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Reflections on the Prosecution of War Crimes by International Tribunals

Published online by Cambridge University Press:  27 February 2017

Theodor Meron
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Extract

Just over sixty years ago, the international community, seeking to heal the wounds of a brutal war, embarked on a bold legal experiment. For the first time in history, legal mechanisms were invoked to bring to justice the perpetrators of war crimes and crimes against humanity in international tribunals specifically established for that purpose. The trials at Nuremberg and Tokyo were extraordinary and risky; and, above all, unique in their time.

Type
Centennial Essays
Information
American Journal of International Law , Volume 100 , Issue 3 , July 2006 , pp. 551 - 579
Copyright
Copyright © American Society of International Law 2006

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References

1 On the evolution of war crimes law, see generally Theodor, Meron, International Law in the Age of Human Rights 112–83 (2004)Google Scholar; Theodor, Meron, The Case for War Crimes Trials in Yugoslavia, Foreign Aff., Summer 1993, at 122 Google Scholar [hereinafter Meron, War Crimes Trials]; Theodor, Meron, Classification of Armed Conflict in the Former Yugoslavia: Nicaragua’s Fallout, 92 AJIL 236 (1998)Google Scholar; Theodor, Meron, Francis Lieber’s Code and Principles of Humanity, 36 Colum. J. Transnat’l L. 269 (1997)Google Scholar; Theodor, Meron, From Nuremberg to The Hague, 149 Mil. L. Rev. 107 (1995)Google Scholar; Theodor, Meron, The Humanization of Humanitarian Law, 94 AJIL 239 (2000)Google Scholar [hereinafter Meron, Humanization]; Theodor, Meron, International Criminalization of Internal Atrocities, 89 AJIL 554 (1995)Google Scholar [hereinafter Meron, International Criminalization]; Theodor, Meron, Martens Clause, Principles of Humanity and the Dictates of Public Conscience, 94 AJIL 78 (2000)Google Scholar; Theodor, Meron, The Normative Impact on International Law of the International Tribunal for Former Yugoslavia, 1995 Isr. Y.B. Hum. Rts. 137 Google Scholar; Theodor, Meron, Rape as a Crime Under International Humanitarian Law, 87 AJIL 424 (1993)Google Scholar [hereinafter Meron, Rape as a War Crime]; Theodor, Meron, The Time Has Come for the United States to Ratify Geneva Protocol I, 88 AJIL 678 (1994)Google Scholar; Theodor, Meron, War Crimes in Former Yugoslavia and the Development of International Law, 88 AJIL 78 (1994)Google Scholar; Theodor, Meron, War Crimes Law Comes of Age, 92 AJIL 462 (1998)Google Scholar; see also Antonio, Cassese, International Criminal Law 37–42, 327–46 (2003)Google Scholar.

2 Justice Robert, H. Jackson, in Second Day, Wednesday, 11/21/1945, 2 Trial of the Major War Criminals Before The International Military Tribunal, Nuremberg, 14 November 1945–1 October 1946 [hereinafter Imt Trial], at 98, 99 (1947)Google Scholar [hereinafter Jackson Statement], available at <http://www.law.umkc.edu/faculty/projects/ftrials/nuremberg/Jackson.html>.

3 Norman, Silber & Geoffrey, Miller, Toward ‘Neutral Principles’ in the Law: Selections from the Oral History of Herbert Wechsler, 93 Colum. L. Rev. 854, 902 (1993)Google Scholar.

4 Foreign Relations of the United States: Diplomatic Papers: The Conferences at Malta and Yalta 1945, at 849 (1955)Google Scholar (minutes of the Yalta Conference); see also Telford, Taylor, The Anatomy of the Nuremberg Trials 29–33 (1992)Google Scholar; Silber & Miller, supra note 3, at 895.

5 Silber & Miller, supra note 3, at 910–11.

6 However, one commentator considers,in the case of Japan at least, that “the Japanese public... [was] happy to make the defendants sacrificial scapegoats for the sins and shortcomings of the Japanese nation.” John Pritchard, R., The International Military Tribunal for the Far East and Its Contemporary Resonances, 149 Mil. L. Rev. 25, 30 (1995)Google Scholar.

7 Silber & Miller, supra note 3, at 911–12.

8 Jackson, Statement, supra note 2, at 101 Google Scholar.

9 I will devote greater focus to the Nuremberg Tribunals because they received more of the Allies’ time, money, and attention than the Tokyo Tribunal, and have been a greater influence on later international jurisprudence.

