La fin de la Seconde Guerre Mondiale en Extrême-Orient
Date de publication: 03.09.2015
Le dernier empereur de Chine capturé par des soldats soviétiques, le 16 août 1945
"The war in the Far East
and the birth of modern international criminal law"
Lecture given by John Laughland at the International Conference held in Yuzhno-Sakhalinsk (Sakhalin Island, Russia) 3 - 4 September 2015
It is common knowledge that the Second World War in Europe led to the trial of the Nazi leadership at Nuremberg from November 1945 to September 1946. Far less well known is that a twin trial of the Japanese leadership took place in Tokyo between May 1946 and November 1948. The two trials were organically linked to one another - they were both based on the two almost identical charters and they both contained the same legal innovations, especially the notion of crimes against peace. It is therefore quite illogical that the one be remembered and the other forgotten.
These two trials form the twin pillars of the new international system which emerged out of the ruins of the Second World War. The United Nations Charter, promulgated in June 1945, has the preservation of peace between states as its fundamental goal, as both the Preamble and Article 1 ("Purposes and Principles") make very clear. Both the American prosecutor at Nuremberg and the American prosecutor at Tokyo understood their role specifically in terms of the creation of a new international system: In his opening statement to the International Military Tribunal at Nuremberg, delivered on 21 November 1945, Justice Jackson at Nuremberg said,
"This trial is part of the great effort to make peace more secure. One step in this direction is the United Nations organization, which may take joint political action to prevent war if possible, and joint military action to insure that any nation which starts a war will lose it. This charter and this trial … constitute another step in the same direction – juridical action of a kind to ensure that those who start a war will pay for it personally.”
Joseph Keenan in Tokyo expressed the same thought in his own opening statement, delivered on 3rd May 1946, and in a book published in 1950, repeated that "the grander and wider purpose of the trial" had been "to advance the cause of peace and right notions of international law". So the two trials and the creation of the United Nations system in 1945 are indissolubly linked.
In reality, however, even though the United Nations Charter remains in force, there have never been any prosecutions for crimes against peace since Nuremberg and Tokyo. What was hailed as a breakthrough in international criminal law has in fact proved to be a dead letter. None of the ad hoc international tribunals which were created in the aftermath of the end of the Cold War - the Yugoslav Tribunal, for instance, or the Tribunal for Rwanda - contain any reference at all to the crime of aggression in their Charters, even though they are elsewhere committed to apply existing international criminal law.
Even the supposedly universal International Criminal Court, whose Charter was promulgated in 1998 and which started work in 2002, has refused to entertain prosecutions for crimes against peace, on the pretext that no satisfactory definition of the concept of aggression has been produced. In 2010, such a definition was agreed on - even though the General Assembly of the United Nations had defined aggression in 1974 - and the Court will supposedly exercise jurisdiction over this crime from 2017 onwards. The reality is that the ICC, like the ICTY and the ICTR, is little but a front organisation for propagating American foreign policy. Just as the ICTY indicted the President of Yugoslavia, Slobodan Milosevic, in 1999, as NATO bombs were raining down on his country, so in 2011 the International Criminal Court issued an indictment against Muammar Gaddafi just as NATO was bombing Libya. The ICC has meanwhile refused to open any investigations into the activities of British or European troops in Iraq or Afghanistan.
In fact, instead of condemning aggressive war, modern international criminal tribunals have actually tended to legitimise it. The ICTY did this even in the case of the attack on Yugoslavia which had not been approved by any UN Security Council resolution and which was therefore demonstrably illegal. As the NATO spokesman, Jamie Shea, said at the time, "Without NATO countries there would be no International Criminal Tribunal for the former Yugoslavia because NATO countries are in the forefront of those who have established these two tribunals, who fund these tribunals and who support on a daily basis their activities."
