VIVEKANANDA INSTITUTE OF PROFESSIONAL STUDIES-TC
VIVEKANANDA SCHOOL OF LAW AND LEGAL STUDIES
INTERNATIONAL HUMANITARIAN LAW RESEARCH
PROJECT ON
TOPIC
“SIGNIFICANCE OF TOKYO TRIAL IN
DEVELOPMENT OF INTERNATIONAL
HUMANITARIAN LAW”
SUBMITTED TO:
MR. VINAY JUNEJA
(Assistant Professor)
SUBMITTED BY:
Prabhanshu Singh Parmar
SEMESTER & SECTION
VIII-M
ENROLLMENT NO.
12617703521
INDEX
S.No TOPIC PAGE NO.
1 Abstract 3
2 Introduction 4
3 Brief Overview of Tokyo Trial 7
4 Judgement 9
5 Individual Criminal Responsibility 12
6 Command Responsibility 13
7 Contribution of Tokyo Trial in establishment of ICC 15
8 Conclusion 17
ABSTRACT
This paper examines the application and impact of international humanitarian law
(IHL) in the Israel- Palestine conflict, focusing on its role in regulating conduct during
armed conflict, protecting civilians, and ensuring the humane treatment of prisoners.
The research assesses how IHL is implemented in practice, scruntinizes violations and
explores the challenges in enforcing IHL within the context of the ongoing conflict.
The paper also dicusses the legal and political barriers to IHL’s full application and
the role of international institutions in promoting compliance.
INTRODUCTION
The title for proposed project is “SIGNIFICANCE OF TOKYO TRIAL IN
DEVELOPMENT OF INTERNATIONAL HUMANITARIAN LAW”.
Nuremberg Trials were first international war crimes court established by Allies to
bring charges against Nazi leaders. Trials in Tokyo were then held after this. Many
governments didn't come together around idea of a permanent court to try those who
were responsible for the world's worst atrocities until the 1990s. In order to address
war crimes in the former Yugoslavia and Rwanda.
Tokyo trials had lasted for two and a half years, starting from May 3, 1946.
A directive allowing MacArthur the liberty to move on with the trials was delivered to
him on October 6 and agreed by other Allied powers. MacArthur announced creation
of International Military Tribunal for the Far East and chose its eleven justices on
January 19, 1946. On 55 charges of "crimes against peace, conventional war crimes,
and crimes against humanity," 28 senior military and government officers were
charged.
Webb declared that all of the defendants had been found guilty on November 4, 1948.
Seven people received death sentences, sixteen received life sentences, two received
lower sentences, two passed away during the trials, and one was declared crazy.
In 1989, Trinidad and Tobago asked a UN delegation to investigate setting up a
permanent court. Support for these initiatives increased, particularly in Europe and
Africa.
The UN General Assembly approved foundation treaty of the ICC in 1998. The Rome
Statute came into effect on July 1, 2002.
LITERATURE REVIEW
“The Tokyo Tribunal: Perspectives on Law, History and Memory”1 is a book by
Kerstin von Lingen, Viviane E. Dittrich, Jolana Makraiová and Philipp Osten which
offers broad views on legal, historical, political significance of the trial.
“The relationship between international humanitarian law and the international
criminal tribunals”2 is a publication by Hortensia D. T. Gutierrez Posse which
discusses contributions of “International Military Tribunal for the Far East (IMFTE)”,
“International Criminal Tribunal for the former Yugoslavia (ICTY)” and the
“International Criminal Tribunal for Rwanda (ICTR)” in establishment of ICC.
STATEMENT OF PROBLEM
In the field of international law, crimes are generally of wide-scale, complex and
systematic in nature. Punishing those who have committed these crimes is a
challenging task. The Nuremberg and Tokyo tribunals were established in the wake of
the WWII to help those people accountable who had committed atrocities. UN
General Assembly felt the need of a permanent international court that will deal with
atrocities which had been perpetrated. These events coupled with atrocities in
Yugoslavia and Rwanda had played significant role in establishment of ICC in Rome
in 1998.
RESEARCH OBJECTIVES
The goal of the proposed project is to understand contributions of Tokyo trial in
development of international humanitarian law by contributing in establishment of
International Criminal Court .
