Criticisms of Nuremberg IMT, Tokyo IMT, ICTY Courts - Essay Example

The Positive Achievements and Criticisms of Nuremberg IMT, Tokyo IMT, ICTY Courts Student’s Name: Instructor’s Name: Course Code: Date of Submission: The Positive Achievements and Criticisms of Nuremberg IMT, Tokyo IMT, ICTY Courts Nuremberg IMT: Although the Fourth Hague is the first international agreement relating to crimes against humanity, the Nuremberg International Military Tribunal (IMT) formed by the Allied forces in World War II to try leaders of Nazi regime par see is the first international criminal trial since it was the first to try individuals outside their home countries in relation to crime against humanity, crimes against peace and war crimes (Facing History and Ourselves, 2013). For the court to attain it mandate, it was backed by international law and protected from domestic laws that were likely to act as hindrance (Cryer, 2005, p.38 & 39). For instance, article 6 (c) outlines the responsibility of individuals at the international level in relation to peace. This is applied irrespective of the domestic laws of a particular country where the heinous acts were perpetrated (Yale Law School, Lilian Law Goldman Library, 2013). Achievements The plausibility of this court can be examined in a mixed reaction. The first perspective would be it achievements and the second is the criticisms associated with it. The achievements can be contextualized in terms of its contribution to global peace and justice for those affected and would have not gotten a remedy in their own. One evident achievement in relation to the court relates to introduction of a new paradigm of international citizenry where acts of individuals are not limited within their countries. Moreover, it sounded warning for possible rogue military and civilian leaders against misusing their powers since the ‘world is watching’. Thirdly, the tribunal led to expansion of human rights by introducing concepts like crime against humanity and crimes against peace. Apart from serving justice to the victims and perpetrators of international and crimes against humanity, the court contributed towards development of modern international laws dealing with crimes against humanity. For instance, current international laws give little regard to domestic laws in relation to immunity against prosecution at the court. Moreover, the court does not admit the concept of a ‘superior order’ as a defense for committing crime against humanity. Other concepts that emerged out of the court is the concept of fair trial irrespective of the accusations level against individual or a group of individuals. This has played a moral and symbolic role. Lastly, any historical occurrence is important for academia at large and legal profession in specific and the same can be said of the court. Criticisms While it is undeniable that the court had significant contribution in relation international justice, peace, crime against humanity and legal studies in relation the prior points, it had it weaknesses. The first was subversion of the concept of justice by not allowing any appeal. This meant that trials were wrong one would be absolved/ exonerated of what he o is responsible for of be jailed of what he is not responsible for. This opened up window for political interference so as to nail specific elements who were most the losers in the World War 2. This then brings the concern of impartiality and unfairness. Moreover, it was only the losers who were targeted and not the forces Allied Axis. Such concern has been leveled against ICC as targeting developing economies. Lastly, most of the judges were from winners who were in the Allied axis. This shows that the courts were meant to punish further and weaken the losers instead of delivering justice (Cryer, 2005, p.40 & 41). This means it had hidden vested interest based on the concept ‘one can’t be the prosecutor and the judge’. In a nutshell, issues of selective justice in international laws emerge. Tokyo IMT The defeat of Japan in World War two as result of Nagasaki and Hiroshima bombings brought ripple effects which snow balled into other sectors like justice system. For instance, Potsdam declaration of 25 July of 1945 in Nanking by UK, USA and China led to regulated declaration about surrounding Japan by the said countries. Principle 10 is considered as the most contributory factor in the formulation of Tokyo International Military Tribunal (IMT). While the article did not advocate for the international judicial process, it gave birth to the concept of ‘stern justice’ by then. One significant player in this process was the US. In their 1945 reprimand, the US Joint Chiefs ordered for the arrest of war crimes suspects (Cryer, 2005, p. 42 &43). Most of the charges were leveled against high political military and diplomat leaders of Japan during WWII with the accusations being Crime against peace and conspiracy (Cyrer, 2005, p. 44, 53 & 55). Achievements This tribunal had higher degree of semblance in relation to trial with the previous discussion. Thus, certain positive and negative outcomes identified in the later are applicable to the current. However, there are unique positive contributions that emerge out of this tribunal that are not in the later discussion. The first one is that it also focused on the victor justice which was not the case for the IMT. The tribunal employed higher degree of fairness in their judgment as compared to IMT. The Tokyo IMT sentenced 7 out of 25 defendants to capital punishment and the other side, the