So we can safely say that the legal heritage of Tokyo and Nuremberg is non-existent, at least as far as their principal innovation, crimes against peace, is concerned. By contrast, the prosecutions brought by those tribunals for crimes against humanity are alive and well. Modern international tribunals also bring prosecutions for crimes against humanity, although the headline charge of genocide, which was never brought at Nuremberg or Tokyo because it was formulated only in 1948, is also popular.
Modern international criminal tribunals have also made very widespread use of another principle which was also established in the immediate aftermath of the end of the Second World War but not at Nuremberg or Tokyo. This is what I would like to concentrate on now. This principle is named after the person against whom it was very controversially deployed in September 1945, General Tomoyuki Yamashita. Yamashita was tried in haste by the Americans in the Philippines in October 1945 and hanged there in February 1946.
The case was controversial at the time because the charges brought against Yamashita were totally unprecedented in legal history, just as the charge of crimes against peace were unprecedented at Nuremberg and Tokyo. Yamashita was charged with command responsibility for what his troops had done, a form of criminal liability which the defendant was said to incur even if he had neither ordered nor even known about the actions of the soldiers under his command. The Defence protested vigorously that Yamashita was being prosecuted not for what he had done, but for who he was, and that this was totally incompatible with the most elementary concepts of criminal justice.
Yamashita himself, during the trial, affirmed that he really did not know what his troops were doing. He arrived in the Philippines as commander of Japanese forces on 9 October 1944, just two weeks before the Americans landed in the country on 18 October and started to liberate it from Japanese occupation. His lines of communication immediately broke down as he struggled to counter the American advance. A number of atrocities were committed by forces of the Japanese navy or air force which were either not at all or only very theoretically under his command. To be sure, the Military Commission was at liberty to disbelieve his claims and to say he was lying when he said he knew nothing; but this is not what it did when it instead upheld the doctrine of command responsibility which holds that it does not matter whether he knew or not.
The case attracted immediate controversy, not least because the Defence succeeded in getting the verdict (death by hanging) reviewed by the Supreme Court of the United States. The Supreme Court upheld the verdict which the American Military Commission, composed of five generals, had reached on 7 December 1945 (their decision to hang him was announced on the anniversary of Pearl Harbour, the date having been imposed on the court by General MacArthur). General MacArthur, who had initiated the trial and insisted that it be held very quickly, refused appeals for clemency, so Yamashita was hanged. But two out of the seven Supreme Court judges who heard the case dissented vigorously from their colleague's findings, and as a result the "Yamashita principle" has had a very bad reputation among jurists, who tend to remember the dissentient opinions of the two judges more than the majority view of the Court.
It so happens that the doctrine of command responsibility was discussed at one of the trials the Americans held in Nuremberg in their own courts after the initial trial of the German leadership by the International Military Tribunal had concluded its work. In the so-called "High Command Trial" (United States of America versus Wilhelm von Leeb et. al.) at which 14 senior German army, air force and navy commanders were tried from 30 December 1947 to 28 October 1948 for atrocities committed during the invasion of the Soviet Union, and which was prosecuted by Telford Taylor who had been assistant to chief prosecution counsel Robert Jackson at the main Nuremberg trial before the IMT, the issue of command responsibility was specifically addressed - and rejected. The Court ruled that "criminal acts cannot be charged to (a commander) on the theory of subordination ... Criminality does not attach to every individual in this chain of command ... there must be a personal dereliction. That can occur only when the act is directly traceable to him or where his failure properly to supervise his subordinates constitutes criminal negligence on his part." In its judgement on Feldmarschall von Leeb, the Court specifically ruled against the theory of command responsibility:
"The evidence suggests that criminal orders were executed by units subordinate to the defendant and criminal acts were carried out by agencies under his command. But it is not considered under the situation outlined that criminal responsibility attaches to him merely on the theory of subordination and overall command. He must be shown to have had knowledge and to have been connected with such criminal acts either by way of participation or criminal acquiescence."
