Nuremberg and Tokyo Trials

Churchill had favoured summary execution of the Nazi leadership and the Americans insisted on a trial, partly because a trial would produce an evidentiary record that could not be denied later. The choice was strategic as well as principled: the record was intended to survive the occupation.

The men indicted were selected partly for what they represented: the party, the army, the economy, the diplomacy, the propaganda. Hitler, Himmler and Goebbels were dead, so the dock had to stand for a regime rather than contain its leadership. The selection was a political judgment.

The city was chosen because its Palace of Justice had survived the bombing with an adjoining prison, and because Nuremberg had hosted the party rallies. Practical requirements and symbolic ones happened to coincide, and the second was not accidental once the first made it available.

MacArthur decided the emperor would not be tried, because occupying Japan through the existing state was cheaper than occupying it against one. The most consequential decision of the Tokyo tribunal was made before it opened, on grounds of occupation policy rather than evidence.

Three acquittals in a court established by the victors is the fact that gives the judgment its weight. Had every defendant been convicted, the proceedings would be remembered as a formality. The acquittals were the tribunal's most valuable output, whatever they cost the prosecution.

A General Assembly resolution affirming the principles cost nothing and bound nobody, and it took another fifty-two years to produce a permanent court. The gap between endorsing a standard and accepting jurisdiction under it measures how much states actually conceded.

Twelve further trials ran under American authority alone, because four-power cooperation had already broken down. The Cold War arrived in the middle of the accountability process, and most of those convicted were released early as West Germany became a partner rather than a defeated enemy.

All remaining defendants were convicted and seven hanged, and within four years the occupation had ended and Japan was an American ally. The trial concluded just as its political purpose was being superseded, and the alliance requirement did the rest.

Four victors created a court to judge the defeated, and the same four states held the vetoes in the organisation founded a month earlier. Whatever legal form was adopted, this was the power to punish exercised by those who had won, and no defendant could appeal beyond it.

Prosecuting organisations as criminal, alongside individuals, aimed at dismantling the institutional basis of German power: the SS, the Gestapo, the party leadership corps. The proceedings were part of an occupation policy directed at the defeated state's capacity to reconstitute itself.

Soviet judges sat on a tribunal charging aggressive war while their own government had invaded Poland alongside Germany and annexed the Baltic states. The tribunal's composition made certain questions unaskable, and the defence's attempts to raise them were ruled out. Victory defined the scope.

Eleven judges from eleven countries produced a fragmented bench with multiple dissents, unlike Nuremberg's four. A tribunal reflecting a wider coalition had less coherence, which is the standard trade: broader participation buys legitimacy at the cost of agreement.

The judgment held that following superior orders is no defence, which places a duty on individuals that cuts against the hierarchy every state depends on. In practice the doctrine has been applied to the defeated far more often than to the victorious, and that pattern has held since.

Codification stalled during the Cold War precisely because defining aggression would have constrained both superpowers. The International Law Commission worked on it for decades without agreement. Legal development proceeds where the great powers are indifferent and halts where they are not.

Clemency and early release accelerated as German rearmament became a Western objective. The trials' outcomes were revised to suit an alliance requirement. Justice pursued by states remains subordinate to what those states need next, and here the shift took less than five years.

Japan was rehabilitated fast because a communist China and a Korean war made it strategically indispensable. The pace of reintegration for a defeated state is set by what the victors need next, and the accountability process is adjusted accordingly rather than allowed to run its course.

The Charter guaranteed the defendants counsel, disclosure of evidence, the right to cross-examine and to give evidence themselves. Extending procedural rights to men accused of the century's worst crimes was the point rather than an embarrassment: the trial's legitimacy rested on it.

Charging organisations risked collective guilt, and the tribunal narrowed it substantially, requiring knowledge and voluntary membership. That correction mattered: a court willing to limit its own jurisdiction against the prosecution's wishes demonstrated the independence the whole enterprise needed.

Proceedings were public, filmed, translated simultaneously into four languages and reported worldwide. The trial was designed to be watched. Its purpose was partly to establish a record before a German public that would otherwise be told the regime had been slandered by its conquerors.

Justice Pal of India dissented entirely, arguing the charges were retroactive and the proceedings a victors' exercise that ignored colonialism and the atomic bombings. That his dissent was published and circulated is itself evidence the tribunal was not simply a formality.

Individuals were tried, defended, convicted on evidence and in some cases released, and sentences varied with proven conduct rather than with rank. Establishing that even these defendants received due process was the point on which the entire claim to legality rested.

Unanimous affirmation by the Assembly converted a victors' tribunal into a statement of general law endorsed by the whole membership. That endorsement is what allowed the principles to be cited later as universal rather than as the terms imposed on one defeated state.

The doctors' trial produced the Nuremberg Code on medical experimentation, and the judges' trial examined how a legal profession had lent itself to persecution. These cases reached into civil society, establishing that professional complicity is a form of responsibility.