RESEARCH QUESTIONS
1. What is Tokyo Trial?
2. What was the outcome of the trial?
3. How was Individual criminal liability and command responsibility applied during
Tokyo war trials?
1 VIVIANE E. DITTRICH, KERSTIN VON LINGEN, PHILIPP OSTEN AND JOLANA
MAKRAIOVA, THE TOKYO TRIBUNAL: PERSPECTIVES ON LAW, HISTORY AND MEMORY
399-432 (Torkel Opsahl Academic EPublisher, 2020)
2 Hortensia D. T. Gutierrez Posse, The relationship between international humanitarian law and the
international criminal tribunals , Volume 88 No. 861 IRRC, 65-86 (2006)
4. How have Tokyo trials helped in establishment of ICC?
HYPOTHESIS
The Nuremberg and Tokyo trials served as models for International Criminal Court.
RESEARCH METHODOLOGY
The research work is done through doctrinal research by relying upon secondary
sources. Secondary sources relied upon are articles present on website of International
Criminal Court (ICC) and International Committee of Red Cross (ICRC) .
PLAN OF STUDY
Chapter 2- Brief Overview of Tokyo Trial
Chapter 3- Judgement
Chapter 4- Individual Criminal Responsibility
Chapter 5- Command Responsibility
Chapter 6- Contribution of Tokyo Trial in establishment of ICC
Chapter 7- Conclusion
Chapter 2- Brief Overview of Tokyo Trial
After World War II, the Allied nations formed international criminal tribunals to try
military and political individuals for war crimes and other atrocities. The four major
Allies created the International Military Tribunal in Nuremberg to try and prosecute
"the major war criminals of the European Axis."
Potsdam Declaration states that "stern justice shall be meted out to all war criminals,
including those who have visited cruelties upon our prisoners3"
There were major disagreements among the Allied administrations on who should be
tried and how shortly prior to the arrests, one week after the formal surrender in
Tokyo Bay in September 1945. The eleven participating countries included
Philippines, Australia, France, the United Kingdom, China, Canada, the Netherlands,
New Zealand, the Soviet Union, US and India. The lesser-known Tokyo Trial whose
processes were very similar to those of the Nuremberg Trials, was established by a
proclamation made in Tokyo, Japan, by General Arthur of U.S.
On May 3, 1946, the prosecution started presenting its evidence against defendants.
Similar to Nuremberg, the Allies established three categories. The IMTFE used the
offences' definitions from the Nuremberg Charter exactly. Crimes committed after the
Japanese invasion of Manchuria fell within the purview of the IMTFE.
The defendants were accused of three different types of offences that were based upon
Article 5 of Tokyo Charter, “Class A-crimes against peace, Class B- conventional war
crimes and Class C- crimes against humanity. The court heard testimony from 28
high-ranking Japanese military and political figures, including the previous prime
ministers, foreign ministries, and military commanders. They were accused of
committing murder, various war crimes, and crimes against humanity (such as torture
and forced labour) against prisoners of war, civilians, and residents of occupied
territories.
“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, 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;
b. Conventional War Crimes: Namely, violations of the laws or customs of war;
3 POTSDAM DECLARATION, https://www.ndl.go.jp/constitution/e/etc/c06.html
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 or racial 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. Leaders"
organizers, instigators and accomplices participating in the formulation or
execution of a common plan or conspiracy to commit any or' the foregoing crimes
are responsible for all 'acts performed by any person in execution of such plan. ”4
The prosecution first created 19 counts to prosecute the Japanese leaders'
accountability for several mass atrocities. Only two of them which were crimes
against humanity and war crimes were kept by Tokyo Tribunal after majority of them
were rejected due to technical reasons.4
Three points were required to be proven by the prosecution:
1. That atrocities committed by military troops were planned or widespread;
2. Accused was aware of the atrocities; and
3. Accused had the authority or power to stop the atrocities.
Prosecution presented its case over the course of 192 days, which came to an end on
January 27, 1947. Throughout the sessions, numerous former American prisoners of
war gave testimony.
4INTERNATIONAL MILITARY TRIBUNAL FOR THE FAR EAST,
https://www.un.org/en/genocideprevention/documents/atrocitycrimes/Doc.3_1946%20Tokyo
%20Charter.pdf,
The IMTFE brought charges against 9 Japanese government officials (senior) and
eighteen military officers. The allegations against a Japanese academic were also
dropped during the trial after it was decided that his mental instability made him unfit.
