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The seminal tribunals for prosecuting atrocities committed by the Axis powers during World War II were both born in and riven by Cold War politics and the victors' national self-interest. Yet for all of their flaws, both trials showed that the monumental challenge of fairly prosecuting senior officials for high crimes is worth pursuing.

If there’s one thing that unites virtually everyone with respect to the wars in Ukraine and the Middle East, it is that other people’s views are distorted by “double standards.” The belief that one party is being held to a different measure than others underlies many of the disagreements that have resonated from each conflict to contort global politics.

Just last week, for example, the provisional order of the International Court of Justice (ICJ) on South Africa’s claims that Israel is guilty of genocide was widely interpreted through the lens of double standards. Such accusations plague not just Israel and Hamas, or Russia and Ukraine, but also the United States and its Western allies, the International Criminal Court (ICC), and even institutions of higher learning.

But while the accusation of double standards cuts across many spheres of public life – from sexual and racial equality to sports and bathrooms – it has particular resonance in international criminal justice. The authority of all justice systems, which depend on the public’s perception of their fairness and impartiality, is vulnerable to charges of moral hypocrisy.

This is especially true of international courts, such as the ICC (which recently celebrated its 25th anniversary) or those established in the 1990s and 2000s to address crimes in the former Yugoslavia, Rwanda, and Cambodia. Though some international norms and institutions have been around for decades, they are still relatively under-used, in part because most national politicians would prefer not to have someone looking over their shoulders.

International crimes lie at the intersection of law and politics, where the consequences for each case before a court can be existential for the parties involved. Prosecuting a head of state or a senior minister for grave crimes offers a rare opportunity to demonstrate the law’s ability to constrain the arbitrary exercise of power. But precisely because the stakes are so high, such prosecutions can blur the distinction between law and politics in ways that will lead some observers to doubt whether the rule of law is even possible.

The Nuremberg and Tokyo tribunals that prosecuted German and Japanese leaders after World War II set the template for the international justice movement. Among that movement’s bedrock principles are that justice is an essential foundation for enduring peace; that no one is above the law; and that individual criminal responsibility enables societies to confront what was done in their name without imposing collective punishment.

The post-WWII tribunals developed pathbreaking legal innovations, including the new crimes of aggression, crimes against humanity, and genocide to accompany more well-settled laws and customs of war. The tribunals confirmed that individual political and military leaders can and should be held accountable for what had long been considered acts of state, and they rejected the “just-following-orders” defense (though they allowed it to be considered in sentencing). As the immediate postwar era gave way to the Cold War, these courts became, as historian Francine Hirsch of the University of Wisconsin-Madison observed of Nuremberg, “laborator[ies] for the articulation and development of a language about human rights.”

BORN IN POLITICS

It does not diminish the achievements of the Nuremberg and Tokyo tribunals to note that the trials they conducted – like those that have followed – were imperfect vehicles in the search for abstract truth. In Soviet Judgment at Nuremberg, Hirsch calls attention to the essential but previously overlooked role of the Soviet Union and its jurists in bringing the Nuremberg trials to fruition. In Judgment at Tokyo, Princeton University historian Gary J. Bass highlights the extent to which uneven judicial leadership combined with fractious international politics to weaken the Tokyo tribunal’s symbolic resonance.

In other words, both seminal tribunals were born in, and riven by, emerging Cold War politics; they were plagued by real and perceived double standards and hypocrisy; and their legacies are as complicated as their origins. On one hand, they embody the immortal promise declared by Nuremberg’s American lead prosecutor, Robert H. Jackson: that “great nations, flushed with victory and stung with injury [may] stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law.” On the other hand, the Nuremberg and Tokyo trials have since served as fodder for cynical politicians to pervert their meaning and exploit their shortcomings.

Nuremberg came first, was shorter (lasting just over ten months), and has always received far more attention in the West. By contrast, the Tokyo tribunal’s majority judgment belatedly relied on Nuremberg’s reasoning to uphold its own jurisdiction, took far longer (two and a half years), and was marred by visible disagreements among the 11 judges.

Most of these disputes concerned core issues related to the Tokyo court’s legitimacy, as reflected in three dissents and two concurring opinions, as well as the slim majorities in favor of the death sentences imposed on seven accused (16 others received life imprisonment and two lesser sentences). While the main Nuremberg trial acquitted three of 21 defendants (and three of six alleged criminal organizations), none of the 25 defendants on trial at Tokyo was acquitted of all charges.

