Victor's Justice: Unpacking Tokyo War Crimes Tribunal

by Christian Rowbotham

Part 3: Legitimate Precedent or Instrument of Vengeance?

Several key questions must be addressed, foremost among them, the legitimacy of the Tokyo Tribunal and whether the criticism of “victors justice” is justified. To evaluate this, several essential criteria must be considered: the legal basis of the tribunal, the body of applicable laws employed during the proceedings, and the overall fairness and conduct of the trial. Finally, it is worth considering why the Tokyo Tribunal has been subjected to harsher “victor’s justice” criticism than the Nuremberg Trial, even though they both operated under the same Charter, and many of the same criticisms, particularly regarding judicial impartiality, retroactive justice, and selective prosecution, could be applied to both.

Legal Basis of the Tribunal:

First, it is worth noticing that Allied efforts to prosecute Kaiser Wilhelm II and other German Leaders after World War I failed. Wilhelm lived comfortably in exile in the Netherlands, and the few German-led trials were seen as chaotic and ineffective. This experience led to the establishment of international tribunal because domestic courts were considered unreliable for prosecuting war criminals fairly and effectively. An international mechanism was deemed necessary to ensure neutrality and legitimacy, avoiding the appearance of indiscriminate revenge. 
The Potsdam Declaration of July 26, 1945, which laid the foundation for both the Nuremberg and Tokyo Tribunals, emphasized in Article 10 that the Allies did not seek to enslave the Japanese people or destroy Japan as a nation. Instead, they intended to prosecute individuals responsible for war crimes, particularly those who mistreated prisoners of war. 
Critics of the International Military Tribunal for the Far East  (IMTFE) point to the authorship of the Potsdam Declaration: it was drafted solely by the victorious Allied powers. This raises questions about whether the victors had the moral or legal authority to judge the defeated. Many argue that its partisan nature undermined the legitimacy of both the declaration and the IMTFE, portraying the tribunal from its inception as a political tool rather than a vehicle for impartial justice. This questionable legal foundation notably influenced Justice Radhabinod Pal's decision to acquit all accused on every charge and to challenge the tribunal's overall legitimacy.
The impartiality of the IMTFE is open to question for several reasons. First,  the IMT in Nuremberg was at least backed by the 23 nations that signed the London Agreement. In contrast, the Tokyo Tribunal was not only established solely by the United States under the authority of General Douglas MacArthur, the Supreme Commander for the Allied Powers (SCAP), but also the Charter was entirely drafted by the United States without the participation of neutral countries. Moreover, the IMTFE, unlike the Nuremberg trials, had only one chief prosecutor, who was also American, which gave the prosecution the appearance of being an “American court.” As Neil Boister has observed, although the tribunal wielded absolute power, it remained under the ultimate control of the U.S. military, raising concerns about judicial independence.
Second, evidence of judicial bias was present during the trial. For example, Justice William O. Douglas stated that prisoners detained under its authority had no legal right of appeal, expressing doubt that the Court would have maintained this position had the defendants been American citizens, as they had unsuccessfully filed a petition for habeas corpus, which is a legal procedure to challenge the legality of their imprisonment. Boister cited Cherif Bassiouni’s view that many judges (beyond the dissenters) were politically motivated. A prominent case was the tribunal's president, Justice William Webb of Australia, who faced criticism for ethnic bias against the Japanese, interrupting witnesses, and seeming intent on incriminating the defendants. Although an experienced jurist (serving as a Supreme Court judge in Queensland from 1940 and widely regarded as wise), Webb's appointment was questioned by peers such as Justice Frank Brennan. From 1943 to 1945, he had served as an Australian government commissioner investigating alleged Japanese atrocities and had already formed opinions on liability. From 1943 to 1945, he had acted as an Australian government commissioner investigating alleged Japanese violations and had already expressed his opinions on liability. Nevertheless, Webb believed he was qualified, supported by Australia’s highest legal opinion, and under Article 2 of the Charter, the Tribunal could not remove a member appointed by the SCAP.
Justice William O. Douglas provided a compelling reasoning for ultimately agreeing that the Court lacked jurisdiction or power to make legal decisions, as he wrote, "The conclusion is therefore plain that the Tokyo Tribunal acted as an instrument of military power of the Executive Branch of government. It responded to the will of the Supreme Commander as expressed in the military order by which he constituted it. It took its law from its creator and did not act as a free and independent tribunal to adjudicate the rights of petitioners under international law." 
Third, the Dutch judge Bert Röling suggested that the Tokyo Tribunal might be perceived as an act of revenge for the national humiliation caused by Japan’s attack on Pearl Harbor. Minear stated that in the opening statement of Chief Prosecutor Keenan, he sought to condemn the attack on Pearl Harbor for its "stealth, deception, and treachery.” This manner of attack was consistently used in American wartime propaganda.  By publicly portraying Japanese actions as savage and barbaric, the trial also served to justify the American use of atomic bombs on Hiroshima and Nagasaki.
These factors led one observer to conclude that, in retrospect, the IMTFE appeared almost designed to invite charges of “victor’s justice,” thereby seriously undermining its legitimacy. As Senator Robert A. Taft remarked, “The trial of the vanquished by the victors cannot be impartial, no matter how it is hedged about with the forms of justice... About this whole judgment, there is the spirit of vengeance, and vengeance is seldom justice.”
Yet this remains a harsh critique. In practice, SCAP took meaningful steps to promote fairness and democratic principles. It established an international tribunal modeled on the Nuremberg IMT, selected judges with care, and prosecuted crimes committed across the Far East rather than limiting the scope to Pearl Harbor. Furthermore, although President Webb faced criticism for apparent pre-existing bias, he actively resisted SCAP’s attempts to influence the tribunal’s proceedings, thereby helping to safeguard its impartiality.
Concurring opinions from judges such as Delfin Jaranilla (the Philippines representative on the IMTFE) emphasized that although SCAP established the tribunal, it did so under authority granted by Japan's Instrument of Surrender. Similarly, Justice Henri Bernard (France) rejected the defense arguments and Justice Pal's challenges to the tribunal's legitimacy. Bernard asserted that, given the criminal nature of the war waged by Japan, the Allied nations were “perfectly qualified” to create the International Military Tribunal for the Far East. This justified forming an international body with representatives from eleven nations, whose qualifications, fairness, and impartiality had been deliberately vetted—providing a more balanced alternative to a purely national court dominated by the U.S. military, as Jaranilla also noted. Bernard further observed that while Japan could not object to the tribunal's convening, this did not prevent the accused from challenging the proceedings if they failed to meet prevailing international standards of fairness. Jaranilla added that the Charter ensured “the application of democratic practices and guarantees as enjoyed by the foremost nations of the world.”
However, like President Webb, Jaranilla's own appointment raised concerns: as a survivor of the Bataan Death March, he had endured severe Japanese atrocities, which could have influenced his views of the defendants. This personal experience likely prompted him to request that fellow judges review his qualifications and opinions to determine his suitability. Ultimately, he was retained because, under Article 2 of the Charter, appointed judges could not be removed, and unseating him would have caused significant and unfair delays in proceedings.

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