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International Law

Fundamental legacy of The Nuremberg and Tokyo Trials (1945-1948)

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These – rather unfortunate – days some voices in Europe are trying, in a quite a historical fashion, to question the very fundaments of the antifascist legacy. Dangerous and highly destructive equitation attempts are on the way. Still, this legacy is what finally made the Old continent human and peaceful – a role model to admire and for the rest of us to follow.

These regrettable equitations make it worth to revisit the Nuremberg and Tokyo trials, which are essential pillars of the Human Rights charter brokered right after under the OUN auspices. Consequently, a very legacy of these trials is extraordinary and far reaching. It represents a core building material of the house called Modern Europe – something that the Director of International Institute IFIMES, Dr. Zijad Becirovic repeatedly stresses in his media appearances, as one of the bold but rather are voices of the right direction and historical responsibility awareness today.

Conclusively, the importance of tribunals is hard to overstate. Its reaffirmation today is needed like never since the very end of the WWII.

Noam Chomsky once said, “For the powerful, crimes are those that others commit.” This was not the case for Germany and Japan post-World War II. The victorious Allied powers established the first international criminal tribunals to prosecute political and military officials for war crimes and other atrocities committed during wartime. The four major Allied governments; the United States, the United Kingdom, France, and the Soviet Union, set up the International Military Tribunal (Nuremberg trials) in Nuremberg, Germany, to prosecute and punish the major war criminals of the European Axis.

The tribunal presided over a combined trial of senior Nazi political and military leaders, as well as several Nazi organizations. The less-recognized International Military Tribunal for the Far East was created (Tokyo trials) in Tokyo, Japan, following the 1946 proclamation by Supreme Commander for the Allied Powers, U.S. Army General Douglas MacArthur. The tribunal presided over a series of trials of senior Japanese political and military leaders to prosecute and punish Far Eastern war criminals. The Nuremberg and Tokyo trials differed in several important aspects including their origins, compositions, and jurisdictions.

The Allied powers established the policy that international tribunals in Europe and in the Far East after World War II would focus on, most importantly, a decision on individual criminal liability for crimes against peace. The Allied governments, and specifically the United States, sought after this policy as a solid step toward organizing an international legal system for discouraging future aggressors and averting the sort of war devastation that the Axis aggression had caused. This US-enlivened policy, first presented at Nuremberg, was repeated and pursued precisely at Tokyo. Luc Reydams and Jan Wouters argued that “The Nuremberg and Tokyo Charters were drafted by a handful of statesmen from the highest echelons of government for whom an international tribunal was not a goal unto itself, but a means to a very specific end.”[1] The Tokyo Charter, necessitated that the principal charges against the defendants be crimes against peace while deeming charges on war crimes and crimes against humanity as discretionary. Therefore, a great part of the court battles at Tokyo rotated around substantiating aggressive war charges, despite the fact that proof of Japanese wartime atrocities was, truth be told, likewise exhibited.

In June 1945, the day of the signing of the United Nations Charter at the San Francisco Conference, delegations of the United States, the United Kingdom, France, and the Soviet Union, negotiated in London on the regulating principles for prosecuting war criminals. It is noteworthy that the respective heads of these delegations; Robert Jackson, David Maxwell Fyfe, General I.T. Nikitchenko, and Robert Falco later served in notable roles at the International Military Tribunal. Meeting in Potsdam to discuss the future of Germany and Europe, Truman, Churchill, and Stalin affirmed the London talks.

In August 1945, the four major Allied governments signed the 1945 London Agreement, which established the International Military Tribunal. The Charter of the International Military Tribunal was adjoined to the London Agreement and defined the tribunal’s constitution, functions, and jurisdiction[2]. One judge from each of the Allied governments formed the Nuremberg tribunal, the Allied powers also supplied a team of prosecutors. The Nuremberg Charter also provided that the International Military Tribunal had the authority to prosecute and punish persons who committed any of the following crimes: Crimes Against Peace (planning and making war), War Crimes (responsibility for crimes during war), Crimes Against Humanity (racial persecution), and Conspiracy to Commit other Crimes.

