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The Tokyo International Military Tribunal - A Reappraisal
Abstract
The Tokyo International Military Tribunal (IMT) (1946-1948) is a neglected topic in the literature on post-war international criminal law. Condemned by its critics as 'Victors' Justice' and expediently forgotten by its erstwhile supporters, it is commonly thought by those who recall it at all that it was little more (and probably less) than a footnote to the International Military Tribunal at Nuremberg. This work seeks to dispel this widely held belief by showing the way the Tokyo Tribunal was both similar to and different from its Nuremberg counterpart, the extent to which the critiques of the Tokyo IMT have purchase, and the Tribunal's contemporary relevance. The book also shows how the Tokyo Tribunal needs to be approached not as a monolithic entity, but as being made up of many different and often contradictory parts. The prosecution, defence, and judicial arms of the tribunal both differed with each other on many points of procedure, law, and fact, but also differed inter se, and the book shows how these differences had an impact on the proceedings. It is a comprehensive legal analysis of the Tokyo IMT, covering its law, theory, and practice and the lessons it may teach those formulating, prosecuting, and defending international crimes today. It also places the trial in its political and historical context. The work is based in part on extensive archival research undertaken by the authors.
... Além disso, as jurisdições concorrentes nem sempre favorecem o devido processo legal, visto que, por vezes, causam mais confusão quanto à tipificação do crimecomo ocorre com o crime de terrorismo, pois não há uma definição universalmente aceita sobre ele (MERON, 2000). A situação torna-se mais delicada, pois muitos crimes ocorrem sob a "tutela" do Estado, como a prática do genocídio, crimes de guerra e crime contra a Embora a tipificação dos crimes internacionais não seja algo novo, observar-se-á que os precedentes vieram a ser cristalizados a partir da prática dos Tribunais Militares de Nuremberg e de Tóquio (NEUMANN, 1949;BOISTER;CRYER, 2008). Uma das formas em definir os contornos legais do Direito Internacional Penal, a fim de favorecer a atuação da justiça internacional, é compreender o elenco dos crimes internacionais, isto é, aqueles que são da competência do Tribunal Penal Internacional de processar e julgar (CASSESE, 2003;BASSIOUNI, 2005). ...
... Além disso, as jurisdições concorrentes nem sempre favorecem o devido processo legal, visto que, por vezes, causam mais confusão quanto à tipificação do crimecomo ocorre com o crime de terrorismo, pois não há uma definição universalmente aceita sobre ele (MERON, 2000). A situação torna-se mais delicada, pois muitos crimes ocorrem sob a "tutela" do Estado, como a prática do genocídio, crimes de guerra e crime contra a Embora a tipificação dos crimes internacionais não seja algo novo, observar-se-á que os precedentes vieram a ser cristalizados a partir da prática dos Tribunais Militares de Nuremberg e de Tóquio (NEUMANN, 1949;BOISTER;CRYER, 2008). Uma das formas em definir os contornos legais do Direito Internacional Penal, a fim de favorecer a atuação da justiça internacional, é compreender o elenco dos crimes internacionais, isto é, aqueles que são da competência do Tribunal Penal Internacional de processar e julgar (CASSESE, 2003;BASSIOUNI, 2005). ...
... Ressalta-se que a aplicação do princípio da responsabilidade penal do indivíduo não é algo exclusivo dos tribunais militares de Nuremberg e Tóquio (NEUMANN, 1949;BOISTER;CRYER, 2008). Após a II Guerra Mundial, o cenário internacional foi abalado por diversos conflitos armados não internacionais, dentre eles, a guerra iugoslava e o conflito de Ruanda (KHAVAN, 1996). ...
Temos o prazer de lançar o primeiro livro do congresso internacional na área multidisciplinar, que tem como título The best articles of the I Seven Multidisciplinary Congress, essa obra reúne os 10 melhores artigos voltados na área do desenvolvimento apresentado em congresso, sendo a mesma pela Seven Publicações Ltda
... Ressalta-se que a aplicação do princípio da responsabilidade penal do indivíduo não é algo exclusivo dos tribunais militares de Nuremberg e Tóquio (NEUMANN, 1949;BOISTER;CRYER, 2008). Após a II Guerra Mundial, o cenário internacional foi abalado por diversos conflitos armados não internacionais, dentre eles, a guerra iugoslava e o conflito de Ruanda (KHAVAN, 1996) ...
... Ressalta-se que a aplicação do princípio da responsabilidade penal do indivíduo não é algo exclusivo dos tribunais militares de Nuremberg e Tóquio (NEUMANN, 1949;BOISTER;CRYER, 2008). Após a II Guerra Mundial, o cenário internacional foi abalado por diversos conflitos armados não internacionais, dentre eles, a guerra iugoslava e o conflito de Ruanda (KHAVAN, 1996) ...
... Ressalta-se que a aplicação do princípio da responsabilidade penal do indivíduo não é algo exclusivo dos tribunais militares de Nuremberg e Tóquio (NEUMANN, 1949;BOISTER;CRYER, 2008). Após a II Guerra Mundial, o cenário internacional foi abalado por diversos conflitos armados não internacionais, dentre eles, a guerra iugoslava e o conflito de Ruanda (KHAVAN, 1996) ...
... Ressalta-se que a aplicação do princípio da responsabilidade penal do indivíduo não é algo exclusivo dos tribunais militares de Nuremberg e Tóquio (NEUMANN, 1949;BOISTER;CRYER, 2008). Após a II Guerra Mundial, o cenário internacional foi abalado por diversos conflitos armados não internacionais, dentre eles, a guerra iugoslava e o conflito de Ruanda (KHAVAN, 1996) ...
... 50 Agreement for the Prosecution and Punishment of the Major War Criminals of the European Tokyo Charter, inCryer and Boister 2008, p. 7 et seq. 52 Allied Control Council Law No. 10, in Ferencz 1980, p. 488. ...
The Concept of Humanity in International Criminal Law
It is difficult to find a more ambiguous and multifaceted category than the concept of humanity. This is all the more striking considering its widespread appearance and countless invocations in legal, political, ethical, social and cultural spheres, expressly or otherwise. Among the words several different connotations are mankind, humaneness, human dignity and human nature. But there is no explicit or accepted definition of the term “humanity” in international legal documents or in relevant case law. Often used in the legal literature, first of all with reference to the famous Martens’ Clause, the concept of “humanity” does not yet have a comprehensive formulation in international criminal law or in other relevant branches of law, for that matter. To tackle the issue, the present article argues that in order to properly assess the role of such a multifaceted but subjective notion in the law dealing with international crimes, it first needs to be considered from a wider perspective, i.e., from the point of view of international law, so as to facilitate its analysis from a more focused perspective, namely, with a view to better understanding a particular category of crimes under international law. After a very brief study, several conclusions are offered. One of them is that the notion of humanity found itself constantly reinstated in different civilizations and societies under various formulations and sometimes containing starkly differing elements but always embodying the same fundamental and basic values, or humanitarian sentiments. Another conclusion concerns the legal aspects of the concept: neither humanity nor its related notions (“principle of humanity”, “laws of humanity”) carry a strictly legal nature – in the sense of understanding a legal norm, rule or principle. But the so-called elementary considerations of humanity belong to certain general and well-recognized principles, which are exacting both in peacetime and war and upon which the state obligations are to be based. Finally, no other category of crimes is so closely related to the idea of humanity as the category of crimes against humanity. They are harmful to human beings’ most fundamental interests. Therefore, to describe them as the umbrella concept encompassing all those interests has to be fundamental and comprehensive, too. The article offers such a concept: “humanity” under the context of international criminal law and the law of crimes against humanity should be understood as “humanness”, or the status/quality of being human. Crimes against humanity attack humanity as such; hence, their title is justified and needs no replacement. Moreover, this interpretation not only encompasses all sub-elements of humanness but, furthermore, makes it possible to develop a holistic theory of crimes against humanity that reflects and explains these crimes’ unclear protective scope. That theory preliminarily labelled “the theory of humanness” (and laid out by the author in more detail elsewhere) enables us to answer not only the conceptual question of “what is humanity?” but also the normative one, i.e., why crimes against humanity must be criminalized and prosecuted.
