Building Anew 399could have come from the texts of Duguit or Kelsen or Scelle, the tribunal
pronounced that “[c]rimes against international law are committed by men,
not by abstract entities.” Th is part of the judgment naturally won Kelsen’s
hearty approval. Consistently with his theory that individuals are the true
subjects of international law, he asserted that imposing individual criminal
responsibility amounted to “a higher degree of justice” than “collective re-
sponsibility” imposed onto states. Wright expressed similar approval of
this thesis. Th e eff ective enforcement of international law, he contended, re-
quired the imposition of sanctions against individuals as well as states, even
though this “necessarily makes inroads onto national sovereignty.” He also
expressed his support for a larger implication of this principle: that it “tends
to change the foundation of the international community from a balance of
power among sovereign states to a universal federation directly controlling
individuals in all countries.”
An International Military Tribunal for the Far East was established in
1946, not by means of a multilateral treaty as in the German case, but by
proclamation of the American occupation authorities in Japan. Crimes
against humanity were not, in this case, among the charges. Instead, various
counts of murder were alleged, along with aggression and war crimes.
Twenty- eight persons were indicted in all. But there was one highly conspic-
uous absence from the dock: Emperor Hirohito. Th e American authorities
elected, as a policy choice, not to indict him, in the interest of maintaining
social harmony in Japan during the occupation period.
Th e proceedings in Tokyo diff ered from those in Nuremberg in a num-
ber of ways. For one thing, the bench was larger, comprising judges from
eleven Allied countries (as opposed to only four at Nuremberg). Th e offi -
cial judgment of the panel followed the Nuremberg Tribunal in citing the
Pact of Paris as the source of the crime of aggression, but there was a great
deal more dissension among the judges than there had been at Nurem-
berg. Th e French judge, Henri Bernard, regarded the procedural arrange-
ments of the trial as unfair to the defendants, with the result that he fa-
vored the acquittal of all of the accused parties. Also favoring acquittal
of all the defendants was the Indian judge, Radhabinod Pal. In a dissent-
ing opinion that ran for over six hundred closely printed pages, he dis-
puted the majority’s fi ndings on every possible point, including the crimi-
nality of aggressive war.