Abstract

Those tried for crimes against humanity have often been usurpers of State power, or committed crimes against humanity in the course of their attempts to overthrow it. However, in one of the most prominent of war crimes trials, the Tokyo War Crimes Tribunal held in the wake of the Pacific War, the perpetrators had a not unreasonable claim to the legitimate authority of the State, and to the legal rights and protection, and the nullification of individual liability, that this legitimacy provided. In this paper I contend that the count of conspiracy, applied to all the defendants before the Tokyo War Crimes Tribunal, had a rationale far beyond that normally ascribed to it. Much more than its role in facilitating arguments regarding the admissibility of evidence and the ease of issuance of further indictments, the allegation of conspiracy was essential to circumvent the defence that the defendants' individual liability for unlawful acts of war was nullified by their role as legitimate agents of the Japanese State. This is most clearly seen in the trial of General Araki Sadao, which set the pattern for the conduct of subsequent cases. However the inclusion of the conspiracy count led to a circularity of reasoning which arguably undermines the trial process and verdicts on the Tokyo defendants, regardless of their actual crimes. This suggests that conventional legal concepts and processes may be systemically ill-equipped to deal with crimes against humanity perpetrated by agents of a sovereign state.