Australia and the World Past and Present

The Tokyo War Crimes Tribunal (1946-48) included judges from 11 Allied nations.

Some came with a background in Common Law while others came from countries that applied Civil Law.

How would the Tribunal navigate these differences? Would judges choose one system and discard the other? Or would they find a way to mix elements of both systems?

First – a primer on the main differences between Common and Civil Law.

Common law was developed in Medieval Europe and is most strongly associated with England. It is based on custom, judicial decisions and precedent.

This legal system spread to the United States, Canada, Australia and India.

Civil Law is most strongly associated with France.

It is based on Roman law and was refined by Enlightenment ideas.

It was codified in the Napoleonic Code (1804) and later spread to other parts of Europe, parts of Africa, Asia and Latin America.

Within Common Law, judge-made law is central. Courts interpret and expand law. Lower courts follow the precedent of higher courts.

In Civil Law, codes and statutes are the main source of authority. Precedence is not as strong as it is Common Law.

In terms of procedure, Common Law practice tends to be adversarial. There is a heavy use of jury trials for criminal cases.

The Civil Law system is more inquisitorial. The judge is more active, often acting like an investigator, and there are less jury trials. Often the argument is over which code or article should apply.

In the Tokyo Trials, judges from a Common Law countries included representatives from the US, the UK, Australia, Canada, India and New Zealand. Conversely, judges from France, the Netherlands, the Soviet Union, China and the Philippines were more familiar with Civil Law. Thus, those from Common Law jurisdictions outnumbered their counterparts.

When it came to standards of evidence, the Tribunal adopted broad, Civil Law-style evidentiary rules. It allowed the admission of large volumes of written material.

Some of the Common Law judges were critical of this. They were used to stricter rules of evidence. Several were uncomfortable with a loose admission of hearsay and the admission of documents without cross-examination.

It is interesting that a Civil Law evidentiary process was agreed to. As there were more Common Law judges, they could have flexed their muscle and won the day.

The Tokyo Tribunal was more judge-driven than Nuremberg had been.

Then there was the issue of “conspiracy”. The Common Law judges wanted to apply the idea of “conspiracy to wage aggressive war”. For their counterparts, the concept seemed foreign and broad. The French and Dutch justices rejected it in dissenting opinions.

At Tokyo, “conspiracy” meant an agreement among senior political and military leaders to plan, prepare, initiate, or wage aggressive war.

It was not conspiracy in the everyday sense, but a leadership crime. It covered planning and coordination, even if a defendant did not personally commit battlefield atrocities. It was used to reach high-level decision-makers who operated through bureaucracies rather than direct violence.

Its legal character derived from Anglo-American Common Law, where conspiracy is a well-developed offence. It was highly controversial, especially among Civil Law judges because it was vague, relied on inferred intent and it expanded liability beyond concrete acts.

Another controversy centered around crimes against peace – “aggression” and ex post facto law. Common Law judges were more comfortable with applying aggression in a ex post facto manner. It is more in line with the Common Law principle of evolving norms. Civil Law judges were much more hesitant. For them, the principle of nullum crimen, nulla poena sine lege, or “No crime, no punishment without law” was a firm guiding principle.

Before 1945, no prior treaty made “aggressive war” a criminal offense for individuals. The Kellogg-Briand Pact of 1928 condemned war and renounced it as a policy but did not say that individuals could be punished criminally.

Most lawyers and judges operate within their own country, where only one system of law operates. International tribunals such as the Tokyo War Crimes Tribunal brought different systems into contact with one another and the situation required negotiation, and using different elements to create a new, unique trial. Despite the majority of judges coming form Common Law countries, they decided to allow Civil Law-style evidentiary rules and the trial was relatively judge-driven. The different backgrounds of the judges contributed to differing opinions over the issues of conspiracy and aggression.