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Politics and Society
Reference:
Lestev A.E.
Comparative analysis of aspects of the defense of the defendants of the Nuremberg and Tokyo Tribunals
// Politics and Society.
2022. ¹ 4.
P. 51-63.
DOI: 10.7256/2454-0684.2022.4.33030 EDN: FPUENJ URL: https://en.nbpublish.com/library_read_article.php?id=33030
Comparative analysis of aspects of the defense of the defendants of the Nuremberg and Tokyo Tribunals
Lestev Anton Evgen'evich
PhD in History
director, "AEL Expert" LLC
420087, Russia, respublika Tatarstan, g. Kazan', ul. Kurchatova, 8, kv. 54
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antonraben@mail.ru
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Other publications by this author
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DOI: 10.7256/2454-0684.2022.4.33030
EDN: FPUENJ
Received:
28-05-2020
Published:
30-12-2021
Abstract:
The article discusses some aspects of the legal defense of the defendants of the International Military Tribunal for the Trial and Punishment of the Main War Criminals of the European Axis Countries and the International Military Tribunal for the Far East. A comparative analysis of the provisions of the Statutes of international Tribunals concerning the rights of the accused to defense is given. The rights of the defendants are considered in detail, including the right to defend themselves personally, the right to choose a lawyer, and the right to provide evidence. The article is carried out within the framework of the study of the history of international criminal justice and the history of the formation of international criminal law. The analysis of some modern problems in the field of ensuring the rights of defendants to defense in the activities of the International Tribunal for the Former Yugoslavia (ICTY), as well as their origins found in the activities of the ICTY, is carried out. Using the methods of comparative jurisprudence, the analysis of the norms of law established in the statutes of the Tribunals was carried out. The dogmatic method is applied in the interpretation of the norms of law set forth in the statutes. The dogmatic method is applied in the interpretation of the norms of law set forth in the statutes. The author concludes that some modern problems of international criminal justice originate in post-war tribunals. Thus, violations of the rights of the accused by the ICTY had their historical roots in the form of norms laid down in the Statute of the Tokyo Tribunal. A proposal was made on the need to develop basic rules for granting the right of protection to defendants, based on the experience of international criminal trials. It is also concluded that it is necessary to exclude the possibility of pressure from international courts, judges and prosecutors themselves on defenders. For this purpose, it is proposed to provide for the impossibility for judges to arbitrarily ban unwanted lawyers from participating in the process. It is also proposed to introduce a direct ban on the appointment of a lawyer to the defendant against his will and to provide for the possibility of recusal of a lawyer only in the case of a proven crime against the administration of international justice.
Keywords:
Inernational law, international criminal justice, international military tribunal, war criminals, history of international law, World War II, Tokyo Tribunal, Nuremberg Tribunal, right to defense, attorney
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The right to the defense of the defendant is one of the key principles of fair justice. In this sense, international criminal trials and tribunals should not differ in any way from national ones. Meanwhile, in the activities of international tribunals at the end of the XX century, there is a departure from this key principle. Thus, researchers note violations of international law and "ICTY law" in the activities of the International Tribunal for the Former Yugoslavia (ICTY), which clearly manifested themselves in the denial of the right to defense, denial of the right to defense in person and the forcible appointment of lawyers [2, p. 20]. These violations clearly manifested themselves in the cases of Prosecutor v. S. Milosevic, Prosecutor v. M. Kraishnik, Prosecutor v. Blagojevich and Jokic, Prosecutor v. R. Karadzic [2, p. 20]. In the case against General Mladic, the tribunal sought to exclude the participation of Russian lawyer A.B. Mezyaev in the trial only on the grounds that his articles and speeches were hostile to the tribunal [3, p. 169]. Such abuse of law by the international tribunal is certainly a factor that has negatively affected the development of international criminal justice. In this regard, it is interesting to consider some aspects of the activities of defense lawyers of the defendants in the international military tribunals in Nuremberg and Tokyo. The right to