2. The Post-Second World War Trials

There were very many war crimes trials at the end of the Second World War, mainly in national courts of the victorious powers and of the countries they had liberated. The best-known were the international military tribunals at Nuremberg and Tokyo which tried major Axis war criminals. They constitute the major precedent for implementation through international trials. Today, when new international tribunals in respect of war crimes have been established, the post-1945 international tribunals merit re-examination.

The bare facts of the two international tribunals are easily summarized. They originated in Allied declarations in London (13 January 1942) and Moscow (1 November 1943) which declared the prosecution of war crimes to be one of the Allies' principal war aims. On the basis of these statements much work was done to prepare for the numerous national trials. This left the special problem of what to do about major figures whose crimes were not tied to any particular location. On 8 August 1945 the London Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis was concluded. Article 6 specified three types of crimes:

· 6(a) crimes against peace (relating to ius ad bellum);
· 6(b) war crimes (violations of the laws or customs of war); and
· 6(c) crimes against humanity (discussed further below).

On this basis, the International Military Tribunal at Nuremberg sat from 20 November 1945 to 1 October 1946. Of the twenty-two defendants, all but three were found guilty on some charges. Twelve were sentenced to death. Seven received prison sentences ranging from ten years to life. The International Military Tribunal for the Far East, based on the same principles as at Nuremberg, was held in Tokyo from 3 May 1946 to 12 November 1948. There were twenty-eight defendants, of whom two died during the trial, and a third was found mentally incompetent. All twenty-five remaining were found guilty on some charges. Seven were sentenced to death. Sixteen were given life imprisonment, one twenty years, and one seven years. The Tokyo Tribunal has been even more heavily criticized than its counterpart at Nuremberg, not least because it placed comparatively less emphasis on the well-established category of war crimes against protected persons such as prisoners and inhabitants of occupied territories.

The significance of the Nuremberg and Tokyo tribunals is notoriously a subject of controversy. Some aspects of the controversy are not relevant to the present inquiry, such as certain procedural deficiencies and the question of whether the charge of waging aggressive war was well founded in existing international law, and fairly applied, especially at Tokyo. Three other grounds of criticism are closely related to present-day problems of applying the law. These are: (1) that the tribunals applied a body of law some aspects of which had not before 1945 been clearly enunciated in treaty form, or were in treaties which were not fully applicable to the events under scrutiny; (2) that the tribunals were one-sided, as possible war crimes committed by the Allies were neither fully considered there nor dealt with elsewhere; and (3) that large numbers of guilty individuals were either not prosecuted at all, or were treated too leniently. The first and second of these grounds feed into the commonly-uttered view that these trials constituted victor's justice.

The point about whether new law was being developed deserves attention today because it sheds light on the issue of whether there are some standards of behaviour so basic that they must apply to all states and their citizens, in peacetime and in wartime, irrespective of whether or not those standards are clearly spelt out in treaties to which the state in question has subscribed. Several elements are involved.

The first element is the notion of "crimes against humanity". To some extent these were simply war crimes writ large, but in addition they could encompass actions before as well as during the war, and could apply to a government's offences against its own citizens. However, the wording of Article 6(c) of the 1945 Charter of the Nuremberg Tribunal suggested that they had to be committed "in execution of or in connection with any crime within the jurisdiction of the Tribunal" - a curious proviso which blunted the impact of this innovative category. Like the simultaneous development of human rights law in the Charter of the United Nations, the introduction of the idea of "crimes against humanity" can be seen as creative law-making. It did have some basis, albeit shadowy, in existing law. For example, the 1899 and 1907 Hague Conventions had stated in the Martens Clause that in cases not included in the Regulations, "the laws of humanity" remain a source of law of key importance. Whatever the validity of the basic concept of "crimes against humanity", it had even less concreteness and independent existence in the Nuremberg judgment than it had had in the London Charter. Its role was yet further attenuated in the Tokyo trial. Subsequent developments, however, including in the Barbie case, and in the statutes of the international tribunals for the former Yugoslavia and Rwanda, suggest that this legal category is growing in importance and is reinforcing the idea that a wide range of crimes and factual situations is subject to international legal rules.

A second aspect of new law-making arose from the way in which the judgment of the International Military Tribunal at Nuremberg asserted the universal applicability of a key part of existing law, the 1907 Hague Convention IV on land war. The Hague Convention's Article 2, its "general participation clause", had stated that its provisions were applicable only if all the belligerents in a conflict were parties to the Convention. The defence at Nuremberg contended that because some belligerents, Albania being one example, were not parties to the Hague conventions, therefore Germany had not been bound by these conventions, at any rate vis-is non-parties. The Tribunal's judgment said that during the Second World War this treaty applied to all countries, because it had by then become customary law. With this statement, the judges from the victor powers were saying that irrespective of the adherence or otherwise of states to particular accords, irrespective of the legal niceties and the small print, there had to be some minimal universal standards.

