Allied Powers employ ex post facto laws to punish war criminals
In June 1945, the United States, Britain, France and the Soviet Union held talks in London to open an international military tribunal to try German officials involved in World War II and the Holocaust in what became the Nuremberg Trial. Justice Robert Jackson of the U.S. Supreme Court, representing the United States, said, “An attack on the foundations of international relations cannot be regarded as anything less than a crime against the international community, which may properly vindicate the integrity of its fundamental compacts by punishing aggressors.”
He wanted not only Germans but also other peoples around the world to know that any attack against world peace would be regarded as an international crime. He argued that the start and pursuit of a war of aggression was a criminal act. After discussions among the four nations, the concept of “crimes against peace” came into being.
The four countries concluded an agreement in August 1945 on a Charter of the International Military Tribunal. In Article 6, three sets of war crimes were defined:
1. crimes against peace
2. war crimes
3. crimes against humanity.
The third category was intended to be used to punish those responsible for the Holocaust by the Nazi regime.
“Crimes against peace” and “crimes against humanity” were newly created after Germany’s surrender. An ex post facto law is a law that retroactively changes the legal consequences of acts committed or the legal status of facts and relationships that existed prior to the enactment of the law. Otherwise, international law typically prohibits the punishment of activities that were not defined as criminal acts when the alleged criminal activities took place. Without any change this same definition also was used for the Charter of the International Military Tribunal for the Far East, the international pact for the Tokyo Tribunal.
Another problem was the charge of “conspiracy,” a concept unique to U.S. and British law. Conspiracy is an agreement between two or more persons to break the law. Even if they are strangers, the charge is applicable if facts show they participated in forming an agreement. At the Tokyo Tribunal, the Allied Powers tried to lump together military leaders and politicians connected to the planning or execution of military activities that began with the Manchurian Incident and to punish them for committing crimes against peace.
Defense attorneys unleashed a torrent of stinging criticism of the entire process. They argued:
(1) A war of aggression itself is not unlawful. Although the international community renounced the use of force for the settlement of international disputes in the Kellogg-Briand Pact of 1928, the treaty itself does not define a war as a crime.
(2) A war is an act of a state and therefore individual responsibility cannot be recognized.
(3) “Crimes against peace” is an ex post facto law and is therefore unlawful.
Twenty-three defendants, all the charged except for Shigemitsu and Matsui, were found guilty of conspiracy. And their sentences crossed the bounds of what was reasonable. The notorious Tanaka memorandum was supposed to be a letter—later found to be false—sent to Emperor Showa by former Prime Minister Giichi Tanaka. It describes a path for conquering China and finally the world. Historian Ikuhiko Hata wrote, “The conspiracy theory lost its basis when the ‘Tanaka memorandum’ was proven almost certainly a fake in the middle of the tribunal process...After great deliberation, the judges decided to leave the principle of the conspiracy charge as it was, but at the same time applied responsibility for cruel acts to those charged except for former Prime Minister Koki Hirota. By so doing, they tried to avoid criticism from the public and international society.”
The Allied Powers tried to find ways to punish defendants for committing “crimes against humanity” but gave up on the plan since none of the defendants’ actions fit the charge. On the contrary, statements made during the trial accused the United States of such crimes by dropping atomic bombs on Hiroshima and Nagasaki. On August 10, 1945, the day after the atomic bomb obliterated Nagasaki, the Japanese government issued a protest statement to the United States, via the Swiss Embassy in Washington, saying the dropping of atomic bombs and indiscriminate aerial bombings such as those of Tokyo on March 10 and May 25, 1945, violated international laws. “The Americans have effected bombardments of towns in the greatest part of Japanese territory, without discrimination massacring a great number of old people, women, children; destroying and burning down Shinto and Buddhist temples, schools, hospitals, living quarters, etc. This fact alone means that they have shown complete defiance of the essential principles of humanitarian laws, as well as international law. They now use this new bomb, having an uncontrollable and cruel effect much greater than any other arms or projectiles ever used to date. This constitutes a new crime against the whole of humanity and civilization.”
During the Tokyo Tribunal on March 3, 1947, U.S. attorney Ben Bruce Blakeney, asked the prosecutor who argued there were no war rules that prohibited the use of atomic weapons, “If my learned friend were familiar with the preparation of the Hague Convention IV, the Laws and Customs of War on Land, he would know that there is law prohibiting the use of certain types of weapons.” The Hague Convention IV, which is an Annex to the Convention, stipulates regulations respecting the laws and customs of war on land. Article 23 says, “...it is especially forbidden: (a) to employ poison or poisonous weapons; ...and (e) to employ arms, projectiles or materials calculated to cause unnecessary suffering.”Article 25 stipulates, “The attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended is prohibited.” Given these definitions, the fire bombing of Tokyo and the use of atomic bombs could have breached international laws. However, the evidence the defense counsel asked the court to adopt was turned down by a “majority decision” of the judges, according to Chief Judge Webb. Deliberation on the issue was never taken up.
In handing down the sentences in November 1948, Judge Radhabinod Pal of India gave a dissent opinion among the 11 judges. In addition to questioning the legitimacy of the trial, he said: “If any indiscriminate destruction of civilian life and property is still illegitimate in warfare, then in the Pacific War, this decision to use the atom bomb is the only near approach to the directives of the German emperor during the First World War and of the Nazi leaders during the Second World War.”