defense for the defendants of the Nuremberg and Tokyo trials was established by the Statute of the International Military Tribunal for the Trial and Punishment of the Main War Criminals of the European Axis Countries and the Statute of the International Military Tribunal for the Far East in "Procedural Guarantees for the Defendants", for comparison, Table 1 provides an analysis of the provisions of the statutes. Relevant excerpts from the statutes are given in Appendix 1. Table 1. | The rights of the defendants in the defense | Extracts from the "Statute of the International Military Tribunal for the Trial and Punishment of the Main War Criminals of the European Axis Countries" and their analysis | Extracts from the "Statute of the International Military Tribunal for the Far East" and their analysis | | Right to protection | In section IV, entitled "Procedural guarantees for defendants", paragraph d refers to the right of the defendant to defend himself in court, both personally and with the help of a lawyer. | Section III, entitled "Ensuring a fair trial of the defendants", in article 9, which deals with procedural guarantees for the defendants, paragraph c refers to the protection of the accused. The Statute provides for the right of the defendant to choose a defender. At the same time, the Statute establishes the right of the Tribunal at any time not to approve the defender chosen by the defendant. The name of the defender must be communicated in writing to the Secretary General of the Tribunal At the same time, if the defendant does not have a defender at the Tribunal meeting, he has the right to file a petition for his appointment, the Tribunal in this case may appoint a defender. If the defendant does not have a defender and he has not submitted a petition for the appointment of one, then the Tribunal has the right to appoint a defender independently, if it deems it necessary. | | Right to present evidence | In section IV, entitled "Procedural guarantees for defendants", paragraph e establishes the right of the defendant to present evidence in his defense to the court. Evidence may be presented in person or by a defense attorney. It also establishes the right to cross-examine any prosecution witnesses. | In section III, entitled "Ensuring a fair trial of the defendants", article 9, which deals with procedural guarantees, establishes under paragraph d the right for the defendants to defend themselves personally or through a lawyer, to interrogate witnesses. At the same time, the Charter stipulates that it is necessary to choose one of the ways of protection: either personally or through a defender. It is also established that the Protection must be subject to reasonable restrictions, which, if necessary, will be established by the Tribunal. |
| The procedure for presenting evidence | In section III, entitled "Ensuring a fair trial of the defendants", article 9, which deals with procedural guarantees, establishes, under paragraph e, the procedure for presenting evidence for the defense. The defendant may request in writing the summoning of witnesses and the reclamation of documents. The statement indicates where, as the defense assumes, the witness or document is located. At the same time, the defense must justify the significance of the facts for the purposes of protection, which are planned to be confirmed or clarified on the basis of a document or certificate. If the Tribunal grants the request, it is provided with the necessary assistance in obtaining and presenting the requested evidence. | | Who can act as a lawyer? | In section V, which establishes the rights of the Tribunal and the course of the trial, article 23 states that any lawyer who has the right to appear in court in accordance with the law of his native country can act as a defender of the defendant. Also, the functions of the defender may be performed by any other person authorized to do so by the Tribunal. | - | | Procedural order of protection | In section V, which establishes the rights of the Tribunal and the course of the court session, article 24 specifies the procedural procedure for the defense. Paragraph d states that the Tribunal first interviews the prosecutors and defense lawyers for their requests for evidence, after which the Tribunal makes determinations on these requests. In paragraph e, it is established that witnesses from the prosecution are first interrogated, and then witnesses from the defense, after that, prosecutors or defenders present evidence to refute the evidence presented by the opposing side. The Tribunal has the right to recognize whether or not the evidence is admissible. Paragraph g refers to the right of the prosecution and the defense to interrogate and cross-examine any witnesses and defendants testifying. Paragraph h refers to the right of the defender to make a speech in defense. Paragraph j grants the right to each defendant to