The foundational principles and institutions of international criminal law did not emerge out of thin air. They were often the product of concrete political interests and contestation. That fact alone is not damning (political will is always necessary to turn rhetoric into reality), but legitimacy is harder to secure if the lofty rhetoric surrounding international justice fails to take stock of the politics in which it is embedded.

As Hirsch shows, proposals for an international criminal court to prosecute crimes of aggression (“persons violating peace” and “acts infringing on peace”) emerged in the 1930s in the Soviet Union, where they were “prompted by the looming threat of [Nazi] Germany and Japan, who had just signed the Anti-Comintern Pact that was clearly directed against the Soviet Union.” Aron Trainin, a Russian scholar and editor who advised the Soviet prosecution at Nuremberg, was a principal source of these ideas.

Over the next decade, Soviet politics took many twists and turns – from the 1939 Non-Aggression Pact to the loss of more than 20 million people in a war of survival with Hitler. Although the United Kingdom and the United States agreed, on October 7, 1942, to establish a commission to investigate German atrocities, it was the Soviets who called (just a week later) for Nazi leaders to be tried by a “special international tribunal” and punished with “all of the severity of criminal law.” When the British ambassador to Moscow suggested that the Allied leaders issue “an executive decree … that Hitler should hang,” Stalin saw, and argued for, “the propaganda value of an international tribunal.”

Of course, as with the infamous Moscow show trials of the 1930s, which lacked due-process protections for the accused, Stalin’s proposal was predicated on the presumption of defendants’ guilt. But as the war came to an end, the Allies saw both Nuremberg and Tokyo as important opportunities to advance and affirm their respective narratives about the causes, consequences, and meaning of the war. “Everyone understood that the way the events of the previous decade were presented in the Nuremberg courtroom had tremendous implications – not just for the verdicts but for the entire postwar order,” Hirsch writes. “Justice was at stake; so was realpolitik.”

While the US government viewed a trial as an opportunity “to showcase American leadership and the rule of law,” Soviet leaders believed that helping the world “grasp the sheer magnitude of Soviet losses … [would] expose Nazi crimes and … facilitate Moscow’s claims for material compensation and German labor.” Moreover, an international tribunal would “give the Soviets the opportunity to take their place among the postwar powers.”

WHO DECIDES?

For political as well as other reasons, the choice of defendants in both cases was left to the military victors. US President Harry S. Truman’s administration decided that the Tokyo tribunal should prosecute only “a relatively small clique of senior military officers” among the many Japanese implicated in war crimes, crimes against humanity, or crimes of aggression. (Each of the occupying powers in Japan was permitted to set up its own national courts for lower-ranking war criminals, and 5,700 were ultimately prosecuted that way, leading to 984 executions.) Though “historically and morally dubious,” Bass argues, this “selective guilt” served a number of US political aims:

“It would help to delegitimize and sideline the coup-prone military officers who were most likely to threaten democracy; it would slake the American public’s demand for vengeance; it would help the Japanese public disavow their wartime leadership and embrace a new constitutional order congenial to the United States. … And it would speed Japan’s rehabilitation on the world stage, letting it become an American ally in the Cold War.”

As a result, only 16 military officials and 12 civilians were indicted in Tokyo. Despite Emperor Hirohito’s clear responsibility for some of the alleged crimes, the Truman administration decided not to include him, as he would be crucial in preventing further Japanese resistance and facilitating Japanese society’s acceptance of American leadership.

The influence of politics was also apparent in how the Soviet prosecutors and tribunal staff operated at Nuremberg. As Hirsch explains, while the other Allied prosecutorial teams communicated with their national political leadership, they had “far more autonomy than Soviet personnel,” whose presentations, questions for witnesses, and even final dissenting judicial opinion drafts were written, edited, and reviewed by political leaders in Moscow, up to and including Stalin.

Stalin designated Andrei Vyshinsky, the lead prosecutor in the 1930s Moscow show trials, to lead a secret Commission for Directing the Work of the Soviet Representatives in the International Tribunal and the Committee of Chief Prosecutors in Nuremberg. Likewise, Mark Raginsky was appointed to the prosecution team at Nuremberg precisely because he “had proven his mettle to Vyshinsky in the 1930s show trials, where his lack of scruples as an investigator had helped seal the fate of Stalin’s enemies.” The same fidelity to Stalin also guided the appointments of Roman Rudenko as lead Nuremberg prosecutor for the USSR and Iona Nikitchenko as the Soviet judge on the tribunal.

Vyshinsky’s commission served as a mechanism for keeping “Soviet leaders closely informed about the course of the trial and forwarding all proposals (regarding procedure, documentary evidence, witnesses …) to them for review,” Hirsch writes. “The Soviet prosecutors, judges and support staff all knew that they were in Nuremberg to do [Vyshinsky’s] bidding and that their fates rested in his hands.”

