AEROPUERTO INTERNACIONAL DE LA CIUDAD DE CUERNAVACA

The trial of the Japanese war criminals at the International Military Tribunal for the Far East (IMTFE) in Tokyo started in 1947. It involved 28 senior Japanese military and political leaders, who were accused, inter alia, of the crime of aggression. Article 5(a) of the Charter of the IMTFE (Tokyo Charter) provided for individual criminal responsibility for Crimes against peace:

‘[The] planning, preparation, initiation or waging of a declared or undeclared war of aggression, or a war in violation of international law, treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing;’347

There are similarities, but also striking differences, between the Nuremberg and Tokyo Tribunals and the judgments delivered by these ad hoc international criminal tribunals.348 _{Although it can be said that both tribunals were ultimately examples}

of ‘victors’ justice’349, the criticism against the establishment and judgment of the

346 _{Quincy Wright (Nuremberg Trial) (supra) 67.}

347 _{Charter of the International Military Tribunal for the Far East (1946), Special Proclamation by the Supreme}

Commander for the Allied Powers, as amended 26 April 1946, TIAS No 1589, reprinted in Christine Van den Wyngaert (International Criminal Law) (supra) 43 – 47.

348 _{See AS Comyns Carr ‘The judgment of the International Military Tribunal for the Far East Transactions of the}

Grotius Society Vol 34 Problems of Public and Private International Law, Transactions of the Year 1948 (1948)

Oxford University Press, Oxford, 141 – 151.

349 _{See comments by Christine van den Wyngaert ‘De bijdrage van de internationale straftribunalen tot de}

Tokyo Tribunal seems to strike at the very heart of the legitimacy of the Tribunal and the value of its jurisprudence.350 The critique goes further than the legitimacy problem, and includes criticism against procedural and material aspects of the process and judgment.351 As far as legitimacy is concerned, the most obvious difference between the IMT at Nuremberg and the Tokyo Tribunal is the fact that the Tokyo Tribunal was established unilaterally by the American Supreme Commander of the Allied Powers in the Pacific. The Charter of the Tribunal was furthermore not the result of international conferences, but was drafted largely by American officials.352

Apart from the perceived legitimacy-problem and problems from a procedural perspective referred to above, one of the more fundamental problems with the judgment at Tokyo concerns for present purposes the Tribunal’s adjudication on the crime of aggression and specifically the way the Tribunal employed the doctrine of conspiracy-liability to hold individuals responsible for crimes committed in the Far East. All the defendants (the 28 senior political and military leaders) were charged with the offences of ‘conspiring to wage an aggressive war’ or ‘waging a war of aggression’.353 The critical point however is that these defendants

Delva cyclus, Gent, Belgium, 17 March 2006 (copy on file). Prof Van den Wyngaert observed: ‘[Het] was een justitie van overwinnaars tegen overwonnenen (enkel Duitse en Japanse oorlogsmisdadigers stonden er terecht, en feiten zoals Hiroshima/Nagasaki en het bombardement van Dresden werden er niet beoordeeld), het was ten dele ex post facto rechtspraak (de Genocideconventie en de Rode Kruisconventies die genocide en oorlogsmisdaden omschreven kwamen pas tot stand achteraf), en op de procedure zelf was ook een en ander aan te merken.’

350 _{For a contextual analysis of the trial, see P Lowe ‘An embarassing necessity: the Tokyo trial of Japanese}

leaders, 1946-48’ in RA Melikan (ed) Domestic and International Trials, 1700-2000, The Trial in History Vol II (2003) Manchester University Press, Manchester, 137-156.

351 _{See in general Allison Marston Danner ‘Beyond the Geneva Conventions: Lessons from the Tokyo Tribunal in}

prosecuting war and terrorism’ 46 Virginia Journal of International Law 83 (2005) 83 – 130.

