1

DHARMASHASTRA NATIONAL LAW

UNIVERSITY JABALPUR

INTERNATIONAL CRIMINAL LAWS (2022-2023)

AN EXAMINATION OF TOKYO TRIAL : ITS

JUSTIFICATION AND CRITICISM

SUBMITTED BY :- SUBMITTED TO :-
Astha Dehariya Dr. SANKALP SINGH
B.A LL.B (HONS.) SEMESTER 7 (ASSISTANT PROFESSOR OF LAW)
ENROLLMENT NO. :- BAL/002/19 Dharmashastra National Law University
2

TABLE OF CONTENTS

1. Introduction…………………………………………………………………………………..3

2. Historical Development/ Background………………………………………………………..4

3. Purpose of Tokyo trial………………………………………………………………………..5

4. Judgment……………………………………………………………………………………..6

5. Sentencing……………………………………………………………………………………7

6. Role of Tokyo trial in the development of principles of International criminal law………...8

7. Critical Analysis……………………………………………………………………………...9

7.1. Charges.of Victors’ justice

7.2 Pal’s dissenting.opinion

7.3 Exoneration.of the imperial family

7.4 Disparities.between Nuremberg. and Tokyo Trials

7.5 The concepts of the legality.of War and Leaders’ Responsibility

Conclusion…………………...................................................................................................16
3

INTRODUCTION

“In 1945 as World War II neared.its close and Japanese defeat became.imminent, the Allied
powers organised post-war tribunals in Europe.and the Far East that sought to establish
criminal liability for war crimes. The International Military Tribunal for the Far East
conducted.the Tokyo trial. The Tokyo War Crimes Tribunal.begun on 3rd May 1946, and a final
judgement was made two and a half years.later on 4th November 1948. The International
Military.tribunal for the east (IMTFE) was established to punish and prosecute.military
personnel and political official for crimes against peace including.violation of any international
treaties, customs and laws war crimes and atrocities against.human right violation Crime against
individual.disturbance of world peace and atrocities.against humanity.”

“The trial in the Contemporary.world is often termed as Victors Justice.meaning thereby that the
justice meted out was in fact, biased, only sided with the Allied Nations narrative of the war. The
trial is criticized on many ground.ranging from its constitution to exemption of the emperor from
prosecution. There were inconsistencies between the application.of the same law on the Nazi war
criminal and the Japanese.war criminals. Dissenting opinions are also of immense importance
because they point out exactly why the trial.was unsuitable in the first place. Justice Pal’s
opinion is regarded timeless.because of the issue which he raised regarding the whole trial itself
These points of criticism are indeed a small hint to the.bigger issue of flawed justice.”

“Even though it is one of the cornerstones that laid down the foundation for.international
criminal law, the justification of the trial itself remains disproved. The aftermaths of the trial
demand an inquiry into and revisit to the legality of.the Tokyo trial.”

“The present paper, while explaining the historical background, purpose of the trial, its
judgement and sentencing, discusses the role of Tokyo trial in the development of International
Criminal Law. In its second part, the paper focuses on highlighting the various points of criticism
in the Tokyo trial.”

Keywords: Victor’s Justice, Flawed Justice, Inconsistent application, Dissenting opinions,

foundation for international criminal law, need to revisit legality of Tokyo trial
4

HISTORICAL BACKGROUND

“After the second.world war countries decided to punish.the individual who was behind.the
world war and had the capacity.to stop the war but could not do it. The international military
tribunal (IMT) was established in.Nuremberg, Germany as an outcome.of an international
agreement its main aim.was to prosecute war.criminals but In Japan, military personnel.had not
surrendered.yet and they are still.participating in the war so, therefore, to prosecute.war criminal
of Japan the.three-nation china, united.kingdom and the united.state of America in 1945 signed
the.Potsdam declaration.called for Japan “unconditional surrender” and declared that
“stern.justice shall be meted.out to all war.criminals”."

“The war in.Europe had ended but the war.with Japan was continuing so at that time.Potsdam
declaration was signed.Japan did not stop the war after the.passing out of the declaration.the
soviet union did not.sign the declaration because.it did not announce.the war on Japan after a.few
weeks later the United state of.America did not have.the option to stop Japan to.end the war and
therefore on that same day.the united State of America second.time bombarded the city Nagasaki
with atomic bomb after six-day latter the.Japan had surrender.”

“The Japan military personnel signed.The International Military Tribunal for the Far East
(IMTFE). It was an outcome of the Potsdam declaration.or an international agreement
to.prosecute war criminals of.Japan and it is not similar to the International military tribunal
(IMT) was set up by an international agreement.”

“In the Moscow conference which was.in December 1945 the united state of America, the soviet
union (presently.known as Russia), and the united kingdom.headed by General Mac Arthur who
was a supreme.commander of the Allied power all three countries agreed to a dictatorship
government.ruling the Japan and basic structure in subjugation to a Japan government and thus
General Mac.Arthur was given an order to “issue all orders for the implementation of the Terms
of Surrender, the occupation, and control of Japan, and all directives supplementary thereto.””