Commission officials did not hesitate to “direct” the Soviet judges to “feel out” the other judges on matters of interest, to remind them of “the importance of keeping Moscow in the loop about all of the Tribunal’s private deliberations,” and to “censure” them for “failing to convince the other judges” of certain issues. The choice of reliable Soviet regime enforcers was also apparent at Tokyo.

At both tribunals, the imperative of justice was tempered by the rapid onset of the Cold War and the rise of a US foreign policy centered around anti-Communism. Hence, far more than France or the Soviet Union, the US and the UK increasingly saw strategic value in releasing and rehabilitating German and Japanese scientists and others despite being suspected of war crimes.

SELECTIVE JUSTICE

As contemporary debates make clear, the more susceptible to political influence legal institutions are, the more severely their legitimacy can be compromised. Unfortunately, neither of the postwar tribunals was free of double standards, which affected which crimes were and were not prosecuted, who was and was not charged, and who issued the indictments and did the judging. While the Nuremberg trial rightly addressed Nazi crimes, Hirsch notes that all four chief prosecutors agreed “that they would work together to steer clear of topics that might be damaging to any of the countries of the prosecution.”

In practice, the Soviets had the most to conceal, though they were ultimately not very successful in doing so. For example, it did not go unnoticed that they were strong advocates for including the crime of aggression in the indictment, even though they had themselves invaded Finland and Poland in 1939 and had annexed Estonia, Latvia, and Lithuania the following year.

Not only that, the Soviets also made the strategic error of successfully arguing to indict Germans for the 1940 massacre of some 22,000 Polish officers and intellectuals at several sites, including the Katyn Forest outside Smolensk. Their elaborate fabrication of evidence failed to persuade the three Western judges of German culpability, and subsequently released evidence has confirmed that the Soviets committed the murders. Similarly, the Kremlin failed to prevent publication during the trial of the embarrassing secret protocol to the Molotov-Ribbentrop Non-Aggression Pact, which partitioned Poland between Germany and the Soviet Union.

While Soviet crimes were the most egregious among the Allies, the Soviets were hardly the only ones seeking to shape the proceedings in their own interests. In considering what constituted “crimes against humanity,” Jackson expressed America’s desire to limit the definition, lest it grow to encompass “regrettable circumstances at times in our own country in which minorities are unfairly treated.” In the end, Article 6 of the charter did confine itself to crimes committed “in execution of or in connection with” another crime “within the jurisdiction of the Tribunal.” This meant the court could address only crimes against humanity committed by Germany in connection with the pursuit of aggressive war.

In Tokyo, the US government covered up what it knew about a secret Japanese army unit that had conducted biowarfare experiments on human subjects, because it wanted to safeguard this knowledge for its own military purposes. As a result, none of the Japanese attacks carried out with germ bombs and spray on Chinese cities from 1940 to 1942 were included in the indictment. Dutch judge Bert Röling later observed that this cover-up “severely damaged” the trial’s authority, and Bass himself concludes that “the failure to prosecute the Japanese involved in biowarfare is one of the gravest stains of the Tokyo tribunal.”

As Indian judge Radhabinod Pal’s scathing 1,200-page dissent emphasized, the Tokyo proceedings were built on multiple layers of colonialism and racism. Even as the trial was underway, some of the European allies were fighting to retain their colonial possessions in French Indochina (today’s Cambodia, Laos, and Vietnam), the Dutch East Indies (which would become Indonesia), and British Malaysia and Singapore. The US ultimately consented to add two judges – from India and the Philippines – beyond its initial proposal of nine (US, UK, France, Netherlands, USSR, Canada, Australia, New Zealand, China), because the State Department deemed it “politically desirable to avoid being placed in a position of discriminating against Asiatic Countries.”

Of course, though Western racism against Japan was pervasive, the Empire of Japan had itself sought to impose a “New Order” on the peoples of East and Southeast Asia. A major paradox of the Tokyo tribunal’s aggression charges was that they included Japanese attacks against British, French, and Dutch colonial possessions. As Bass shows, the indictments had been carefully worded to protect the Allies’ various empires: “Only [crimes in] India and the Philippines, on the verge of independence, would warrant their own counts in the indictment. The Indonesians would be spoken for by Dutchmen and the Vietnamese by Frenchmen, and the Koreans not at all.”