Close case readings focusing on the ICC support the theory that legal prostitution be recognized as a crime against humanity. Extensive social science research documents the coercion and damage attendant and endemic to the sex industry. Countries following the Swedish (now “Nordic/Equality”) prostitution model law, which penalizes buyers and third parties while supporting prostituted persons to escape, have decreased prostitution’s incidence, while countries in which prostitution is legalized have seen trafficking and other violative abuses metastasize.
This article analyzes in depth the prospect of holding authoritative actors accountable for legalized prostitution under the international legal rubric of crimes against humanity. It documents that legalized and fully decriminalized prostitution release a tsunami of crimes against humanity for which these policies guarantee domestic impunity. Empirical evidence marshaled shows that legal prostitution exponentially increases “widespread” and “systematic attacks” against prostituted persons, including “rape, enforced prostitution, enslavement, human trafficking, sexual slavery,” and other atrocities enumerated under international law and the Rome Statute of the International Criminal Court (ICC).
A long time ago, the international community has taken some steps to prosecute war criminals and to establish a permanent criminal tribunal. However, a new era in the development of international criminal law and procedure, as well as international human rights and humanitarian law, began in the aftermath of World War II. Unfortunately, the Nuremberg and Tokyo Tribunals focused mainly on the accused and their punishment. They ignored the role of the victim in the criminal proceedings. Thus, it was necessary to create a new international criminal tribunal that would not suffer from the shortcomings and would be in line with the emerging standards for the protection of human rights. Indeed, the Statutes and Rules of Procedure and Evidence of the International Criminal Tribunals for the former Yugoslavia (ICTY) and for Rwanda (ICTR) was an attempt to be more fair and reflect international human rights standards. The milestone, however, was the establishment of the International Criminal Court (ICC), whose Statute mirror not only fundamental human rights standards and jurisprudence of human rights tribunals and organs but also elevates the status of victims. Furthermore, the ICC applies treaties and other sources of international law and it “must be consistent with internationally recognized human rights”. The article is a contribution to the discussion of the impact of international law on the development of international criminal proceedings through the lens of human rights standards. It also attempts to show whether the special features of international law have influenced international criminal proceedings and demonstrate the close but complex relationship between sub-branches of international law, such as international criminal law, international criminal procedure, international human rights and humanitarian law, as well as the ways of interferences of international human rights law in international criminal proceedings.
Legal personality of NGOs has been evolving since the beginning of twentieth century. The sources of legal personality of NGOs are sum of theoretical discourse; state practices; NGOs participation with other international actors; their role in creation development and enforcement of international law. Legal personality of NGO is very important because it is endowed with rights, duties and capabilities in international law, that gives NGOs legal identity, capacity to bring claim before adjudicating fora and to seek facility and protection for their mission.
Reasoning and justifications before the international criminal tribunals and courts (ICTs) have not always strictly kept to legal rules and/or legal standards. At times, philosophical structures were used directly in argument. Consequently, this article is, in particular, concerned with cosmopolitanism in arguments and judgments from a selection of counsel and judges emanating from the Nuremberg and Tokyo International Military Tribunals as well as the ad hoc International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). It aims to provide an analysis of how the different generations of ICT and the different role-players therein used cosmopolitanism in their arguments. While not a treatise on cosmopolitanism as such, the article will identify and consider several broad cosmopolitan strands relevant to the selected arguments. The ensuing analysis will propose a taxonomy of specific arguments from the selected role-players addressing (1) the existence of a homogeneous civilisation and/or common morality as a descriptive truth or falsity, (2) the progressive realisation of the international society as a normative aspiration and (3) the relationship of the duty to the international community versus that owed to the domestic community of birth. Thereafter, the article will discuss plausible functions, in addition to persuasion, served by these arguments (including winning the case, undermining or supporting the legitimacy of the ICL proceedings in their entirety and/or controlling the subsequent historical narrative). Finally, the article will situate these investigations within the broader study of philosophy at the selected ICTs.
Despite a wealth of literature exploring the issues surrounding it, the legitimacy and authority of international criminal law remain in question. Adopting a perspective informed by legal and political philosophy, Clare Frances Moran considers the authority of international criminal law, why it can be conceived of as more than simply an exercise of power and how that power may be exercised legitimately. Advancing existing scholarship on the subject, Moran explores the roots of the authority of law at the domestic level and tests these ideas in an international context. She examines sovereignty, complementarity and postcolonial issues, and how each impact international criminal law. By developing a theory on the authority of international law, Moran considers how it might be possible to adjudicate more effectively at the international level.
Pan-Asianism as a concept is conventionally associated with Japan's imperialism during the Second World War. This paper, in contrast, argues that far from being merely a language of hegemony, Pan-Asianism had a far more complex role to play in the early twentieth century. As an anti-imperial ideology, Pan-Asianism advanced a normative argument for the emancipation of Asia from Western imperialism and provided an alternative vision of civilization. As an anti-imperial strategy, Pan-Asianism offered Indian nationalist leaders in exile a necessary language to gain international support in favour of their nationalist movement. The paper explains how the ideological and strategic aspects of Pan-Asianism then affected and informed the development of contemporary international law with specific reference to the law of neutrality, the right to self-determination, racial equality, and the Monroe Doctrine. By doing so, it sheds light on an important yet ignored episode of the historical development of international law.
The need to implement the crime of genocide, crimes against humanity and war crimes was justified in Germany by the inability of domestic law to adequately reflect the core wrong of these crimes. To perform the same analysis for the then omitted crime of aggression, this chapter starts with identifying the core wrong of the crime as defined under Article 8bis of the ICC Statute. It does so by determining the “protected legal interests” of the crime before specifying the “type of attack” from which these interests are protected. This chapter breaks with the traditional view that perceives aggression as a crime that primarily protects State interests. It emphasizes the importance of the protection of international peace for the classification as a “crime under international law”. It argues that the crime of aggression can better address the unease resulting from the “humanization of international law” if conceptualized as a crime that also protects individual interests. It presents three possibilities to explain this human protective core of aggression. The chapter ultimately turns to the “type of attack”. It illuminates the limited protection of the identified protected interests from the use of armed force “by a State” which amounts to a “manifest violation” of the ius ad bellum and by persons who belong to the “leadership circle” of a State. The findings serve as a frame of reference for assessing in Chap. 4 the extent to which domestic criminal offenses can capture the core wrong of the crime of aggression.KeywordsCore wrongInternational element of “crimes under international law”Protected legal interestsType of attackState sovereigntyInternational peaceProhibition of the use of forceIndividual interestsCollective interests
Personale Rechtsgutslehre
Humanization of international lawManifest violation of the UN CharterTriggering the application of international humanitarian lawExclusion of non-State actor violenceLeadership crimeRevisionists and the philosophy of war
The pursuit of peace is an eternal theme of mankind. More than 70 years since the end of the world war II, the international conflict often occurs, but they are local. Looking back on the history and reviewing the origins, we can find that the postwar trials of the two international military tribunals played an important role in world peace after war. It is no exaggeration that Nuremberg trials and Tokyo trials are the important milestone of the international peace order after the trial.
