# Jurisprudence map — Nuremberg + Tokyo A topic-by-topic map of the holdings of the IMT, the NMT, and the IMTFE. This file is an **index, not a substitute** for the underlying record. Use it to locate the passage; then verify through `verification-workflow.md`. --- ## 1. The legality of the tribunals (*nullum crimen sine lege*) **IMT.** The *nullum crimen* objection was raised by the defence and rejected by the Tribunal. The Judgment held that the crimes prosecuted were already crimes under international law at the time of the acts (drawing on the Hague Conventions of 1907, the Kellogg-Briand Pact of 1928, the Geneva Conventions, and general principles of customary international law). The defence of *ex post facto* law was rejected. **IMTFE.** The same objection was raised and rejected by the majority. The Pal dissent extensively reopens the question — Pal held that aggressive war was not a crime under international law in 1928-1945 and that the prosecution was retroactive. The Röling dissent took an intermediate position. **Doctrinal afterlife.** The *nullum crimen* question is the perennial structural challenge to international criminal law. Modern statutes (Rome Statute Art. 22-24; ICTY Statute; etc.) codify the principle and address it directly. --- ## 2. Crimes against peace / aggressive war **IMT Charter art. 6(a); Tokyo Charter art. 5(a) (Class A).** **IMT.** Most defendants convicted on Count 2 (Crimes against Peace). The Judgment characterised aggressive war as "the supreme international crime" because it "contains within itself the accumulated evil of the whole." Verify the exact wording (Blue Series Vol. XXII). **IMTFE — central.** The Tokyo Trial was overwhelmingly a **Class A trial**: the bulk of convictions rested on crimes against peace. The Judgment treats the war of aggression in Manchuria (1931), against China (1937), against the USSR, the Pacific theatre — across multiple counts. **The Pal dissent** is centrally a sustained attack on the crime of aggression as a non-crime in 1928-1945. **Doctrinal afterlife.** UNGA Resolution 3314 (XXIX) (1974) on the Definition of Aggression; Rome Statute Article 8 bis (Kampala amendment 2010); the Special Tribunal for the Crime of Aggression against Ukraine (2025). --- ## 3. War crimes **IMT Charter art. 6(b); Tokyo Charter art. 5(b) (Class B).** **IMT.** Count 3. Most defendants convicted. The Judgment confirms that the Geneva and Hague rules represented customary international law binding regardless of treaty ratification. **IMTFE.** Class B was central for many Japanese defendants — the Nanjing Massacre (charged in connection with the conduct of General Iwane Matsui), the Bataan Death March, mistreatment of POWs across the Pacific, the conduct of the Kempeitai. Matsui was convicted of Class B (war crimes — failure to prevent the Nanjing Massacre) and sentenced to death. **NMT.** The Hostages Case (*United States v. List et al.*) and the High Command Case (*United States v. von Leeb et al.*) elaborate the law of military occupation, hostages, and reprisals. --- ## 4. Crimes against humanity **IMT Charter art. 6(c); Tokyo Charter art. 5(c) (Class C); CCL No. 10 art. II(1)(c).** **IMT.** Count 4. The Judgment treats Nazi persecution and extermination of Jewish and other civilian populations under the Article 6(c) chapeau — with the nexus to armed conflict required. The IMT therefore did not consider purely pre-war persecution standing alone. **IMTFE.** Class C was **comparatively under-used at Tokyo**. The IMTFE Judgment did not develop crimes against humanity as a substantial autonomous category — the Class A and Class B convictions dominate. A scholarly critique of the IMTFE is that the "comfort women" issue (sexual slavery of Korean, Chinese, Filipina, Taiwanese, Dutch and Indonesian women by the Japanese military) was not adjudicated as a crime against humanity at Tokyo. This silence is well known and is foundational to the modern doctrinal critique. **NMT — the doctrinal step forward.** CCL No. 10 Art. II(1)(c) **drops the IMT Charter's nexus to armed conflict**. The Justice Case (*United States v. Altstötter et al.*) and the Einsatzgruppen Case (*United States v. Ohlendorf et al.