Hirohito and members of imperial family were exempt from charges. In reality,
Hirohito was given permission by the Allies to retain his title but at a reduced status.
4 Yuki Tanaka, Beyond Victor’s Justice? The Tokyo War Crimes Trial Revisited 154 (Martinus Nijhoff
Publishers 2010)
The main defences were that Japan acted in self-defense and that international law
hadn't yet recognised the alleged crimes.
Chapter 3- Judgement
Trial was held to punish the war crimes that were committed by Japan during WWII
and its aggressive campaigns in parts of Pacific and East Asia. Among the defendants
were 25 members that belonged to Japanese government, including Prime Ministers
Hideki Tojo and Prince Fumimaro Konoe, who were charged with both individual and
collective criminal responsibility.
The verdict of the Tokyo Trial was firm: all of the guilty persons were to be hanged
and all of the guilty persons with lesser charges were to be punished accordingly. This
became to be known as the "Great Judgement" and was intended to set an example for
future generations.
Though the Tokyo Trial symbolized the successful implementation of international
criminal justice, it also highlighted importance of due process and rule of law.
The Tokyo Trial operated under the principle of "victors' justice," where the Allied
powers served as prosecutors and judges. Eleven judges, representing 11 nations,
presided over the trial, ensuring a diverse and international perspective.
The Trial's verdict, which found 25 of the 28 defendants guilty, including former
prime minister Hideki Tojo, passed on November 4, 1948.
Contributions and Historical Significance:
1. Establishment of Legal Precedents: The Tokyo Trial established crucial legal
precedents for future international criminal tribunals. The judgement emphasized that
people could be held accountable for actions carried out under the auspices of state
authority, reinforcing the idea of the individual criminal responsibility.
2. Reconciliation and Rebuilding: Tokyo Trial served as mechanism for Japan to
confront its past and acknowledge the wrongs committed during the war. The trial laid
the groundwork for peace and restored confidence between countries in the
AsiaPacific by bringing offenders to justice.
3. Deterrence and Future Accountability: The Tokyo Trial showed that even
during times of war, people will be held accountable for their actions. This deterrence
factor emphasized the value of maintaining international law, helping to avert more
wars and horrors.
Issue of Retroactivity
Principle of “Nullum Crimen Sine Lege”: This principle is a fundamental principle in
criminal law. It stipulates that individuals cannot be held accountable for actions that
were not considered criminal under the law at the time they were committed. The
Tokyo Trials faced the challenge of applying this principle while ensuring that justice
was served for the victims of war crimes.
Retroactivity, in the context of the Tokyo Trials, refers to application of legal
principles and standards retrospectively to acts that were committed prior to their
codification. This approach allowed the prosecution to hold individuals accountable
for their actions, even if those actions were not considered crimes at the time they
were committed. Retroactivity allowed the Tokyo Trials to bridge the gap between the
acts of the defendants and the legal framework developed after the war.
Critics argued that retroactive application of the law violated this principle, as it held
individuals not accountable for actions that were not criminal under existing laws at
the time. They argued that this undermined the fairness and legitimacy of the trials.
On the other hand, proponents of retroactivity maintained that the trials were
necessary to establish accountability for grave human rights violations. They argued
that the atrocities committed during WWII required comprehensive response, and
retroactive application was essential to address the past injustices.
In order to address the concerns surrounding retroactivity, the prosecutors at the
Tokyo Trials relied on several legal justifications. They argued that acts such as
aggression, genocide, and crimes against humanity were already considered illegal
under customary international law, even if they were not explicitly codified at the
time. By drawing on established legal principles, the prosecutors aimed to justify the
retroactive application of law and assert the legitimacy of trials.
By holding individuals responsible for their actions, the Tokyo Trial promoted
reconciliation, deterrence, and protection of human rights, thus leaving a lasting
legacy in pursuit of global justice and peace.
Pal's Dissenting Opinion
During the trial, the defense argued that Japanese forces were conducting a “just war”
in defending their homeland and that they had acted within bounds of international
law. They also argued that the Allied forces had committed war crimes of their own
and thus had no right to prosecute Japan. In addition, the defense argued that the
proceedings of the Tokyo Trial were politically motivated and did not adhere to the
standards of a fair trial.