After the World War II, it is the first time for human beings to establish the International Military Tribunal above the national sovereign, to trial the countries’ leaders who waged the aggressive wars and solemnly declare the aggressive wars and the illegal acts in the wars as international crimes. The Tokyo trial resorts to the international criminal justice for the pursuit of the permanent peace of human beings, which reflects the ration, civilization and progress of human society. As the President Webb declared at the beginning of the trial, there is no more important criminal trial in the whole history.
The International Military Tribunal for the Far East (IMTFE) closed its sessions on April 16, 1948. After a six-month adjournment to write the verdict, the court reopened. The presiding president declared the court’s judgment on the 25 defendants. Seven were executed on December 23, and 17 accused of Class A war crimes were acquitted and released on December 24. The two and a half year long Tokyo Trials eventually finished in late 1948. This chapter will provide an overview of the verdict, the trials’ influence and several of the judges’ minority opinions.
On April 29, 1946, Chief Prosecutor Joseph B. Keenan submitted an indictment to the court on behalf of the Allied Nations’ prosecutors. On May 3, the court sessions were officially opened by the IMTFE.
The laws of war are facing new challenges from emerging technologies and changing methods of warfare, as well as the growth of human rights and international criminal law. International mechanisms of accountability have increased and international criminal law has greater relevance in the calculations of political and military leaders, yet perpetrators often remain at large and the laws of war raise numerous normative, structural and systemic issues and problems. This edited collection brings together leading academic, military and professional experts to examine the key issues for the continuing role and relevance of the laws of war in the twenty-first century. Marking Professor Peter Rowe's contribution to the subject, this book re-examines the purposes of the laws of war and asks whether existing laws found in treaties and customs work to achieve these purposes and, if not, whether they can be fixed by specific reforms or wholesale revision.
The laws of war are facing new challenges from emerging technologies and changing methods of warfare, as well as the growth of human rights and international criminal law. International mechanisms of accountability have increased and international criminal law has greater relevance in the calculations of political and military leaders, yet perpetrators often remain at large and the laws of war raise numerous normative, structural and systemic issues and problems. This edited collection brings together leading academic, military and professional experts to examine the key issues for the continuing role and relevance of the laws of war in the twenty-first century. Marking Professor Peter Rowe's contribution to the subject, this book re-examines the purposes of the laws of war and asks whether existing laws found in treaties and customs work to achieve these purposes and, if not, whether they can be fixed by specific reforms or wholesale revision.
The issue of international crimes is highly topical in Asia, with still-resonant claims against the Japanese for war crimes, and deep schisms resulting from crimes in Bangladesh, Cambodia, and East Timor. Over the years, the region has hosted a succession of tribunals, from those held in Manila, Singapore and Tokyo after the Asia-Pacific War to those currently running in Dhaka and Phnom Penh. This book draws on extensive new research and offers the first comprehensive legal appraisal of the Asian trials. As well as the famous tribunals, it also considers lesser-known examples, such as the Dutch and Soviet trials of the Japanese, the Cambodian trial of the Khmer Rouge, and the Indonesian trials of their own military personnel. It focuses on their approach to the elements of international crimes, and their contribution to general theories of liability. In the process, this book challenges some orthodoxies about the development of international criminal law.
The issue of international crimes is highly topical in Asia, with still-resonant claims against the Japanese for war crimes, and deep schisms resulting from crimes in Bangladesh, Cambodia, and East Timor. Over the years, the region has hosted a succession of tribunals, from those held in Manila, Singapore and Tokyo after the Asia-Pacific War to those currently running in Dhaka and Phnom Penh. This book draws on extensive new research and offers the first comprehensive legal appraisal of the Asian trials. As well as the famous tribunals, it also considers lesser-known examples, such as the Dutch and Soviet trials of the Japanese, the Cambodian trial of the Khmer Rouge, and the Indonesian trials of their own military personnel. It focuses on their approach to the elements of international crimes, and their contribution to general theories of liability. In the process, this book challenges some orthodoxies about the development of international criminal law.
The relationship between the principle of complementarity and the concept of federalism with the challenge that federalism may pose has not been seriously addressed. Therefore, this study examines it. It finds that in the principle of complementarity, there are two criminal jurisdictions with one being international while the other is domestic and that the two complement each other to close the impunity gap. With respect to the concept of federalism, it finds that there are two levels of governance with one being the central government while the other is that of the federating units. Therefore, it argues that there are five models of the principle of complementarity, that their operation in practical terms may manifest like any of the others and that they may find expression between a central government and federating units in a federal state. Against this backdrop, the study examines section 12 of the Nigerian Constitution 1999 on treaty implementation and submits that the section can accommodate various complementarity models between the Federal Republic of Nigeria and any of the States within the Nigerian Federation in the process of implementing the Rome Statute complementarity principle but that the 1937 League of Nations model should be avoided otherwise federalism may pose a challenge and become a hindrance. Since Nigeria may have to report to the ICC under the Rome Statute, it suffices once Nigeria gives account of what the relevant State does. The study concludes that Nigeria may consider this in its effort to implement the Rome Statute.KeywordsComplementarityFederalismRome StatuteTreaty implementationInternational Criminal CourtNigeria
Transitional justice is typically perceived as a product of the third wave of democratisation, which came to the fore after the fall of the Iron Curtain, bringing along with it various mechanisms, from truth commissions and lustration procedures to national trials, leading to the creation of hybrid and international tribunals of global reach. ¹ Despite its obvious relevance, the aftermath of the Second World War is generally treated as a cursory prehistory in the transitional justice literature. With the exception of the Nuremberg trials, robust research on legal and extralegal ventures which characterised the first postwar decade remains largely disconnected from contemporary transitional justice concerns, and yet it offers a number of valuable lessons. ² Three recent publications which are the subject of this review are therefore a welcome intervention, highlighting the scope and depth, successes and fallacies of efforts to come to terms with the atrocious legacy of the Second World War in its immediate aftermath.
The structures of international criminal law are especially complex with respect to the general principles of criminal responsibility. Besides the principle of legality, the general principles that may be considered binding on both international and national criminal proceedings are apparently restricted to those regarding command responsibility, superior order defense, and functional immunity of state officials. Customary international law on other general principles is applicable only to international judicial forums. Furthermore, even at the international level, there is a difference that leads the International Criminal Court (ICC) to mainly apply its own statute as a conventional law and ad hoc international criminal tribunals to apply customary international law. The substance of respective applicable laws varies with regard to topics, such as the subjective elements of crimes, the distinction between principals and accessories, command responsibility, attempt, conspiracy, and grounds for excluding criminal responsibility, including intoxication and duress, which appear problematic from the perspective of a systematic understanding of international criminal law. In some cases, however, it is apparently necessary to reflect the difference in the characteristics of applicable laws in the very substance of general principles, as is the case with the principle of mistake of law.