Unfortunately, today's international war crimes tribunals, which have proliferated under American and European initiative since the end of the Cold War, have not heeded this ruling of the American Nuremberg judges or the dissentient opinions of Justices Routledge and Murphy of the US Supreme Court in the Yamashita case. They have instead made massive use of both the doctrine of command responsibility and of a new concept, joint criminal enterprise, which has the same basic flaws as command responsibility and adds a few extra new flaws for good measure. The basic flaw, which is a key violation of the fundamental principles of criminal law, is that these doctrines allow defendants to be convicted of crimes they neither committed nor even intended. The key element of mens rea, guilty intent, does not have to be demonstrated by the Prosecution for a conviction to be obtained.
In a series of rulings, both on command responsibility and on joint criminal enterprise, the ad hoc international tribunals and the International Criminal Court have so weakened both the evidentiary requirements, and the requirement that mens rea be proved, that defendants are often convicted for crimes which they neither committed, ordered, planned, knew about or even intended.
The doctrine of joint criminal enterprise was first formulated in one of the first trials held by the ICTY, that of Dusko Tadic, a low-level soldier in the Bosnian Serb army. He was convicted for acts which he had not committed because it was ruled that he and a small group of soldiers had entered a village with the intent of committing war crimes there together. The reasoning is the same as that of aiding and abetting: the man who drives the getaway car in a bank robbery can be equally guilty of any shooting even if he did not himself have a gun.
Such a doctrine is unstable even in conditions of very small-scale group violence. Like command responsibility, it becomes totally untenable when applied, as it has been by the ICTY and the ICTR, to huge events spanning vast territory and many years. Yet joint criminal enterprise has been used to obtain headline convictions, including for example the conviction for genocide of General Radislav Krstic, the first defendant to be convicted for genocide by the ICTY, even though the Court did not find that he had the intent to commit genocide and even though he was not physically in Srebrenica at the time the acts were committed.
I have written elsewhere about the specific problems associated with joint criminal enterprise, which are very numerous, but I will concentrate here on command responsibility because of the Yamashita precedent: both the ICTY and the ICC base command responsibility on the idea that the commander knew, "had reason to know" or "should have known" that his subordinates were committing crimes or that they were about to commit crimes. These phrases are dangerously unclear: what does it mean to say that a commander "should have known"? At best, such phrases could secure convictions for negligence; but the laws of war all contain expressions of the highest possible level of intent - "wilful killing", "wanton destruction", and so on. It is not reasonable to apply the crime of negligence to crimes which imply high levels of organisation and intent like crimes against humanity or genocide.
Moreover, it is unreasonable for a court of law to convict a defendant of criminal responsibility for failing to know that another person is going to commit a crime in the future. Yet this now passes for sound legal reasoning in today's international tribunals. Such a claim reflects neither the inability of humans to know the future nor the reality of combat, in which decisions to act can be taken in an instant. In addition, the claim that a defendant can be convicted because he "should have known" something seems to me to invert the burden of proof, which should lie with the Prosecution and not with the Defence. How can a defendant say or prove that he should not have known? Even if there is an actus reus - an objective failure to prevent crimes - command responsibility dispenses with the key concept of mens rea - the intent to commit a crime - which is usually considered an essential element of any criminal liability.
In today's international tribunals, the principles established by one of the shoddiest and most shameful trials in American legal history, the Yamashita trial - a trial which was conducted in haste under the direct supervision of General Macarthur, and which was adjudicated by army officers with no experience either of sitting as judges or even of military combat, and which was immediately criticised by Supreme Court justices and judges at Nuremberg - unfortunately are alive and well. This is one of the worst legacies of the end of the war in the Far East today.
"In all material respects the Charters of this Tribunal and the Nuremberg Tribunal are identical ...", Judgement of the International Military Tribunal for the Far East, 4 November 1948.
Joseph Keenan and Brendan Francis Brown, Crimes Against International Law (Washington DC: Public Affairs Press, 1950), p. 156
Trials of War Criminals Before the Nuremberg Military Tribunals under Control Council Law No.1 0, Nuremberg October 1946-November 1949 (Washington: U.S. Govt. Print. Off., 1951), v. XI, p. 555.
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