The tribunal held its opening session in the Palace of Justice in Nuremberg, and the trials lasted from November 1945 to October 1946. Twenty-two Nazi political and military leaders were indicted, including Hermann Goering, Rudolph Hess, Joachim von Ribbentrop, Alfred Rosenberg, and Albert Speer. The tribunal found nineteen individual defendants guilty and sentenced them to punishments that ranged from death by hanging to fifteen years of imprisonment. Three defendants were found that they are not guilty, one committed suicide before the trial, and one did not stand trial due to physical or mental illness.

Unlike the International Military Tribunal, the International Military Tribunal for the Far East was not created by an international agreement, but it nonetheless emerged from international agreements to prosecute Japanese war criminals.[3] In July 1945, the United States, the United Kingdom, and China signed the Potsdam Declaration, in which they stated that “We do not intend that the Japanese shall be enslaved as a race or destroyed as a nation, but stern justice shall be meted out to all war criminals, including those who have visited cruelties upon our prisoners. The Japanese Government shall remove all obstacles to the revival and strengthening of democratic tendencies among the Japanese people. Freedom of speech, of religion, and of thought, as well as respect for the fundamental human rights shall be established.[4]” and urged the Japanese government to, “proclaim now the unconditional surrender of all Japanese armed forces, and to provide proper and adequate assurances of their good faith in such action.[5]” The war in Europe had ended but the war with Japan was continuing at the time the Potsdam Declaration was signed. Nonetheless, the Potsdam Declaration was not signed by the Soviet Union because it did not declare war on Japan until the United States dropped the second atomic bomb on the city of Nagasaki.[6]

Japan surrendered on the 14th of August 1945, six days later. Officials of the US State Department leaned toward holding an intergovernmental conference to establish special international tribunals, but the State-War-Navy Coordinating Committee came up with the plan to use the power of the Supreme Commander of the Allied Powers, General Douglas MacArthur,  mindful of the experience with the London Conference where Justice Robert Jackson had enormous difficulty coming to an agreement with other delegations on the Nuremberg Charter.

At the following Moscow Conference, held in December 1945, the United States, the United Kingdom, and the Soviet Union with affirmation from China agreed to a basic structure to occupy Japan. General MacArthur was granted authority to “issue all orders for the implementation of the Terms of Surrender, the occupation and control of Japan, and all directives supplementary thereto.[7]

In January 1946, General Douglas MacArthur issued a special proclamation to establish the International Military Tribunal for the Far East. The Charter for the International Military Tribunal for the Far East was adjoined to the proclamation. Similar to the Nuremberg Charter, it outlined the composition, functions, and jurisdiction of the tribunal. The Charter provided for General Douglas MacArthur to assign judges to the International Military Tribunal for the Far East from the countries that had signed Japan’s instrument of surrender: Australia, Canada, China, France, the Netherlands, the Soviet Union, the United Kingdom, and the United States, as well as British India and the Philippines. Each of these countries also had a team of prosecutors. As with the International Military Tribunal, the International Military Tribunal for the Far East had jurisdiction to prosecute individuals for Crimes Against Peace, War Crimes, and Crimes Against Humanity[8]. However, the International Military Tribunal for the Far East had jurisdiction over crimes that occurred over a greater period of time, from the Japanese invasion of Manchuria in 1931 to Japan’s surrender in 1945.

The International Military Tribunal for the Far East oversaw the prosecution of twenty-five Japanese political and military leaders. The Emperor of Japan Hirohito and other members of the imperial family were not indicted. In fact, the Allied governments allowed Emperor Hirohito to retain his position on the throne, albeit with diminished status. The trials took place from May 1946 to November 1948. The International Military Tribunal for the Far East found all defendants guilty and sentenced them to punishments ranging from death to seven years’ imprisonment.