This chapter presents the main risks and difficulties of prosecuting the crime of aggression. It argues that aggression trials can negatively impact peace, the international criminal justice system (particularly the International Criminal Court) and the reconciliation process. This chapter further stresses that prosecution of aggression may endanger the Security Council’s efforts to maintain peace and security because it places considerable pressure on the Council to classify certain situations as acts of aggression. This is despite the fact that the principle of independence of courts means that they must be able to challenge any decision of the Council to this effect. Moreover, the current scope of criminalization of aggression is problematic. On the one hand, it excludes intrastate use of force, i.e. the main source of threats to peace. And yet, on the other hand, it may serve to discourage interventions undertaken for humanitarian reasons or, conversely, to encourage military operations with doubtful legal justification. Trials of aggression may undermine the International Criminal Court’s credibility if the Court is forced to shift its resources towards aggression cases due to political pressures. The limitation of aggression charges to those in leadership positions also misrepresents the guilt of the whole population of aggressor State(s) and prevents full reconciliation between victim and aggressor States’ populations. This chapter further emphasizes that prosecution of aggressors is inherently linked to the problem of recognition of immunities and privileges of high officials, which can prevent the surrender of such officials to the international court or their extradition to third-party States. There is also a strong risk of violation of basic human rights, as access to evidence is limited due to security reasons. Taking into account all risks and challenges, the prosecution of the crime of aggression could be against the interest of justice.
This chapter presents a comprehensive review of the literature on transitional justice, concentrating on its genealogy and how participation has evolved over time. The transitional justice literature has seen three distinct waves, with the most recent increasingly focused on national ownership and reconciliation, merging local peacebuilding, and local transitional justice research agendas. The importance of the participation of diaspora populations in transitional justice features prominently in this regard.
The existing approach to the crimes against humanity prohibition on other inhumane acts is deeply flawed. In my last chapter, I suggested that a new approach to the prohibition was required: one based on the understanding that the prohibition is a direction to courts to act as law-makers and an invitation to courts to create and apply retroactive criminal laws. In this chapter, I elaborate on that new approach. The starting point is to identify how unlisted acts are like the listed prohibitions in the various articulations of crimes against humanity. To understand whether an unlisted act is “like” one of the existing prohibitions, we need to understand what the term “inhumane” means. I propose a victim-focussed understanding drawn from domestic criminal law theory. Using the work of Stephen Shute and John Gardner, I argue that for the purpose of the prohibition on other inhumane acts, inhumanity must be understood as sheer use of a person. Building on this, I articulate a new analytical approach to recognizing and defining new, permanent, other inhumane acts. I deploy the theory of Lon Fuller to show how this new approach would, unlike the current approach, reinforce the legitimacy of the law.
In this chapter, I trace the development of the prohibition on retroactive law in general international and international criminal law. I begin by clarifying what I mean when I refer to retroactive law, drawing from the views of a number of scholars. I then engage in a comparative-historical analysis to demonstrate that prior to the Judgment of the International Military Tribunal in 1946, the prohibition on retroactive criminal law did not exist in international law. From there, I move to examine the development of the prohibition following the International Military Tribunal’s acceptance that it was a principle of justice in the international legal order. I engage in a comparative examination of the way international and regional courts and tribunals have articulated the prohibition. From that, I clarify the current content of the prohibition in customary international law. I critique international practice for stating the prohibition in absolute terms while permitting exceptions. Drawing from that practice, I articulate the two exceptions to the prohibition on retroactive criminal law which are de facto accepted. I argue that these exceptions are justifiable, and that their use should be openly defended, in a fair legal system.
It was always intended that the law of crimes against humanity would continue to evolve in order to effectively respond to atrocity crimes. The mechanism through which crimes against humanity are able to evolve is the prohibition on other inhumane acts. This provision permits authorities to charge an accused for acts which are not specifically prohibited. In this chapter, I analyse the way in which the ad hoc tribunals and ICC have interpreted the prohibition on other inhumane acts. I argue both that the methodologies used were flawed and that the resulting interpretation is highly problematic. The current approach to the prohibition on other inhumane acts can neither account for some existing results nor offer certainty in future trials. I argue that the fundamental difficulty is that the prohibition on other inhumane acts has been misconceived. It is not a substantive prohibition which simply requires interpretation; it is a direction to courts and tribunals to act as law-maker and an invitation to create and apply new criminal laws. This approach would ensure more careful attention to the concerns underlying the prohibition on retroactive criminal law: notice, restraint of arbitrary power and legitimacy. The current approach to the prohibition on other inhumane acts risks undermining the legitimacy of the law. A new approach is needed.
The development of crimes against humanity has been comprehensively traced in many works. In this chapter, I consider that development and argue that crimes against humanity were retroactive at their first application in 1945 and remained retroactive until the 1990s. I rely on my argument that to overcome the prohibition on retroactive criminal law, a crime must be defined. International crimes are distinguished by their contextual elements. Until the work of the ad hoc tribunals and negotiators of the Rome Statute in the 1990s, the contextual elements of crimes against humanity remained uncertain. The crimes were not defined. I go on to argue that in spite of the retroactive nature of crimes against humanity, their use in prosecutions throughout the latter half of the twentieth century was legitimate. I draw on the work of Lon Fuller to argue that while crimes against humanity were retroactive laws, they were not an objectionable form of retroactive law. In the last section of this chapter, I argue that careful consideration of what makes laws retroactive and when such laws may be justifiably deployed remains a key concern because crimes against humanity are deliberately open-ended. The law was always intended to be applied to new, unspecified, atrocities. To ensure the law remains legitimate, we need to be attentive to the justifiable limits of retroactive criminal law.
This comprehensive introduction to international criminal law addresses the big issues in the subject from an interdisciplinary perspective. Expert contributors include international lawyers, judges, prosecutors, criminologists and historians, as well as the last surviving prosecutor of the Nuremberg Trials. Serving as a foundation for deeper study, each chapter explores key academic debates and provides guidelines for further reading. The book is organised around several themes, including institutions, crimes and trials. Purposes and principles place the discipline within a broader context, covering the relationship with human rights law, transitional justice, punishment and the imperatives of peace. Several tribunals are explored in depth, as are many emblematic trials. The book concludes with perspectives on the future.
This comprehensive introduction to international criminal law addresses the big issues in the subject from an interdisciplinary perspective. Expert contributors include international lawyers, judges, prosecutors, criminologists and historians, as well as the last surviving prosecutor of the Nuremberg Trials. Serving as a foundation for deeper study, each chapter explores key academic debates and provides guidelines for further reading. The book is organised around several themes, including institutions, crimes and trials. Purposes and principles place the discipline within a broader context, covering the relationship with human rights law, transitional justice, punishment and the imperatives of peace. Several tribunals are explored in depth, as are many emblematic trials. The book concludes with perspectives on the future.
This comprehensive introduction to international criminal law addresses the big issues in the subject from an interdisciplinary perspective. Expert contributors include international lawyers, judges, prosecutors, criminologists and historians, as well as the last surviving prosecutor of the Nuremberg Trials. Serving as a foundation for deeper study, each chapter explores key academic debates and provides guidelines for further reading. The book is organised around several themes, including institutions, crimes and trials. Purposes and principles place the discipline within a broader context, covering the relationship with human rights law, transitional justice, punishment and the imperatives of peace. Several tribunals are explored in depth, as are many emblematic trials. The book concludes with perspectives on the future.
This comprehensive introduction to international criminal law addresses the big issues in the subject from an interdisciplinary perspective. Expert contributors include international lawyers, judges, prosecutors, criminologists and historians, as well as the last surviving prosecutor of the Nuremberg Trials. Serving as a foundation for deeper study, each chapter explores key academic debates and provides guidelines for further reading. The book is organised around several themes, including institutions, crimes and trials. Purposes and principles place the discipline within a broader context, covering the relationship with human rights law, transitional justice, punishment and the imperatives of peace. Several tribunals are explored in depth, as are many emblematic trials. The book concludes with perspectives on the future.