All this was part of that aspect of Nuremberg which significantly tempered the central role of governments by injecting the idea of personal responsibility in respect of universal standards. The doctrine that superior orders are not a defence against a charge of war criminality was another manifestation of this approach. In short, the old idea of a society of states was having to yield, however slowly, to a society where governments were subject to certain over-arching principles, and could not order around their citizens, even their officers, just as they wished. Modern ideas of legal positivism, based on treaty law alone, were subtly yielding to older ideas of natural law.

As to the accusation that the Nuremberg and Tokyo trials were onesided, it is easy - and it was well done by the defence lawyers at the trials- to point out that there had been terrible deeds on both sides in the war. On some matters, such as submarine warfare and city-bombing, the Allies, just as much as the Axis powers, had ignored existing treaties and legal principles. The Soviet record regarding treatment of prisoners had been appalling. However, there was one major category of activity on which the law was clear, and in respect of which there was little comparison between Axis powers and at least most of the Allies. This category was in the end a main basis for the conviction of most of the major war criminals. It concerned, not combat itself, but treatment of those more or less hors de combat The Axis atrocities against many of those who were directly under their control - whether Jews, prisoners of war or inhabitants of occupied territories - formed the strongest ground for conviction. It cannot have been wrong to punish these acts. They were clear violations of the most elementary principles of decency, as well as being contrary to the 1907 Hague Land War Convention and the 1929 Geneva Prisoners of War Convention.

The accusation that the many trials at the end of the Second World War did not go far enough is serious. The administration of justice was, as perhaps it had to be, extremely selective. Many German and other individuals who had been accomplices in mass murder escaped the Allied net, or else were considered too useful to the Allies to be prosecuted The attempt at Nuremberg to establish "organizational guilt" through membership of criminal organizations such as the SS (Schutzstaffeln) was not successful. As time wore on, the Allies rapidly lost enthusiasm for criminal prosecutions, and thousands of cases were not pursued. The "denazification programme" was a preferred if still flawed substitute In the end, an implicit principle of Nuremberg and Tokyo was to hold highly-publicized trials of a few leaders primarily responsible for a process of criminality in which hundreds of thousands had in fact been culpable in one way or another.

While these and other criticisms of the Nuremberg and Tokyo trials are well founded, they do not for the most part suggest that the trials were not worthwhile. The trials responded to wholly exceptional circumstances. They greatly strengthened the idea that the conduct of states and armies was subject to some over-arching legal standards however imperfectly enforced in this instance.

The post-Second World War trials may have been "victor's justice", but in retrospect that is not only their greatest weakness but also their greatest strength. The fact that they were victors enabled them to gather the necessary evidence, arrest a high proportion of the main suspects, and hold trials. There were few worries about whether the trial process might actually worsen the conflict with the Axis powers, since they were already defeated. The costs of the process were underwritten The contrast with the International Criminal Tribunal for the Former Yugoslavia, which has experienced difficulties in such matters as getting hold of suspects and securing adequate resources, is striking.

A questionable part of the legacy of Nuremberg is the creation of expectations that, in general, trials are an appropriate way to handle war crimes issues. As Telford Taylor has put it:

"Also, in terms of enforcement, whether the charge is war crimes or crimes against humanity, I think it is a mistake to expect that the device of a criminal trial is the major way in which the enforcement of those limitations and obligations is going to be achieved. As one vho has taught criminal law for several years, I always try to instill in my students a basic appreciation that most law enforcement is voluntary. Therefore, in the international field as well, the idea that trials alone (or statutes and treaties) can bring about the reforms and remedies that we hope for is misplaced reliance .

Since 1945, many countries have conducted national trials for war crimes committed in the Second World War. Often there has been special legal provision to permit such prosecutions long after the offences. Thus the UK government, while failing to take action regarding Iraqi war crimes in the 1990-91 conflict over Kuwait, and acting over the objections of the House of Lords, passed the War Crimes Act 1991, enabling UK courts to try offences arising from the Second World War. The UK government appeared to be pressing ahead towards possible trials of octogenarians who had held middle- or low-ranking positions in the Second World War. An argument for the UK government's approach was that these individuals were under UK jurisdiction, and hence it was actually possible to take action. To date, extensive investigations of possible suspects have only led to one indictment.