“Germany General.Mac Arthur established the International Military Tribunal for the Fast East
(IMTFE) in Nuremberg.in January 1946. He used his authority to make a.declaration that was
attested.to the IMTFE’s charter. The jurisdiction to bring.charges against someone for crimes
against humanity.and war crimes was outlined by the International Military.Tribunal for the Far
5

East (IMTFE), and it was very.similar to the definition given in the International Military
Tribunal (IMT) or Nuremberg Charter.”

“The International.Military Tribunal (IMT), also known as the Nuremberg Charter, gave General
Mac Arthur the power.to choose the judges for the IMTFE from countries like Australia, Canada,
China, France, India, the Netherlands, the Philippines, the Soviet Union, the United Kingdom,
and the United States of America, which also included nations that had signed Japan’s
instrument of surrender.”

“There were also prosecution.teams in each of these nations. However, it had jurisdiction over
offenses that.occurred between 1931, when Japan occupied Manchuria and turned it into a
colony, and 1945 when Japan finally.submitted to the Allies. Nine top Japanese government
figures and eighteen military.officers were prosecuted under its auspices.”

“The International Military.tribunal for the fast east (IMTFE) ruled all of the.defendants guilty
and sentenced them to punishment.ranging from the imprisonment of seven.years to the death
penalty. There were two defendants.who died during the trial. The member of the
Japanese.Imperial family and Japanese emperor Hirohito was.not included in the prosecution of
the nine judges. The aim of this.article is to briefly define the background.and facts of the
popular Tokyo trials.for prosecuting war criminals in Japan.”

PURPOSE OF TOKYO TRIAL

“The Second World War.brought along with-it massive destruction.of cities as well as the loss of
human life and repetition of this.war in the future was a matter of concern.”

“One of the first tasks.the Allied powers had was to indict.and punish the people accountable for
such.enormous destruction. Thus, the International.Military tribunal was created through the
1945 Charter of the International Military tribunal. 1 At the Potsdam conference, the terms for
Japan to surrender were declared and one of them was that “justice would.be meted out to all the
war criminals.”2 This was one.of the reasons the Allied nations.called for the setting of a military
tribunal to arraign the Japanese.war criminals. The tribunal sought to establish.criminal liability
1
Agreement for the Establishment of an International Military Tribunal The Legal Basis for Trial of War Criminals,
19 TEMP. L.Q. 160–161 (1945).
2
Proclamation of Terms for Japanese Surrender signed by the United States of America, China and United
Kingdom, July 26th, 1945, 3 Bevans 1204, 1205 (1968).
6

for war crimes. Not only.sought to try and punish the far.eastern war criminals but also to change
the Japanese psyche and teach them.war does not pay. Another objective behind.the creation of
the trial was to prevent.another world war and essentially.secure international peace.3”

JUDGEMENT

“Under Article 5 of the Tokyo Charter, the.defendants were charged on three classes of crimes,
“Class A-crimes against.peace, Class B- conventional war crimes.and Class C- crimes against
humanity. The initial indictment.included 55 counts of charges against the 28 Japanese
defendants. However, the Final verdict had considered charges.regarding only 10 counts.” 10The
final judgement was that Japan.was indeed guilty on account of all.charges that it had been
indicted for, however, five of the eleven justices.released separate opinions outside the court.”

“In his concurring opinion Justice William.Web of Australia took issue with Emperor Hirohito’s
legal status, writing, “The suggestion that the Emperor.was bound to act on advice is contrary to
the evidence.” While.refraining from personal.indictment of Hirohito, Webb indicated.that
Hirohito bore responsibility.as a constitutional monarch who.accepted “ministerial and other
advice for war” and that “no ruler can.commit the crime of launching aggressive.war and then
validly claim.to be excused for doing so.because his life would otherwise have been in danger …
It will remain that the men who advised the.commission of a crime, if it be one, are in no worse
position than the man who directs the crime be committed.”4”

“Justice Delfín Jaranilla of the Philippines disagreed with the penalties imposed by the tribunal
as being “too lenient, not exemplary and.deterrent, and not commensurate with.the gravity of the
offence or offences.committed.””

“Justice Henri Bernard of France.argued that the tribunal’s course of action was flawed due to
Hirohito’s absence and the lack of sufficient.deliberation by the judges. He concluded that
Japan’s declaration of war “had a.principal author who escaped all prosecution.and of whom in
any case the present Defendants could only be considered.as accomplices”5 and that a “verdict
reached by a Tribunal after a defective procedure cannot be a valid one.””