The Nuremberg and Tokyo trials contributed significantly to the development of international criminal law and served as models for a new series of international criminal tribunals[9] that were established in the 1990s. Moreover, the reference to “crimes against peace,” “war crimes,” and “crimes against humanity” in the International Military Tribunal Charter represented the first time these terms were used and defined in an international instrument. These terms and definitions were also adopted in the Charter of the International Military Tribunal for the Far East, and have been depicted and expanded in a succession of international legal instruments since that time. The conclusions of the Nuremberg trials also served as models for the Genocide Convention 1948, the Universal Declaration of Human Rights 1948 and paved the way for the establishment of the International Criminal Court.

In conclusion, the Nuremberg and Tokyo trials legacy itself is extraordinary, and its importance is hard to overstate. Nuremberg and the international community’s experience with the ad hoc tribunals demonstrate that international justice doesn’t have to be perfect to be good. Holding up Nuremberg to an impossible, imagined standard is neither fair nor productive.

We cannot forget that the Nuremberg and Tokyo trials and, fifty years later, the establishment of the International Criminal Court aimed to safeguard peace in all regions of the world. The achievements of these great trials in elevating justice and law over inhumanity and war give promise for a better tomorrow by paving the way to deal with international crimes. Furthermore, the international system has made huge contributions to the birth and development of modern international law.


[1]Reydams, L., Wouters, J., &Ryngaert, C. (2012). The Politics of Establishing International Criminal Tribunals. International Prosecutors, 6–80.

[2] Bard, M. G. (2002). The Nuremberg trials. San Diego, CA: Greenhaven Press.

[3]Piccigallo, P. R. (2011). The Japanese on Trial: Allied War Crimes Operations in the East, 1945-1951. Austin: University of Texas Press.

[4]Carnegie Endowment for international peace. (n.d.). The Potsdam declaration: August 2, 1945. New York.

[5]See as in reference 2.

[6]See as in reference 1.

[7]Taulbee, J. L. (2018). War Crimes and Trials: A Primary Source Guide. Santa Barbara, CA: ABC-CLIO, LLC.

[8] United Nations, International Military Tribunal for the Far East (Tokyo Charter).

[9] The former Yugoslavia in 1993 and Rwanda in 1994.

Wedyan Al Madani is a Saudi scholar. She is Jeddah-based Legal Advisor, and specialist in international law and relations.

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International Law

Carl Schmitt for the XXI Century

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For decades, the scholars of international relations have confused the term “New World order” in the social, political, or economic spheres. Even today, few scholars confuse the term with the information age, internet, universalism, globalization, and  American imperialism. Unlike the complex categorization of the New World Order, the concept of the Old World Order was purely a juridical phenomenon. However, from standpoint of modernity, the term New World order is a purely ideological and political phenomenon, which embodies various displays such as liberal democracy, financial capitalism, and technological imperialism.

In his Magnus Opus “The concept of the Political”, Carl Schmitt lauded a harsh criticism on liberal ideology and favored competitive decisionism over it. This is why according to Schmitt’s critics; the whole text in “The concept of the political” is filled with authoritarian overtones. Nonetheless, the fact cannot be denied that it was the radical political philosophy of Carl Schmitt that paved the way for the conservative revolution in Europe. Even today, his writings are being regarded as one of the major contributions to the field of political philosophy from the 20th century.

Throughout his major works such as “Nomos of the earth”, “the Crisis of Parliamentary democracy”, “The concept of the Political” and “Dictatorship”, Carl Schmitt frequently employs unadorned terms such as ‘actual’, ‘concrete’, ‘real’, and ‘specific’ to apprize his political ideas. However, he advances most of the core political ideas by using the metaphysical framework. For instance, in the broader political domain, Carl Schmitt anticipated the existential dimension of the ‘actual politics’ in the world today.

On the contrary, in his famous work “The Concept of the Political” readers most encounter the interplay between the abstract and ideal and, the concrete and real aspects of politics. Perhaps, understanding of Schmitt’s discursive distinctions is necessary when it comes to the deconstruction of the liberal promoted intellectual discourse. However, the point should be kept in mind that for Schmitt the concept of the political does not necessarily refer to any concrete subject matter such as “state” or “sovereignty”. In this respect, his concept of the political simply refers to the friend-enemy dialectics or distinction. To be more precise, the categorization of the term “Political” defines the degree of intensity of an association and dissociation.

