CHAPTER 2 CONCEPTUAL AND THEORETICAL FRAMEWORK
2.2 Background and overview on the Rome Statute
2.2.1 Background
2.2.1.3 The Nuremberg and Tokyo Tribunals after the Second World War
After World War II, for the first time in history, legal mechanisms were invoked to bring perpetrators of the most serious violations of human rights to justice using international tribunals established for that purpose.123 In August 1945, the victorious Allied Powers (United Kingdom, France, United States and the Soviet Union) convened the London Conference to decide by which means they would punish the perpetrators of the most serious crimes committed by the officials and soldiers of the defeated Axis Powers (Germany, Italy, and Japan) during the war.124 On 8 August 1945 an agreement125 was reached to create an International Military Tribunal (IMT) for the trial and punishment of the major war criminals of the European axis.126 In pursuance of this agreement, the Charter of the International Military Tribunal127 was adopted as an annex to the agreement. The IMT judged twenty-two accused persons, of whom nineteen were found guilty and three were acquitted.128 Among those convicted, a death sentence was
122 Farbstein “The Issue of Complementarity” 9.
123 Markovich 2009 Potentia 57.
124 Cassese “From Nuremberg to Rome” 7 and Lulu “Brief Analysis of a Few Controversial Issues in Contemporary International Criminal Law” 23. See also Schabas An Introduction 5.
125 Agreement by the Government of the United States of America, the Provisional Government of the French Republic, the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Union of Soviet Socialist Republics for the Prosecution and Punishment of the Major War Criminals of the European Axis (1945).
126 Schabas An Introduction 5. This trial is popularly known as the “Trial of the Major War Criminals”.
127 Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, and Establishing the Charter of the International Military Tribunal (1951).
128 Zeidy 2002 Michigan Journal of International Law 874. The Tribunal tried only “major criminals”
and left the minor criminals to internal criminal jurisdictions. This task was undertaken by the Occupying Powers themselves, each within its own zone. In order to establish a minimum common basis for the trials to be conducted in the four zones of occupation, the Allied Control Council, acting as a legislative body for all of Germany, enacted Law No. 10 (Control Council Law No 10, Punishment of Persons Guilty of War Crimes, Crimes against Peace and against Humanity 20 December 1945 (Official Gazette of the Control Council for Germany No 3, 31 of January 1946)), a somewhat modified version of the Charter of the International Military Tribunal. This law provided the legal basis for trials of a number of bureaucrats, doctors and soldiers before military tribunals that were run by the occupying regime, as well as for subsequent prosecutions by German courts that continued after the IMT had closed. Control Council Law No 10 largely borrowed the definition of crimes against humanity from the Charter of the Nuremberg Tribunal, but omitted the latter’s element of linking crimes against humanity to the existence of a state of war, thereby facilitating prosecution for pre-1939 atrocities committed against German civilians, in particular the persecution of the Jews and euthanasia of the
imposed in twelve cases.129 An imprisonment ranging from 10 years to life imprisonment was imposed in the remaining seven cases.130
In the Far East (Pacific axis), on 19 January 1946, General Douglas MacArthur, the Supreme Commander for the Allied Powers in Japan, proclaimed by way of an executive order,131 the creation of the International Military Tribunal for the Far East (IMTFE). The Tokyo Charter,132 the charter of this tribunal, was issued on the same day.
In contrast to the Nuremberg trial, where judges were appointed solely by the four major powers, the United States, the United Kingdom, France and the Soviet Union, at Tokyo, the bench was more cosmopolitan, consisting of judges from eleven countries, including India, China and the Philippines.133
The Tokyo Tribunal was established by virtue of and to implement the Declaration of Potsdam of 26 July 1945,134 the Instrument of Surrender of 2 September 1945,135 and the Moscow Conference of 26 December 1945.136 Paragraph 10 of the Potsdam Declaration provided that at the end of the war:
stern justice shall be meted out to all war criminals, including those who have visited cruelties upon our prisoners.
Paragraph 6 of the Instrument of Surrender provided for a duty for the Emperor of Japan, the Japanese Government and their successors to carry out the provisions of the Potsdam Declaration and to issue whatever orders and take whatever actions may
disabled. See in this regard Schabas An Introduction 7 and Zeidy 2002 Michigan Journal of International Law 876.
129 Schabas An Introduction 6.
130 See Trial of the German Major War Criminals before the International Military Tribunal Vol I (Nuremberg 1947) 365-366.
131 Special Proclamation by the Supreme Commander for the Allied Powers, Establishment of an International Tribunal for the Far East Annex No A-4 to the Judgment of the International Military Tribunal for the Far East (1946).
132 Charter of the International Military Tribunal for the Far East (1946). Before the opening of the Trial the Charter was amended in several respects. A copy of the Charter as amended is found in Annex No A-5 to the Judgment of the International Military Tribunal for the Far East.
