This article is written by Varalika Nigam pursuing LL.M. from NUSRL, Ranchi and the article has been edited by Khushi Sharma (Trainee Associate, Blog iPleaders).


The two giants of jurisprudence- the Natural Law and the Analytical Positivist School, have always been at loggerheads with each other ideologically. The trials held after the world war were reflective of this fact. Some jurists have argued that justice cannot be achieved by using natural law as a medium. History reveals that justice disguised as vendetta was served while prosecuting the war criminals of Japan. Ulterior motives were fulfilled in the name of morality. On the contrary some jurists believe that positive law is devoid of morality and hence promotes dictatorial ideologies. The objective of this article is to take into account the background and facts of the famous Tokyo trials which has always been the apple of discord between the forerunners of both the schools and understand justice and jurisprudence in its light.

After the horrors of World War II ended and the allied powers emerged victorious and, they set up the first international criminal tribunals to prosecute the authorities responsible for war crimes and other wartime atrocities. The International Military Tribunal was set up in Nuremberg, Germany by the four major allied powers- France, the Soviet Union, the United Kingdom, and the United States to prosecute and castigate the war criminals of the European Axis. The defendants included the high-ranking officials of the Nazi Party, military officers, and several German lawyers, industrialists, and doctors who were indicted with the charges of crimes against peace and humanity. It was a series of thirteen trials carried out between 1945 and 1949. The recondite International Military Tribunal for the Far East (IMTFE) was created in Tokyo, Japan in consonance with the 1946 proclamation by U.S. Army General Douglas MacArthur, Supreme Commander for the Allied Powers in occupied Japan. The IMTFE presided over a string of trials of Japanese political and military commanders as it was entrusted with the responsibility to try and punish the Far eastern war criminals.

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The Tokyo Trial

The International Military Tribunal for the Far East (IMTFE) was not established by an international agreement rather it was an outcome of international agreements to prosecute war criminals of Japan. The Potsdam Declaration, signed by China, the United Kingdom, and the United States, in July 1945, called for Japan’s “unconditional surrender” and declared that “stern justice shall be meted out to all war criminals.” At the time that the Potsdam Declaration was signed, the war in Europe had ended but the war with Japan was ongoing. The Soviet Union did not sign the declaration as it did not announce war on Japan until weeks later, on the same day that the United States bombarded the city of Nagasaki with atomic bomb. Japan surrendered on August 14, 1945.

The Soviet Union, the United Kingdom, and the United States (with concurrence from China) at the Moscow Conference, held in December 1945, agreed to a basic structure for subjugation of Japan. General MacArthur who was Supreme Commander of the Allied Powers, was given the carte blanche to “issue all orders for the implementation of the Terms of Surrender, the occupation and control of Japan, and all directives supplementary thereto.”

General MacArthur, acting in consonance with this authority issued a proclamation in January 1946, that led to the establishment of IMTFE. The Charter for the International Military Tribunal for the Far East was annexed to the proclamation. It outlined the composition, jurisdiction, and functions of the tribunal on the lines of the Nuremberg Charter.

The Charter empowered MacArthur to appoint judges to the IMTFE from the countries that had signed Japan’s instrument of surrender which included Australia, Canada, China, France, India, the Netherlands, Philippines, the Soviet Union, the United Kingdom, and the United States. Each of these countries also had a prosecution team. The IMTFE had jurisdiction to try individuals for Crimes Against Peace, War Crimes, and Crimes Against Humanity, and the definitions were precisely similar to the ones mentioned in the Nuremberg Charter. Nevertheless, it had authority over crimes that took place over a larger period of time, from the Japanese invasion of Manchuria in 1931 to the surrender of Japan in 1945. It presided over the prosecution of nine senior Japanese political leaders and eighteen military commanders. Japanese Emperor Hirohito and other members of the imperial family were not indicted. The Allied powers let Hirohito have his throne, though the status was significantly reduced. The Tokyo War Crimes Trials began in May 1946 and were concluded in November 1948. All the remaining defendants were found guilty by the IMTFE and sentenced to punishments ranging from death to imprisonment for seven years. Two defendants died during the trial.

Tokyo Trials : jurisprudential conflict and Victor’s justice?

The Tokyo trial was inconceivably bound to become the focal point of the deliberations on international law. The conundrum between the two colossi of the jurisprudence to make their mark was witnessed in this trial. In words of the American prosecutor Joseph Keenan the trial “served as a cockpit for a death struggle between two completely irreconcilable and opposed types of legal thinking.”

The positivists argued that the criminalization of aggressive warfare had not taken place before the outbreak of World War II therefore the individuals cannot be punished for initiating it. On the contrary the Naturalists contended that the abominable crimes of war committed by these individuals prompted the doctrine of individual responsibility which stemmed from public conscience. This would seep into the law through its usage in cases like Tokyo. According to the natural law supporters, justice might remain a mirage if morality is not protected and the crimes committed by the Japanese have stirred the moral standards of the nations across the globe.

Joseph Keenan, an avouched naturalist was the keynote protagonist of the deliberations at Tokyo. He was an ardent believer of the fact that the dynamism of international law made it distinct from the conventional laws. According to him the letters of law were not set in stone. It cannot be caged into mere words as it has experiences of life written over it. The law is guided by God and act as a medium for maintaining the existing state of affairs. His views seemed to be covered in the gloss of Blackstonian Philosophy which emphasized on the law being dictated by God himself.

