The Contribution of the Courts Nuremberg, Tokyo, and the Rest

All of the trials conducted by the victorious UN powers after the Second World War are popularly known as 'war-crimes trials' and, strictly speaking, most of them were so. The persons in the dock were usually there because they were accused expressly of offences against the laws and customs of war as codified in the 1899 and 1907 Hague Regulations and the 1929 Geneva Conventions. The judgments given in some of those courts were, as shall soon appear, of importance in relation to the clarification and development of the law of war, and (with the possible exception of the Nuremberg Principles) to that alone. The Nuremberg Principles are so called because they originated in a Resolution of the General Assembly (Resolution 95, adopted on 11 November 1946) headed: Affirmation of the Principles of International Law recognized by the Charter of the Nuremberg Tribunal. They were in some fashion reaffirmed by the UN's International Law Commission (established by GA Resolution 174 on 21 November 1947) in mid-1950. 1 Jurists tend to be evasive and non-committal about the extent of their significance, but at least it can be said that the GA's unanimous vote 'indicated subscription by a large number of States to the substantive law of war crimes, including the principle of individual criminal responsibility, and to the lawful exercise of criminal jurisdiction over such individuals'.2 Only at the two most conspicuous of these post-war trials (which are to be numbered in hundreds), the International Military Tribunals known to history as the Nuremberg and Tokyo trials, were defendants tried also for other alleged offences. It is important to bear in mind what was the relationship of those other offences with the law of war, and what it was not.

Crimes against humanity, which figured equally with crimes against peace and war crimes in the Nuremberg Indictment, were thus carefully defined: 'murder, extermination, enslavement, deportation and other inhumane acts

____________________
1
They are reproduced in Schindler and Toman, 883 and 835-6 respectively. Roberts and Guelff, always cautious, leave them out.
2
Draper in US Naval War College International War Studies 62 ( 1980), 247-62. at 259-60. He might have added the law on crimes against humanity, which Principle VI equally lists. Layfolk who have taken at face value the phrases about the supremacy of international over national law, and have accordingly perceived opportunity to initiate actions against members or officials of their own governments, have to the best of my knowledge been consistently disappointed.

-180-

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