133 Schabas An Introduction 7.
134 Proclamation Defining Terms for Japanese Surrender Annex No A-1 to the Judgment of the International Military Tribunal for the Far East (1945). This Proclamation was issued at Potsdam by the President of the United States of America, the President of the National Government of the Republic of China, and the Prime Minister of Great Britain and later adhered to by the Union of Soviet Socialist Republics.
135 Instrument of Surrender Annex No A-2 to the Judgment of the International Military Tribunal for the Far East (1945).
136 Report of the Meeting of the Ministers of Foreign Affairs of the Union of Soviet Socialist Republics, the United States of America and the United Kingdom Annex No A-3 to the Judgment of the International Military Tribunal for the Far East (1945).
be required by the Supreme Commander for the Allied Powers for the purpose of giving effect to that Declaration. Paragraph 8 of the same Instrument also provided that the authority of the Emperor of Japan and the Japanese Government shall be subject to the Supreme Commander for the Allied Powers who had powers to take such steps as he deemed proper to effectuate the terms of surrender. By the Moscow Conference, it was agreed that:137
[T]he Supreme Commander shall issue all orders for the implementation of the Terms of Surrender, the occupation and control of Japan and directives supplementary thereto.
The “Tokyo trial” lasted two and a half years, from May 1946 to November 1948.
Twenty-eight (28) men were brought to trial before the IMTFE, including nine civilians and nineteen professional military men.138 Two of the twenty-eight defendants died of natural causes during the trial. One defendant suffered a mental breakdown on the first day of trial, was sent to a psychiatric ward and the charges against him were subsequently dropped. The remaining twenty-five were all found guilty of war crimes.
Seven (7) were sentenced to death, sixteen to life imprisonment, one to twenty years imprisonment and one to seven years imprisonment.139 Three of the sixteen sentenced to life imprisonment died in prison between 1949 and 1950. The remaining thirteen (13) were paroled between 1954 and 1956, after serving less than eight years in prison.140
At Nuremberg and Tokyo, German and Japanese officials were prosecuted and punished for the newly-created crimes against peace (violations of jus ad bellum), war crimes, and crimes against humanity (violations of the laws of war).141 For this reason,
137 Report of the Meeting of the Ministers of Foreign Affairs of the Union of Soviet Socialist Republics, the United States of America and the United Kingdom Annex No A-3 to the Judgment of the International Military Tribunal for the Far East (1945) para II(B)(5).
138 China News Digest Date Unknown http://www.cnd.org/mirror/nanjing/NMTT.html 139 Cryer Prosecuting International Crimes 44.
140 China News Digest Date Unknown http://www.cnd.org/mirror/nanjing/NMTT.html
141 Art 6 Charter of the International Military Tribunal (Charter of the International Military Tribunal Annex to the Agreement for the prosecution and punishment of the major war criminals of the European Axis (1945)) provided as follows: “The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility:
a. Crimes Against Peace: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing;
b. War Crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be 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 or
the Nuremberg and Tokyo tribunals have been criticized as legally unjust because they punished the accused persons for wrongs that were “moral” but not “legal” crimes at the time of commission, thereby violating the prohibition against retroactive criminal prosecutions.142 The two tribunals have also been pilloried as “victor’s justice” because the crimes of the Allied governments escaped the scrutiny of the courts.143
Nevertheless, the tribunals have been generally lauded, and represented an important step in the development of international criminal law by, for the first time in history, establishing the principle that individuals could be held directly legally responsible for gross violations of international law.144 The precedent was set that:
[C]rimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provision of international law be enforced.145
Thus, whatever criticisms may be expressed against the Nuremberg and Tokyo tribunals, these courts were a very important achievement in the history of international criminal justice. For the first time, international tribunals were established for prosecuting and punishing serious crimes that shock the conscience of mankind.146 Whereas the post-World War I failure to establish an international tribunal showed the extent to which international criminal justice may be compromised by political interests, the post-World War II success in creating the Nuremberg and Tokyo tribunals revealed how effective international criminal justice could be if there is the political will to support it and the necessary resources to make it effective.147
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;
c. Crimes Against Humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated”.
142 Schabas An Introduction 6 and Jessica “Human Rights” 278.
143 Jessica “Human Rights” 278.
144 Jessica “Human Rights” 278 and Farbstein “The Issue of Complementarity” 11.
145 Trial of the German Major War Criminals before the International Military Tribunal Vol I (Nuremberg 1947) 223.
146 Cassese “From Nuremberg to Rome” 8.
147 Cassese “From Nuremberg to Rome” 8.
2.2.1.4 Adoption of the Genocide Convention and the idea of a permanent international