In a dissenting opinion, Indian judge Radhabinod Pal voiced important concerns. He
thought prosecution's case against the conspiracy to wage aggressive war, which
would involve brutalization and subjection of conquered nations, was poor overall. He
further stated that there was no significant evidence to support that the Nanking
Massacre was "product of government policy" or that Japanese government officials
were directly to blame. “There is no evidence, testimonial or circumstantial,
prospectant, or restrospectant, that would in any way lead to the inference that the
government in any way permitted the commission of such offenses," he stated.
He said, it has never been unlawful to conspire to fight an aggressive war, not even in
1937. Additionally, Pal believed that the tribunal's authority was diminished by the
failure to try what he viewed as crimes committed by the Allies, particularly the use of
atomic bombs by America.
Chapter 4 Individual Criminal Responsibility
Establishing Individual Criminal Responsibility: When WWI came to an end in
1919, the treaty signed in Versailles stated that Kaiser William II of Germany, and
those who had followed his orders were personally accountable. Thus, it recognized
the ability of the Allied and affiliated countries to set up military courts to try those
who are accused of committing war crimes.
Thus, responsibility was established as a fundamental concept of international law,
enabling serious violations of international humanitarian law to be brought to justice
by international tribunals created for that purpose.
Circumstance kept changing. Several Allied countries stated a desire to look into,
prosecute, and punish war criminals during the Second World War. Tokyo Tribunal
was created with same intent. Again, it was accepted that certain actions might be
constituted crimes under international law and that persons believed to be guilty could
be held accountable for their actions.
“The 1949 Geneva Conventions for the protection of the victims of armed conflicts
define a series of acts as grave breaches of their rules and stipulate that the states
parties are under the obligation to search for persons alleged to have committed them
or to have ordered them to be committed, and to bring them before their own courts
or, if they prefer, to hand them over for trial to another state provided that state has
made out a prima facie case against them.”5
Of course, there are additional ways to carry out this obligation. Criminal
responsibility for war crimes lies not only with those who commit them but also with
those who order them to be committed, regardless of their position. The Rome Statute,
ICTY, and ICTR statutes all clearly refer to both of these categories of obligations. As
a result, responsibility for a crime extends beyond individuals who actually committed
it to those who assisted in doing it, those who provided cover, and anybody who
ordered, advised, or otherwise supported the commission of the crime or an attempt to
commit one, as case may be. Individuals may also be held criminally accountable for
knowingly or carelessly breaking a law that expressly calls for a particular course of
action or for doing nothing at all.
The Tokyo Trial was distinctive because it focused on individual criminal
responsibility rather than the more conventional strategy of putting all blame on the
state.
IMTFE Charter, which served as the trial's framework, acknowledged that people are
accountable for actions taken when acting on behalf of another person.
Political and Military Leaders' Responsibility: The Tokyo Trial targeted
highranking political and military leaders who held positions of authority and
5 Convention for Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of
Armed Forces at Sea, Aug. 12, 1949 6 U.S.T. 3217; 75 U.N.T.S. 85
influence. These leaders were accused of either directly committing crimes or
perpetuating a system that allowed such crimes to occur. For instance, Prime Minister
Hideki Tojo, the most prominent defendant, was held responsible for initiating wars of
aggression and for his role in planning and execution of numerous war crimes. The
trial highlighted the principle that leaders, regardless of their position or status, are
accountable for their actions and decisions.
Chapter 5 Command Responsibility
Command Responsibility:
Hague Convention No. IV of 1907 and its Regulations respecting laws and customs of
war on land formalized the first postulate — accountability of military leaders—
which derives from the law of war.6
The idea of command responsibility was a key component of the Tokyo Trial. This
rule held commanders accountable for the crimes committed by their troops if they
were aware of them or should have been aware of them and did nothing to stop or
punish them. It acknowledged that in addition to their own direct actions, leaders are
also accountable for those of the people they are in charge of.
According to the concept of command responsibility, a military leader is accountable
for actions of those who are under his command, authority, or effective control,
provided that he not only should but is required to be aware of what they are doing
and suppress the commission of unlawful acts. The three basic components of
command responsibility are this requirement, existence of a superior-subordinate
connection, and superior's knowledge or reasonable suspicion that the crime was
being committed or would be.