In addition, the famous friend-enemy dialectics is also the central theme of his famous book “The Concept of the Political”. Likewise, the famous friend-enemy distinction in Schmitt’s famous work has both concrete and existential meaning. Here, the word “enemy” refers to the fight against ‘human totality”, which depends upon the circumstances. In this respect, throughout his work, one of the major focuses of Carl Schmitt was on the subject of  “real Politics”. According to Schmitt, friend, enemy, and battle have real meaning. This is why, throughout his several works; Carl Schmitt remained much concerned with the theory of state and sovereignty. As Schmitt writes;

I do not say the general theory of the state; for the category, the general theory of the state…is a typical concern of the liberal nineteenth century. This category arises from the normative effort to dissolve the concrete state and the concrete Volk in generalities (general education, general theory of the law, and finally general theory of the knowledge; and in this way to destroy their political order”.[1]

As a matter of the fact, for Schmitt, the real politics ends up in battle, as he says, “The normal proves nothing, but the exception proves everything”. Here, Schmitt uses the concept of “exceptionality” to overcome the pragmatism of Liberalism. Although, in his later writings, Carl Schmitt attempted to dissociate the concept of “Political” from the controlling and the limiting spheres but he deliberately failed. One of the major reasons behind Schmitt’s isolation of the concept of the political is that he wanted to limit the categorization of friend-enemy distinction. Another major purpose of Schmitt was to purify the concept of the “Political” was by dissociating it from the subject-object duality. According to Schmitt, the concept of the political was not a subject matter and has no limit at all. Perhaps, this is why Schmitt advocated looking beyond the ordinary conception and definition of politics in textbooks.

For Schmitt, it was Liberalism, which introduced the absolutist conception of politics by destroying its actual meaning. In this respect, he developed his very idea of the “Political” against the backdrop of the “human totality” (Gesamtheit Von Menschen). Today’s Europe should remember the bloody revolutionary year of 1848 because the so-called economic prosperity, technological progress, and the self-assured positivism of the last century have come together to produce long and deep amnesia. Nonetheless, the fact cannot be denied that the revolutionary events of1848 had brought deep anxiety and fear for the ordinary Europeans. For instance, the famous sentence from the year 1848 reads;

For this reason, fear grabs hold of the genius at a different time than it does normal people. the latter recognizes the danger at the time of danger; up to that, they are not secure, and if the danger has passed, then they are secure. The genius is the strongest precisely at the time of danger”.

Unfortunately, it was the intellectual predicament at the European stage in the year 1848 that caused revolutionary anxiety and distress among ordinary Europeans. Today, ordinary Europeans face similar situations in the social, political, and ideological spheres. The growing anxieties of the European public consciousness cannot be grasped without taking into account Carl Schmitt’s critique of liberal democracy. A century and a half ago, by embracing liberal democracy under the auspices of free-market capitalism, the Europeans played a pivotal role in the self-destruction of the European spirit.

The vicious technological drive under liberal capitalism led the European civilization towards crony centralism, industrialism, mechanization, and above all singularity. Today, neoliberal capitalism has transformed the world into a consumer-hyped mechanized factory in which humanity appears as the by-product of its own artificial creation. The unstructured mechanization of humanity in the last century has brought human civilization to technological crossroads. Hence, the technological drive under liberal democratic capitalism is presenting a huge threat to human civilizational identity.


[1] Wolin, Richard, Carl Schmitt, Political Existentialism, and the Total State, Theory and Society, volume no. 19, no. 4, 1990 (pp. 389-416). Schmitt deemed the friend-enemy dialectics as the cornerstone of his critique on liberalism and universalism.