I suspect that this discrepancy has a great deal to do with the distrust felt for the methods and processes used in Tokyo, which even early on were compared unfavorably to those in Nuremberg. Justice William O. Douglas was highly critical of the Tribunal:

The conclusion is therefore plain that the Tokyo Tribunal acted as an instrument of military power of the Executive Branch of government. It responded to the will of the Supreme Commander as expressed in the military order by which he constituted it. It took its law from its creator and did not act as a free and independent tribunal to adjudge the rights of petitioners under international law. As Justice Pal said, it did not therefore sit as a judicial tribunal. It was solely an instrument of political power.

Hirotav. MacArthur, 338 U.S. 197, 215 (1948) (Douglas, J., concurring).

In his appeal to General MacArthur, the lead defense counsel, Ben Bruce Blakeney, was prescient as to Tokyo’s future effect:

The state of the international law relating to crimes against peace is not clarified, but muddled, by this verdict. The Tribunal produced six separate opinions, from consideration of all of which it is impossible for even an international lawyer to determine what law is being applied. . . .

The verdict looks too much like an act of vengeance to impress the world with our love of justice and fair play. The conviction of all defendants alike . . . compares unfavorably with the result of the Nuremberg trial, where guilt or innocence, as well as sentence, were declared individually rather than en masse . . . .

Defense Appeal to General MacArthur (Nov. 21, 1948), reprinted in Richard, H. Minear, Victors’justice: The Tokyo War Crimes Trial 204, 207 (1971)Google Scholar.

10 Adam, Roberts, Land Warfare: From Hague to Nuremberg, in The Laws of War: Constraints on Warfare In The Western World 116, 119–22Google Scholar Michael Howard, George J. Andreopoulos, & Mark R Shulman eds., (1994).

11 Id. at 119.

12 United Nations War Crimes Commission, History of the United Nations War Crimes Commission 24 (1948)Google Scholar [hereinafter War Crimes Comm’n History]; Roberts, supra note 10, at 119. For these early instruments, see Declaration Respecting Maritime Law, Apr. 16, 1856, reprinted in 1 AJIL Supp. 89(1907); Geneva Convention for the Amelioration of the Condition of the Sick and Wounded of Armies in the Field, Aug. 22, 1864, reprinted in 1 AJIL Supp. 90; Declaration Renouncing the Use, in Time of War, of Explosive Projectiles Under 400 Grammes Weight, Nov. 29 (Dec. 11), 1868, reprinted in 1 AJIL Supp. 95.

13 Roberts, supra note 10, at 120.

14 Convention with Respect to the Laws and Customs of War on Land, July 29, 1899, 32 Stat. 1803, 1 Bevans247.

15 Roberts, supra note 10, at 121.

16 Convention Respecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat.2277, 1 Bevans 631 [hereinafter Fourth Hague Convention].

17 Roberts, supra note 10, at 122.

18 War Crimes Comm’n History, supra note 12, at 30.

19 Fourth Hague Convention, supra note 16, annexed Regulations Respecting the Laws and Customs of War on Land [hereinafter 1907 Hague Regulations].

20 Fourth Hague Convention, supra note 16, Art. 3.

21 Roberts, supra note 10, at 122.

22 See Hugh Bellot, H. L., War Crimes: Their Prevention and Punishment, 2 Grotius Soc’y, Transactions 31, 37–38 (1916)Google Scholar.

23 Roberts, supra note 10, at 126.

24 See Bellot, supra note 22, at 34–35; War Crimes Comm’n History, supra note 12, at 29.

25 See Matthew, Lippman, Nuremberg: Forty Five Years Later, 7 Conn. J. Int’l L. 1, 3 (19910Google Scholar.

26 Bellot, supra note 22, at 54.

27 James, F. Willis, Prologue To Nuremberg: The Politics and Diplomacy of Punishing War Criminals of The First World War 68 (1982)Google Scholar; Cherif Bassiouni, M., World War I: “The War to End All Wars” and the Birth of a Handicapped International Criminal Justice System, 30 Denv. J. Int’l L. & Pol’y 244, 253 (2002)Google Scholar.

28 Willis, supra note 27, at 68; Bassiouni, supra note 27, at 251–52.

29 Willis, supra note 27, at 68; Bassiouni, supra note 27, at 251–52.

30 Willis, supra note 27, at 68.

31 Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties: Report Presented to the Preliminary Peace Conference (Mar. 29,1919), reprintedin 14 AJIL 95,98 (1920) [hereinafter WWI Commission].

32 Id. at 115.

33 Id. at 114–15. See id. for a complete listing of the offenses.

34 Violation of the Laws and Customs of War: Reports of Majority and Dissenting Reports of American and Japanese Members of the Commission of Responsibilities, Conference of Paris, Annex I, at 28 (1919)Google Scholar.