speak with the last word. | In section IV, which establishes the rights of the tribunal and the proceedings, article 15 establishes the procedural procedure of the trial. Paragraph c establishes the right of the prosecution and each of the defendants (only through a defender, if there is one) to make an introductory speech, which should be brief. Paragraph d establishes the right to present evidence from the prosecution and the defense, the admissibility of which is determined by the Tribunal. Paragraph e establishes the right to interrogate any witnesses and defendants by the prosecution and the defendant himself, but only through a defender, if available. Paragraph f establishes the right to appeal to the Tribunal and make a speech in defense for the defendants, but it is possible to use it only through a defender, if there is one. | Continuation of table 1The rights of the defendants in the defense | | Statute of the International Military Tribunal for the Trial and Punishment of the Main War Criminals of the European Axis Countries [7] | Statute of the International Military Tribunal for the Far East [8] |
| Right to protection | Section IV . Procedural guarantees for the defendants. Paragraph (d) The defendant has the right to defend himself in court in person or with the help of a lawyer. | Section III. Ensuring a fair trial of the defendants. Article 9. Procedural guarantees for defendants. Item (c) Protection of the accused. Each defendant has the right to choose a defense attorney. The Tribunal may at any time not approve the chosen defender. The defendant must inform the Secretary-General of the Tribunal in writing of the name of his defence counsel. If the defendant is not represented by a defender and at the court session petitions for the appointment of one, the Tribunal appoints a defender for him. In the absence of such a request, the Tribunal may itself appoint a defender for the defendant, if it is deemed necessary for the purposes of a fair trial. | | Right to present evidence | Section IV . Procedural guarantees for the defendants. Paragraph (e) The defendant has the right to present evidence in his defense in person or through a defense lawyer at the trial and to cross-examine any witness called by the prosecution. | Section III. Ensuring a fair trial of the defendants. Article 9. Procedural guarantees for defendants. Paragraph (d) Evidence for the defense. The defendant has the right to conduct the Defense directly or through his lawyer (but only in one of these ways), including the right to interrogate any witness, subject to reasonable restrictions that the Tribunal finds necessary to establish. | | The procedure for presenting evidence | Section III. Ensuring a fair trial of the defendants. Article 9. Procedural guarantees for defendants. Paragraph (e) The procedure for presenting evidence for the defense. The defendant may, in writing, request the Tribunal to summon witnesses and request documents. The statement must indicate where the witness or document is supposed to be located. The statement must also indicate the facts that must be confirmed by a witness or document, as well as the significance of these facts for the purposes of protection. If the Tribunal grants the request, the Tribunal will be provided with the necessary assistance in the circumstances in obtaining and presenting this evidence. | | Who can act as a lawyer? | Section V. The rights of the Tribunal and the court session. Article 23 The functions of the defence counsel may be performed at the request of the defendant by any lawyer who has the right to appear in court in his home country, or by any other person who will be specially authorized to do so by the Tribunal. | - | | Procedural order of protection |
Section V. The rights of the Tribunal and the court session. Article 24. Paragraphs: (d) The Tribunal interrogates the prosecutors and defense lawyers, whether they have and what requests for evidence, after which the Tribunal makes a determination on these requests; (e) Prosecution witnesses are interrogated, and then defense witnesses, after which the prosecutors or defense lawyers present such evidence in refutation of the evidence presented by the other party, which the Tribunal recognizes as admissible; g) the prosecution and the defense interrogate and may cross-examine any witness and any defendant who testifies; h) the defense attorney makes a defense speech; j) each of the defendants has the right to make the last word. | Section IV. The rights of the Tribunal and the proceedings. Article 15. The procedural order of the trial. Points: c) The prosecution and each of the defendants (but only through a defense lawyer, if any) may make a brief introductory speech. (d) The Prosecution and the defence may present evidence, the admissibility of which will be determined by the Tribunal. e) The prosecution and each defendant (but only