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International Law

Democratic Backsliding: A Framework for Understanding and Combatting it

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Democracy is suffering setbacks around the world. Over the past decade, the number of liberal democracies has shrunk from 41 to 32. Today, 34 percent of the global population lives in 25 countries moving in the direction of autocracy. By contrast, only 16 countries are undergoing a process of democratization, representing just 4 percent of the global population. Reflecting these troubling trends, USAID Administrator Samantha Power, during her confirmation hearing, highlighted democratic backsliding – along with climate change, conflict and state collapse, and COVID-19 – as among the “four interconnected and gargantuan challenges” that will guide the Biden Administration’s development priorities.

However, defining “democratic backsliding” is far from straightforward. Practitioners and policymakers too often refer to “democratic backsliding” broadly, but there is a high degree of variation in how backsliding manifests in different contexts. This imprecise approach is problematic because it can lead to an inaccurate analysis of events in a country and thereby inappropriate or ineffective solutions.

To prevent or mitigate democratic backsliding, policymakers need a definition of the concept that captures its multi-dimensional nature. It must include the actors responsible for the democratic erosion, the groups imperiled by it, as well as the allies who can help reverse the worst effects of backsliding. 

To address this gap, the International Republican Institute developed a conceptual framework to help practitioners and policymakers more precisely define and analyze how democratic backsliding (or “closing democratic space”) is transpiring and then devise foreign assistance programs to combat it.  Shifting away from broad generalizations that a country is moving forward or backward vis-à-vis democracy—which makes it difficult, if not impossible, to derive specific solutions—the framework breaks closing democratic space into six distinct, and sometimes interrelated, subsectors or “spaces.”

Political/Electoral: Encompasses the arena for political competition and the ability of citizens to hold their government accountable through elections. Examples of closing political or electoral space range from fraudulent election processes and the arrest or harassment of political leaders to burdensome administrative barriers to political party registration or campaigning.

Economic: Refers to the relationship between a country’s economic market structure, including access and regulation, and political competition. Examples of closing economic space include selective or politically motivated audits or distribution of government licenses, contracts, or tax benefits.

Civic/Associational: Describes the space where citizens meet to discuss and/or advocate for issues, needs, and priorities outside the purview of the government. Examples of closing civic or associational space include harassment or co-optation of civic actors or civil society organizations and administrative barriers designed to hamper civil society organizations’ goals including limiting or making it arduous to access resources.

Informational: Captures the venues that afford citizens the opportunity to learn about government performance or hold elected leaders to account, including the media environment and the digital realm. h. Examples of closing informational space consist of laws criminalizing online speech or activity, restrictions on accessing the internet or applications, censorship (including self-censorship), and editorial pressure or harassment of journalists.  

Individual: Encapsulates the space where individuals, including public intellectuals, academics, artists, and cultural leaders– including those traditionally marginalized based on religious, ethnicity, language, or sexual orientation–can exercise basic freedoms related to speech, property, movement, and equality under the law. Common tactics of closing individual space include formal and informal restrictions on basic rights to assemble, protest, or otherwise exercise free speech; censorship, surveillance, or harassment of cultural figures or those critical of government actions; and scapegoating or harassing identity groups.

Governing: Comprises the role of state institutions, at all levels, within political processes. Typical instances of closing the governing space include partisan control of government entities such as courts, election commissions, security services, regulatory bodies; informal control of such governing bodies through nepotism or patronage networks; and legal changes that weaken the balance of powers in favor of the executive branch.

Examining democratic backsliding through this framework forces practitioners and policymakers to more precisely identify how and where democratic space is closing and who is affected. This enhanced understanding enables officials to craft more targeted interventions.

For example, analysts were quick to note Myanmar’s swift about-face toward autocracy.  This might be true, but how does this high-level generalization help craft an effective policy and foreign aid response, beyond emphasizing a need to target funds on strengthening democracy to reverse the trend? In short, it does not.  If practitioners and policymakers had dissected Myanmar’s backsliding using the six-part framework, it would have highlighted specific opportunities for intervention.  This systematic analysis reveals the regime has closed civic space, via forbidding large gatherings, as well as the information space, by outlawing online exchanges and unsanctioned news, even suspending most television broadcasts.  One could easily populate the other four spaces with recent examples, as well. 