*) develop crimes against humanity as an autonomous category. This is the doctrinal bridge to modern formulations — Rome Statute Article 7 requires no armed-conflict nexus. --- ## 5. The criminal organisations doctrine (IMT only) **IMT Charter arts. 9-10.** **Declared criminal by the IMT:** Leadership Corps of the Nazi Party; Gestapo and SD; SS. **Not declared criminal (acquitted as organisations):** SA; Reich Cabinet; General Staff and High Command. **The Tokyo Charter contains no equivalent.** No organisations were declared criminal at the IMTFE. **Doctrinal afterlife.** Early articulation of organised criminality and group liability; doctrinally distinct from later command responsibility, JCE, and Article 25(3)(d) Rome Statute liability. --- ## 6. Individual criminal responsibility **IMT Charter art. 6 (closing words); Tokyo Charter art. 5 (closing words).** **IMT.** The foundational passage: "Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced." Verify the wording (Blue Series Vol. XXII) before quoting. **IMTFE.** The IMTFE majority Judgment affirms individual criminal responsibility on parallel grounds. The Tokyo Charter Art. 6 combines what at Nuremberg is split between Arts. 7 and 8 (no immunity + superior orders). **Nuremberg Principle I.** --- ## 7. No immunity for heads of State and senior officials **IMT Charter art. 7; Tokyo Charter art. 6; Nuremberg Principle III.** **IMT Charter Art. 7:** "The official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment." **IMTFE.** Article 6 of the Tokyo Charter is the parallel provision. **But Emperor Hirohito was not indicted.** This is a deliberate prosecutorial / political choice — SCAP / MacArthur's policy — and is one of the central critiques of the IMTFE. The doctrinal text says "no immunity"; the practice at Tokyo was that the head of State was not prosecuted. **Doctrinal afterlife.** Read into the Rome Statute (Art. 27), the ICTY Statute (Art. 7(2)), and the ICTR Statute (Art. 6(2)). The modern debate on functional vs personal immunity engages with the line that descends from Article 7 — the French Cour de cassation's *Mayaleh* and *Al-Assad* rulings of 25 July 2025 (n° 24-84.071 and n° 24-84.393) explicitly reason within this lineage. --- ## 8. Superior orders **IMT Charter art. 8; Tokyo Charter art. 6; Nuremberg Principle IV.** **IMT Charter Art. 8:** "The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires." **NMT — the doctrinal refinement.** The Einsatzgruppen Case and the High Command Case develop the "moral choice" qualification: superior orders are not a defence unless no moral choice was in fact possible. The ILC's 1950 Principle IV captures this. **IMTFE.** The Tokyo Charter Article 6 includes the same rule; the Judgment applies it to the Japanese military hierarchy. **Doctrinal afterlife.** ICTY/ICTR Statutes (Articles 7(4) / 6(4)); Rome Statute Article 33 (with refinements). --- ## 9. Conspiracy / common plan **IMT Charter art. 6 (closing words); Tokyo Charter art. 5(a).** **IMT.** Count 1 (Common Plan or Conspiracy). The Tribunal **narrowed** the conspiracy charge to conspiracy to wage aggressive war, and rejected the broader theory of conspiracy across all charges. **IMTFE.** Conspiracy was the **principal vehicle** of the Tokyo prosecution — the entire Class A case was largely built as a single conspiracy among the Japanese leadership, extending across years and theatres. The IMTFE Judgment endorses an expansive conspiracy doctrine. This is a substantive divergence from the IMT. **Doctrinal afterlife.** The Tadić Appeal Judgment (ICTY) on JCE engages with Nuremberg-era conspiracy. The IMTFE's conspiracy doctrine is doctrinally significant precisely because it goes further than the IMT did. --- ## 10. Command responsibility **Yamashita** (US Military Commission, Manila, 1945, *In re Yamashita*, 327 U.S. 1, 1946) — pre-IMTFE but foundational; established command responsibility for failure to prevent crimes by subordinates. **NMT.** The High Command Case (*United States v. von Leeb et al.*) and the Hostages Case develop the standard. The "knew or should have known" framework descends from this NMT line. **IMTFE.** The Tokyo Judgment applies command responsibility against several Japanese military commanders — including Matsui (Nanjing) and Hata. The Yamashita standard runs alongside. **Doctrinal afterlife.