35 Id. at 30, 34–35, 40.

36 War Crimes Comm’n History, supra note 12, at 35. Britain, France, and Russia had previously referred to massacres of Armenians by Turkish forces as “crimes against humanity and civilization.” Id. Google Scholar

37 WWI Commission, supra note 31, at 121–22.

38 Id. at 116.

39 Memorandum of Reservations Presented by the Representatives of the United States to the Report of the Commission on Responsibilities (Apr. 4, 1919), reprinted in 14 AJIL 127, 134 (1920) [hereinafter U.S. Reservations].

40 Id.

41 See Matthew, Lippman, Genocide, in 1 International Criminal Law 589, 591 (Cherif Bassiouni, M. ed., 1999)Google Scholar.

42 U.S. Reservations, supra note 39, at 135; Reservations by the Japanese Delegation to the Report of the Commission on Responsibilities (Apr. 4, 1919), reprinted in 14 AJIL 151, 152 (1920).

43 Willis, supra note 27, at 77.

44 U.S. Reservations, supra note 39, at 128.

45 Bassiouni, supra note 27, at 259.

46 U.S. Reservations, supra note 39, at 128.

47 Willis, supra note 27, at 174–75.

48 WWI Commission, supra note 31, at 121–23.

49 U.S. Reservations, supra note 39, at 142.

50 Id.

51 Willis, supra note 27, at 98; Lippman, supra note 25, at 8.

52 Treaty of Peace with Germany, June 28, 1919, Art. 227, 2 Bevans 43, 11 Martens Nouveau Recueil (ser. 3) 323 [hereinafter Versailles Treaty].

53 Bassiouni, supra note 27, at 271 (footnote omitted).

54 Lippman, supra note 25, at 9.

55 Willis, supra note 27, at 98, 104.

56 Id. at 66.

57 Id. at 100–01.

58 Bassiouni, supra note 27, at 280–81.

59 Versailles Treaty, supra note 52, Art. 228.

60 Willis, supra note 27, at 116–24.

61 Id. at 118.

62 Id.

63 Bassiouni, supra note 27, at 281–82.

64 Willis, supra note 27, at 124; see also Meron, War Crimes Trials, supra note 1, at 124.

65 Willis, supra note 27, at 124.

66 Judgment in Case of Commander Karl von Neumann: Hospital Ship “Dover Castle” (Reichsgericht Penal Senate No. 2 June 4, 1921), reprinted in 16 AJIL 704 (1922)Google Scholar.

67 Bassiouni, supra note 27, at 282.

68 Id. at 285 (quoting Commission of Allied Jurists, in War Crimes Comm’n History, supra note 12, at 48).

69 Treaty of Peace with Turkey, July 24, 1923, Gr. Brit. TS No. 16 (1923), reprinted in 18 AJIL Supp. 4 (1924); Declaration of Amnesty, July 24, 1923, reprinted in 18 AJIL Supp. 92.

70 Bassiouni, supra note 27, at 288.

71 Id.

72 Id. at 290.

73 Cherif Bassiouni, M., The International Criminal Court in Historical Context, 1999 ST. Louis–Warsaw Transatlantic L.J. 55, 60 Google Scholar (with citations).

74 Geneva Convention Relative to the Treatment of Prisoners of War, July 27, 1929, 47 Stat. 2021,118 LNTS 343 [hereinafter 1929 POW Convention].

75 Fourth Hague Convention, supra note 16.

76 Treaty Providing for the Renunciation of War as an Instrument of National Policy, Aug. 27, 1928, 46 Stat. 2343, 94 LNTS 57.

77 Prosecutions also dealt with the widespread mistreatment of prisoners of war, especially members of the Soviet army.

78 Meron, From Nuremberg to The Hague, supra note 1, at 108.

79 See, e.g., Prosecutor v. Galić, No. IT–98–29–T, paras. 45 n.78, 46 n.81, 57 n.103 (Dec. 5, 2003).

80 Stephan, Landsman, Those Who Remember the Past May Not Be Condemned to Repeat It, 100 Mich. L. Rev. 1564, 1570 (2002)Google Scholar (book review); see also Jonathan, A. Bush, Lex Americana: Constitutional Due Process and the Nuremberg Defendants, 45 St. Louis U.L.J. 515, 529 (2001)Google Scholar.

81 Jackson Statement, supra note 2, at 102.

82 SC Res. 827, para. 4 (May 25, 1993), 32 ILM 1203 (1993); Statute of the International Criminal Tribunal for the Former Yugoslavia, UN Doc. S/25704, annex, Art. 29 (1993), 32 ILM 1192.