3
Eugene C. Massie, Constitution of the League of Nations, 5 THE VIRGINIA LAW REGISTER 20–31 (1919),
www.jstor.org/stable/1106607.
4
Röling & Rüter 1977, p. 478.
5
Röling & Rüter 1977, p. 496.
7

“It is well-nigh impossible.to define the concept of initiating or waging a war of aggression both
accurately and.comprehensively,” wrote Justice Bert Röling of the Netherlands.in his dissent. He
stated, “I think that.not only should there have been neutrals in the court, but there should have
been Japanese also.” He argued.that they would always.have been a minority and therefore
would not have been able to sway.the balance of the trial. However, “they could have
convincingly argued issues of government.policy which were unfamiliar to the Allied
justices.”Pointing out the difficulties and limitations.in holding individuals responsible for an act
of state and making omission of responsibility a crime, Röling called for the.acquittal of
several.defendants, including Hirota.

Justice Radhabinod Pal of India produced a judgment6 in which he dismissed the legitimacy of
the IMTFE as victor’s justice: “I would hold that each.and every one of the accused must be
found not guilty of each and every one of the charges in the.indictment and should be acquitted
on all those charges.” While taking into account the influence.of wartime propaganda,
exaggerations, and distortions of facts in the evidence, and “over-zealous” and “hostile”
witnesses, Pal concluded, “The evidence is still overwhelming that atrocities.were perpetrated by
the members of the Japanese armed forces against the civilian population.of some of the
territories occupied by them as also against the prisoners of war.”

SENTENCING

“One defendant, Shūmei Ōkawa, was found.mentally unfit for trial and the charges were
dropped. Two defendants, Yōsuke Matsuoka and Osami Nagano, died of natural.causes during
the trial.Six defendants.were sentenced to death by hanging for war crimes, crimes
against.humanity, and crimes against peace (Class A, Class B and Class C).”

“One defendant.was sentenced to death by hanging for war crimes and crimes against.humanity
(Class B and Class C).”

“The seven.defendants who were sentenced to death were executed at Sugamo Prison.in
Ikebukuro on December 23, 1948. MacArthur, afraid.of embarrassing and antagonizing
the.Japanese people, defied the wishes of President Truman and barred.photography of any kind,
instead bringing in four members.of the Allied Council to act as official witnesses.”
6
Baird, J. Kevin. “Abe’s Japan Cannot Apologize for the Pacific War”. The Diplomat.
8

“Sixteen defendants.were sentenced to life imprisonment. Three (Koiso, Shiratori, and Umezu)
died in prison, while the other thirteen.were paroled between 1954 and 1956.”

“The verdict and sentences.of the tribunal were confirmed by.MacArthur on November 24, 1948,
two days after a perfunctory.meeting with members of the Allied Control Commission for Japan,
who acted as the local.representatives of the nations of the Far Eastern Commission. Six of those
representatives made.no recommendations for clemency. Australia, Canada, India, and the
Netherlands were willing.to see the general make some reductions in sentences. He chose not to
do so. The issue of clemency was thereafter to disturb.Japanese relations with the Allied powers
until the late 1950s, when a majority.of the Allied powers agreed to release the last of the
convicted major war.criminals from captivity.7”

ROLE OF TOKYO TRIAL IN DEVELOPMENT OF ICC

“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[9] 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 these terms were used and.defined in an international instrument. These terms and
definitions were also adopted in the Charter of the IInternational.Military for the Far East, and
have been depicted and expanded in a.succession of international legal.instruments since that
time. The conclusions of the Nuremberg trials.also served as models for the
Genocide.Convention 1948, the Universal Declaration of Human Rights 1948 and paved.the way
for the establishment of the International Criminal Court.”

“It cannot be forgotten 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 great.trials in elevating justice and law over.inhumanity and
war give promise for a better tomorrow by paving the way.to deal with international crimes.
Furthermore, it has made huge contributions to.the birth and development.of modern
international law.”

7
Wilson, Sandra; Cribb, Robert; Trefalt, Beatrice; Aszkielowicz, Dean (2017). Japanese War Criminals: the Politics
of Justice after the Second World War. New York: Columbia University Press. ISBN 978-0231179225.
9

CRITICAL ANALYSIS

Charges of Victors’ justice

“The United States had.provided the funds and staff necessary.for running the Tribunal and also
held the function of Chief Prosecutor. The argument.was made that it was difficult, if not
impossible, to uphold the.requirement of impartiality with which such an organ should be
invested. This apparent conflict gave the impression that the tribunal.was no more than a means
for the dispensation.of victors’ justice. Solis Horowitz argues that IMTFE had an American bias:
unlike the Nuremberg trials, there was only a single.prosecution team, led by an American,
although the members of the tribunal.represented eleven different Allied countries.8 The IMTFE
had less official support than the Nuremberg trials. Keenan, a former U.S. assistant.attorney
general, had a much lower position.than Nuremberg’s Robert H. Jackson, a justice of the U.S.
Supreme Court.”

