At that point, Stimson had managed to turn Roosevelt to his side, and only Churchill was stil opposing this plan. But the revelation of the various concentration camps (Belsen, Buchenwald, Dachau, and especially Auschwitz) in April 1945 changed his mind too. At that point, Stimson had managed to turn Roosevelt to his side, and only Churchill was stil opposing this plan. But the revelation of the various concentration camps (Belsen, Buchenwald, Dachau, and especially Auschwitz) in April 1945 changed his mind too. At this point it became clear that the systematic and ruthless atrocities perpetrated by Nazis had to be fully determined and exposed. Thus, United Kingdom accepted the judicial option.A declaration issued during the Potsdam Conference (3.8.1945) confirmed the decision to immediately try major war criminals.The preparatory works for the establishment of the ICT were conducted by a committee presided by US Supreme Court judge Robert H. Jackson. The committee concluded its work in summer of 1945. Subsequently, the representatives of the Allied Nations met in London.
The Allied Nations reached agreement and signed the London Agreement on the “Prosecution and Punishment of Major War Criminals of the European Axis” (8.8.1945). The treaty was later adhered to by 19 other states. The Allied Nations reached agreement and signed the London Agreement on the “Prosecution and Punishment of Major War Criminals of the European Axis” (8.8.1945). The treaty was later adhered to by 19 other states.According to Art. 2, the jurisdiction and functioning of the International Military Tribunal to be established in Nuremberg was determined by the annexed statute (“Annex to Prosecution and Punishment of Major War Criminals of the European Axis”). This was the Charter of the International Military Tribunal at Nuremberg (“Nuremberg Charter”).The IMT would try criminals whose crimes “have no particular geographical location”.In order to provide for the implementation of the Agreement and make possible the prosecution of German war criminals within the territory controlled by each Allied State the “Allied Control Council Law No. 10” was adopted on 20.12.1945. To apply this law, military tribunals were set up in the occupied zones. Accordingly, war criminals whose crimes could be localized to a specific country’s territory would be prosecuted by the respective countries. Finally, Allied occupation courts would have jurisdiction over crimes committed by Germans within the borders of the German Reich. For example,US military courts sitting in Dachau tried 1672 defendants in 489 cases, convicting 1416 of these.
Once the Nuremberg Tribunal was established, it was the turn to provide for the prosecution of Japanese forces. Once the Nuremberg Tribunal was established, it was the turn to provide for the prosecution of Japanese forces. The International Military Tribunal for the Far East (IMTFE) at Tokyo was established through the executive order (a directive) of General Douglas MacArthur in January 1946. Therefore, contrary to the Nuremberg Tribunal which was established through an int’l. treaty, the Tokyo Tribunal was created through an administrative act. However, the legal basis for this act was embodied in the Peace Treaty signed between the USA and Japan, and the Potsdam Declaration had been accepted by Japan in its instrument of surrender.The Charter of the IMT for the Far East (Tokyo Charter) is virtually identical to the Nuremberg Charter.
Both tribunals were ad hoc as they were specifically established to prosecute certain crimes. Both tribunals were ad hoc as they were specifically established to prosecute certain crimes.Both tribunals are examples of ex post facto justice and violate the “natural judge” principle since they have been set up after the crimes within their jurisdiction were committed.Both tribunals were of a military nature, their mandate was to judge exclusively the nationals of the defeated parties and try crimes committed in connection with the war. Both tribunals replaced national courts. The bench of the Nuremberg IMT consisted of four principal judges (and four more alternate judges) of respectively American, British, Soviet and French nationality. The President was Lord Justice Geoffrey Lawrence from the UK (elected by the members of the Tribunal).The bench of the IMTFE consisted of 11 judges who were nationals of countries engaged in war against or affected by the military operations of Japan. The chief prosecutor (and president) was appointed by the US, other countries could only appoint associate prosecutors.
For Nuremberg, each Allied State also appointed a chief prosecutor. The prosecutors acted under the order of each appointing State. Thus, the judicial impartiality of the tribunals is open to debate. For Nuremberg, each Allied State also appointed a chief prosecutor. The prosecutors acted under the order of each appointing State. Thus, the judicial impartiality of the tribunals is open to debate.The defence was undertaken by German lawyers.There was no jury system, but an adversarial trial system was followed. Trial in absentia was permitted (Bormann was sentenced to death in his absence).The judgments of the tribunals were final, no review was possible by way of appeal.A defendant could be convicted to capital punishment, life term imprisonment or to imprisonment for a certain period of time. Both tribunals had jurisdiction over three categories of crimes: crimes against peace, crimes against humanity, and war crimes. The criminalization of war crimes served to protect the right of foreign nationals whereas the incorporation of crimes against humanity into the Charter made possible the prosecution of crimes committed by the state against its own nationals.