The Tokyo Trial marked a substantial change from earlier judicial precedents with its
emphasis on individual criminal responsibility. It set a vital precedent for
guaranteeing justice by holding political and military leaders responsible for their
deeds. The court case emphasized the idea that bosses cannot escape accountability
6 Hortensia D. T. Gutierrez Posse, The relationship between international humanitarian law and
international criminal tribunals , Volume 88 Number 861 IRRC, 65-86 (2006)
for the deeds of their employees and reaffirmed the idea that no one is above the law.
The legacy of the Tokyo Trial continues to have an impact on global efforts to uphold
justice, reinforcing the significance of individual criminal responsibility.
Although the Tokyo Charter did not have a particular clause addressing this type of
culpability, the Tribunal largely adopted the justification provided by a US military
commission in the Yamashita case7 ain 1945 and ruled both military and civilian
government officials accountable on basis of it.
Once more, the Nuremberg Tribunal's Charter, which states that acting on orders from
a superior or one's country does not absolve a defendant of responsibility, is where
this basic notion first appeared.
Chapter 6 Contribution of Tokyo Trial in establishment of ICC
“The Geneva Convention for the Amelioration of the Condition of the Wounded in
Armies in the Field”, which was adopted in 1864, was basis for first proposal to
establish a permanent criminal court. This proposal was made in the nineteenth
century.
It was the goal of the Tokyo Trial to bring those guilty for atrocities to justice. Even
while the Tokyo Trial's main objective was to convict Japanese war criminals, its
impact went well beyond that. Here are some of the important ways that the Tokyo
Trial helped to establish ICC.
7 United States v. Tomoyuki Yamashita, 327 U.S. 1 (1946)
Setting Stage for International Justice: Tokyo Trial was significant in laying ground
for establishment of a permanent international judicial body that would be responsible
for bringing those responsible for heinous crimes of global concern to justice. There
were few systems in place before the trial to deal with and try those responsible for
transnational crimes. The trial set the foundation for a more comprehensive
international justice system and showed how committed the world community is to
holding people accountable for their deeds.
Nuremberg Trials: Nuremberg Trials, held in Germany to try Nazi war criminals,
served as a model for the Tokyo Trial. The Nuremberg Trials gave crucial guidance on
how to set up a fair and impartial tribunal, serving as a model for the Tokyo Trial. The
international community's conviction that a permanent international criminal court is
required was strengthened by fact that both trials were successful in holding those
responsible for atrocities accountable.
Development of a Model for International Criminal Tribunals:
Format and methods of the Tokyo Trial had an impact on other international criminal
courts. The trial established a number of legal precepts, including right to a fair trial,
command responsibility, and individual criminal liability. These tenets served as the
foundation for the creation of the ICC.
Catalyzing the Creation of the ICC:
The trial sparked a surge in support for an ongoing international criminal court. Trial's
revelations of atrocities underscored necessity for a global organisation that can
confront and prosecute international crimes without regard to national boundaries.
Rome Statute, which founded the ICC and put it into effect in 2002, represents the
commitment of international community to putting an end to impunity.
Rome Statute establishes the accountability of commanders and other superiors. It also
states that, in general, commission of a crime in accordance with a government or
superior's order does not absolve the individual in question of culpability.8
8 ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT,
https://www.icccpi.int/sites/default/files/RS-Eng.pdf,
Chapter 7 Conclusion
The Tokyo Trial was crucial in establishing the framework for contemporary
international criminal justice.
It contributed in the development of international law and set stage for holding
military and political leaders responsible for their deeds. It helped shape the
contemporary idea of personal criminal responsibility, which served as the basis for
later trials like Nuremberg Trials and creation of the ICC. Tokyo Trial's emphasis on
individual responsibility has had a long-lasting effect on global justice, acting as a
deterrence to future leaders who might consider committing comparable crimes.
The Tokyo Trial lay the groundwork for an extensive system of global justice by
defining international crimes, inspiring following trials, developing a model for
international criminal tribunals, and launching creation of the ICC. Its legacy serves
as a reminder of determination of world community to make sure that no one is above
the law and to bring offenders accountable. It is crucial that we keep in mind the
lessons from the Tokyo Trial as we forward and continue to work for global justice in
order to create more peaceful and just world.