“Justice Jaranilla had been captured by the.Japanese and walked the Bataan Death March.9 The
defense sought to remove.him from the bench claiming he would be unable to maintain
objectivity. The request was rejected but Jaranilla did excuse.himself from presentation of
evidence for atrocities in his.native country of the Philippines.10 Justice Radhabinod Pal argued
that the exclusion of Western colonialism and the.atomic bombings of Hiroshima and Nagasaki
from the list of crimes and the lack.of judges from the vanquished nations.on the bench signified
the "failure of the Tribunal to provide anything other than the.opportunity for the victors to
retaliate".11 In this he was not alone among.Indian jurists, with one prominent Calcutta.barrister
writing that the Tribunal was little.more than "a sword in a judge's wig." Justice Röling stated,
"of course, in Japan we were all aware of the bombings.and the burnings of Tokyo and
Yokohama and other big cities. It was horrible that we went there for the.purpose of vindicating
the laws of war, and yet saw every day how the Allies had.violated them dreadfully." However,

8
Horowitz 1950.
9
“Hon. Delfin J. Jaranilla, Attorney General, 1927–1932”. Republic Of The Philippines, Office Of The Solicitor
General.
10
Neil Boister, Robert Cryer, ed. (2008). Documents on the Tokyo International Military Tribunal: Charter,
Indictment, and Judgments, Volume 1. Vol. 1. Oxford University Press. P. lv. ISBN 978-0199541928.
11
“The Tokyo Judgment and the Rape of Nanking”, by Timothy Brook, The Journal of Asian Studies, August 2001.
10

in respect to Pal and Röling's statement about the conducto.air attacks, there was no positive
or.specific customary international humanitarian law with respect to aerial.warfare before and
during World War II. Ben Bruce Blakeney, an American defense counsel for
Japanese.defendants, argued that "if the killing of Admiral Kidd by the bombing of Pearl Harbor
is murder, we know the name of the very man whose hands loosed the atomic bomb on
Hiroshima," although Pearl Harbor was classified as a war crime under the 1907 Hague
Convention, as it happened without a declaration of war and without a just cause for self-
defense. Prosecutors for Japanese war crimes once discussed prosecuting Japanese pilots
involved in the bombing of Pearl Harbor for murder. However, they quickly dropped the idea
after realizing there was no international law that protected neutral areas and nationals
specifically from attack by aircraft.12 Similarly, the indiscriminate bombing of Chinese cities by
Japanese Imperial forces was never raised in the Tokyo Trials in fear of America being accused
of the same thing for its air attacks on Japanese cities. As a result, Japanese pilots and officers
were not prosecuted for their aerial raids on Pearl Harbor and cities in China and other Asian
countries.13”

Pal’s dissenting opinion

“Indian jurist Radhabinod Pal raised substantive objections in a dissenting opinion: he found the
entire prosecution case to be weak regarding the conspiracy to commit an act of aggressive war,
which would include the brutalization and subjugation of conquered nations. About the Nanking
Massacre, while acknowledging the brutality of the incident, he said that there was nothing to
show that it was the “product of government policy” or that Japanese government officials were
directly responsible. There is “no evidence, testimonial or circumstantial, concomitant,
prospectant, restrospectant, that would in any way lead to the inference that the government in
any way permitted the commission of such offenses,” he said.14 In any case, he added, conspiracy
to wage aggressive war was not illegal in 1937, or at any point since. 15 In addition, Pal thought
the refusal to try what he perceived as Allied crimes (particularly the use of atomic bombs)

12
Dr. Kirsten Sellars (2013). ‘Crimes against Peace’ and International Law. Cambridge University Press. P. 127.
ISBN 978-1-1070-2884-5.
13
Terror from the Sky: The Bombing of German Cities in World War II. Berghahn Books. 2010. P. 167. ISBN 978-
1-8454-5844-7.
14
Timothy, supra note 11.
15
Id.
11

weakened the tribunal’s authority. Recalling a letter by Kaiser Wilhelm II signaling his
determination to bring World War I to a swift conclusion through brutal means if necessary, Pal
stated that “This policy of indiscriminate murder to shorten the war was considered to be a
crime. In the Pacific war under our consideration, if there was anything approaching what is
indicated in the above letter of the German Emperor, it is the decision coming from the Allied
powers to use the bomb”, adding that “Future generations will judge this dire decision”. 16 Pal
was the only judge to argue for the acquittal of all of the defendants.17”