Nuremberg IMT sentenced 12 out of 20 defendants to death (Picart, 2012, p. 21). Nevertheless, the process had numerous shortcomings. As outlined below. Criticism The criticisms leveled against the Tokyo IMT are controversial than the Nuremberg IMT. The first relates to the selective justice where the powerful are absolved of any blame. For instance, the emperor was not charged yet he was at the center of the happenings. Secondly, those who were accused were aged people. Thus, most of them died before the trials were concluded. This begged the question of how was it possible for them to participate in the war yet it was the youths and middle aged people who actively engaged in the war. Secondly, America had hidden agenda of retaliation as result of Japanese occupation of Pearl Harbor. In addition, there was a whole level of unfairness as result of the witness not being represented by their lawyers of choice since most of the attorneys were from US. This raises the contention of getting fairing hearing when the one defending you is from the country that has vested interest (Picart, 2012, p. 20, 21 & 22) Equally, while most of the crimes were committed in Asia, the trial judges were not from there. Asia had a paltry 3 judges out of 11 judges. In addition, the bias concern was evident in the fact that US citizens who had collaborated with Japanese manufactures of biological and chemical weapons were not prosecuted yet they had shared research information. This raises question on the format adopted in prosecuting crimes against peace. For instance, all the defendants were accused of crime against peace and 22 out of 25 defendants were found guilty. However this figure is 16 out of 22 of defendants charged with crime against peace and just 12 being found guilty in the Nuremberg IMT. Moreover, the rampant sexual offences against females which constitute crime against humanity were not prosecuted. This means that the legal instruments were converted into political mechanism (Picart, 2012, p. 23, 24 & 25). ICTY The case of former Yugoslavian is one of the post World War 2 happenings in relation to crime against humanity that attracted global attention. This led to the formation of International Criminal Tribunal for former Yugoslavia (ICTY) as recommended by UN’s Security Council (SC) Resolution. The tribunal was formed on the basis that the leaders had violated article 2 of the Geneva Convention on war crimes, article 3 on war crimes, article 5 of crime against humanity and article 4 on genocide. The resolution Security Council resolution number 764, 771, 780, 808 and 827 were used to establish ICTY (Cyrer, 2005, p. 52 & 53). For instance SC resolution 827 authorizes the formation of ICTY to prosecute the perpetrators of the crimes. The goal of this process was to identify and punish appropriately those found guilty of heinous acts in Yugoslavia and restoration & maintenance of peace in the region. To attain the same, article 9 (2) of ICTY gave the process immunity against national courts. Achievements From a comparative perspective, ICTY had numerous positive connotations in relation to international peace, human rights and justice as compared to IMT Tokyo and Nuremberg IMT. The first strength is that the process engaged the local court so as to improve domestic jurisdiction. This showed that domestic judicial can be able to accept all responsibility of war crimes and prosecute them (United Nations International Criminal Tribunal for the Former Yugoslavia, 2012). The process was based on facts and not hear say. The evidence collection had a modern touch by incorporating recorded audios and videos. In addition, the charges and information held by the prosecution department were availed to the defense team making the whole process transparent. Moreover, the process encouraged alternate dispute resolution as means of attaining peace by promoting reconciliation, guilty pleas and attracting admission of guilt from state leaders (United Nations International Criminal Tribunal for the Former Yugoslavia, 2010). Criticisms It is evident that the process had various outstanding points. Nevertheless, it had various some low points. The first was the delayed and expensive proceedings. Secondly, establishment of ICTY was not confined power of SC. Hence it was ultra vires and ICTY was organized for diplomatic and political impotence. Thirdly, the process had element of selective justice by dealing with crimes in one country instead of holistic approach. Equally, it targeted some section of Yugoslavia. This created further suspicion instead of healing process. References Cryer, R. (2005). Prosecuting International Crimes: Selectivity and the International Criminal Regime. Cambridge: Cambridge University Press. Facing History and Ourselves (2013). Nuremberg Remembered Group 3 Handout adopted from Nuremberg Remembered: The Road to Nuremberg. Available at: http://www.facinghistory.org/node/769. Picart, C. J.S. (2012). Attempting to Go Beyond Forgetting:  the Legacy of the Tokyo IMT and Crimes of Violence Against Women as a Military Strategy.  East Asia Law Review (University of Pennsylvania), Volume VII. available at:  http://www.pennealr.com/archive/vol7.html. United Nations International Criminal Tribunal for the Former Yugoslavia (2012). About the ICTY. Available at: http://icty.org/sections/AbouttheICTY. Yale Law School, Lilian Law Goldman Library (2013). Judgement: The Law Relating to War Crimes and Crimes Against Humanity. Available at: http://avalon.law.yale.edu/imt/judlawre.asp. Read More