The trials began in late November, 1945 (towards the end of 1946 at Tokyo) (1), and prosecutor Jackson said in his opening statement to the tribunal: “The former high station of these defendants, the notoriety of their acts, and the adaptability of their conduct to provoke retaliation make it hard to distinguish between the demand for a just and measured retribution, and the unthinking cry for vengeance which arises from the anguish of war. It is our task, so far as humanly possible, to draw the line between the two. We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well. We must summon such detachment and intellectual integrity to our task that this trial will commend itself to posterity as fulfilling humanity's aspirations to do justice." The trials began in late November, 1945 (towards the end of 1946 at Tokyo) (1), and prosecutor Jackson said in his opening statement to the tribunal: “The former high station of these defendants, the notoriety of their acts, and the adaptability of their conduct to provoke retaliation make it hard to distinguish between the demand for a just and measured retribution, and the unthinking cry for vengeance which arises from the anguish of war. It is our task, so far as humanly possible, to draw the line between the two. We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well. We must summon such detachment and intellectual integrity to our task that this trial will commend itself to posterity as fulfilling humanity's aspirations to do justice."Benjamin Ferencz, the chief prosecutor at Nuremberg closed his statement at the Einsatzgruppen case in 1947 by saying: “The defendants in the dock were the cruel executioners, whose terror wrote the blackest page in human history. Death was their tool and life was their toy. If these men be immune, then law has lost its meaning and man must live in fear.”(1) After an opening session in Berlin on 18 October 1945, the trial before the IMT in Göring et al. began on 20 November 1945 in Nuremberg.
http://en.wikipedia.org/wiki/Nuremberg_trials (see “The Main Trial” for the charges brought against the 24 defendants, and the outcomes. http://en.wikipedia.org/wiki/Nuremberg_trials (see “The Main Trial” for the charges brought against the 24 defendants, and the outcomes.In Nuremberg, of the 24 defendants indicted, only 22 made the trial since the implementer of the genocide prgramme, Heinrich Himmler, and the Nazi propaganda leader Joseph Goebbels both committed suicide before trial. (Robert Ley also committed suicide in his cell after his indictment was pronounced. As you know, Hitler had committed suicide on 30 April 1945).Of the 22 defendants who were judged, 12 were convicted to the death penalty, 3 were convicted to life time imprisonment, 4 were convicted to certain terms of imprisonment varying from 10 to 20 years (10, 15, 20, 20), and 3 were acquitted.The indictment at the IMTFE was submitted on 29 April 1946. 28 defendants (later, 2 died and 1 was declared mentally unfit to stand trial) were charged with 55 counts.Of the 25 persons tried; 7 were sentenced to death, 2 were sentenced to specific terms of imprisonment, the other 16 were sentenced to life time imprisonment (Cryer et al. at 116).
Many arguments have been advanced both in favour of and against these trials. Some thought that the trials symbolized the triumph of int’l. justice and constituted a development from which humanity must draw a lesson; others thought that it was no more than the strong imposing its will on the weaker. Many arguments have been advanced both in favour of and against these trials. Some thought that the trials symbolized the triumph of int’l. justice and constituted a development from which humanity must draw a lesson; others thought that it was no more than the strong imposing its will on the weaker.The arguments in favour may be summarised in the following way:1) Despite all the difficulties concerning the political situation, it may be said that the judgments were handed down following a fair trial, a fact that was also conceded by the defence counsels. Indeed, a poll conducted quite recently in Germany shows that 94 % of the German population believes the trials were fair (although, the additional presence of judges from neutral states and/or Germany would have been better). Given the standards applicable at the time, the proceedings were, basically, fairly run. However, the fairness of proceedings at Tokyo is much more open to debate.
