The Tokyo trial opened on May 3,1946. At 9:30 a.m. the marshal cried: “The International Military Tribunal for the Far East is in session and is ready to hear any matter brought before it.” The Tokyo trial was underway.

The opening ceremonies took place in the auditorium of the old Japanese War Ministry. This very large room had been remodeled carefully, both to give dignity to the setting and to facilitate photographic coverage of the trial. But something was not quite right. In its very first article covering the trial,Time Magazinecompared the setting unfavorably with Nuremberg: “Nuremberg’s impresarios...

Long negotiations among the Big Four at the London Conference had produced the Nuremberg Charter. No similar conference preceded the promulgation of the Tokyo Charter. Instead, the Tokyo Charter was an executive decree of General Douglas MacArthur, Supreme Commander for the Allied Powers in Japan, acting under orders from the United States Joint Chiefs of Staff.¹ The charter itself had been drawn up by Americans, primarily by Chief Prosecutor Joseph B. Keenan. America’s allies were consulted only after the charter had been issued.²

Such unilateral action might have caused major friction among the Allies. But both the United States and...

The unsettled state of international law was a major problem of the Nuremberg and Tokyo trials. For one thing, there was no precedent for the establishment of an international military tribunal. As Robert H. Jackson wrote, Nuremberg was the “first international criminal assizes in history.”¹ For another, while international law clearly recognized such crimes as piracy and the maltreatment of prisoners of war, the Allies wished to prosecute their German and Japanese enemies not simply for conventional war crimes, but also for “crimes against peace” and for “crimes against humanity.” These two categories of crime were of highly uncertain status...

Substantive issues of international law were important to the Tokyo trial. So also were problems of legal process. Procedural matters are always important. As Judge Charles E. Wyzanski, Jr., has written: “If there is one axiom that emerges clearly from the history of constitutionalism and from the study of any bill of rights or any charter of freedom, it is that procedural safeguards are the very substance of the liberties we cherish.”¹ Some procedural issues at Tokyo seem quite obvious to observers not trained in the law, and yet these issues will find lawyers divided: for example, the selection of...

We have discussed the shaky basis of the Tokyo trial in international law. We have examined several fundamental procedural flaws. Invalid law or faulty procedure: either of these alone can provide legal grounds for throwing out a court’s decision. As Justice Bernard wrote in his dissent: “A verdict reached by a tribunal after a defective procedure cannot be a valid one.”¹

But for non-legal minds—and that includes the author and probably most of his audience—there is a third important approach to the Tokyo trial: the historical approach. For us the validity of the Tokyo trial depends in large...

We have considered the Tokyo trial from the aspects of international law, of procedure, and of history. In each aspect we have found there to be at least serious question about the integrity of the tribunal and at most compelling evidence that the trial was a biased proceeding. But the trial did not end with the judgment.

The Tokyo Charter contained a provision for review by the Supreme Commander for the Allied Powers in Japan, General Douglas MacArthur. What did not appear in the charter was a policy decision of the Far Eastern Commission calling for General MacArthur to consult...