Exoneration of the imperial family

“The Japanese emperor Hirohito and other members of the imperial family might have been
regarded as potential suspects. They included career officer Prince Yasuhiko Asaka, Prince
Fushimi Hiroyasu, Prince Higashikuni, and Prince Takeda.18 Herbert Bix19 explained, “The
Truman Administration and General MacArthur both believed the occupation reforms would be
implemented smoothly if they used Hirohito to legitimise their changes.”20”
“As early as November 26, 1945, MacArthur confirmed to Admiral Mitsumasa Yonai that the
emperor’s abdication would not be necessary. Before the war crimes trials actually convened,
SCAP, the International Prosecution Section (IPS), and court officials worked behind the scenes
not only to prevent the imperial family from being indicted, but also to skew the testimony of the
defendants to ensure that no one implicated the emperor. High officials in court circles and the
Japanese government collaborated with Allied GHQ in compiling lists of prospective war
criminals. People arrested as Class A suspects and incarcerated in the Sugamo Prison solemnly
vowed to protect their sovereign against any possible taint of war responsibility.21”

“According to historian Herbert Bix, Brigadier General Bonner Fellers “immediately on landing
in Japan went to work to protect Hirohito from the role he had played during and at the end of

16
Falk, Richard (2003). “State Terror versus Humanitarian Law”. In Mark Selden; Alvin Y. So (eds.). War and
State Terrorism: The United States, Japan, and the Asia-Pacific in the Long Twentieth Century. Lanham, Maryland:
Rowman & Littlefield. Pp. 41–61. ISBN 978-0742523913.
17
Baird supra note 6.
18
Dower, John (1999). Embracing Defeat.
19
Bix, Herbert (2001). Hirohito and the Making of Modern Japan. Perennial.
20
“Herbert P. Bix on Hirohito and the Making of Modern Japan”. HarperCollins.
21
Dower 1999, pp. 323–25.
12

the war” and “allowed the major criminal suspects to coordinate their stories so that the emperor
would be spared from indictment.”22”

“Bix also argues that “MacArthur’s truly extraordinary measures to save Hirohito from trial as a
war criminal had a lasting and profoundly distorting impact on Japanese understanding of the
lost war” and “months before the Tokyo tribunal commenced, MacArthur’s highest subordinates
were working to attribute ultimate responsibility for Pearl Harbor to Hideki Tōjō.” 23 According
to a written report by Shūichi Mizota, Admiral Mitsumasa Yonai’s interpreter, Fellers met the
two men at his office on March 6, 1946, and told Yonai, “It would be most convenient if the
Japanese side could prove to us that the emperor is completely blameless. I think the forthcoming
trials offer the best opportunity to do that. Tōjō, in particular, should be made to bear all
responsibility at this trial.”24”

“Historian John W. Dower wrote that the campaign to absolve Emperor Hirohito of
responsibility “knew no bounds.” He argued that with MacArthur’s full approval, the prosecution
effectively acted as “a defense team for the emperor,” who was presented as “an almost saintly
figure” let alone someone culpable of war crimes. 25 He stated, “Even Japanese activists who
endorse the ideals of the Nuremberg and Tokyo charters and who have labored to document and
publicize the atrocities of the Shōwa regime cannot defend the American decision to exonerate
the emperor of war responsibility and then, in the chill of the Cold War, release and soon
afterwards openly embrace accused right-winged war criminals like the later prime minister
Nobusuke Kishi.”26”

“Three justices wrote an obiter dictum about the criminal responsibility of Hirohito. Judge-in-
Chief Webb declared, “No ruler can commit the crime of launching aggressive war and then
validly claim to be excused for doing so because his life would otherwise have been in danger …
It will remain that the men who advised the commission of a crime, if it be one, are in no worse
position than the man who directs the crime be committed.”27”

22
Bix, p. 584.
23
Bix, p. 585.
24
Bix, supra note 22.
25
Dower supra note 21.
26
Dower 1999, p. 562.
27
Rölling supra note 4.
13

“Justice Henri Bernard of France concluded that Japan’s declaration of war “had a principal
author who escaped all prosecution and of whom in any case the present Defendants could only
be considered as accomplices.”28”

“Justice Röling did not find the emperor’s immunity objectionable and further argued that five
defendants (Kido, Hata, Hirota, Shigemitsu, and Tōgō) should have been acquitted.”

Disparities between Nuremberg and Tokyo Trials

“The trial at Nuremburg of the Germans and the trial at Tokyo of the Japanese were both the
outcome of the Allied winning the war and carrying out what they believed was justice. The trial
at Nuremburg was the first International trial on war crimes to ever be conducted and it was on
the basis of this trial that the Japanese criminals were tried at Tokyo. The charters that gave
power to the judges at these courtrooms to try and reach a verdict of guilt were almost identical
in nature29, but the kind of crimes committed by Germany and Japan were not very similar. 30
There are notable contrasts between the design of the tribunal, the working staff and the way in
which they operated. The disparity which matters the most is that which affects the verdict
substantially which have been broadly classified into three broad categories. Firstly, the issue of
fairness and the involvement of politics which plagued the judgement, secondly, the intense
involvement of the U.S in the proceedings of the Tokyo Trial and thirdly, the pursuance of
crimes against peace rather than crimes against humanity.31”