Without flinching, the Dutch prosecution defended “the territorial integrity of the Netherlands Indies.” And in demonstrating Japanese responsibility for aggression against French Indochina, “The prosecutors at Tokyo breezed past the awkward fact that if any French authority was being trampled in Indochina, it was that of Vichy France. This put [them] in the dicey position of upholding the imperial territorial claims of German collaborators.” Bass concludes that the “tacit, structural acquiescence with European imperialism did much to tarnish the legitimacy of the Tokyo tribunal.”

ACCOUNTABILITY FOR THEE, NOT FOR ME

Given how the trials were carried out, it is no surprise that they met early and often with the accusation of meting out victors’ justice. The Nuremberg Charter expressly limited its jurisdiction to “the major war criminals of the European Axis,” and the judges subsequently ruled that alleged war crimes committed by the Allies, such as the large-scale bombing of German civilians, lay outside the Tribunal’s scope. In more stilted language, the Tokyo Charter limited its reach to “far Eastern war criminals.”

Nobody was surprised when lead Tokyo defendant and former Japanese Prime Minister Tojo Hideki complained of “trial by conquerors.” But no less an anti-Communist American institution than Time magazine also expressed misgivings, concluding at the end of the trial that, “the world is no farther along than it was in 1945 to an understanding of whether these proceedings represent justice or victor’s vengeance.”

The US government, through its Supreme Commander for the Allied Forces in Occupied Japan, General Douglas MacArthur, who established the Tokyo tribunal and promulgated its governing charter, played the dominant role in judging Japanese crimes. And it did so after having just dropped atomic bombs on Hiroshima and Nagasaki, killing tens of thousands of civilians. Not only were the judges selected as representatives of victor countries, but two had personally experienced Japanese atrocities.

The Philippine judge, DelfínJaranilla, was forced to take part in the infamous Bataan death march in 1942. When defense counsel sought to remove him because of “personal bias,” the court responded that it had no authority to alter an appointment made by MacArthur. Similarly, Chinese judge Mei Ruao was both a witness to and a victim of crimes committed by Japanese forces, who burned his home in Nanjing and forced him and his family to flee to the Chinese interior.

Finally, both the Nuremberg and Tokyo proceedings were plagued by the accusation that, through their jurisprudential advances, they imposed retroactive punishments for actions – aggression, crimes against humanity, genocide – that had not been clearly illegal at the time they were carried out.

MIXED LEGACIES

Notwithstanding these shortcomings, the postwar tribunals were seminal events. Just before he testified to the Nazi onslaught against his people in Vilna (Lithuania), Abraham Sutzkever, a Jewish poet who miraculously survived, prophesied that “the name of Nuremberg would go down in history for eternity: first as the place of the Nuremberg Laws and now as the place of the Nuremberg Trials.”

Similarly, lead French prosecutor François de Menthon declared in his opening address that Nuremberg would constitute “a decisive act in the history of international law.” More than three-quarters of a century later, the ideals of the Nuremberg and Tokyo tribunals – accountability for the worst crimes, impartial and individualized justice, an authoritative factual record for history – continue to resonate.

There were also more concrete effects. Nuremberg laid a foundation for political changes in Germany that, over time, would vividly demonstrate what a genuine reckoning with the past looks like.

After domestic war-crimes trials in Germany in the 1960s came West German Chancellor Willy Brandt kneeling at the memorial to the Warsaw Ghetto in 1970, President Richard von Weizsäcker’s 1985 speech calling on Germans not to deny but to learn from their Nazi history, and, following the fall of the Berlin Wall in 1989, the rise of a broader “memory culture” in the newly unified Germany. More recently, Germany’s efforts to atone for its past have led it always to prioritize Israel’s security as a Staatsräson (reason of state), even if doing so might stifle Palestinian and other voices demanding Nuremberg-style legal accountability for those responsible for possible crimes in the ongoing conflict in Gaza.

Though its legacy is more contested, the Tokyo tribunal demonstrated the challenge, importance, and possibility of piercing the veil of impunity that for many centuries had protected senior leaders responsible for grave crimes. Moreover, though they were not classified as such, acts of sexual violence were successfully prosecuted as war crimes. This was a significant achievement that helped set the stage for the prosecution of rape and other crimes of sexual violence at the Yugoslavia tribunal, the ICC, and in other courts.

Yet in the decades since, WWII’s victors have at times undermined and distorted the tribunals’ achievements, even exploiting their shortcomings for political purposes. Following revelations of US abuses during the Vietnam War, Nuremberg prosecutor Telford Taylor wondered whether the American people were able to “examine their own conduct under the same principles that they applied to the Germans and Japanese at the Nuremberg and other war crimes trials?”