This comprehensive introduction to international criminal law addresses the big issues in the subject from an interdisciplinary perspective. Expert contributors include international lawyers, judges, prosecutors, criminologists and historians, as well as the last surviving prosecutor of the Nuremberg Trials. Serving as a foundation for deeper study, each chapter explores key academic debates and provides guidelines for further reading. The book is organised around several themes, including institutions, crimes and trials. Purposes and principles place the discipline within a broader context, covering the relationship with human rights law, transitional justice, punishment and the imperatives of peace. Several tribunals are explored in depth, as are many emblematic trials. The book concludes with perspectives on the future.
This comprehensive introduction to international criminal law addresses the big issues in the subject from an interdisciplinary perspective. Expert contributors include international lawyers, judges, prosecutors, criminologists and historians, as well as the last surviving prosecutor of the Nuremberg Trials. Serving as a foundation for deeper study, each chapter explores key academic debates and provides guidelines for further reading. The book is organised around several themes, including institutions, crimes and trials. Purposes and principles place the discipline within a broader context, covering the relationship with human rights law, transitional justice, punishment and the imperatives of peace. Several tribunals are explored in depth, as are many emblematic trials. The book concludes with perspectives on the future.
This comprehensive introduction to international criminal law addresses the big issues in the subject from an interdisciplinary perspective. Expert contributors include international lawyers, judges, prosecutors, criminologists and historians, as well as the last surviving prosecutor of the Nuremberg Trials. Serving as a foundation for deeper study, each chapter explores key academic debates and provides guidelines for further reading. The book is organised around several themes, including institutions, crimes and trials. Purposes and principles place the discipline within a broader context, covering the relationship with human rights law, transitional justice, punishment and the imperatives of peace. Several tribunals are explored in depth, as are many emblematic trials. The book concludes with perspectives on the future.
This comprehensive introduction to international criminal law addresses the big issues in the subject from an interdisciplinary perspective. Expert contributors include international lawyers, judges, prosecutors, criminologists and historians, as well as the last surviving prosecutor of the Nuremberg Trials. Serving as a foundation for deeper study, each chapter explores key academic debates and provides guidelines for further reading. The book is organised around several themes, including institutions, crimes and trials. Purposes and principles place the discipline within a broader context, covering the relationship with human rights law, transitional justice, punishment and the imperatives of peace. Several tribunals are explored in depth, as are many emblematic trials. The book concludes with perspectives on the future.
This comprehensive introduction to international criminal law addresses the big issues in the subject from an interdisciplinary perspective. Expert contributors include international lawyers, judges, prosecutors, criminologists and historians, as well as the last surviving prosecutor of the Nuremberg Trials. Serving as a foundation for deeper study, each chapter explores key academic debates and provides guidelines for further reading. The book is organised around several themes, including institutions, crimes and trials. Purposes and principles place the discipline within a broader context, covering the relationship with human rights law, transitional justice, punishment and the imperatives of peace. Several tribunals are explored in depth, as are many emblematic trials. The book concludes with perspectives on the future.
This comprehensive introduction to international criminal law addresses the big issues in the subject from an interdisciplinary perspective. Expert contributors include international lawyers, judges, prosecutors, criminologists and historians, as well as the last surviving prosecutor of the Nuremberg Trials. Serving as a foundation for deeper study, each chapter explores key academic debates and provides guidelines for further reading. The book is organised around several themes, including institutions, crimes and trials. Purposes and principles place the discipline within a broader context, covering the relationship with human rights law, transitional justice, punishment and the imperatives of peace. Several tribunals are explored in depth, as are many emblematic trials. The book concludes with perspectives on the future.
This comprehensive introduction to international criminal law addresses the big issues in the subject from an interdisciplinary perspective. Expert contributors include international lawyers, judges, prosecutors, criminologists and historians, as well as the last surviving prosecutor of the Nuremberg Trials. Serving as a foundation for deeper study, each chapter explores key academic debates and provides guidelines for further reading. The book is organised around several themes, including institutions, crimes and trials. Purposes and principles place the discipline within a broader context, covering the relationship with human rights law, transitional justice, punishment and the imperatives of peace. Several tribunals are explored in depth, as are many emblematic trials. The book concludes with perspectives on the future.
This comprehensive introduction to international criminal law addresses the big issues in the subject from an interdisciplinary perspective. Expert contributors include international lawyers, judges, prosecutors, criminologists and historians, as well as the last surviving prosecutor of the Nuremberg Trials. Serving as a foundation for deeper study, each chapter explores key academic debates and provides guidelines for further reading. The book is organised around several themes, including institutions, crimes and trials. Purposes and principles place the discipline within a broader context, covering the relationship with human rights law, transitional justice, punishment and the imperatives of peace. Several tribunals are explored in depth, as are many emblematic trials. The book concludes with perspectives on the future.
This comprehensive introduction to international criminal law addresses the big issues in the subject from an interdisciplinary perspective. Expert contributors include international lawyers, judges, prosecutors, criminologists and historians, as well as the last surviving prosecutor of the Nuremberg Trials. Serving as a foundation for deeper study, each chapter explores key academic debates and provides guidelines for further reading. The book is organised around several themes, including institutions, crimes and trials. Purposes and principles place the discipline within a broader context, covering the relationship with human rights law, transitional justice, punishment and the imperatives of peace. Several tribunals are explored in depth, as are many emblematic trials. The book concludes with perspectives on the future.
After the end of the Cold War, the time was ripe for further and spectacular developments in international criminal law. For a long time after the creation of the post–Second World War tribunals of Nuremberg and Tokyo the efforts to establish successors were fruitless. Progress was made in the field of standard-setting, as is demonstrated by the adoption of the Genocide Convention, the Geneva Conventions and Additional Protocols, and the Convention against Torture. This progress was not matched by the creation of international judicial mechanisms aimed at ending – or at least reducing – impunity for the commission of international crimes.
This changed in the 1990s, when ad hoc international criminal tribunals were created by the United Nations directly (the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda) or by means of a treaty between the United Nations and a State (Special Court for Sierra Leone). The creation of the International Criminal Tribunal for the former Yugoslavia in 1993 and the International Criminal Tribunal for Rwanda in 1994, in particular, set in motion an almost unsaturated development of international criminal law. It was the upbeat to the later creation of the International Criminal Court, other international criminal justice mechanisms and renewed attention to prosecution of international crimes domestically. It made the relatively dormant field of international criminal law fully come to life. If the United Nations ad hoc tribunals made one thing clear it must have been that international criminal law can be a very powerful tool and that impunity for the most serious crimes is not self-evident.
One can hardly overestimate the importance of the United Nations ad hoc tribunals for the development and operationalisation of international criminal law. This chapter cannot do justice to their impressive achievements and contributions to the field. It is confined to a sketch and outline of what I perceive to be essential information on the ad hoc tribunals and also what I perceive to be their most significant contributions to the field of international criminal law. This analysis and the underlying choices are by definition selective. One is thus encouraged to engage in further reading within the rich variety of available literature on the topic.
The present chapter deals with the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda, and the Special Court for Sierra Leone.
