Chapter 12: Nuremberg, Tokyo and Modern International Criminal Law
335
We do not intend that the Japanese people 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.
Unlike the Nuremberg Tribunal, the IMTFE
35
was established not by treaty but on the
basis of a Special Proclamation adopted on 19 January 1946 by the Supreme
Commander for the Allied Forces in the Pacific Theatre, General Douglas McArthur.
36
His authority to establish the IMTFE and promulgate its Charter was exacted from his
mandate, through which he possessed the competence to create military commissions
and tribunals. Many such commissions were subsequently established by all the allied
forces involved in the war. In fact, the conviction of General Yamashita, Governor and
Supreme Military Commander of the Japanese Army in the Philippines prior to the
emancipation of the islands by the Allies, emanated from such a commission. The
indictment included 55 counts, charging 28 accused with crimes against peace, war
crimes and crimes against humanity during the period from 1 January 1928 to 2
September 1945. Of the 28 accused, three were acquitted. Although the IMTFE was
established with the aim of prosecuting the most senior Japanese officials, holding
both political as well as military positions, Emperor Hirohito was not arraigned.
From a legal point of view, both the substantive and procedural law of the IMTFE
were essentially similar to that of the Nuremberg Tribunal. Once again, the same
criticisms levelled against the IMT and concerning the retroactive character of the
crimes against peace and against humanity were directed at the IMTFE. Its response
to these and other arguments was the same as that given by the Nuremberg Tribunal.
This was not, however, a unanimous decision, as the Indian judge, Justice Pal, strongly
dissented from the majority’s opinion on the illegality of aggressive war and the
establishment of personal liability for acts of State.
37
Unlike the IMT, however, the
IMTFE addressed the issue of superior responsibility in count 55 of the indictment,
holding, especially as this relates to the maintenance of prisoner of war camps, that
all those involved with captured enemy personnel, from the incumbent Minister to
the last camp commander, have a duty to initiate a system of protection and thereafter
to ensure its effective functioning. This served as an important precedent in
subsequent cases both in Europe and Asia. It has been suggested that because
McArthur exerted substantial influence on the trials so as not to allow the proceedings
to threaten the success of the occupation, the IMTFE never enjoyed the attention
and precedential authority of the IMT.
38
12.5 THE ILC’S ROLE IN THE POST-NUREMBERG ERA
Perhaps the crucial point which has given the judgment of the IMT its place as the
starting point for contemporary international criminal law was the fact that one of
the first acts of the newly created United Nations was the General Assembly’s
affirmation of ‘the principles of international law recognised by the Charter of the
35
4 Bevans 20 (as amended on 26 April 1946).
36
See generally RH Minear,
Victor’s Justice: The Tokyo War Crimes Trial,
1971, Princeton: Princeton UP.
37
ES Kopelman, Ideology and International Law: The Dissent of the Indian Justice at the Tokyo War
Crimes Trial’, 23
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