2) Although, the judgments did not openly rely on positive (written) law, they were based on existing int’l. law principles which were globally and commonly accepted. Therefore, there was a customary basis (örfi dayanak) for the incriminations (suçlamalar). So, it may be said that the principle of legality (kanunilik ilkesi: kanunsuz suç ve ceza olmaz) was not violated, especially taking into account the relevant standards at the time. 2) Although, the judgments did not openly rely on positive (written) law, they were based on existing int’l. law principles which were globally and commonly accepted. Therefore, there was a customary basis (örfi dayanak) for the incriminations (suçlamalar). So, it may be said that the principle of legality (kanunilik ilkesi: kanunsuz suç ve ceza olmaz) was not violated, especially taking into account the relevant standards at the time.The Tribunal argued that the principle of legality had not been breached because the defendants had to know that what they did was unlawful. It would be wrong to say that it is unfair to punish persons attacking neighbouring states despite the prohibitions and safeguards embedded in existing int’l. documents. The purpose of the principle of legality is to protect persons from arbitrary prosecution. A person who acts in good faith by committing an act which is not laid down as a crime has to be protected. However, this is not the case with the Nazi. They knew that what they were doing could not be regarded as legitimate. Thus, their prosecution was not unforeseeable and arbitrary.
According to one view, the principle of legality (prohibition on retroactive punishment) was infringed. According to one view, the principle of legality (prohibition on retroactive punishment) was infringed. As despicable as the acts in question were, conduct defined as crimes against humanity and crimes against peace had not been criminalized in positive law before WWII. These crimes were established ex post facto. Indeed, there was no int’l. law rule criminalizing the acts in question at the time they were committed. Only certain conduct regarding warfare was prohibited by the 1899 and 1907 The Hague Conventions, but these rules for not of a criminal law nature. In any case, the acts committed by the Nazi regime against its own citizens before the invasion of Poland in 1939 could not fall within the ambit of those conventions anyway. The concept of crimes against humanity had not yet been created. In fact, the “Holocaust” which was considered as a crime against humanity was perfectly lawful under the law of the Third Reich. (Counter-argument: the various crimes (murder, enslavement, torture, rape) were illegal in virtually all legal systems at the time. Thus, the criminality of the acts themselves was not open to dispute, but their characterization as “crimes against humanity” was a novelty.)
2) The defendants were not tried by natural judges (no possible counter-argument!) 2) The defendants were not tried by natural judges (no possible counter-argument!)Germany was deprived of criminal jurisdiction with regard to crimes committed by German nationals on German territory. This was done through a treaty (London Agreement) to which Germany was not a party. It was argued that such approach violated German sovereignty. The IMTs were not independent int’l. courts, but judicial bodies acting as organs of the appointing states. The judicial and administrative staff were completely constituted by nationals of the victor state, which had full control over the functioning of the tribunals.
5) There also are arguments regarding the overall efficiency and fairness of the trial, and concerning respect for the principle of equality of arms. It is argued that there was a huge disparity in resources between the prosecution and the defence at Nuremberg, and heavy reliance on affidavit evidence. With regard to Tokyo, the performance of the President of the Court, and the competence of the chief prosecutor have attracted serious criticism. In addition, one judge (Jaranilla from the Philippines) had been a victim of Japanese crimes, and should not have sat as a member of the Court 5) There also are arguments regarding the overall efficiency and fairness of the trial, and concerning respect for the principle of equality of arms. It is argued that there was a huge disparity in resources between the prosecution and the defence at Nuremberg, and heavy reliance on affidavit evidence. With regard to Tokyo, the performance of the President of the Court, and the competence of the chief prosecutor have attracted serious criticism. In addition, one judge (Jaranilla from the Philippines) had been a victim of Japanese crimes, and should not have sat as a member of the Court6) The major criticism was obviously directed to the fact that only nationals of the defeated states could be tried (victors’ justice/vengeance). This accusation refers to different but linked allegations: that the trial itself was not fair, in particular that the judges were biased against the accused, that the applicable law was designed to secure conviction, that similar acts were committed by the prosecuting State(s) but not prosecuted. The defence were not permitted to raise the issue of crimes committed by the Allies.
While it is true that the Nuremberg and Tokyo trials have opened a new era in ICL by ending impunity and making sure that certain major crimes did not go unpunished, it also has to be conceded that certain fundamental principles of law were overstretched in order to achieve that purpose. While it is true that the Nuremberg and Tokyo trials have opened a new era in ICL by ending impunity and making sure that certain major crimes did not go unpunished, it also has to be conceded that certain fundamental principles of law were overstretched in order to achieve that purpose.In addition, politics were effective in the Tokyo trial, as evidenced by the Emperor not being indicted in order to ensure Japan’s post-war stability.Even worse, all those sentenced in Tokyo were released by 1955 due to political considerations (the shadow of the Cold War).However, many of the findings of the Nuremberg Tribunal were later “affirmed” by the United Nations (the “Nuremberg Principles”), and those principles are now considered to be part of international customary law.
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