through a defense lawyer, if any) may interrogate any witness or any defendant who testifies. (f) Defendants (but only through a defence counsel, if any) may address the Tribunal and make a defence speech. | A study of table 1 and the norms of international military tribunals presented in it shows that the defendants were provided with basic rights to defense in accordance with the statutes of the Tribunals. However, a comparative analysis of the two charters shows that there are significant differences in some aspects concerning the choice of a defender. The statute of the Nuremberg Tribunal allowed the defendants to choose any lawyer who has the right to appear at trial in his home country, and the statute of the Tokyo Tribunal provides that the Tribunal may not approve the chosen defender, and the defendant may be assigned a defender if, in the opinion of the Tribunal, it will be necessary. At the same time, it is important to note the fundamental difference in the establishment of the tribunals and the approval of their statutes: the Nuremberg Tribunal was created as a result of the Allied agreement, the Tokyo Tribunal was created by the decision of American General MacArthur [1, p. 168]. In the first case, the equal participation of the allies in the process was ensured, in the second case, the Americans played a leading role in organizing the process. Thus, violations of the rights of the accused by the ICTY had their historical roots in the form of norms laid down in the Statute of the Tokyo Tribunal. The rights of the Tribunal, laid down in the Statute of the ICTY, to reject any lawyer he does not like and to appoint a lawyer to the defendants at his discretion, have become sources of illegal behavior of ICTY judges and have played a negative role in the development of international criminal justice. The difference between the Nuremberg and Tokyo trials is also visible from the composition of the defendants' lawyers. The Nazis were defended in court by well-known German lawyers chosen by them (Fig. 1). The Japanese defendants, in addition to Japanese lawyers, were represented by appointed American military lawyers. At the same time, the positions of the Japanese and American defenders sometimes did not coincide, which affected the consistency of their actions and the effectiveness of protection. In many ways, this was due to different approaches to the defense. V.E. Molodyakov cites in his book an interesting testimony of Judge B. Roling that Japanese lawyers and defendants were more eager to protect the honor of the country, the emperor, not caring about the personal reputation of the accused, at the same time American lawyers were ready to sacrifice everything and everyone for the sake of salvation his client [4, p. 423]. Lazarus, the defender of S. Khat, stated at one of the meetings of lawyers that he was ready to hang twenty–seven accused in order to save Field Marshal Khat, fulfilling his first and only duty of loyalty - to the client [4, p. 423]. At the same time, the chairman of the tribunal, Judge W. Webb, noted with dissatisfaction that the defense in Tokyo was given too much time and freedom, unlike Nuremberg [4, p. 423]. It is also interesting to note that the American military police defiantly distinguished between Japanese and American lawyers by searching the briefcases and folders of Japanese lawyers, without examining the American ones [4, p. 445]. 
Figure 1. Lawyers of the Nuremberg trial defendants from left to right: Hans Marx – Julius Streicher, Doctor of Law Otto Stamer – Hermann Goering's defense lawyer, Fritz Sauter, Doctor of Law – Joachim von Ribbentrop's lawyer, Gunther von Rorscheidt, Doctor of Law, who represented Rudolf Hess [6]. In addition, attempts to discredit the defendants' lawyers appear to be a serious threat to fair international justice. In various books and sources on the history of the trials of the Ministry of Internal Affairs and the Ministry of Internal Affairs, the defendants' lawyers are exposed almost as conspirators or accomplices in crimes: "In order to achieve the acquittal of their clients, American lawyers resorted to all sorts of dishonest methods: intimidated witnesses, in every possible way inclined them to knowingly false testimony in favor of the defendants, tendentiously falsified facts and documents, ... they read out and presented fakes" [5, p. 53]. Based on this characteristic, the lawyers themselves could be tried on charges against the administration of international justice. Meanwhile, it is obvious that many prosecution witnesses did not inspire confidence, testified only in order to completely whitewash themselves. Such witnesses include the former Emperor of Manchukuo Pu Yi and General Tanaka. From the point of view of the defense, it was quite reasonable to insist on their personal responsibility, as well as to try to discredit these witnesses before the tribunal.