In 2002, fellow Nuremberg prosecutor Benjamin Ferencz lamented that by declining to join the ICC, “What the United States is saying is that we don’t want the rule of law. I think that is dangerous, very dangerous. Because we cannot lay down a law for the United States and not for the rest of the world. That doesn’t fly. Justice Jackson made that clear at Nuremberg. Law must apply to everyone equally or it’s not law at all.” In another egregious double standard, Russia and China have also refused to join the ICC, even though their permanent membership on the United Nations Security Council grants them a veto over matters referred to the court.

Today, Ukrainians invoke Nuremberg to support their demand for Russia’s leadership to be held accountable for aggression and war crimes. At the same time, as Hirsch observes, Russian President Vladimir Putin has repeatedly laid claim to both the ideals of Nuremberg and its selective approach to justice in advancing his narrative of victimhood and nationalist zeal. A proposed plan for Ukraine’s “de-Nazification,” published by a Russian state news agency in April 2022, proclaimed that by convening a public tribunal, the Kremlin would “act as the guardian of the [legacy of the] Nuremberg Trials.”

In Japan, the biases that infected the 1946-48 trial provided ammunition for right-wing nationalists in succeeding decades to discredit the judgment and gloss over Japan’s WWII-era crimes. As Bass describes it, the decision to leave Emperor Hirohito on the throne for decades after WWII allowed advocates of a more revanchist Japan to underscore their continuity with the Empire. Equally, nationalists seized on Pal’s own indictment of the Allies’ protection of Western imperial interests to disparage the Tokyo proceedings and justify Japan’s WWII behavior.

Against this backdrop, the late Abe Shinzō, Japan’s longest-serving prime minister and the grandson of the prominent revisionist Prime Minister KishiNobusuke, once proclaimed that Japan must “depart from the postwar regime” and recover its national independence. During his two terms in office (in 2006-07 and again in 2012-20), Abe visited the notorious Yasukuni shrine to Japan’s military heroes, where he repeated the longstanding complaint of “victors’ justice” leveled against the Tokyo trial’s judgment. According to Bass, Japan today remains “shackled to narratives about its wartime past that are morally odious and historically dubious.” 

The unresolved tensions at Tokyo have also continued to simmer in South Korea and China, nurturing competing narratives about the history and meaning of WWII. The debilitating effect of applying different standards to different parties engaged in criminal activity was poignantly described by none other than former US Defense Secretary Robert McNamara in the 2003 documentary The Fog of War:

“[Former US General Curtis] LeMay [who oversaw the US strategic bombing of Japanese cities,] said, ‘If we’d lost the war, we’d all have been prosecuted as war criminals.’ And I think he’s right. He, and I’d say I, were behaving as war criminals. LeMay recognized that what he was doing would be thought immoral if his side had lost. But what makes it immoral if you lose and not immoral if you win?”

To be sure, no one was prosecuted at Nuremberg or Tokyo specifically for the indiscriminate aerial bombings of civilians, in part because international law on aerial bombardment was limited during WWII. But McNamara’s point underscores the law’s dependence on political and military power, and the ever-present risk that double standards will pervert justice.

THE WORLD IS WATCHING

Owing largely to the contributions of Nuremberg, Tokyo, and their progeny, international law has grown more expansive, specific, authoritative, and publicly known since WWII. It is now far more difficult to conceal atrocities when they take place, since digital technology can deliver evidence of war crimes from around the world into investigators’ hands in a matter of seconds. Notwithstanding the recent rise of authoritarianism, political awareness of the possibility of legal accountability has grown substantially alongside popular demands for the protection of human rights and dignity. Though crimes continue to happen before our eyes, the political cost of killing civilians in mass numbers has increased.

Yes, the same kinds of horrific crimes recur, not just in Israel, Palestine, and Ukraine, but also in Yemen, Sudan, Mexico, Myanmar, Afghanistan, and elsewhere. Although we cannot eliminate the nefarious influence of political self-interest and double standards that tilt the balance of international-justice mechanisms to favor the powerful, we can still do more to heighten scrutiny of double standards and augment public appreciation of what is at stake.

To that end, we should continue to diversify the legal pathways to accountability for grave crimes – from the ICC and the ICJ to the application of universal jurisdiction in national courts. And we can learn from both the achievements and the shortcomings of the Nuremberg and Tokyo tribunals. In their poignant histories, Bass and Hirsch remind us that fairly prosecuting senior officials for high crimes is a monumental challenge well worth pursuing.

James A. Goldston is Executive Director of the Open Society Justice Initiative and previously worked in the Office of the Prosecutor at the International Criminal Court.

This article was originally published on Project Syndicate.
Views in this article are author’s own and do not necessarily reflect CGS policy.