Several judges dissented, on scope, on retroactivity and on sentence, and the disagreements were published. A tribunal that visibly divides is easier to attack and harder to dismiss as staged, and the dissents remain part of the argument about international criminal justice.

Four legal systems with incompatible procedures had to produce one workable code in six weeks: common law adversarial practice, French inquisitorial method, Soviet expectations. The resulting hybrid was an institutional compromise that every later international tribunal has had to make again.

The case rested on captured German records rather than on testimony, because the regime had documented itself exhaustively. That choice made the record verifiable and hard to dismiss as victors' invention. Evidence of that kind is what distinguishes a trial from a proceeding with a predetermined end.

Simultaneous interpretation was invented for this trial because consecutive translation into four languages would have made it interminable. A procedural innovation created to solve a practical problem became standard infrastructure for every international organisation since.

Tokyo ran for two and a half years against Nuremberg's ten months, with a sprawling indictment covering fifteen years and conduct across Asia. Institutional design matters: an unbounded scope produced a proceeding too long and too diffuse to achieve what its founders wanted.

The tribunal produced a documented record of forty-two volumes that has anchored historical scholarship and defeated denial for eighty years. Judicial procedure generated an archive that no commission of inquiry would have produced with the same authority.

Referring the principles to the International Law Commission for formulation was the institutional step that turned a judgment into doctrine. Slow technical bodies converting political declarations into usable text is how most international law is actually made.

Prosecuting industrialists raised the question of corporate responsibility for forced labour and for supplying the machinery of murder, and the convictions were narrow and the sentences short. The doctrinal foundations laid here have been argued over in business and human rights ever since.

The tribunal left no permanent institution behind, and the model was not used again for forty-five years until Yugoslavia and Rwanda. Ad hoc courts dissolve with their cases, which is why the argument for a standing court took half a century to prevail.

Defining crimes against peace, war crimes and crimes against humanity asserted that some conduct is criminal under international law regardless of domestic legality. That claim about the reach of the society of states over individuals was genuinely new and remains contested.

Crimes against peace, the charge of waging aggressive war, was the most contested count precisely because it looked most like law made after the fact. The society of states was asserting that the resort to war had already become unlawful, and pointing to the Kellogg-Briand Pact to prove it.

The defence argued that the acts were sovereign decisions of a state and not justiciable by other states, which was the orthodox position in international law. The tribunal rejected it. That rejection redrew the boundary between sovereignty and individual accountability.

Applying the Nuremberg categories in Asia asserted that these were universal standards rather than European ones. That claim was undercut by exempting the emperor, by the absence of prosecutions over human experimentation, and by who sat in judgment. Universality asserted selectively is heard as selectivity.

The court's central holding was that crimes against international law are committed by men, not by abstract entities, and only by punishing individuals can the provisions of international law be enforced. That sentence is the foundation of everything built on it since.

International society formally adopted the proposition that individuals bear duties under international law that override domestic orders. Whatever the enforcement record, the rule now existed as something states had collectively affirmed, and could be invoked against them.

Trying doctors, judges, bureaucrats and businessmen extended accountability well beyond the political and military leadership that international law had traditionally reached. The society of states was defining a much wider circle of persons who owe it duties.

Two tribunals had now asserted that international society may try the leaders of a defeated state for how they made and conducted war. That precedent sat unused for two generations and was then invoked repeatedly, which is a long time for a norm to lie dormant and still revive.

Jackson's argument was that staying the hand of vengeance and submitting captive enemies to the judgment of law was the most significant tribute power ever paid to reason. That framing turned a victors' proceeding into a founding act, and it is largely how the trial is remembered.

Naming individuals rather than a nation established that a state's crimes have authors. This displaced an older idea of collective national guilt, and it made possible the eventual reintegration of Germany by locating responsibility in men who could be tried and, in some cases, hanged.

Showing the camp films in court, with the defendants' reactions lit for the cameras, was a deliberate act. The images did more than the legal argument to establish what had happened as an undeniable public fact, and they have anchored the memory of the war ever since.

Nuremberg entered German public memory as a reckoning; Tokyo did not perform the same function in Japan, where the trial was widely regarded as imposed. The meaning a society assigns to such a proceeding determines whether it settles the past or leaves it contested.

Nuremberg gave the twentieth century a template for what accountability after atrocity looks like: a court, a record, named defendants, published evidence. Every subsequent demand for a tribunal invokes it, which makes the judgment a standard as much as a legal precedent.

Affirmation mattered because it changed the status of Nuremberg from an event to a principle. Once the standard was general, the question in every later atrocity became why it was not being applied, which is a far more useful question than whether it exists.

These trials produced the detailed account of how ordinary professionals made the regime work, which shaped the later understanding of complicity far more than the leadership trial did. The question they raised about ordinary participation has never left European public argument.

Because the emperor was never tried, Japanese responsibility was located in a group of officials rather than in the state's own institutions, and the resulting ambiguity has fuelled disputes with Japan's neighbours for eighty years. Unfinished reckonings do not fade; they recur.