83 ICTY, Rules of Procedure and Evidence, as amended, Rule 115, UN Doc. IT/32/Rev.37 (Apr. 6, 2006), available at <http://www.un.org/icty> [hereinafter ICTY Rules].

84 Mark, D. Pollard, Book Review, 171 Mil. L. Rev. 220, 224 (2002)Google Scholar (reviewing Timothy, P. Maga, Judgment At Tokyo: The Japanese War Crimes Trials (2001)Google Scholar).

85 Kevin, R. Chaney, Pitfalls and Imperatives: Applying the Lessons of Nuremberg to the Yugoslav War Crimes Trials, 14 Dick. J. Int’l L. 57, 61 (1995)Google Scholar.

86 Henry, T. King, The Legacy of Nuremberg, 34 Case W. Res. J. Int’l L. 335, 339 (2002)Google Scholar.

87 1 IMT Trial, supra note 2, at 171.

88 See generally King, supra note 86.

89 Telford, Taylor, Final Report To The Secretary of the Army On the Nuernberg War Crimes Trials Under Control Council Law No. 10, at 73–85 (1949)Google Scholar.

90 Richard, May & Marieke, Wierda, Trends in International Criminal Evidence: Nuremberg, Tokyo, The Hague, and Arusha, 37 Colum. J. Transnat’l L. 725, 730–31 (1999)Google Scholar.

91 Twenty–eight had been indicted, but 2 died and 1 became ill before trial. Jordan, J. Paust, Remarks, in Forty Years After the Nuremberg and Tokyo Tribunals: The Impact of the War Crimes Trials on International and National Law, 80 ASIL Proc. 56, 57 (1986)Google Scholar [hereinafter Forty Years After].

92 Pollard, supra note 84, at 221 n.6.

93 John, L. Ginn, Sugamo, Prison, Tokyo: An Account of The Trial And Sentencing of Japanese War Criminals In 1948, BY A U.S. Participant 136–37 (1992)Google Scholar.

94 Id. at 122.

95 Pritchard, supra note 6, at 35.

96 Ginn, supra note 93, at 33.

97 In addition, the individual Allied countries tried tens of thousands of Germans and Japanese for crimes committed in connection with the war. Philip, R. Piccigallo, The Japanese On Trial: Allied War Crimes Operations In The East, 1945–1951 (1977)Google Scholar; David, Cohen, Transitional justice in Divided Germany After 1945, in Retribution And Reparation In The Transition To Democracy 59 (Jon, Elster ed., 2006)Google Scholar.

98 ICTY Rules, supra note 83, Rule 11 bis.

99 See Taylor, supra note 89, at 81 (describing how resource constraints limited the number and scope of trials conducted pursuant to Control Council Law No. 10).

100 As of July 2006, the ICTY had referred four cases involving seven accused to the War Crimes Chamber of the State Court of Bosnia and Herzegovina, and one case involving two accused to the courts of the Republic of Croatia.

101 Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, with annexed Charter of the International Military Tribunal, Aug. 8, 1945, 59 Stat. 1544, 82 UNTS 279 [hereinafter London Charter].

102 Id., Art. 6; see also Taylor, supra note 89, at 238–39; Henry, T. King, Robert Jackson’s Vision for Justice and Other Reflections of a Nuremberg Prosecutor, 88 Geo. L.J. 2421, 2424–25 (2000)Google Scholar.

103 London Charter, supra note 101, Art. 6.

104 Id, Arts. 6–9; see also Taylor, supra note 89, at 239.

105 See Yoram, Dinstein, The Conduct of Hostilities Under the Law of International Armed Conflict 57–105 (2004)Google Scholar.

106 Charter of the International Military Tribunal for the Far East, Jan. 19, 1946, TIAS No. 1589, 4 Bevans 20 (as amended Apr. 26, 1946, 4 Bevans 27) (establishing the Tribunal) [hereinafter Tokyo Charter].

107 Minear, supra note 9, at 20–22.

108 Pritchard, supra note 6, at 27. The nations were Australia, Canada, China, France, Great Britain, India, New Zealand, the Netherlands, the Philippines, the Soviet Union, and the United States. Id. n.3.