Over a number of years, the International Criminal Tribunal for the Former Yugoslavia (ICTY) handed down several convictions for the mass rape of women during conflicts in former Yugoslavia. While these convictions are laudable, there are nevertheless still many failures to prosecute and acquittals for rape, particularly in the case of officers who may have authorized or allowed the rapes, but never directly committed the physical act of rape. Part of the problem lies in the liability theories that the ICTY used (and was statutorily allowed to use). The ICTY used theories of command responsibility and joint criminal enterprise to impose liability on officers and leaders for rapes committed by their subordinates, and the ICTY prosecutors encountered problems establishing proof of liability under these theories. In this article, Richard Barrett and Laura Little argue that the crime of conspiracy to commit rape should be more broadly recognized in international criminal law, as it would be particularly appropriate in prosecuting and convicting the officers and leaders who are often the most culpable in mass rape cases. Recognizing the independent offense of conspiracy in the rape context may be a powerful additional deterrent to future occurrences of mass rape as an incident of war, as it would be a method of holding officers and leaders directly liable for agreeing to and facilitating the commission of the act of rape. Recognizing conspiracy to commit rape as an independent charge would also effectively deal with many of the proof problems facing prosecutors. Barrett and Little conclude the article by looking at possible consequences of recognizing conspiracy in rape trials, including ramifications for the International Criminal Court (ICC) and other international criminal tribunals.
The popularity of Fujioka Nobukatsu's books and the neo-nationalist historical revisionism they represent should not simply be analyzed as the return of the old rightwing in Japan. Reacting to the threats seemingly posed by various Others - a rising Asia, illegal foreigners in Japan, women, an increasingly "alien" youth culture - Fujioka and his followers have wielded a variety of myths and popular narratives about Japan and Japanese history to make their media-publicized case to reconstruct the Japanese body politic on the basis of a "healthy nationalism." This article shows that it is in the way such different texts as Fujioka's books and Iwai Shunji's popular film, Swallowtail Butterfly, commonly participate in a consumption of the nation linked to an erasure of the Other that one can find something as equally serious as a revival of the oldtime right: what the author calls a "consumerist nationalism.".
Ienaga Saburo's 32 yr court challenge of the Japanese government's textbook censorship came to an end in August 1997. The Supreme Court handed down its decision on his third lawsuit, finding that on several accounts Ienaga had been wronged by the government's textbook screening proces. While the decision was something less than a total victory for Ienaga, an opinion delivered by the chief justice clearly indicated tht school textbooks should include descriptions of the suffering of Japan's neighbors as a result of past Japanese aggression and that such inclusion is a positive educational consideration. This article situates Ienaga's fights against the state's dissemination of an ultranationalist and imperialist view of history in the context of Japan's postwar ideological struggle. It presents a chronology of Ienaga's court battles and argues that the struggle over the nation's past is the struggle over its future.
Some of the factors which have gone toward preserving fairness and equality between the parties in international criminal tribunals are as follows: the standard of proof beyond reasonable doubt, the weighing of evidence, and the development of transparent and consistent rules in the treatment of evidence. Another safeguard is to be found in the issuing of detailed, reasoned judgments. These factors were present in the early trials and have been preserved in the modern trials. The modern cases, however, have benefitted from developments in international human rights law and have developed their procedures in the disclosure and presentation of evidence accordingly. The post-World War II trials were criticized for constituting "victors' justice," as the judges all came from the victor nations whereas the accused were all from the defeated nations. Any impartial study of the Nurenberg trials would, in the light of each record, impress the reviewer with the judicial fairness with which the evidence was treated; the rigid adherence to the requirement of "proof beyond reasonable doubt." The purpose of this paper, however, is not to draw conclusions on the fairness of the historic trials as opposed to the modern trials, but to say that in relation to the rules of evidence the Tribunals established by the Security Council are in a position to build on the work started in the post-World War II trials.
In May of 1955 five individuals instituted a legal action against the Japanese Government to recover damages for injuries allegedly sustained as a consequence of the atomic bombings of Hiroshima and Nagasaki in the closing days of World War II. On December 7, 1963, the twenty-second anniversary of the surprise attack by Japan upon Pearl Harbor, the District Court of Tokyo delivered its lengthy decision in the case. The decision has been translated into English and reprinted in full in The Japanese Annual of International Law for 1964 . This enables an accounting of this singular attempt by a court of law to wrestle with the special legal problems arising from recourse to atomic warfare.
Why is it that in Japan the question of war responsibility seems to have become more acute as time passes? following the end of the cold war globally and of Liberal Democratic Party hegemony in the Diet domestically, a particularly sharp debate ensued in the media, Diet, courts, and in the national community in general. As the 1995 commemoration of the fiftieth anniversary of the war approached, a national consensus in favor of apology, admission of the aggressive and colonial character of the war, and compensation to the victims, gradually took shape. In reaction, a counterforce, repudiating apology and reconciliation and insisting on the absolute purity of the national cause, also emerged. The treatment of the wartime "comfort women" issue became central This paper considers considers the evolution of the Liberal View of History Study Group and the Society for the Making of New School Textbooks in History What does it mean that these groups represent themselves as "liberal" and what support do they enjoy? The paper concludes that the movement these organizations represent may be intellectually incoherent, but it possesses a considerable emotional force as the voice of a repressed nationalism, and as such deserves close attention.
A major element of the Nuremberg and Tokyo war crimes trials (1945--1949) was the notion of individual criminal liability for planning, starting, or waging aggressive war. That notion was largely new, and had been adopted at American insistence shortly before, based on the work of William C. Chanler, a largely forgotten Wall Street lawyer. The following essay reprints the newly discovered contemporaneous correspondence between Chanler and Sheldon Glueck, a leading Harvard criminologist of the day whose intellectual contribution to Nuremberg has long been known, as well as Chanler's later cover letters to General Telford Taylor, chief prosecutor at the later Nuremberg trials (1946--1949) and Professor Yasuaki Onuma, a legal scholar at the University of Tokyo. Because of the importance of Chanler in developing the new notion of liability, his correspondence with Glueck and the letters to Taylor and Onuma are the closest we are likely to have to a legislative history of what the Nuremberg tribunal famously called "the supreme international crime." In view of the inclusion of aggressive war as a crime within the future jurisdiction of the new International Criminal Court, the letters have significance for both the legal history of Nuremberg and the development of Hague jurisprudence.
Superior responsibility is a concept for attributing criminal liability to military commanders and other superiors that is
employed with some frequency in the ad hoc international criminal tribunals. Nevertheless, it remains unclear for what the
superior is actually blamed. The author argues that with respect to superior responsibility as construed in Article 28 ICC
Statute the answer to this question depends on the form of superior responsibility for which the accused is found guilty.
If the superior is held responsible for not having prevented or repressed the subordinate's crime even though the superior
knew of the crime, he or she can be blamed for both, the criminal conduct of the subordinate and the wrongful consequence
caused by it. For all other forms of superior responsibility, the superior can only be blamed for his or her failure to exercise
control properly, which resulted in a wrongful consequence, but not for the criminal conduct of the subordinate.
Thomas Baty (1869–1954), a prolific, British international law scholar, achieved prominence in diplomatic affairs by serving as Japan's Foreign Legal Adviser in the years spanning two world wars. Baty's advice to the Japanese government was rooted in the non-mainstream natural law philosophy of international legal theory. Baty's law became the defence of the Japanese government before the League of Nations with Japan's occupation of Manchuria in the early 1930s. Baty contended that China's objections to Japanese actions had no basis in the natural fabric of the nation-state system since China was a non-state.