He believed that the excessive ambition of certain nations paved the way for circumstances that led to the World War II which shook the very foundations of humanity. One can find traces of Gustav Radbruch’s theory in his expression where he criticized the Austinian-ism laid the cornerstone for emergence of ideologies like Nazism and Fascism. In his opinion Japan’s abrupt and brutal invasions has caused a moral catastrophe and violated the natural order of the world. There occurred a dire need to put a stop to it because, ‘If Japan had the right to change its geographical and economic status suddenly by war, then every other nation as badly situated, from the economic standpoint, had the same right.’

The entire argument of Keenan was based on the idea of two categories of wars the ones that were imperative for restoring normalcy. He called them just wars and the others which were of unjust nature, the ones which wreaked havoc. They only disintegrated the regular state of affairs. ‘The nucleus of crimes against peace is the criminally unjust war,’ he wrote, which was ‘always evil per se in the moral sphere and unjust in the judicial, despite the absence of positive legal undertakings to that effect.’ In his opinion this trial will serve as a vade mecum for development and progress of international law so that the unjust wars can be prevented in future. His abstract aspiration to set an example superseded the duty of administering justice. His beliefs immaculately resonated with the views of Del Vecchio who believed natural law to be the criterion which permits us to evaluate positive law and to measure its intrinsic justice. Although Keenan categorically declared that he had ‘no particular interest in any individual or his punishment’ but he chided the defence lawyers because they were ready to ‘sacrifice common the international good’ at the altars of individual interests of the defence. 

The path breaking dissent of Justice Pal

Justice Pal’s delineation of Pacific wars was that of a “tragic contest” in which all sides “shared alike a common grammar of militaristic imperial aggression.” It was at loggerheads with Keenan’s fanciful idea of the nobility of the allied powers and hideous axis powers. He asserted that the ramifications of coining a judgement based on the dictums of conscience will be grave and credibility can only be achieved by obeying the letters of the law and not the “general moral sense” of humanity. It is evident that he was a staunch supporter of the positivist approach.

The assertions of naturalists to save the human kind was nothing but utopia. Those claims emanated (and here he quoted Lon Fuller) the ‘rich, deep odor of the witches’ cauldron’. His legal philosophy is deeper than mere words. He had pressing concerns about the intention of the prosecuting authorities. In his discussion on ‘crimes against peace’ he reminisced about the rampage caused by the powers in Asia in the past. Owing to his profound apprehensions he cautioned about the deployment of charge for egocentric reasons by these powers in the guise of maintaining ‘the very status quo which might have been organized and hitherto maintained only by force by pure opportunist “Have and Holders”.’ He quoted Robert Jackson’s statement from the Nuremberg Trials that ‘whatever grievances a nation may have, however objectionable it finds the status quo, aggressive warfare is an illegal means for settling those grievances or for altering those conditions’. Jackson suggested to freeze the international relations irrespective of their just or unjust nature after the cessation of World War II.

This might lead to an embargo against the tussle against colonialism and exercise of ‘self-help by force’. These restrictions were beyond the pale because the colonized ‘cannot be made to submit to eternal domination only in the name of peace’. Justice Pal had his own set of disagreements with Jackson. In his opinion anti-colonial justice accompanying stability should be given precedence over peace overriding justice. This marks a deflection from his purely positivist stance to the conception of just wars- where he sees eye to eye with Keenan. Justice Pal believed that the Japanese wars were not unjust because it was caught between a rock and a hard place. It was an act of self-defence as they had no other choice than to commit a political suicide. This was a major compromise to the notion that wars could be classified as either unlawful (aggression) or lawful, rooted in crimes against peace (self-defence or sanction). Justice Pal left no stone unturned to frame the offensive Japanese actions as defensive like any devoted positivist would have done.


In words of Blackstone law of nature is dictated by the God himself. Therefore, it is superior to any other law or obligation. Some great philosophers of the time emphasized on how law is a reason which is totally devoid of human desires. Thus, time and again natural law emphasized on how reason, morality and the divine should be the foundation stone to govern the people. It has been seen that all the archaic laws like ten commandments, Roman Law, the Justinian code were based on an amalgamation of religion and divinity. Gierke defined natural law as unity derived from God and involved one faith, one church, and one empire. The drift from these ideologies was seen from the Modern classical era of natural law school. Thinkers like Hobbes, Locke, Kant, Rousseau divorced from the theological divine sources and founded the law on human reason exclusively. 

As a reaction to natural law arose the Analytical Positivist school. The main objective of both the British and Germanic legal positivism was to separate law from morality. Where Austin and Bentham were considered as champions of positive law whose only objective establish the power of sovereign. Kelsen on the other hand gave his “theory of pure law” which not only talked about separating law from morality but also from all the other factors. Therefore, positivists are generally blamed for rise of ideologies like Fascism and Nazism. It was so because the law in those regimes was to be followed verbatim irrespective of whether it stood the test of moral values. Gustav Radbruch time and again questioned the Austinian Command theory. Post-World War II revival of natural law became his sole aim. He propounded the theory of higher law. He stated that positive law can be disobeyed in cases of manifest arbitrariness and flagrant injustice.

The question here is whether with the help of natural law justice was achieved at the Tokyo trial? Or was natural law used as a weapon for vengeance by the winning nations? In the name of morality and setting precedents were the rights of the prisoners not considered? If there exists a sense of morality, then it should have been equally applied on all the nations. No tribunal was created to try the United States of America for trying the military commanders and the leaders who not just planned but also executed the nuclear bombings of Hiroshima and Nagasaki. Can this now be termed as Victor’s Justice? As goes the classic saying that to the victors belongs the justice. All of them remain unanswered. No one can ever justify the holocaust or molestation of a thousand Chinese women by the Japanese. Still the way justice was meted out by the two tribunals can successfully cast aspersions on the minds of a lot of people. These questions though unanswered, have been a nightmare for the jurists and will continue to haunt generations for decades to come.

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