109 Tokyo Charter, supra note 106, Art. 5.

110 Id., Art. 6.

111 Id., Art. 17.

112 Ginn, supra note 93, at 136–37.

113 Minear, supra note 9, at 65–66.

114 See Jonathan, A. Bush, Review Essay, Nuremberg: The Modern Law of War and Its Limitations, 93 Colum. L. Rev. 2022, 2063 (1993)Google Scholar (reviewing Telford, Taylor, The Anatomy of the Nuremberg Trials: A Personal Memoir (1992)Google Scholar). The Tokyo Tribunal has been much less influential. See supra note 9 and infra note 165.

115 King, supra note 86, at 347.

116 Id.

117 See, e.g., Hersch, Lauterpacht, International Law and Human Rights (1950)Google Scholar; Hersch, Lauterpacht, The Law of Nations and the Punishment of War Crimes, 1944 Brit. Y.B. Int’l L. 58 Google Scholar.

118 See, e.g., Richard, R. Baxter, Constitutional Forms and Some Legal Problems of International Military Command, 1952 Brit. Y.B. Int’l L. 325 Google Scholar; Richard, R. Baxter, The Duty of Obedience to the Belligerent Occupant, 1950 Brit. Y.B. Int’l L. 235 Google Scholar; Richard, R. Baxter, Multilateral Treaties as Evidence of Customary International Law, 1965–66 Brit. Y.B. Int’l L. 275 Google Scholar; Richard, R. Baxter, The Municipal and International Law Basis of Jurisdiction over War Crimes, 1951 Brit. Y.B. Int’l L. 382 Google Scholar; Richard, R. Baxter, So–Called ‘Unprivileged Belligerency’: Spies, Guerrillas, and Saboteurs, 1951 Brit. Y.B. Int’l L. 323 Google Scholar.

119 See, e.g., A Treatise on International Criminal Law (Cherif Bassiouni, M. & Ved, Nanda eds., 1973–)Google Scholar.

120 See Bush, supra note 114, at 2065.

121 See id. at 2065–69.

122 ICTY Statute, supra note 82; Statute of the International Criminal Tribunal for Rwanda, SC Res. 955, annex (Nov. 8, 1994), 33 ILM 1602 (1994) [hereinafter ICTR Statute].

123 Compare Taylor, supra note 89, at 238–40, with ICTY Statute, supra note 82, and ICTR Statute, supra note 122.

124 Meron, Humanization, supra note 1. For a detailed discussion of the substantive law applied at the ICTY and ICTR, see GUÉNAËL METTRAUX, INTERNATIONAL CRIMES AND THE AD HOC TRIBUNALS (2005).

125 Rome Statute of the International Criminal Court, July 17, 1998, 2187 UNTS 3, available at <http://www.icc–cpi.int/about.html> [hereinafter ICC Statute],

126 Theodor, Meron, Defining Aggression for the International Criminal Court, 25 Suffolk Transnat’l L. Rev. 1 (2001)Google Scholar.

127 See, e.g., Prosecutor v. Hadihasanović, Decision on Jurisdiction in Relation to Command Responsibility, No. IT–01–47–AR72 (July 16, 2003).

128 See Chaney, supra note 85, at 71–72.

129 Id. at 78–79.

130 Theodor, Meron, The Revival of Customary Humanitarian Law, 99 AJIL 817 (2005)Google Scholar [hereinafter Meron, Revival].

131 Meron, Rape as a War Crime, supra note 1, at 424–27; David, S. Mitchell, The Prohibition of Rape in International Humanitarian Law as a Norm of Jus Cogens: Clarifying the Doctrine, 15 Duke J. Comp. & Int’l L. 219, 224 (2005)Google Scholar.

132 Mitchell, supra note 131, at 237–38. Some Japanese officers were prosecuted for sexual crimes, but not by the international tribunals: General Yamashita was prosecuted by an American military commission in Manila for allowing widespread rape in the Philippines. Jocelyn, Campanaro, Women, War, and International Law: The Historical Treatment of Gender–Based War Crimes, 89 Geo. L.J. 2557, 2564 & n.40 (2001)Google Scholar. Dutch colonial authorities in Indonesia prosecuted Japanese soldiers for enforced prostitution. Meron, Rape as a War Crime, supra note 1, at 426 n. 13.

133 See Mitchell, supra note 131, at 239–41.

134 ICTY Statute, supra note 82, Art. 5(g); ICTR Statute, supra note 122, Art. 3(g).

135 See, e.g., Prosecutor v. Furundžija, No.IT–95–17/l–T, para. 186 (Dec. 10, 1998). As the ICTR trial chamber said in Prosecutor v. Akayesu, “[R]ape and sexual violence certainly constitute infliction of serious bodily and mental harm on the victims and are even . . . one of the worst ways [to] inflict harm on the victim as he or she suffers both bodily and mental harm.” Prosecutor v. Akayesu, No. ICTR–96–4–T, para. 731 (Sept. 2, 1998).

