70 Years Later: The International Military Tribunal for the Far East

Introduction

From 4th to 12th November, 1948, the findings and final verdict against 28 former Japanese military and political officials were given in the trial of the International Military Tribunal for the Far East (IMTFE). To commemorate the 70th anniversary of the judgment of the IMTFE, the International Nuremberg Principles Academy (Nuremberg Academy) convened an international conference titled “70 Years Later: The International Military Tribunal for the Far East”, in Nuremberg from 17 to 19 May 2018. This unique event brought together more than 30 experts from diverse fields, such as law, history and the social sciences, making it the biggest conference in Europe on the subject matter in 2018. More recently in November, the Nuremberg Academy participated in two anniversary events on the IMTFE in Asia: an international symposium in Shanghai on the Tokyo trial; and an event in Tokyo on the present day significance of Nuremberg and Tokyo. In light of the 70th anniversary of this historic judgment, it is an opportune moment to recall some key points from the conference held in Nuremberg and reflect further on the IMTFE.

The relative dearth of interdisciplinary scholarship on the IMTFE

Since the delivery of the IMTFE’s judgment, a number of studies have made significant contributions to disseminating knowledge about the trial. Yet, a common issue which continually surfaced in all presentations at the conference related to the relative dearth of interdisciplinary scholarship on the IMTFE. Indeed, not many studies have been conducted on key aspects of the trial, such as: the majority judgment, the modes of liability that were utilized in arriving at the verdicts, the persona of the judges of the tribunal as well as the perceptions of the Japanese people about the trial. One of the explanations for this is that it took about three decades after the Tokyo Trial for the judgment and related transcripts to be published and therefore become easily accessible. This undoubtedly affected the level of potential research and analysis on the subject. Another plausible explanation expressed during the conference was that perspectives about the trial have, in the past, largely been dominated by western-centric studies on the trial of the International Military Tribunal in Nuremberg. This has minimized knowledge of Asian perspectives on the IMTFE, especially of the Japanese scholarship that exists on the trial. Besides, the era of the Cold War brought discussions about the trial to a standstill, and thus contributed to the reduced amount of research about the IMTFE. There is therefore the need for a revival of scholarly exchange and critical study of the IMTFE in light of the developments that have been witnessed on the international landscape in the last 70 years.

Essential aspects of procedure and substance

In the aftermath of the Tokyo trial, the basis of the trial and the reasoning of the judgment evoked diverse reviews and critical reactions. From today’s perspective however, many lessons can be learnt from the trial concerning its procedural and substantial aspects. In particular, the conference highlighted the exclusive nature of the IMTFE, given its ability to surmount key challenges at the time to successfully complete its work. The key procedural challenges faced by the IMTFE included the problem of communication, which was posed by the existence of language barriers and challenges due to the different backgrounds of the judges. Regardless of these challenges, the IMTFE proved to be very multicultural, as a result of having overcome these cultural and language differences. In terms of substance, the IMTFE judgment can be considered as unique because the judges opted for a fact-based approach, interspersed with some legal reasoning to arrive at verdicts. As was raised during the conference, this was largely due to the insufficiency of the available evidence to connect individuals to the respective crimes they were charged with. The conference further shed light on some shortcomings in the judgment of the IMTFE. These included the non-indictment of the crime of sexual slavery and the fact that significant aspects of the evidence adduced by the prosecution were not clearly utilized by the court.

Ongoing impact of the judgment

Looking back at the IMTFE, there is no doubt that the judgment has been a significant precedent for the development of international criminal law. The value of the Tokyo Tribunal’s reasoning lies in its ample reliance on the principle of command responsibility due to, presumably, the lack of adequate evidence to establish a link between defendants and specific occurrences. Today, the tribunal’s decision serves as a key precedent on the subject, especially regarding mens rea for command responsibility. Moreover, the IMTFE made ample use of the count of conspiracy to establish the criminal responsibility of leaders for acts which they were not directly involved in. This has proved to be a very relevant precedent for modern international criminal law, particularly with regards to the modes of liability under international criminal law. The Tokyo trial also disclosed significant evidence on sexual violence which occurred during the 2nd World War. Many experts at the conference also highlighted the fact that the IMTFE reaffirmed the Nuremberg Principles enumerated in the Nuremberg Trial, and can therefore be said to have contributed significantly to setting the scene for subsequent trials and modern day tribunals, including the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda and the International Criminal Court (ICC). Also, the crimes adjudicated by the IMTFE, and the Nuremberg Tribunal, laid a foundation for the elements of the core crimes under international law. An example is the crime of aggression which owes its roots to the trial of individuals for crimes against peace by the IMTFE. It remains however to be seen how the precedent of the IMTFE will assist the ICC in prosecuting cases related to the crime of aggression in future.

Conclusion

Overall, studies on the IMTFE have not yet reached a saturated stage, and the judgment and procedure still pose historical and jurisprudential questions. The above noted points are amongst the diverse issues that were discussed during the conference. The Nuremberg Academy will capture the different views and key discussions in a forthcoming publication. However, the conference has already shed light on the ongoing importance of the Tokyo trial and judgment and also opened the door for more interdisciplinary research ideas amongst scholars and practitioners, advancing perspectives on the past, present and future of international criminal law.

 

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