Thus, based on the experience of international criminal trials, it is necessary to develop basic rules for granting the right of protection to defendants. First of all, it is necessary to exclude the possibility of pressure by international courts, judges and prosecutors themselves on defense lawyers; to provide for the impossibility for judges to arbitrarily ban unwanted lawyers from participating in the process; to introduce a direct ban on appointing a lawyer to the defendant against his will; to provide for the possibility of withdrawing a lawyer only in the case of a proven crime against the administration of international justice. Appendix 1. Excerpts from the Statute of the International Military Tribunal for the Trial and Punishment of the Main War Criminals of the European Axis Countries and the Statute of the International Military Tribunal for the Far East | The rights of the defendants in the defense | Statute of the International Military Tribunal for the Trial and Punishment of the Main War Criminals of the European Axis Countries [7] | Statute of the International Military Tribunal for the Far East [8] | | Right to protection | Section IV . Procedural guarantees for the defendants. Paragraph (d) The defendant has the right to defend himself in court in person or with the help of a lawyer. | Section III. Ensuring a fair trial of the defendants. Article 9. Procedural guarantees for defendants. Item (c) Protection of the accused. Each defendant has the right to choose a defense attorney. The Tribunal may at any time not approve the chosen defender. The defendant must inform the Secretary-General of the Tribunal in writing of the name of his defence counsel. If the defendant is not represented by a defender and at the court session petitions for the appointment of one, the Tribunal appoints a defender for him. In the absence of such a request, the Tribunal may itself appoint a defender for the defendant, if it is deemed necessary for the purposes of a fair trial. | | Right to present evidence | Section IV . Procedural guarantees for the defendants. Paragraph (e) The defendant has the right to present evidence in his defense in person or through a defense lawyer at the trial and to cross-examine any witness called by the prosecution. | Section III. Ensuring a fair trial of the defendants. Article 9. Procedural guarantees for defendants. Paragraph (d) Evidence for the defense. The defendant has the right to conduct the Defense directly or through his lawyer (but only in one of these ways), including the right to interrogate any witness, subject to reasonable restrictions that the Tribunal finds necessary to establish. | | The procedure for presenting evidence | Section III. Ensuring a fair trial of the defendants.
Article 9. Procedural guarantees for defendants. Paragraph (e) The procedure for presenting evidence for the defense. The defendant may, in writing, request the Tribunal to summon witnesses and request documents. The statement must indicate where the witness or document is supposed to be located. The statement must also indicate the facts that must be confirmed by a witness or document, as well as the significance of these facts for the purposes of protection. If the Tribunal grants the request, the Tribunal will be provided with the necessary assistance in the circumstances in obtaining and presenting this evidence. | | Who can act as a lawyer? | Section V. The rights of the Tribunal and the court session. Article 23 The functions of the defence counsel may be performed at the request of the defendant by any lawyer who has the right to appear in court in his home country, or by any other person who will be specially authorized to do so by the Tribunal. | - | | Procedural order of protection | Section V. The rights of the Tribunal and the court session. Article 24. Paragraphs: (d) The Tribunal interrogates the prosecutors and defense lawyers, whether they have and what requests for evidence, after which the Tribunal makes a determination on these requests; (e) Prosecution witnesses are interrogated, and then defense witnesses, after which the prosecutors or defense lawyers present such evidence in refutation of the evidence presented by the other party, which the Tribunal recognizes as admissible; g) the prosecution and the defense interrogate and may cross-examine any witness and any defendant who testifies; h) the defense attorney makes a defense speech; j) each of the defendants has the right to make the last word. | Section IV. The rights of the Tribunal and the proceedings. Article 15. The procedural order of the trial. Points: c) The prosecution and each of the defendants (but only through a defense lawyer, if any) may make a brief introductory speech. (d) The Prosecution and the defence may present evidence, the admissibility of which will be determined by the Tribunal. e) The prosecution and each defendant (but only through a defense lawyer, if any) may interrogate any witness or any defendant who testifies. (f) Defendants (but only through a defence counsel, if any) may address the Tribunal and make a defence speech. |
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