136 See Prosecutor v. Kunarac, Nos. IT–96–23 & 96–23/1–A, paras. 127–33 (June 12, 2002); Prosecutor v. Gacumbitsi, No. ICTR–2001–64–A, paras. 147–57 (July 7, 2006).

137 I CC Statute, supra note 125, Art. 7(1)(g); see also Mitchell, supra note 131, at 242–44 .

138 London Charter, supra note 101, Art. 6(c); Taylor, supra note 89, at 239.

139 London Charter, supra note 101, Art. 6(c).

140 Pritchard, supra note 6, at 28.

141 Convention on the Non–Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity, Nov. 26, 1968, Art. 1(b), 754 UNTS 73 (entered into force Nov. 11, 1970).

142 JCTY Statute, supra note 82, Art. 5.

143 Prosecutor v. Tadić, Appeal on Jurisdiction, No. IT–94–1–AR72, paras. 78–79 (Oct. 2, 1995); Meron, International Criminalization, supra note 1, at 557.

144 ICC Statute, supra note 125, Art. 7.

145 See Tadić, supra note 143, paras. 71–93.

146 ICTR Statute, supra note 122, Art. 1.

147 ICC Statute, supra note 125, Arts. 8(2)(c)–(f).

148 London Charter, supra note 101, Art. 12; Taylor, supra note 89, at 240.

149 Bush, supra note 80, at 536.

150 Taylor, supra note 89, at 239–40.

151 Chaney, supra note 85, at 69–70.

152 Bush, supra note 80, at 531–32.

153 Id.

154 Id. at 533.

155 Id.

156 Id. at 534.

157 Id. The Japanese trials’ use of conspiracy was somewhat more troubling (although membership of a criminal organization was never charged in those proceedings). According to R. John Pritchard, who compiled and published the twenty–two–volume transcripts of the proceedings, as a direct result of the prosecution’s emphasis on the doctrine of criminal conspiracy to wage aggressive war, evidence directly linking the individual defendants to what is a broadly historical record of domestic and world history becomes hard to follow. For most of the Trial, there was little attention paid to any indisputably criminal activity on the part of the individual accused.

Pritchard, , supra note 6, at 28. Two of the Tokyo defendants were found guilty only of conspiracy, not of any substantive crimes. Ginn, supra note 93, at 136–37Google Scholar.

158 Bush, supra note 80, at 530–31 . In the second round of Nuremberg proceedings, 142 defendants were convicted. Each of these convictions was reviewed by an Allied military commander, and as a result, only 13 of the 26 men who were sentenced to death were executed. Although the remaining defendants received life sentences or long terms, nearly all those convicted in the second round had been released by 1952, and by the end of 1958, all had been released. See id. (Some of the defendants imprisoned by the IMT served longer sentences: Baldur von Schirach and Albert Speer were released in 1966, Ann Tusa & John Tusa, The Nuremberg Trial 478 (l 983); Rudolf Hess killed himself in prison in 1987, Whitney, R. Harris, Tyranny on Trial 488 (rev. ed. 1995)Google Scholar.) In the Yokohama proceedings, the death sentence was handed down to 119 of the 980 defendants, but after automatic review by General MacArthur, only 47 were actually executed, GINN, supra note 93, at 140–75; 123 were acquitted, May & Wierda, supra note 90, at 732 n.19. As in the trials held in Germany under Control Council Law No. 10, all the “minor” criminals who had been imprisoned were released by the late 1950s. Pritchard, supra note 6, at 33.

It can be seen that, although many more people were tried in Japan than in Germany, the treatment, at least in terms of death sentences, was more lenient. In the trials of the major war criminals, 50 percent of the Germans were sentenced to death and executed; in Japan, 28 percent were. As far as the subsequent trials are concerned, the German proceedings meted out the death penalty to 18 percent of the defendants and implemented it with regard to 9 percent; the Japanese proceedings sentenced 12 percent of the defendants to death and actually executed only 5 percent.

159 The Filipino judge had actually been a prisoner of war of the Japanese, and had survived the infamous Bataan death march. Minear, supra note 9, at 82 Google Scholar.

160 May & Wierda, supra note 90, at 733.

161 Id. at 744; Pritchard, supra note 6, at 32. One of the two dissenting judges felt that the accuracy of the affidavits was suspect, because many were based on leading interrogatories; more generally, he was particularly concerned that “[t]he major part of the evidence . . . consisted] of hearsay.” Dissenting Opinion of Justice Pal (July 25, 1946), reprinted in 2 The Tokyo Judgment: The International Military Tribunal For The Far East, 29 April 1946–12 November 1948, at 527, 630 (Röling, B.V.A. & Rüter, C. F. eds., 1977)Google Scholar [hereinafter Pal Dissent].

