How did the Allies try war criminals in Germany and Japan after World War II?
Following World War II, the victorious Allied governments established the first international criminal tribunals to prosecute high-level political officials and military authorities for war crimes and other wartime atrocities. The four major Allied powers—France, the Soviet Union, the United Kingdom, and the United States—set up the International Military Tribunal (IMT) in Nuremberg, Germany, to prosecute and punish “the major war criminals of the European Axis.” The IMT presided over a combined trial of senior Nazi political and military leaders, as well as several Nazi organizations. The lesser-known International Military Tribunal for the Far East (IMTFE) was created in Tokyo, Japan, pursuant to a 1946 proclamation by U.S. Army General Douglas MacArthur, Supreme Commander for the Allied Powers in occupied Japan. The IMTFE presided over a series of trials of senior Japanese political and military leaders pursuant to its authority “to try and punish Far Eastern war criminals.”
The origins, composition, and jurisdiction of the Nuremberg and Tokyo tribunals differed in several important respects beyond their geographical differences and personalities. Plans to prosecute German political and military leaders were announced in the 1942 St. James Declaration. In the declaration, the United States joined Australia, Canada, China, India, New Zealand, the Union of South Africa, the Soviet Union, and nine exiled governments of German-occupied countries to condemn Germany’s “policy of aggression.” The Declaration stated that these governments “placed among their principal war aims the punishment, through the channel of organized justice, of those guilty of or responsible for these crimes, whether they have ordered them, perpetrated them or participated in them.”
In August 1945, the four major Allied powers, therefore, signed the 1945 London Agreement, which established the IMT. The following additional countries subsequently “adhered” to the agreement to show their support: Australia, Belgium, Czechoslovakia, Denmark, Ethiopia, Greece, Haiti, Honduras, India, Luxembourg, the Netherlands, New Zealand, Norway, Panama, Paraguay, Poland, Uruguay, and Yugoslavia.
The Charter of the International Military Tribunal (or Nuremberg Charter) was annexed to the 1945 London Agreement and outlined the tribunal’s constitution, functions, and jurisdiction. The Nuremberg tribunal consisted of one judge from each of the Allied powers, which each also supplied a prosecution team. The Nuremberg Charter also provided that the IMT had the authority to try and punish persons who “committed any of the following crimes:”
(a) Crimes Against Peace: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a Common Plan or Conspiracy for the accomplishment of any of the foregoing;
(b) War Crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity;
(c) Crimes Against Humanity: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial, or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of domestic law of the country where perpetrated.
The IMT prosecutors indicted twenty-two senior German political and military leaders, including Hermann Goering, Rudolph Hess, Joachim von Ribbentrop, Alfred Rosenberg, and Albert Speer. Nazi leader Adolf Hitler was not indicted because he had committed suicide in April 1945, in the final days before Germany’s surrender. Seven Nazi organizations also were indicted. The prosecutors sought to have the tribunal declare that these organizations were “criminal organizations” in order to facilitate the later prosecution of their members by other tribunals or courts.
The Nuremberg Trial lasted from November 1945 to October 1946. The tribunal found nineteen individual defendants guilty and sentenced them to punishments that ranged from death by hanging to fifteen years’ imprisonment. Three defendants were found not guilty, one committed suicide prior to trial, and one did not stand trial due to physical or mental illness. The Nuremberg Tribunal also concluded that three of the seven indicted Nazi organizations were “criminal organizations” under the terms of the Charter: the Leadership Corps of the Nazi party; the elite “SS” unit, which carried out the forced transfer, enslavement, and extermination of millions of persons in concentration camps; and the Nazi security police and the Nazi secret police, commonly known as the ‘SD’ and ‘Gestapo,’ respectively, which had instituted slave labor programs and deported Jews, political opponents, and other civilians to concentration camps.
Unlike the IMT, the IMTFE was not created by an international agreement, but it nonetheless emerged from international agreements to try Japanese war criminals. In July 1945, China, the United Kingdom, and the United States signed the Potsdam Declaration, in which they demanded Japan’s “unconditional surrender” and stated that “stern justice shall be meted out to all war criminals.” At the time that the Potsdam Declaration was signed, the war in Europe had ended but the war with Japan was continuing. The Soviet Union did not sign the declaration because it did not declare war on Japan until weeks later, on the same day that the United States dropped the second atomic bomb at Nagasaki. Japan surrendered six days later, on August 14, 1945.
At the subsequent Moscow Conference, held in December 1945, the Soviet Union, the United Kingdom, and the United States (with concurrence from China) agreed to a basic structure for the occupation of Japan. General MacArthur, as Supreme Commander of the Allied Powers, was granted authority to “issue all orders for the implementation of the Terms of Surrender, the occupation and control of Japan, and all directives supplementary thereto.”
In January 1946, acting pursuant to this authority, General MacArthur issued a special proclamation that established the IMTFE. The Charter for the International Military Tribunal for the Far East was annexed to the proclamation. Like the Nuremberg Charter, it laid out the composition, jurisdiction, and functions of the tribunal.
The Charter provided for MacArthur to appoint judges to the IMTFE from the countries that had signed Japan’s instrument of surrender: Australia, Canada, China, France, India, the Netherlands, Philippines, the Soviet Union, the United Kingdom, and the United States. Each of these countries also had a prosecution team.
As with the IMT, the IMTFE had jurisdiction to try individuals for Crimes Against Peace, War Crimes, and Crimes Against Humanity, and the definitions were nearly verbatim to those contained in the Nuremberg Charter. The IMTFE nonetheless had jurisdiction over crimes that occurred over a greater period of time, from the 1931 Japanese invasion of Manchuria to Japan’s 1945 surrender.
The IMTFE presided over the prosecution of nine senior Japanese political leaders and eighteen military leaders. A Japanese scholar also was indicted, but charges against him were dropped during the trial because he was declared unfit due to mental illness. Japanese Emperor Hirohito and other members of the imperial family were not indicted. In fact, the Allied powers permitted Hirohito to retain his position on the throne, albeit with diminished status.
The Tokyo War Crimes Trials took place from May 1946 to November 1948. The IMTFE found all remaining defendants guilty and sentenced them to punishments ranging from death to seven years’ imprisonment; two defendants died during the trial. After the Nuremberg and Tokyo War Crimes trials, additional trials were held to try “minor” war criminals. These subsequent trials, however, were not held by international tribunals but instead by domestic courts or by tribunals operated by a single Allied power, such as military commissions. In Germany, for example, each of the Allied powers held trials for alleged war criminals found within their respective zones of occupation. The United States held twelve such trials from 1945 to 1949, each of which combined defendants who were accused of similar acts or had participated in related events. These trials also were held in Nuremberg and thus became known informally as the “subsequent Nuremberg trials.” In Japan, several additional trials were held in cities outside Tokyo.
The Nuremberg and Tokyo tribunals contributed significantly to the development of international criminal law, then in its infancy. For several decades, these tribunals stood as the only examples of international war crimes tribunals, but they ultimately served as models for a new series of international criminal tribunals that were established beginning in the 1990s. In addition, the Nuremberg Charter’s reference to “crimes against peace,” “war crimes,” and “crimes against humanity” represented the first time these terms were used and defined in an adopted international instrument. These terms and definitions were adopted nearly verbatim in the Charter of the IMTFE, but have been replicated and expanded in a succession of international legal instruments since that time.