“The issue of fairness arose when there was disparity between in the procedures. There were no
British lawyers present because the government of U.K had banned their lawyers from practicing
at foreign jurisdiction, on the other hand the lawyers from America arrived two weeks after the

28
Rölling supra note 5.
29
Zachary D. Kaufman, The Nuremberg Tribunal v. the Tokyo Tribunal: Designs, Staffs, and Operations
International Justice in the 21st Century: The Law and Politics of the International Criminal Court, 43
J.MARSHALL L. REV. 753–768 (2009).
30
Benjamin Munn Ziegler, Crimes Against International Law. By Joseph Berry Keenan and Brendan Francis
Brown. (Washington, D. C.: Public Affairs Press. 1950. Pp. x, 226. $3.25.), 45 AMERICAN POLITICAL
SCIENCE REVIEW 895–896 (1951).
31
Caroline Joan (Kay) Picart, Attempting to Go Beyond Forgetting: the Legacy of the Tokyo IMT and Crimes of
Violence Against Women, 7 EAST ASIA LAW REVIEW 1 (2011).
14

trial had begun.32 The issue here was that the western law along the lines of which the charter
was drafted was not something the Japanese lawyers were well versed with, this gave the
defendants an huge disadvantage. When compared with the Nuremburg trials, where only four
countries had prosecuted the Germans, the Tokyo trial had eleven countries prosecuting, also the
countries in Asia where Japan had carried out these crimes all had different native languages. So,
the need for translators was paramount. The prosecution got an unfair advantage over the defense
as they had more translators which eased out their work while the defense struggled to keep up. 33
The were also, “constant breaches of security” and unauthorised disclosure of confidential
information to the media which was later attributed to the translators at the prosecution side.34”
“The rift between United States and Russia is very clear throughout the whole tribunal
proceedings. The existence of a bi-polar world dominated by two opposite ideologies was not
possible. Towards the end of the trial it was evident that the aim of United States was to use
Japan as an ally to combat the growth of Communism in Asia. 35 After the verdict of the trial was
announced and the twenty three defendants were sentenced, United States Representative
General MacArthur declared that the second round of prosecution of Class A war crimes
suspects would not be conducted and they were released. 36 By the time the 1960’s ended all the
Japanese soldiers that were in prisons aboard were released with the exception of China and
Russia. This made one aspect of the whole trial very lucid, that the motive behind the conduction
of the trial was never justice but rather “ leaving behind a didactic legacy and a specific historical
narrative for the future Japanese Generations,” 37 it was also to justify the American attack on
Hiroshima and Nagasaki as a payback for Pearl Harbour attack 38 and “ethical example of
democracy, showing that the law and justice can be applied even to enemies through a fair
trial.”39”

“The involvement of United States in Tokyo Tribunal was more that the Nuremburg Trial. The
proceedings at Nuremberg stemmed out of the London Agreement which had been co-declared

32
Kayoko Takeda, Interpreting the Tokyo War Crimes Tribunal (2010).
33
Id.
34
Meiron Harris & Susie Harris, Sheathing The Sword: The Demilitarization Of Japan (1989).
35
M. Futamura, War Crimes Tribunas and Transitional Justice : The Tokyo Trial and The Nuremberg Legacy
(2008), https://books.google.dm/books?id=QmRFPgAACAAJ.
36
Id.
37
Picart, supra note 31.
38
Futamura, supra note 35.
39
Id.
15

by Unites States, France, Soviet Russia and United Kingdom which was later ratified by nineteen
other nations in addition to these four.40 On the other hand, at the Tokyo trials through the
International Military charter of the Far East commission, General MacArthur who represented
United States had the authority to appoint the Judges as well as the president, also the right to
examine their judgements.41 While in Nuremberg the four countries that initiated the London
Agreement appointed the judges at their own discretion. The granting of immunity to the
Emperor of Japan at General MacArthur’s behest 42 was the tipping point in coming at the
conclusion that the trial was just because of United States Political interest to make Japan their
ally in fighting communism. The atrocities done by the Japanese army in Korea and Japan which
included the abuse of young girls and women by forcing them to work as sex slaves, commonly
called as comfort women were never addressed at all 43. In my opinion this is indeed a major
crime which can be classified as a crime against humanity. The emergence of a new world order
which was slowly taking place throughout the time of this trial made this into a mere show
trial.44”

The Concepts of the legality of War and Leaders’ Responsibility

“The “crimes against peace” and “crimes against humanity” applied at Tokyo and Nuremberg
were unknown in international law at the time of the outbreak of World War II. Therefore, to
treat them as crimes was a violation of the principle of nullum crimen sine lege, nullum poena
sine lege unless there is a law, there can be no crime; unless there is a law, there can be no
punishment.”