162 Pal Dissent, supra note 161. Pal also argued that conspiracy and some of the conventional war crimes had not been proven, and that aggression was not a crime at international law. See generally id.

163 Minear, supra note 9, at 88–89. Justice Pal missed 80 of the 417 days of open court; Chief Justice William Webb missed 22 consecutive days once. At one stage, only seven of the eleven justices were present. Id.

164 Defense Appeal to General MacArthur, supra note 9, at 206.

165 See Cherif Bassiouni, M., Nuremberg: Forty Years After, in Forty Years After, supra note 91, at 59, 64 Google Scholar, stating that” [t] he enduring legacy of Nuremberg is due principally to its attempts to insure procedural fairness to the defendants. That is why Nuremberg is the point of historical and legal reference and not Tokyo.” This is not to say that the Japanese trials had no positive effects: among those convicted were bona fide war criminals, and the trials had an important educational influence on Japan. See Yasuaki Onuma, Remarks, in id. at 67, 68, stating:

Another legacy left behind by the war crimes trial is an educational one. When we Japanese were defeated, and we learned through such means as the Tokyo Tribunal what our armies had done . . . , we were truly ashamed. One of the ways we manifested our sense of guilt was through the enactment of article 9 [forbidding Japanese involvement in warfare].

166 1929 POW Convention, supra note 74.

167 Convention for the Amelioration of the Condition of the Wounded and Sick in Armies in the Field, July 27, 1929, Art. 29, 47 Stat. 2074, 118 LNTS 303.

168 This happened in the case of rape. See Meron, Rape as a War Crime, supra note 1, at 426–47 (concerning the readiness of the International Committee of the Red Cross and the U.S. government to regard rape as a grave breach or war crime). Moreover, the indictments presented by the ICTY prosecutor against Mejakić and others (No. IT–02–65–I, Initial Indictment, paras. 22.8–22.10 (Feb. 13, 1995)), and against Tadid and others (No. IT–94–1–I, Initial Indictment, paras. 4.2–4.4 (Feb. 13, 1995)) treat “forcible sexual intercourse” as “cruel treatment” in violation of the laws or customs of war recognized by Article 3 of the ICTY Statute and common Article 3(1)(a) of the Geneva Conventions, and also as a grave breach of the Conventions of causing “great suffering” under Article 2 (c) of the ICTY Statute. “Rape” is treated as a crime against humanity recognized by Article 5 (g) of the Statute of the Tribunal. Prosecutor v. Kunarac, supra note 136, paras. 125–33, 179–85.

169 One of the legal advisers of the International Committee of the Red Cross thus wrote: “IHL applicable to non–international armed conflicts does not provide for international penal responsibility of persons guilty of violations.” Denise, Plattner, The Penal Repression of Violations of International Humanitarian Law Applicable in Noninternational Armed Conflicts, 30 Int’l Rev. Red Cross 409, 414 (1990)Google Scholar. The chapter on execution of the Convention in each of the 1949 Geneva Conventions contains provisions on penal sanctions. For example, for the grave breaches provisions of the Fourth Geneva Convention, see Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, Arts. 129–30, 6 UST 3516, 75 UNTS 287.

170 Some Preliminary Remarks by the International Committee of the Red Cross on the Setting up of an International Tribunal (Feb. 22, 1993), reprinted in 2 Virginia, Morris & Michael, P. Scharf, An Insider’s Guide To The International Criminal Tribunal For The Former Yugoslavia 391, 392 (1995)Google Scholar.

171 The UN War Crimes Commission reported that “the content of customary law applicable to internal armed conflict is debatable. As a result, in general. . . the only offences committed in internal armed conflict for which universal jurisdiction exists are ‘crimes against humanity’ and genocide, which apply irrespective of the conflicts’ classification.” Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 780 (1992), UN Doc. S/1994/674, annex, para. 42. In addition, the report stated that “there does not appear to be a customary international law applicable to internal armed conflicts which includes the concept of war crimes,” and emphasized that “the violations of the laws or customs of war referred to in article 3 of the statute of the International Tribunal [for the Former Yugoslavia] are offences when committed in international, but not in internal armed conflicts.” Id., paras. 52, 54.