Immediately, we see how this exercise leads to more targeted interventions—support to keep news outlets operating, for example, via software the government cannot hack—that, collectively, can help slow backsliding.  Using the framework also compels practitioners and policymakers to consider where there might be spillover—closing in one space that might bleed into another space—and what should be done to mitigate further closing.

Finally, using this framework to examine the strength of Myanmar’s democratic institutions and norms prior to the February coup d’etat may have revealed shortcomings that, if addressed, could have slowed or lessened the impact of the sudden democratic decline. For example, the high-profile arrest of journalists Wa Lone and Kyaw Soe Oo in December 2017 was a significant signal that Myanmar’s information space was closing. Laws or actions to increase protections for journalists and media outlets, could have strengthened the media environment prior to the coup, making it more difficult for the military to close the information space.

A more precise diagnosis of the problem of democratic backsliding is the first step in crafting more effective and efficient solutions. This framework provides practitioners and policymakers a practical way to more thoroughly examine closing space situations and design holistic policies and interventions that address both the immediate challenge and longer-term issue of maintaining and growing democratic gains globally.

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International Law

Authentic Justice Thus Everlasting Peace: Because We Are One

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The ceasefire in the Israeli-Palestine conflict is a good thing. We thank God for it. Be it between two individuals or institutions or nations or the internal colonial and colonized, war does not do anything except cause more immediate or future mass misery and human destruction. Our continued memories of our interpersonal and international and internal colonial and civil wars and the memorials we erect to remember them recall and record wounds and pains we never get over. 

So it becomes a bothersome puzzle as to why we human beings still just don’t get that war like oppression leads to nowhere except to more human devastation. And we should have learned by now but have not that peacemaking like ceasefires mean nothing without justice.

 It is the reason why I constantly find myself correcting those who stress Peace and Justice.No Justice No Peace is more than a cliche.It is real politic emotionally, economically, socially, and spiritually.

Our American inner cities like those in every continent where culturally different and similar people live cramped impoverished lives and nations and colonial enclaves with such unequal wealth remind us of their continued explosive potentialities when peace is once again declared but with no justice.Everyone deserves a decent quality of life which not only includes material necessities but more importantly emotional and spiritual freedoms and other liberations.Not just the victors who conquer and rule and not just the rich and otherwise privileged.

 And until such  justices are  assured to everyone peacemaking is merely a bandaid on cancerous societal or International conflictual soars which come to only benefit those who profit from wars which are bound to come around again when there is no justice and thus peace such as  family destroying divorce lawyers, blood hungry media to sell more subscriptions , arms dealers to sell more murderous technologies, politicians needing  votes so start and prolong wars, and military men and women seeking promotion while practicing their killing capacities.

So if those of us who devoutly practice our  faiths or our golden moral principles,  let us say always and pray and advocate justice and peace always  as a vital public good  and  do justice then lasting peace in our personal lives and insist that national leaders, our own and others do the same in their conduct of international affairs and affairs with those who are stateless in this global world. 

All such pleading is essential since we are all brothers and sisters in the eyes of God who created all of us  in God’s image as one humanity  out of  everlasting divine love for all of us so we should love each other as God loves all of us  leading to desiring justice and thus lasting peace for each and every one of us.

This is difficult for those in international affairs to understand who take more conventional secular approaches to historical and contemporary justice and peace challenges as if our universal spiritual connectivennes  ( not to be confused with the vast diversity of organized religions)as human beings which makes us all brothers and sisters has no relevance. But if we are going to find true enduring peace we have no alternative but to turn our backs on increasingly useless secular methods which go either way, stressing peace then justice or justice then peace and understand how much we must begin to explore and implement approaches which we look at each other as spiritually connected brothers and sisters in which it is the expectation that peace only comes and lasts when  through the equal enjoyment of justices for every human being, we restore our universal kindred rooted in the everlasting love of God and thus for each other, no matter the different ways in which we define God or positive moral principles which originate in understandings that we human beings in all our diversities are one and thus brothers and sisters.

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