International Criminal Law
Evolution of International Criminal Responsibility: Tokyo and Nuremberg Trials
Nuremberg Trial-
1. After the Second World War, the victorious nations entered into an agreement in 1945
and conferred jurisdiction on a court by way of a charter to try German war criminals
for atrocities committed against the Jews.
2. These persons were tried for War Crimes, Crimes against Peace and Crimes against
Humanity. The accused were charged with violating the Treaty of Versailles, 1919
and the Pact of Paris, 1928 which clearly asked for peaceful settlement of
international disputes without resorting to war.
3. The trial began on November 20, 1945 and the judgment was given on September 30,
1946. 10 persons were awarded death penalty, 3 were punished with transportation for
life, 4 with imprisonment for a long period and 3 were acquitted.
4. The following principles/judgment were laid down in the trial-
(a) The crimes against international law are committed by individuals and not abstract
entities. Thus, such individuals must be punished for the same.
(b) Punishment for war crimes can be awarded to any person even when he is the head
of the state.
(c) A war criminal cannot plead that he was acting under the orders of superiors
provided there is a moral choice available to him.
(d) The defendants pleaded the defence of ‘nullum criminem sine lege, nulla poena
sine lega’ (there may be no punishment without the existence of a prior law).
However, this was rejected in this case.
(e) The treatment of prisoners of war by the German forces was derogatory to the
provisions of the Geneva Convention and thus they were to be punished for the same.
The defendants contended that as the USSR was not a signatory to the Convention, its
POW s need not get the same rights under the convention. This was rejected by the
tribunal.
(f) The court also held that waging aggressive war was the highest crime under
international law and the same had been denounced by the Pact of Paris. Thus, there
ought to be punishment for such acts.
(g) Further, crimes against humanity formed a part of waging an aggressive war and
thus punishment ought to be meted out for the same.
5. The verdict of the Nuremberg trial has been justified by jurists on several counts such
as it acts as a deterrent against war crimes, crimes against humanity, genocide, etc.
6. However, certain criticisms have been levelled against the tribunal as well which may
be discussed as follows-
(a) The Pact of Paris was given too much emphasis. Also, this treaty never made war
an international crime. Further, the charge of waging aggressive war was not
justifiably levelled.
(b) The fact that there was no law before the crimes were committed so as to punish
the alleged criminals was not considered.
(c) The plea of committing acts under the orders of superiors was not appropriately
dealt with.
(d) The circumstances under which the tribunal was created couldn’t have possibly
led to a fair trial.
(e) It was not an international tribunal in the true sense as it consisted of judges from
the victorious powers.
(f) Doubts have been expressed with regard to the principles propounded in the trial.
7. The importance of the trial may be seen as follows-
(a) It made international law applicable not just to states but also to individuals.
(b) It also laid down the principle that the status of the accused was irrelevant in such
cases.
(c) It acted as a deterrent with respect to war crimes.
(d) It helped in codification of international law as its judgment was summarised in
the International Law Commission Report, 1950.
Tokyo Trial-
1. The Tokyo Trial was started for trying the war criminals of Japan after the World
War.
2. The tribunal started hearing on June 4, 1946 after it was established by the victorious
powers by adopting a Charter conferring jurisdiction on the tribunal.
3. A special feature of this trial was that some of the judges were also from countries
other than the victorious powers such as Dr. Radha Vinodpal from India.
4. During the trial, Japan contended that as most of the judges were from the victorious
states, there was no fair trial. However, this contention was rejected.
5. Finally, several Japanese war criminals were sentenced and punished.
6. Dr. Radha Vinodpal gave a dissenting judgment in this case stating the following
reasons-
(a) War is not within the scope of international law as the rules of international law
were not developed enough then to deal with the same.
(b) The Pact of Paris cannot be given the status of ‘law’ and it has not changed the
status of war in any way.
(c) Conspiracy was not an independent crime under international law.
(d) There was no evidence on record to prove the guilt of the accused.