172 UN Doc. S/PV.3217, at 15(1993). The prosecution at the Yugoslavia Tribunal has followed this approach in treating forcible sexual intercourse as cruel treatment or torture in violation of common Article 3 (1) (a). The prosecution brings actions for violations of common Article 3 as if they were violations of the laws or customs of war. Thus, the initial indictment against Dragan Nikolić (No. IT–94–2–I (Nov. 7,1994)) states at paragraph 16.2 that Nikolić “violated the Laws or Customs of War, contrary to Article 3(1) (a) of the [Fourth] Geneva Convention” by participating in cruel treatment of certain victims. More generally, in its introductory paragraphs the indictment charges the accused with “[v]iolations of the Laws or Customs of War, including those recognized by Article 3 of the Fourth Geneva Convention.” On common Article 3 in the Yugoslavia Statute, see also James, C. O’Brien, The International Tribunal for Violations of International Humanitarian Law in the Former Yugoslavia, 87 AJIL 639 (1993)Google Scholar.

173 Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Merits, 1986 ICJ Rep. 14, 114, para. 218 (June 27).

174 1907 Hague Regulations, supra note 19.

175 1929 POW Convention, supra note 74.

176 See Meron, International Criminalization, supra note 1, at 562 Google Scholar; see generally Nguyen, Quoc Dinh, Droit International Public 621 (Patrick, Daillier & Alain, Pellet eds., 5th ed. 1994)Google Scholar.

177 United States v. Von Leeb (“The High Command Case”), in 11 IMT Trial, supra note 2, at 462, 537, 539–40 (1948).

178 1 id. at 223.

179 Compare “crimes of state” in the meaning of Article 19 of the International Law Commission’s Draft Articles on State Responsibility (part one), adopted by the ILC on first reading. [1976] 2 Y.B. Int’l L. Comm’n, pt. 2, at 73, 95–96, UN Doc. A/CN.4/SER.A/1976/Add.1 (pt. 2).

180 E.g., Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, Jan. 13, 1993, Art. VII, S. Treaty Doc. No. 21, 103d Cong. (1993), 1974 UNTS 45.

181 War Crimes Comm’n History, supra note 12, at 34–35.

182 Versailles Treaty, supra note 52; see also WWI Commission, supra note 31, at 112–15Google Scholar; Carnegie Endowment For International Peace, Violation Of The Laws and Customs of War 16–19 (Division of International Law, Pamphlet No. 32, 1919)Google Scholar. The commission recommended prosecuting all those guilty of offenses against “the laws and customs of war and the laws of humanity.” WWI Commission, supra, at 118.

183 See Draft Statute of the International Criminal Court, Art. 20, Report of the International Law Commission on the Work of Its Forty–sixth Session, UN GAOR, 49th Sess., Supp. No. 10, at 76, UN Doc. A/49/10 (1994).

184 Theodor, Meron, Human Rights and Humanitarian Norms as Customary Law 41–62 (1989)Google Scholar.

185 Meron, International Criminalization, supra note 1, at 564.

186 1 IMT Trial, supra note 2, at 218.

187 Id. at 221.

188 United States v. List, 11 Trials of War Criminals Before the Nuernberg Military Tribunals Under Control Council Law No. 10, at 759, 1239 (1950).

189 Hans–Heinrich, Jescheck, The General Principles of International Criminal Law Set out in Nuremberg, as Mirrored in the ICC Statute, 2 J. Int’l Crim. Just. 38, 40–42 (2004)Google Scholar.

190 Meron, supra note 184, at 37–41.

191 Meron, International Criminalization, supra note 1, at 564–67.

192 Prosecutor v. Tadić, supra note 143, paras. 94, 143.

193 Id., para. 143; see Report of the Secretary–General Pursuant to Paragraph 2 of Security Council Resolution 808 (1993), UN Doc. S/25704, para. 34 (1993), reprinted in 32 ILM 1163, 1170 (1993)Google Scholar.

194 Jescheck, supra note 189, at 41.

195 See Agreement on the Establishment of a Special Court for Sierra Leone, UN–Sierra Leone, Jan. 16, 2002, UN Doc. S/2002/246, annex, app. 2 (to which the Statute of the Special Court is attached); Sierra Leone, Special Court Agreement, 2002 (Ratification) Act, Act No. 9, Mar. 29, 2002.

196 For a detailed discussion of legality in those courts, see Meron, Revival, supra note 130, at 829–32.

197 Report of the Secretary–General Pursuant to Paragraph 5 of Security Council Resolution 955 (1994), UN Doc. S/1995/134, paras. 11–12.

198 Samantha, Power, A Problem From Hell: America and the Age of Genocide (2002)Google Scholar.

199 Jackson Statement, supra note 2, at 101.