Prosecuting the Pernicious? The Crime of Aggression at Nuremberg and Tokyo.

This paper examines some of the political and legal considerations raised by the prosecution of former leaders for the crime of aggression. It argues that a precondition of an effective prosecution is a careful assessment of both prevailing political circumstances and the opportunities and limits of the law. This is demonstrated via a comparison of the two most recent instances of prosecution - namely, at Nuremberg and at Tokyo in the aftermath of WW2. Three major differences between these prosecutions are identified: (1) the domestic political situation immediately prior to, and during, surrender; (2) the quality of available evidence against the former leaders; and (3) the actual conduct of the defendants in context. While the Allied occupation of an utterly defeated Germany permitted the capture of vast amounts of detailed evidence revealing a deliberate intention on the part of top Nazis to wage wars of conquest in Europe, this was not the case in Japan, which complicated to a very great extent the prosecution of Japanese defendants. As a result, the Nuremberg process remains a more effective example of prosecution for aggression than that conducted at Tokyo. Despite this outcome, it is concluded that both the Nuremberg and Tokyo trials provide important lessons for future criminal prosecutions of aggression. ..PAT.-Conference Proceeding [ABSTRACT FROM AUTHOR]