“The majority opinion of the tribunal, as well as those who defend the trials, attempts to refuse
this criticism by insisting that crimes against peace, and related: crimes, were already recognized
in international law at the time of the outbreak of the war. However, this assertion is difficult in
support. As the logical structure of the concept of crimes against peace is a synthesis of the
concepts of the “illegality of war” and “leaders’ responsibility. The illegalty of war is based on

40
Yuki Tanaka, TIM MCCORMACK & GERRY SIMPSON, Beyond Victors Justice? The Tokyo War Crimes Trial
Revisited.
41
Takeda, supra note 32.
42
Id.
43
Id.
44
Neil Boister, The Application of Collective and Comprehensive Criminal Responsibility for Aggression at the
Tokyo International Military Tribunal: The Measure of the Crime of Aggression?, 8 JOURNAL OF
INTERNATIONAL CRIMINAL JUSTICE 425–447 (2010).
16

the idea that war can be deemed illegal in principle under international law. Leaders’
responsibility is the concept that the leaders of a state can be held accountable for acts of state
that are negatively judged under international law. It is true that one of these, the illegality of
war, had been established in international law by the time of the outbreak of the war. However,
this is not true in the case of leaders’ responsibility. Therefore, crimes against peace, which is a
synthesis of these two, must be considered a new category of crime that came into existence only
at the end of World War II. The same can be said of the concept of a “common plan a conspiracy
to wage war.””

“The concept of crimes against humanity is somewhat different. However, it was not known in
international law at the time of the outbreak of the war, and in that regard it has the same
problematic character as crimes against peace.”

“Of course, in origin, nullum crimen was a principle of human rights, intended to protect
ordinary citizens from the enormous power of the state. For that reason is doubtful whether the
leaders of a state, who are themselves in the seats of power in the state, can assert this principle
in an international tribunal. However, if it is granted that nullum crimen is applicable to
international law, it is then undeniable that the invocation of crimes against humanity at Tokyo
violated that principle. To the extent that we take as our criteria of judgement (1) the actions of
the countries that sat in judgment on Japan, and (2) international law as it existed at the time of
the trial, it is difficult to acknowledge any constructive value in the Tokyo trial.”

CONCLUSION

“The Law enforced by the International Military Charter after the end of second world war laid
the foundation for international criminal law and opened the gates for individual criminal
responsibility for state actions. This was showcased when cabinet ministers were prosecuted at
the Tokyo trials because they had failed to install countermeasures for the acts and atrocities that
the military of Japan had been committing. However, the trial is questionable on many grounds.
Firstly, the Tokyo trial was unfair. As at the Nuremberg trial, the Tokyo tribunal judged only the
Axis power involved. Japan was not even allowed to raise as issue the actions of the Allied
powers. However, the fundamental condition that makes a law a law is its universal
applicability. The attitude represented in the statement, “If you steal you are a thief, but may
17

steal with it, cannot hold for law. This aspect of unfairness-the fact that the tribunal had the
character of a political trial-is one of the major factors leading to cynicism about the Tokyo trial.
For many people, the Tokyo trial proved the maxim that might sales right.” The political
character of the trial is manifest in the treatment of the emperor who under the Meiji
Constitutions bore ultimate responsibility for the war. The tribunal not only failed to call the
emperor to account for Japan’s war of aggression, but did not even summon him as a witness.
Most people who attack the trial for its political, nature remain strangely silent on this point. But
this is one issue that should be clearly raised. Secondly, is it axiomatic that the standards of
countries whose own hands are bloody and the state of international law at the time of the
outbreak of World War II are the proper criteria for evaluating the Tokyo trial? Thirdly, the
question here is whether justice was achieved at the Tokyo trial? Or was it used as a weapon for
vengeance by the winning nations? If there exists a sense of international justice then it should
have been equally applied on all the nations. No tribunal was created to try the United States of
America for trying the military commanders and the leaders who not just planned but also
executed the nuclear bombings of Hiroshima and Nagasaki. Can this now be termed as Victor’s
Justice? As goes the classic saying that to the victors belongs the justice. All of them remain
unanswered. No one can ever justify the holocaust or molestation of a thousand Chinese women
by the Japanese. Still the way justice was meted out by the two tribunals can successfully cast
aspersions on the minds of a lot of people. These questions though unanswered, have been a
nightmare for the jurists and will continue to haunt generations for decades to come.”

