.

The International Military Tribunal of the Far East could try individuals for “Class A” charges of crimes against peace, of “Class B” and “C” charges of war crimes and crimes against humanity. The definitions of these crimes closely followed those set by the Nuremberg Charter. If they fit in any of these three broad categories, the IMTFE could try any wartime crimes that occurred in the period between the Japanese invasion of Manchuria in 1931 and Japan’s surrender in 1945.

Twenty-eight defendants, mainly government and military officials of high rank, were indicted on fifty-five counts of “crimes against peace, conventional war crimes, and crimes against humanity.” Neither Japanese Emperor Hirohito nor any member of the imperial family, however, was ever charged.

The Tokyo War Crimes Trials began on May 3, 1946 as the prosecution opened its case. The trial, which contained testimony from 419 witnesses and 4,366 exhibits of evidence (including depositions and affidavits from 779 individuals), lasted until November 24, 1948. The eleven justices released their combined 1,781-paged opinion after six months of deliberations. On the same day the judgement was being read, however, five justices released separate opinions. One defendant was deemed mentally unfit to stand trial and the charges were dropped, but the IMTFE found all remaining defendants guilty. The twenty-seven defendants were sentenced to punishments ranging from seven years’ imprisonment to death; however, two defendants died during the trial.

Key Legal Issues

Tokyo War Crimes Trials

  • IMTFE had far less official support compared the IMT
  • chief prosecutor Keenan was a former U.S. attorney general, whereas the chief prosecutor in the Nuremberg Trials, Jackson, was a justice of the U.S. Supreme Court
  • IMTFE had strong American bias
  • there was only one prosecution team, led by the U.S.
  • the U.S. government provided all the funds and staff needed to run the IMTFE
  • the Japanese Imperial Forces was never charged for its indiscriminate aerial bombings of various Chinese cities because the U.S. could not indict them without seeming like a hypocrite (as the U.S. had also conducted air raids on Japanese cities); therefore, many Japanese pilots and officers involved in the bombing of Pearl Harbor and other Asian territories were never charged
  • some people were critical of the selection of judges
  • all eleven justices were from the triumphing nations
  • none of the justices, with the exception of Pal, had much experience in international law
  • in fact, Chinese justice Mei Ju-Ao had no experience being a judge
  • Justice Delfin (Phillipines) — lone dissenting opinion
  • Delfin had been captured by the Japanese during the war and forced to walk in the Bataan Death March
  • defense argued that Delfin would be unable to maintain objectivity
  • Justice Pal (India)believed IMTFE focussed only on “victors’ justice” as Western colonialism and the atomic bombings of Hiroshima and Nagasaki were excluded from the tribunal
  • Pal also believed that the U.S. provoked the war with Japan and expected the Japanese to retaliate
  • Pal did not believe any Class A crimes had been committed; however, still believed that Class B and C crimes had been committed by the Japanese in events such as the Nanking Massacre
  • the prosecution made a weak case in regards to conspiracy to commit an act of aggressive war, which was not even illegal in 1937
  • some people argue that the IMTFE Charter was ex post facto (retroactive) legislation, and therefore the charges against the defendants are invalid
  • “crimes against humanity,” “crimes against peace,” and “war crimes” were not technically crimes until they were defined in the Nuremberg Charter of 1945
  • therefore the defendants could not be charged for a crime that was not yet a crime nor recognized by international law at the time it was allegedly committed
  • Japanese Emperor Hirohito and all members of the Japanese imperial family were exonerated, including Prince Asaka, who was one of the key perpetrators of the 1937 Nanking Massacre
  • MacArthur and other U.S. personnel worked hard to ensure that all testimonies would not implicate the Emperor and instead shifted responsibility for events i.e. Pearl Harbor to Hideki Tojo, the Prime Minister of Japan during WWII
  • several justices remarked on Emperor Hirohito’s criminal responsibilities in their judgements

Case

Nanking Massacre (1937) 

  • also known as the Nanjing Massacre, the Rape of Nanking, the Nanking Incident, etc.
  • after the Chinese city of Nanjing (known to the Western world as Nanking at the time) fell to the Imperial Japanese Army on December 13, 1937, the Japanese committed atrocious crimes e.g. loot, arson, rape, murder, and the mass execution of prisoners of war and civilians
  • the violence lasted around 6 weeks and did not cease until February 1938
  • in 1948, the IMTFE estimated that over 200,000 Chinese were killed in the massacre
  • casualty count, however, ranges widely (anywhere from around 40,000 to around 300,000) depending on the source
  • around 20,000 women were raped
  • evidence:
    • diaries kept by Western foreigners who did not flee the city and stayed to help the Chinese, including those of John Rabe and Minnie Vautrin
    • eyewitness reports from journalists
    • field journals of members of the military
    • film documentary and photographs captured by American missionary John Magee (the film became known as the “Magee Film” and was perhaps the most crucial piece of evidence in regards to the massacre)
    • other oral and written testimonies collected from people who remained relatively safe in the international safety zone in Nanking e.g. surgeon Dr. Robert O. Wilson
    • written record of a Japanese game that called for soldiers to  kill 100 people using one sword
  • only two defendants were ultimately convicted to the Nanking Massacre in the Tokyo War Crimes Trial: General Iwane Matsui and Koki Hirota
  • Matsui was indicted with crimes against humanity, convicted of count 55 (charges senior officers who “deliberately and recklessly disregarded their legal duty [by virtue of their respective offices] to take adequate steps to secure the observance [of the Laws and Customs of War] and prevent breaches thereof, and thereby violated the laws of war”) and sentenced to death by the IMTFE in 1948
  • Hirota, Foreign Minister of Japan at the time of the massacre, was convicted of count 1 (participating in “the formulation or execution of a common plan or conspiracy”), count 27 (waging “a war of aggression and a war in violation of international laws, treaties, agreements and assurances against the Republic of China”), and count 55 (charges senior officers who “deliberately and recklessly disregarded their legal duty [by virtue of their respective offices] to take adequate steps to secure the observance [of the Laws and Customs of War] and prevent breaches thereof, and thereby violated the laws of war”)
  • Hirota was sentenced to death in a controversial 6-5 decision