Comparative Literature Studies 39.4 (2002) 272-281
The heart of philosophy is the love and pursuit of wisdom. It grows from a yearning for salvation during times of desperation, as existentialists typically understand. Some people may consider Yoshimitsu Yoshihiko's philosophy simply a secular work. On the contrary, he was an existentialist from the beginning of his philosophical pursuit, and his philosophy was based on the belief that God's salvation is extended to all human beings. His life of meditation started with the study of Thomas Aquinas based on Jacques Maritain's guidance, continued with a thorough examination of extensive literature including Pascal and French modern religious thought, then extended to modern metaphysics of German philosophy around 1933, and thus covered various fields such as epistemology, ontology, ethics, philosophy of religion, philosophy of history, cultural philosophy, and finally metaphysics of arts.
Yoshimitsu was born October 13, 1904, in Kametsu-mura, Ohshima-gun, Kagoshima Prefecture in Japan. He was a sickly child in his elementary school days. He attended Kagoshima Prefectural Daiichi Middle School from 1917-1922. During his second year of middle school, his father died. At this age, he became speculative and started to go to a Protestant church, starting his philosophical and truth-seeking life which he followed consistently until his early death in 1945.
Yoshimitsu tells of the origin of his truth-seeking life in a poem titled "My Hortensius Experience," subtitled, "The first invitation to the grace of God and truth." He composed this poem sometime after his 40th birthday in 1944. He had fallen ill that summer, but on or around this birthday recovered and regained a faint gleam of hope for his future. Nonetheless, he was still bedridden at his home at Asagaya in Tokyo, so Father Heinrich Dumorin called at Yoshimitsu's house to administer Holy Communion. When Yoshimitsu showed this poem to Father Dumorin, the Father pointed out that a saint in the poem resembled Hortensius, who longed for truth in Augustinus's story "Confessinum libri tridecim." According to Yoshimitsu, the strange title of the poem came from this episode. This "Hortensius Experience" depicts his experience, which started from a bad dream he had during the second year of middle school and which culminated in his accepting Christianity during a Church Christmas celebration. The poem has four parts, depicting how the young lover of philosophy, under the guidance of God, alters the course of his life toward God. It was only natural when one considered Yoshimitsu's original character, and it meant he would live a life of prayer.
At the beginning of Yoshimitsu's second year in middle school, he believed that "the most reliable source of hope" was his brain. One day, however, he had a vision that his brain was squeezed out of him through "something like a huge syringe" by a "demonic giant." Thus he writes, "Recognizing that he could no longer anchor his hope of life on the brain, he began to think that he must secure, other than brain, something that cannot be stolen away by others." This may mean the end of love of fame. Having realized that one's brain is not reliable, Yoshimitsu began searching for other essential human qualities. While traveling home from school by ship, Yoshimitsu realized—through answering questions from his senior friend—that the ultimate fate of all humans is death. He confessed, "I was greatly shocked to find that I was living and studying for no purpose in my life." Here we notice his first uneasiness about death.
The same winter, Yoshimitsu's father died. Around that time, his friend Nakao Fumisaku, who was a high school student, wrote in a letter to Yoshimitsu, "Your object of study from now on must be a search for purpose of life and eternal truth." Thus, Yoshimitsu redirected his thoughts to the pursuit of eternal truth, and he clearly set his mind to take the first step towards the goal of "truth and purpose of life." The "Hortensius Experience" and a second poem, written in German in early July 1944, represent the beginning and the end of his philosophical pursuit and indicate that his...
This article explores the development of "joint criminal enterprise" form of responsibility in the jurisprudence of the International Criminal Tribunal for the former Yugoslavia (hereinafter "Yugoslav Tribunal"). Although "joint criminal enterprise" does not appear in the Yugoslav Tribunal Statute, this form of responsibility was read into the Statute by the tribunal judges and is repeatedly relied on in finding individuals guilty in cases before the tribunal. In particular, ever since the Appeals Chamber in Prosecutor v. Tadic held that "joint criminal enterprise", as a form of accomplice liability, is "firmly established in customary international law", other Trial and Appeals Chamber decisions continue to follow this holding. This article takes a critical look at some of the fundamental issues associated with the development of "joint criminal enterprise" at the Yugoslav Tribunal, in particular the methodology employed by the Appeals Chamber in Tadic. In addition, the article also examines the similarities between "joint criminal enterprise" and U.S. conspiracy law, and whether the use of "joint criminal enterprise" at the Yugoslav Tribunal violates the "principles of legality".
In the summer of 2001 there were two major controversies concerning Japanese memory and commemoration of the Second World War in Asia and the Pacific: a textbook controversy triggered by the nationalist group, the Japanese Society for History Textbook Reform (Tsukurukai) and a row triggered by Prime Minister Koizumi's worship at Yasukuni Shrine. This article presents a critique of how the two controversies were reported in the British quality media. It argues that the British media's reportage was a representative example of the ‘orthodox’ interpretation of Japanese war memory. By focusing on ‘newsworthy’ controversies, the stance of the Japanese government and diplomatic confrontation between Japan and China/South Korea, the British media's reportage presented a largely stereotypical and biased version of Japanese war memory that under-represented its complexity and contested nature. The media's reportage is critiqued using the theoretical frameworks of media theory, war memory theory and orientalism, as well as Japanese accounts of the crises.
The Statute of the ICTY incorporates the customary international law principle of superior responsibility. Where a superior knew or had reason to know that subordinates were about to commit or committed a crime, he/she is under an obligation to take preventative or punitive measures against subordinates. The mens
rea, or knowledge, of a superior is pivotal in determining his/her criminal responsibility. However, despite the customary law status of the principle of Superior Responsibility, the definition and standard of mens
rea applied has varied. The ICTY Trial Chambers in the Celebici and Blaškic cases reached opposite findings on the definition of the term “had reason to know” under customary law. The Appeals Chamber has rendered its definition of mens
rea. However, the standard applied appears inconsistent with the principle of Superior Responsibility.
The japanese assault on the city of nanking in December 1937 was one of many incidents that the International Military Tribunal for the Far East (IMTFE, 1946–48) examined in the course of judging the wartime leaders of Japan. What was referred to at the time as the “Rape of Nanking” has in the last several decades become a controversial marker of Chinese identity as well as a source of potent disagreement among Japanese over their nation's history as a colonial power in East Asia. Within this controversy, the IMTFE trial in Tokyo has been used as a touchstone to confirm and deny all manner of claims concerning the incident. Those who feel aggrieved over Japan's conduct toward China cite the evidence produced at the trial to authenticate the scale and brutality of the massacre (Eykholt 2000, 19–23). Those who feel that Japan and the emperor system have been unfairly blamed for the war in East Asia scour the trial proceedings for failures of logic and evidence that demonstrate to their satisfaction that the “Tokyo trial view of history” is nothing but anti-Japanese distortion and fabrication (Yoshida 2000, 111–14). For both sides, the Tokyo judgment is fuel for ideological fire.
It is common ground, as between legal positivists and their critics, that the criminal law ought to be codified in such a way that it can be relied on directly by citizens. I shall criticize this “guidance view” of the criminal law, through analyzing the ambitious attempt of Paul Robinson to devise a criminal code wholly shaped by that view. While there are reasons to favor a legislated criminal code over judge-made criminal law, there is no reason to think that such a code must be capable of guiding laypeople directly. Further, there may be reasons to accept limited judicial discretion to reinterpret the scope of the criminal law to meet unanticipated circumstances. Positivists’ preference (inspired by H.L.A Hart) for legislation coupled with limited judicial discretion is not, and should not, be supported by the (wrongly) supposed need to meet the requirements of the “guidance view.”