REFERENCES

Notes

1. Agreement for the Establishment of an International Military Tribunal The Legal Basis for Trial of War
Criminals, 19 TEMP. L.Q. 160–161 (1945).
2. Proclamation of Terms for Japanese Surrender signed by the United States of America, China and United
Kingdom, July 26th, 1945, 3 Bevans 1204, 1205 (1968).
3. Eugene C. Massie, Constitution of the League of Nations, 5 THE VIRGINIA LAW REGISTER 20–31 (1919),
www.jstor.org/stable/1106607.
4. Röling & Rüter 1977, p. 478.
5. Röling & Rüter 1977, p. 496.
6. Baird, J. Kevin. “Abe’s Japan Cannot Apologize for the Pacific War”. The Diplomat.
7. Wilson, Sandra; Cribb, Robert; Trefalt, Beatrice; Aszkielowicz, Dean (2017). Japanese War Criminals: the
Politics of Justice after the Second World War. New York: Columbia University Press. ISBN 978-0231179225.
8. Horowitz 1950.
18

9. “Hon. Delfin J. Jaranilla, Attorney General, 1927–1932”. Republic Of The Philippines, Office Of The Solicitor
General.
10. Neil Boister, Robert Cryer, ed. (2008). Documents on the Tokyo International Military Tribunal: Charter,
Indictment, and Judgments, Volume 1. Vol. 1. Oxford University Press. P. lv. ISBN 978-0199541928.
11. “The Tokyo Judgment and the Rape of Nanking”, by Timothy Brook, The Journal of Asian Studies, August
2001.
12. Dr. Kirsten Sellars (2013). ‘Crimes against Peace’ and International Law. Cambridge University Press. P. 127.
ISBN 978-1-1070-2884-5.
13. Terror from the Sky: The Bombing of German Cities in World War II. Berghahn Books. 2010. P. 167. ISBN
978-1-8454-5844-7.
14. Falk, Richard (2003). “State Terror versus Humanitarian Law”. In Mark Selden; Alvin Y. So (eds.). War and
State Terrorism: The United States, Japan, and the Asia-Pacific in the Long Twentieth Century. Lanham, Maryland:
Rowman & Littlefield. Pp. 41–61. ISBN 978-0742523913.
15. Dower, John (1999). Embracing Defeat.
16. Bix, Herbert (2001). Hirohito and the Making of Modern Japan. Perennial.
17. “Herbert P. Bix on Hirohito and the Making of Modern Japan”. HarperCollins.
18. Dower 1999, pp. 323–25.
19. Bix, p. 584.
20. Bix, p. 585.
21. Dower 1999, p. 562
22. Zachary D. Kaufman, The Nuremberg Tribunal v. the Tokyo Tribunal: Designs, Staffs, and Operations
International Justice in the 21st Century: The Law and Politics of the International Criminal Court, 43
J.MARSHALL L. REV. 753–768 (2009).
23. Benjamin Munn Ziegler, Crimes Against International Law. By Joseph Berry Keenan and Brendan Francis
Brown. (Washington, D. C.: Public Affairs Press. 1950. Pp. x, 226. $3.25.), 45 AMERICAN POLITICAL
SCIENCE REVIEW 895–896 (1951).
24. Caroline Joan (Kay) Picart, Attempting to Go Beyond Forgetting: the Legacy of the Tokyo IMT and Crimes of
Violence Against Women, 7 EAST ASIA LAW REVIEW 1 (2011).
25. Kayoko Takeda, Interpreting the Tokyo War Crimes Tribunal (2010).
26. Meiron Harris & Susie Harris, Sheathing The Sword: The Demilitarization Of Japan (1989).
27. Futamura, War Crimes Tribunas and Transitional Justice : The Tokyo Trial and The Nuremberg Legacy (2008),
https://books.google.dm/books?id=QmRFPgAACAAJ.
28. Yukiaka, TIM MCCORMACK & GERRY SIMPSON, Beyond Victors Justice? The Tokyo War Crimes Trial
Revisited.
29. Neil Boister, The Application of Collective and Comprehensive Criminal Responsibility for Aggression at the
Tokyo International Military Tribunal: The Measure of the Crime of Aggression?, 8 JOURNAL OF
INTERNATIONAL CRIMINAL JUSTICE 425–447 (2010)
Books

 Bix, Herbert (2001). Hirohito and the Making of Modern Japan. Perennial.
 Boister, Niel; Cryer, Robert (2008). The Tokyo International Military Tribunal: A Reappraisal. New York:
Oxford University Press.
 Dower, John (1999). Embracing Defeat.
 Harris, Meiron & Harris, Susie(1989). Sheathing The Sword: The Demilitarization Of Japan (1989).
 Horowitz, Solis (1950). “The Tokyo Trial”. International Conciliation. 465 (November): 473–584.
 Minear, Richard H. (1971). Victor’s Justice: The Tokyo War Crimes Trial. Princeton, New Jersey: Princeton
University Press.
 Röling, B. V. A.; Rüter, C. F. (1977). The Tokyo Judgment: The International Military Tribunal for the Far East
(I.M.T.F.E), 29 April 1946 – 12 November 1948. Vol. 1. Amsterdam: APA-University Press. ISBN 978-90-
6042-041-6.
 Takeda, Kayoko(2010). Interpreting the Tokyo War Crimes Tribunal.
 Totani, Yuma (2008). The Tokyo War Crimes Trial: The Pursuit of Justice in the Wake of World War Two.
Cambridge MA: Harvard University Asia Center.