352 _{See Allison Marston Danner (Lessons from Tokyo Tribunal) (supra).} 353 _{Allison Marston Danner (Lessons from Tokyo Tribunal) (supra) 90.}

were not necessarily in the same position as their Nazi counterparts at Nuremberg with regards to their perceived responsibility for formulating and executing aggressive Japanese foreign policy prior to the war. The mens rea of the specific individual accused were in other words of less concern for the prosecution. The defendants were thus chosen as representatives of a certain influential political and military class, the members of which were regarded as being responsible for the formulation and direction of the militaristic and aggressive Japanese foreign policy – and anyone in this group could, according to the prosecution’s theory, be held responsible on the basis of the perceived conspiracy to commit aggression.354 AS Comyns Carr described the grand political plan to pursue an aggressive foreign policy as follows:

‘The story as unfolded in the judgment is one of a grandiose plot which originated in the late 1920’s in the minds of a few officers and civilians, and grew until it became the dominating purpose, in varying degrees and with occasional variations of emphasis, of every successive government of Japan.’355

As noted, neither the Nuremberg Charter nor the Tokyo Charter defined ‘aggression’. The judges of the Tokyo Tribunal had the opportunity to study the proceedings at Nuremberg, but did not define aggression. With reference to the legal basis for the criminalisation of aggression and the impact of the Kellogg- Briand Pact in this regard, Brownlie quoted the following passage from the opinion of the President of the IMTFE:

‘This Pact [Kellogg-Briand Pact] does not contain the word ‘crime’ or the word ‘criminal’; but having regard to the language of the Pact – the solemn condemnation of war, the renunciation of war as an instrument of national policy,

354 _{Allison Marston Danner (Lessons from Tokyo Tribunal) (supra) 90.} 355 _{AS Comyns Carr ((Military Tribunal for the Far East) (supra) 146.}

and the agreement not to resort to it to settle or solve disputes or conflicts, and to the natural and probable, if not inevitable consequences of recourse to war – the conclusion is irresistible that the illegality of aggressive war and its criminality were perceived and acknowledged … Every State that became a party to the Pact of Paris perceived and acknowledged the illegality and criminality of recourse to war for the solution of international controversies … If, nevertheless, any State resorts to aggressive war, those individuals through whom it acts, knowing as they do that their State is a party to the Pact, are criminally responsible for this delict of State’.356

The Tokyo judgment ultimately linked the aggressive foreign policy of Japan357 _{to a}

single conspiracy of the defendants before the war to use the Japanese military

and political apparatus to dominate the Far East. Allison Marston Danner explained this conspiracy as follows:

‘The Tokyo indictment first alleged that “a conspiracy between the defendants, joined in by the rulers of other aggressive countries, namely Nazi Germany and Fascist Italy, was entered into. The main object of this conspiracy was to secure the domination and exploitation by the aggressive States of the rest of the world.”

356 _{Ian Brownlie (Use of Force) (supra) 173.}

357 _{The aggressive Japanese foreign policy was first and foremost aimed at establishing Japan as the dominant}

power in Asia, and specifically Pacific-Asia. When the war in Europe started in 1939 Japan was already at war with China (Japan occupied Manchuria and wanted to occupy the whole of China). On 27 Sept 1940 Japan, Germany and Italy entered into an alliance. For the text of the German-Italian-Japanese Pact, see Walter Langsam (Historic Documents) (supra) 76 – 77. The first 3 articles set out the geo-political vision of the Pact: ‘[Art 1] Japan recognizes and respects the leadership of Germany and Italy in the establishment of a new order in Europe. [Art 2] Germany and Italy recognize and respect the leadership of Japan in the establishment of a new order in Greater East Asia. [Art 3] Germany, Italy and Japan agree to co-operate in their efforts on the aforesaid basis. They further undertake to assist one another with all political, economic, and military means, if one of the three Contracting Parties is attacked by a Power at present not involved in the European war or in the Chinese-Japanese conflict.’ See further Stephen E Ambrose Rise to Globalism – American foreign policy

since 1938 7th _{(1993) Penguin Books, New York, 9 – 14 for a brief but eloquent description of the aggressive}

