Victor's Justice: Unpacking the Tokyo War Crimes Tribunal

by Christian Rowbotham

Part 1: What is "Victor's Justice"? Introducing the Controversy

A key principle of a fair trial is that judges must be independent and impartial. This standard lies at the heart of one of the most common criticisms of the Tokyo Tribunal: the charge of “victor’s justice.”
​Scholars use this term to describe trials imposed on the defeated by the victors, who appoint judges exclusively from their own side rather than from neutral countries, raising serious concerns about bias. Professor Neil Boister, for instance, has examined whether the label “show trial” applies fairly to both the International Military Tribunal for the Far East (IMTFE) in Tokyo and the International Military Tribunal (IMT) at Nuremberg.

Striking postwar differences in the prosecution of medical atrocities amplify this perception of selectivity. At the Nuremberg Doctors' Trial (1946–1947), 23 Nazi physicians—including those responsible for horrific experiments at Auschwitz and other camps—were prosecuted for war crimes and crimes against humanity. Sixteen were convicted, with seven executed.

In contrast, evidence of Japan's Unit 731, responsible for biological warfare and lethal human experiments on thousands, was suppressed mainly during the Tokyo Trial. Key figures, including leader Shirō Ishii, were granted immunity by U.S. authorities in exchange for their research data, prioritizing Cold War intelligence over justice.
That said, historians like David Cohen and Yuma Totani argue that the IMTFE, modeled closely on Nuremberg, made significant contributions to international law. These include important advances in individual accountability and humanitarian standards. Despite these achievements, the widespread portrayal of the trials as “victor’s justice,” exacerbated by such inconsistencies, has often overshadowed their role as legitimate milestones in legal history.
Scholars Cohen and Totani described four main ways in which a trial may be criticized as an example of “victor’s justice,” as Justice Pal famously did when he referred to the Tokyo Trial as serving "the interest of the stronger." 
First, one may object to the composition of the tribunal, which consisted only of judges from the victorious powers, with no representation from neutral countries. This is a formal criticism rather than one about the fairness of the proceedings themselves.
It is important to recognize that no truly neutral countries existed during World War II. Even states that officially declared neutrality often took actions favoring one side. For instance, Venezuela, though neutral, supplied oil to the Allies through the Lend-Lease program. Francoist Spain allowed the creation of the "Blue Division," sending volunteers to fight alongside Nazi Germany against the Soviet Union. Switzerland maintained its neutrality by trading with both sides, supplying military goods to the Allies while also conducting extensive trade with Nazi Germany, including accepting looted gold to ensure its survival. As Germany’s power declined after 1943, Switzerland took advantage of the shifting balance by negotiating more favorable trade terms with other countries, using its neutral status to secure deals that better served its national interests.
Therefore, given that no country was entirely neutral, such criticisms must be substantiated by examining the judges' conduct to determine whether there was actual bias or a lack of judicial independence.
A second major criticism targets the very foundation of the tribunal: many argued that key charges were ex post facto laws, particularly “crimes against peace” (waging aggressive war) and, to a lesser extent, “crimes against humanity”. In other words, they criminalized actions that were not clearly defined as international crimes at the time they were committed.
This objection strikes at a bedrock principle of justice: nullum crimen sine lege (“no crime without law”). Retroactive lawmaking is widely seen as illegitimate, and even the judges at both Nuremberg and Tokyo acknowledged the seriousness of this concern.
Defenders of the tribunal countered by closely examining the trial’s actual conduct—its handling of evidence (much of which was submitted by China, the nation that had suffered the longest and most devastating Japanese aggression, from the 1931 Manchurian Incident through years of brutal occupation and atrocities like the Nanjing Massacre) and the reasoned dissenting opinions of judges who parted ways with the majority. These elements, they argued, helped demonstrate that the proceedings still met acceptable standards of fairness despite the novelty of some charges.

Third, one might argue that the trial procedures themselves were unfair. For instance, critics such as Justice Mei Ju-ao (Chinese IMTFE judge) might claim the defense lacked time to prepare, was denied effective counsel, had no chance to cross-examine prosecution witnesses, the tribunal invested too much in strict rules that prolonged the trial even further, or that the verdicts were not based on evidence but political motives. By examining both the dissenting and majority opinions, one can assess whether the judges' reasoning was consistent and whether their conclusions met the standard of proof beyond a reasonable doubt.
Finally, the most serious challenge is that the tribunal was not a genuine legal proceeding but a political show trial. Neil Boister cited that Justice Radhabinod Pal (Indian IMTFE Judge) famously dissented from the majority judgment, implying that the trial of the wartime Japanese leadership for crimes against peace and war crimes by the victorious Allied powers was a show trial. This would mean that the outcome was predetermined, the judges were merely carrying out political orders, and the prosecution lacked genuine legal scrutiny. 
Historical examples of such political trials include the Soviet show trial in Kharkov (1943), the Nazi Volksgerichtshof trials of the July 20 conspirators, and the Japanese trial of the "Doolittle Raiders" in Shanghai (1942), where there were no defense lawyers and the verdicts were already decided. Bolster examines whether the Tokyo Trial was a show trial by first identifying the general characteristics commonly associated with show trials and then assessing whether these features were present in the Tokyo Tribunal, ultimately evaluating whether the Tokyo Trial fits this categorization and, if so, to what extent. Ironically, as Cohen and Totani described, the most clear-cut cases of political interference involved not the majority judges, but dissenting judge Bert Röling (Dutch IMTFE Judge), and the broader consensus among judges, prosecutors, and defense teams to exclude Emperor Hirohito from prosecution, an issue that reveals the complex political pressures surrounding the tribunal.

Further reading: 
Richard H. Minear, Victors’ Justice: The Tokyo War Crimes Trial (1971) – Classic critique.
Yuma Totani, The Tokyo War Crimes Trial: The Pursuit of Justice in the Wake of World War II (2008).
David Cohen & Yuma Totani (eds.), The Tokyo War Crimes Tribunal: Law, History, and Jurisprudence (2018).
Neil Boister & Robert Cryer, The Tokyo International Military Tribunal: A Reappraisal (2008).

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