The Tokyo IMT was established in January 1946, following the proclamation of General Douglas MacArthur.201 MacArthur set up the tribunal as means of implementing the Potsdam Declaration202 on the basis of his position as the Supreme Commander, relying on powers vested on him by the Allied states. Japan accepted the proclamation as a sign of surrender. The Tokyo IMT was established for the purpose of trying individuals or members of organisations charged with offences of crimes against peace, war crimes and crimes against humanity in the Far East.203 In terms of judgement and sentencing, the Tokyo IMT, like Nuremberg, could impose a death sentence upon convicted persons.204
The Tribunal comprised eleven judges. Nine were from the signatory states including Australia, Canada, China, France, New Zealand, the Netherlands, UK, USA, USSR and the other two were from India and the Philippines.205 The proceedings began on 29 April 1946, with the indictment of twenty-eight defendants.206 The nature of charges included crimes against peace,
201 Special Proclamation Establishment of an International Military Tribunal for the Far East 19 January 1946 TIAS
No 1589 3.
202
Principle 10 guaranteed ‘stern justice’ for war criminals, Hirota v MacArthur 335 US 876 93 L Ed 1903.
203 Special Proclamation Establishment of an International Military Tribunal for the Far East 19 January 1946 TIAS
No 1589 Article I, Charter of The International Military Tribunal for the Far East Article I &V, Note however that no Japanese organisations were indicted, R K Woetzel The Nuremberg Trials in International Law with a Postlude on the Eichmann Case (London Stevens and Sons Limited 1962) 229, Philip R Piccigallo The Japanese on Trial Allied War Crimes Operations in the East 1945 – 1951 (Austin University of Texas Press 1979) 34 – 208, Patrick Brode Casual Slaughters and Accidental Judgements Canadian War Crimes Prosecutions 1944 – 1948 (University of Toronto Transnational Publishers 1997).
204 Charter of the International Military Tribunal for the Far East Article XVI. 205 Charter of the International Military Tribunal for the Far East Article 2.
206 Kenji Dohihara, Koki Hirota, Seishiro Itagaki, Heitaro Kimura, Iwane Matsui, Akira Muto, Hideki Tojo, Sadao
Araki, Kingoro Hashimoto, Shunroko Hata, Kiichiro Hiranuma, Naoki Hoshino, Okinori Kaya, Koichi Kido, Kuniaki Koiso, Jiro Minami, Takasumi Oka, Hiroshi Oshima, Kenryo Sato, Shigetaro Shimada, Toshi Shiratori, Teiichi Suzuki, Yoshijiro Umezu, Shigenori Togo, Mamoru Shigemitsu,Yosuke Matsuoka and Osami Nagano died
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conspiracies, war crimes and murders. The trial lasted two and a half years until November 1948. The Tokyo IMT sentenced seven defendants to death, one to twenty years’ imprisonment, one to seven years’ imprisonment and the rest to life imprisonment.207 In terms of the manner in which the trials were conducted, reference was made to the procedural and substantive law as applied in the Nuremberg trials, such as the denial of the defence of superior orders.208 The Tokyo IMT, like Nuremberg, has also been described as a victor’s justice. Consequently, the same criticisms subjected to Nuremberg are applicable.209 This is because despite differences in the procedural of the two tribunals, the substantive law that was applied was similar to the Nuremberg precedent.210
Following the Second World War a number of other criminal trials were held besides the IMT Nuremberg and Tokyo.211 The tribunals mainly tried the minor war criminals such as financiers, industrialists, police authorities.212 The key issue illustrated from the trials is the need to establish individual
during the trial. Shumei Okawa was declared mentally unfit to stand trial. See Tokyo International Military Tribunal Judgment 48 425.
207 R K Woetzel The Nuremberg Trials in International Law with a Postlude on the Eichmann Case (London
Stevens and Sons Limited 1962) 227.
208
International Military Tribunal Judgment 48 437– 9.
209
Richard Minear Victors’ Justice The Tokyo War Crimes Trial (Princeton University Press 1971), International Military Tribunal for the Far East The Tokyo War Crimes Trial 1981 49, 584, Ian Buruma Wages of Guilt Memories of War in Germany and Japan (Farrar Straus & Girouxt 1994)161, Yuki Takatori The Tokyo War Crimes Trial (Lexington Books 2013) 167.
210 R K Woetzel The Nuremberg Trials in International Law with a Postlude on the Eichmann Case (London
Stevens and Sons Limited 1962) 232.
211 For instance the United States Military Tribunal at Nuremberg, The United States Military Commissions, The
General Military Government Court and the Intermediate Military Government Court of the American Zone of Germany, British Military Courts, The French Permanent Military Tribunal, The French Court of Appeal and the General Military Government Tribunal of the French Occupation Zone of Germany, The Australian Military Court, The Canadian Military Court, The Netherlands Temporary Court-Martial and Special Courts, The Norwegian Court of Appeal and Supreme Court, The Chinese War Crimes Court, The Supreme National Tribunal of Poland.
212
R K Woetzel The Nuremberg Trials in International Law with a Postlude on the Eichmann Case (London Stevens and Sons Limited 1962) 218.
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accountability in international law, for instance, in the Einsatzgruppen case, the Court held that nations could only act through human beings, and that when Germany signed, ratified and promulgated The Hague and Geneva Conventions, every person in Germany was bound to comply with the provisions.213 This is not always the case in international law, it depends on the nature of the system adopted by a particular state whether dualist or monist. However, the significance of the decision was to highlight the fact that dualist states that fail to domestic international laws, intended to protect the rights of individual, can never claim that such laws do not apply due to international customary law.