Count One of the indictment then charged the defendants with the more specific (although still breathtakingly broad) conspiracy.’358

On the matter of conspiracy to plan and commit aggression, dissenting judge Pal from India made the critical observation359 _{that to characterize national foreign}

policy as a criminal conspiracy was rather simplistic, especially where such a characterization would lead to a finding of individual criminal responsibility.360 With this warning in mind, Allison Marston Danner warned against the dangers of relying on the doctrine of conspiracy to hold individuals responsible for a crime like aggression – a crime so closely associated with state conduct and the political processes of that state:

‘Alleging a conspiracy against a broader historical and political canvas has several potential failings. It allows prosecutors to overreach on the scope of the overall wrongdoing by rolling up what turns out to be disparate activity into one legal package. It also bears the significant risk of sweeping up too many defendants into its ambit. … A clear link between wrongdoing and conviction helps overcome the negative perception that may attach to criminal cases with strong political overtones.’361

There was an attempt by Judge Röling in his dissenting opinion to limit the convictions for conspiracy only to those defendants who were in actual fact formulators of Japanese government policy. Broadly speaking, the Tribunal – although less cautious than Judge Röling – also emphasised that one of the

358 _{Allison Marston Danner (Lessons from Tokyo Tribunal) (supra) 114.}

359 _{For commentary on the extent and impact of Judge Pal’s dissenting opinion, see E Kopelman ‘Ideology and}

International Law: the dissent of the Indian Justice at the Tokyo War Crimes Tribunal’ 23 (1991) New York

University Journal of International Law and Politics 373.

360 _{Allison Marston Danner (Lessons from Tokyo Tribunal) (supra) 118.} 361 _{Allison Marston Danner (Lessons from Tokyo Tribunal) (supra) 119.}

conditions for individual liability for conspiracy to commit aggression was that such defendants had to have the capacity or official position to influence Japanese government policy.362 The approach in the Tokyo judgment nevertheless represented a wider understanding of conspiracy liability than at Nuremberg. In the more restrictive interpretation of ‘conspiracy’ in the Nuremberg Judgment only those defendants who actively participated in the planning of the aggressive war were held responsible on the basis of conspiracy.363

The Tokyo Tribunal confirmed the individual criminal responsibility for aggression under international law. However, it is clear that the Tokyo judgment, although in some respects more nuanced than the Nuremberg judgment as a result of some dissenting opinions, was always far less celebrated and influential than the Nuremberg Judgment.364 The reasons for this may vary, but one factor is certainly the perceived problem of legitimacy of the Tokyo Charter and Tribunal. Apart from that, aspects of the judgment like the broader interpretation of conspiracy (discussed above) might add to the present debate about a suitable definition of aggression for purposes of the Statute of the ICC. But one must also be realistic: The narrower approach regarding the elements of aggression for purposes of individual criminal liability (as formulated by the Nuremberg Tribunal) seem to set the parameters of aggression under customary international law. In this respect, the legacy of Nuremberg is indeed the fact that the debate about the definition of aggression was influenced to a far greater degree by the judgment at Nuremberg (and also the judgments under the Control Council Laws365) than by the judgment

362 _{Allison Marston Danner (Lessons from Tokyo Tribunal) (supra) 123 – 124.} 363 _{Gerhard Werle (Principles of International Criminal Law) (supra) 398.}

364 _{See in general the critical assessment by BVA Röling and A Cassese The Tokyo trial and beyond: Reflections}

of a peacemaker (1993) Polity Press, Cambridge.

of the Tokyo Tribunal – the latter’s legacy tainted (perhaps more than Nuremberg’s) by the problems of legitimacy. Nevertheless, the judgment of the Tokyo Tribunal certainly adds value to the ongoing debate about individual criminal liability for aggression, apart from the fact that it brought to justice at least some of the individuals closely associated with the aggressive Japanese regime that caused much suffering in East Asia.366