On 31 May 2004, the Appeals Chamber of the Special Court for Sierra Leone ruled in a sweeping but brief decision that the Court had jurisdiction over Charles Ghankay Taylor, President of Liberia at the time of his indictment. The judges reached this conclusion finding that the accused could not invoke immunities ratione
personae before this institution, an international criminal court. As this article demonstrates, the Chamber's argumentation lacks specificity and displays confusion over certain issues related to UN law, the law of international institutions and international immunities. The factual outcome is a welcome one, facilitating the prosecution of international crimes. Yet, the Appeals Chamber's approach is regrettable, especially if one considers that the same result could have been reached through less controversial avenues, without endangering the credibility of the Court and thereby the idea of international criminal justice through internationalized criminal courts.
Every State in the modern world has a prison system, established and purportedly administered in terms of formal legal rules. Most such systems house both sentenced and unsentenced prisoners and have minimum standards and rules that are common to all prisoners. Although there is now a considerable body of international law that aims to provide a human rights framework for the recognition of the rights of all prisoners, the universality of the prison and the ubiquity of international human rights law have not meant that there is international consensus about what imprisonment should be used for and how prisons should be administered. The prison as a penal institution has remained firmly rooted in the nation State and in national legal systems. In this respect penal institutions are different from other detention facilities, most particularly those for prisoners of war, which have long been governed by the rules of
international humanitarian law.
The jurisdiction of the federal courts to consider habeas petitions brought by detainees held as part of the war on terrorism has been a popular topic to courts and commentators alike. Little attention has been paid, however, to whether the Constitution itself interposes any jurisdictional limits over such petitions. In two recent cases, the U.S. government has invoked the Supreme Court's obscure (and obtuse) 1948 decision in Hirota v. MacArthur for the proposition that Article III forecloses jurisdiction over any petition brought by a detainee in foreign or international custody, including that of the Multinational Force - Iraq. Thus, on the government's view, Hirota precludes access to the courts even for U.S. citizens tortured at the behest of the U.S. government overseas. This Article takes on that argument, along with the citizenship-based distinction that these courts have thus far drawn to distinguish Hirota, and explains why Article III imposes no such bar, even where the detainee is not a U.S. citizen. Instead, Article III only bars such a petition if the detainee is not in the actual or constructive custody of the United States. It concludes that the distinction that courts have drawn in the current cases is not only untenable, but is indicative of the deeper flaw in Hirota - as based on a badly misplaced conception of the relationship between Article III, citizenship, and habeas corpus, obfuscating the more important debate over the scope of the substantive rights enforceable through the Great Writ.
Due process protections and other constitutional restrictions normally ensure that citizens cannot be tried and punished for political dissent, but these same restrictions interfere with criminal convictions of terrorists and others who pose a non-immediate but real threat to public safety. To counter these threats, governments may use various subterfuges to avoid constitutional protections, often with the complicity of judges, but when they do so, they risk losing the confidence of the public, which may believe that the government targets legitimate political opponents. This paper argues that the amount of process enjoyed by defendants in criminal trials reflects a balancing of these two factors: their dangerousness, on the one hand, and the risk to legitimate political competition, on the other hand. Political trials are those in which the defendant's opposition to the existing government or the constitutional order is the main issue. The paper discusses various ways in which governments and judges adjust process protections, so that a public threat can be countered while the risks to political competition are minimized. International trials are also discussed within this framework.
In January 2006, the European Court of Human Rights held that the punishment of two individuals in 2003 in Estonia for the
deportation of civilians to the Soviet Union in 1949 classified as a crime against humanity, was not contrary to the principle
of non-retroactivity of criminal law. According to the Court, in 1949 crimes against humanity were already proscribed and
criminalized, and responsibility for such crimes could not ‘be limited only to the nationals of certain countries and solely
to acts committed within the specific time frame of the Second World War’. While the Court's ruling is correct, its legal
reasoning lends itself to a number of serious criticisms.
On 9 October 2005, almost unnoticed, the Statute of the Iraqi Special Tribunal (IST) was amended and the Tribunal was changed
into the Iraqi High Tribunal (IHT). These amendments introduced into the legal and procedural system of the Tribunal significant
changes that directly impacted upon the functioning of the Tribunal as well as upon some of the most fundamental rights of
the defendants. Although statutory amendments are not per se improper, those introduced in the Statute of the Iraqi Tribunal are likely to further undermine the credibility of this institution.
The nature of command responsibility is still open to debate in international criminal law: is a superior to be held criminally responsible for the crimes committed by his subordinates as an accomplice , for having participated in the commission of the crime by omission, or as a perpetrator of a separate offence of dereliction of duty? This article surveys the post-WW2 case law and the first international instruments on this point, and then analyses the jurisprudence of the International Criminal Tribunal for the former Yugoslavia (ICTY). The judges appear to have recently adopted a new approach to Article 7(3) ICTYSt. in that the superior is held responsible for failure to prevent or punish with regard to the crimes of the subordinate and no longer for the crimes of his subordinates . It is a responsibility sui generis indeed, where the crime of the subordinate plays a central role in the attribution of responsibility to the superior. It is, therefore, necessary to carefully consider the relationship between the superior's failure to act and the subordinate's crime, both with regard to objective and subjective elements. The same question finally arises in relation to Article 28 of the Rome Statute, the literal interpretation of which implies that a superior shall be punished for the same crime committed by his subordinates. In order to avoid the risk of holding a person guilty of an offence committed by others in violation of the principle of personal and culpable criminal responsibility, it is crucial to consider separately the different cases of command responsibility, which are based on distinct objective and subjective requirements.
Thesis (LL. M.)--Judge Advocate General's School, United States Army, 2003. Includes bibliographical references. Microfiche. s
This article investigates the influence of the international criminal tribunals on the conclusions reached by ICRC Customary Study. To engage in such an analysis requires an understanding of the interplay of treaties and customary international law and of the status of the jurisprudence of international tribunals as a source of international law. In relation to the latter, it is noted that the impact of any individual case is strongly linked to the quality of the reasoning it contains. Having thus set the scene, this article then goes on to appraise the ICRC Study’s approach to the international criminal tribunals founding documents and case-law. It criticises the Study for not setting out the precise normative status it places on the ICTY, ICTR and Special Court for Sierra Leone’s Statutes, and for failing to take a sufficiently nuanced view on the Rome Statute, in particular owing to Article 10 of that Treaty. The piece then moves on to look at some instances where case-law is relied upon by the Study without sufficient discussion of its merits, and where it has placed too much reliance on controversial aspects of the Rome Statute. It concludes by noting the problematic relationship between some of the rules and their commentary, but, despite the criticisms made, also agreeing with many of the conclusions the Study reaches.
International Criminal Tribunals created by the UN Security Council have been criticized because trials have been too slow. This article examines a number of procedural innovations attempted during the Kordić and Milošević trials, which were intended to remedy this defect. It is argued in this paper that common law is imperfect generally, and probably ill-suited for war crimes trials. The new hybrid tribunals and the International Criminal Court will no doubt draw from the jurisprudence and practice of the International Tribunals. The authors suggest that they will have to, up to a degree, depart from the overly conservative procedural approaches adopted by the International Criminal Tribunal for the Former Yugoslavia if they are to remain credible in the eyes of the international community.