Are the post WW II jurisprudence (like Nuremberg and Tokyo Trials) relevant to contemporary courts?

02-03

『The post-WW II trials should be given less relevance today so as tonbe compatible with general principles of international criminal law. Criticallyndiscuss the statement.』

The statement raises an issue about to whatnextent jurisprudence of the post WW II trials could and should be cited byncontemporary ICTs. The attitudes towards post-WW II trials vary a lot as they could bendemonstrated on a spectrum. At one end of the spectrum, as the jurisprudence ofnthe ad hoc tribunals showed, the jurisprudence of post WW II trials werenaccepted uncritically as binding precedents. It is criticized by others, however, that the approach taken by ICTYnon identifying customary international law, uncritically relying onnjurisprudence of Post World War II era whose legitimacy was questionable, was problematic duento their lack of consideration of general principles of criminal law.[1]Annew, principled approach in identifying customary international lawnis therefore suggested to gives less weight to the jurisprudence of post WW IIntrials.[2]nSome others go to another extreme and even argue against customs to be a goodnsource of international criminal law.[3]nThe different positions beg several questions to be analyzed as follows.

Is post-WW II valid in proving customaryninternational law?

All the post-WW II jurisprudence would benrelevant in proving customary international law. But the weight given to eachnjurisprudence is not necessarily the same. Decisions of Nuremberg IMT and TokyonIMT[4]nare formal sources of international law in their own right according to Art.n38(1)(d) of the Statute of the ICJ. They constitute authoritative though notnnecessarily conclusive statements as to the content and existence of ruleninternational law at issue. [5]Whilenfor the jurisprudence of other courts established in post WW II era, such asnthose trials established under Control Council Law No. 10, they were no morenthan, but no less than state practice and accompanying opinion juris on the part of the forum state and thereforencontributing to proving the existence and content of a rule of customaryninternational law. Thus, in a formalnsense, the jurisprudence of post-WW II are relevant, either directly serves asna source of international law or indirectly proves customary international lawnas state practice or opinion juris.[6]

The statement in question, however, also questions whether, normatively, customaryninternational law should be identified in a way that is consistent with generalnprinciples of criminal law. It is argued by some that 『they are not the most obviousnwellspring from which one would expect the demiurges of modern internationalnlaw to drink for inspiration.』

[7]nThis is because they are incompatible with 『our current understanding ofncriminal law with humanitarian aspirations』.[8] Itnis also argued that the standards inncivilian trials are different from military trials in post WW II era which werendominated by Anglo-American law but the rules mitigating the problems inndomestic law were silent in these so-called international military tribunals.[9]nIn addition, many of the proceedings after the Second World Warnwere criticized for violating the principle of nullem crimen sine lege』.[10]nIt is because of these deficiencies that it is argued one should closely examine whether the rules distilled from military tribunalsnare compatible with general principles of contemporary criminal law beforenacknowledging them as binding precedents.[11]nSome others followed this approach and gave different weight to Tokyo Tribunalnfrom the Nuremberg IMT. It is argued by M. Cherif Bassioni, for example, thatnNuremberg IMT was generally fair while Tokyo IMT was generally unfair therefore 『Tokyo, … was a precedent that legal history can only consider with a viewnnot to repeat it』.[12]

Does general principles of criminal lawn(like principle of legality) accept customs to be a source of ICL?

The suggestion raised in the statement is also questionable as thencontemporary requirement of principles of international criminal law are per senuncertain and would be inconsistent among different international courts andntribunals. It is argued, by Olasolo, for example, in ordernto bridge the gap between domestic criminal law and international criminal lawnconcerning the principle of legality, the role played by customaryninternational law as a source of international criminal law should be limited.[13] Henrightly points out that determining sources of law is a precondition for decidingnwhether the principle of legality was complied with.[14] Hisnsuggestion, however, is based on the understanding that the principle ofnlegality in international law should be close to that required by domestic lawnwhich 『includes an additional formal safeguard whereby the prohibited acts andnthe penalties must be pre-established by norms that can be considered "laws" in formal terms and that can be issued only by a legislative power.』[15] Thus,ncustom as a source of law, due to its uncertainty, should be excluded.[16] In thisnsense, the law of the ICC would be ideal in the sense of principle of legalitynas it is in a written form. However, the post WW II jurisprudence could stillnbe relevant based on Art. 31 of VCLT in interpreting treaties. Nonetheless,ntheir weight might well be lessened, as the ICC would pay more attention inninterpreting the Rome Statute by means of its text, purpose and context rathernthan relying a lot on previous jurisprudence like ad hoc tribunals.

Based on above analysis, the post WW II trials, in anformal sense are sources of international law per se or as state practice or opinion juris to prove customaryninternational law or to assist interpretation of certain treaties. However, inna normative sense, it could be argued that post-WW II trials should be givennless weight today as many of them are incompatible with contemporary understandingnof criminal law principles, despite contemporary understanding of principle ofnlegality is per se a question. In a nutshell, at least in the ICC, the role ofnpost WW II trials would be given less and less weight as more attention wouldnbe given on interpretation of the Rome Statute based on its text, purpose andncontext.

[1] Sander B. Unravelling the Confusion Concerning SuccessornSuperior Responsibility in the ICTY Jurisprudence[J]. Leiden Journal ofnInternational Law, 2010, 23(1): 105-135, p. 129; Mirjan Damas?ka?, The ShadownSide of Command Responsibility, The American Journal of Comparative Law, Vol.n49, No. 3 (Summer, 2001), 455, at 486.

[2] Ibid, Sander B., p. 130.

[3] H. Olasolo, 『A Note on the Evolution of the Principle of Legality innInternational Criminal Law』, (2007) 18 Criminal Law Forum 301, atn318.

[4] While some would argue thatnTokyo IMT was not an international criminal court, as it was established undernexecutive order of an American General. Mirjan Damas?ka?, The Shadow Side of Command Responsibility,nThe American Journal of Comparative Law, Vol. 49, No. 3 (Summer, 2001), 455, fnn66.

[5] Roger』s International CriminalnLaw textbook, p. 110.

[6] nIbid, p. 111.

[7] Mirjan Damas?ka?, The Shadow Side of CommandnResponsibility, The American Journal of Comparative Law, Vol. 49, No. 3n(Summer, 2001), 455, p. 486.

[8] Ibid, p. 487.

[9] Ibid, p. 488.

[10] For a German perspective on this issue see H. Ehard, 『The Nuremberg Trialnagainst the Major War Criminal Trials and International Law』, in W. E. Benton andnG. Grimm (eds.), Nuremberg: German Views of the War Trials (1955), 76.nFor example, dissenting judge Murphy in Yamashita criticized the judgment to benin violation of prohibition of retroactive law. In re Yamashita, SupremenCourt of the United States, 327 US 1 [1946], at 28–9. Cited in S. Darcy,n『Imputed Criminal Liability and the Goals of International Justice』, (2007) 20nLJIL 377, at 392-5.

[11] Ibid, p. 489.

[12] M. Cherif Bassiouni, 』Nuremberg: Forty Years After』, Proceedings o f thenAnnual Meeting (American Society of International Law), Vol 80 (APRIL 9-12,n1986), pp. 59-68.

[13] H. Olasolo, 『A Note on the Evolution of thenPrinciple of Legality in International Criminal Law』, (2007) 18 Criminal LawnForum 301, at 318.

[14] ibid.

[15] Ibid, p. 302.

[16] Ibid.