** Čelebići (ICTY, 1998); Rome Statute Art. 28. --- ## 11. The Hirohito non-indictment and the post-colonial critique A doctrinal matter, not a holding — but central to the modern legacy of the IMTFE. **The fact.** Emperor Hirohito was not indicted. Several IMTFE judges (notably Webb) believed he should have been; MacArthur and the Allied political authorities decided otherwise. **The critique.** The Pal dissent and subsequent post-colonial scholarship (Minear, *Victors' Justice*; the Tokyo Trial revisited literature) treat the non-indictment as a structural flaw in the IMTFE — illustrating the political character of victors' justice and the contingency of the doctrinal framework. **Doctrinal afterlife.** The "selectivity" critique of international criminal law — alive today around the ICC's situational choices, around the non-prosecution of nuclear-weapon-using powers, etc. — descends in significant part from the Hirohito non-indictment debate at Tokyo. --- ## 12. The Pal dissent A document, not a holding — but extensively cited in post-colonial international legal scholarship. **Substance.** Justice Radhabinod Pal of India dissented from the entire Judgment. He held: - (a) Aggressive war was not a crime under international law in 1928-1945; the prosecution was retroactive (*ex post facto*). - (b) The Tribunal lacked legal jurisdiction over crimes against peace. - (c) The proceedings reflected victors' justice and the colonial context (he was particularly attentive to the colonial powers seated as judges judging the conduct of an Asian power). - (d) On the facts, he found all defendants not guilty. **Citation form.** *Dissentient Judgment of Justice Radhabinod Pal* (IMTFE, 1948), in *The Tokyo War Crimes Trial*, Vol. 21 (Separate Opinions), pp. [n]. **Citation discipline.** Never present Pal's view as "the Tribunal held". It is a dissent. But it is one of the most influential dissents in the history of international law. --- ## 13. The Nuremberg Principles (ILC 1950) — the codification The seven Principles codify the post-WWII heritage as customary international law: - **I** — Individual responsibility under international law - **II** — No domestic-law shield - **III** — No immunity for heads of State (from IMT Charter art. 7 / Tokyo Charter art. 6) - **IV** — Superior orders, with moral-choice qualification (from IMT Charter art. 8 / Tokyo Charter art. 6 / NMT refinement) - **V** — Right to a fair trial - **VI** — The three categories of crimes - **VII** — Complicity Cited in *Attorney General of Israel v. Eichmann* (Israeli Supreme Court, 1962, 36 ILR 277), in early ICTY jurisprudence, and throughout the doctrine on the universal customary status of international crimes. --- ## 14. The twelve NMT trials — substantive contributions - **Doctors' Trial** (*Brandt et al.*) — medical ethics, informed consent (the "Nuremberg Code"), human experimentation as a crime against humanity - **Justice Case** (*Altstötter et al.*) — criminal responsibility of judges; law as an instrument of persecution - **Pohl** — concentration camp administration - **Flick** and **Krupp** — corporate / industrial criminality - **IG Farben** (*Krauch et al.*) — chemical industry, slave labour, Auschwitz-Monowitz - **Hostages Case** (*List et al.*) — law of military occupation, reprisals - **RuSHA** (*Greifelt et al.*) — racial and resettlement policy - **Einsatzgruppen Case** (*Ohlendorf et al.*) — crimes against humanity without armed-conflict nexus - **Ministries Case** (*Weizsäcker et al.*) — diplomatic and ministerial responsibility - **High Command Case** (*von Leeb et al.*) — command responsibility, military necessity - **Milch** — air-force command responsibility for slave labour --- ## How to use this map 1. Identify the user's substantive question and locate the relevant section above. 2. Identify whether the source is IMT, NMT, or IMTFE — and if IMTFE, whether majority or separate opinion. 3. Verify the cited passage through `verification-workflow.md`. 4. Cite using the conventions in `citation-format.md`. The Charters, the Judgments, and the NMT cases are the territory. This file is a map. The verified text is what gets cited.