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Critical Analysis Of Jurisprudence Idea On Tokyo War Trial

The allied Power consisted of the member country France, the United Kingdom, the United state of America, and the united soviet socialist republic (USSR) presently known as Russia had won the war and defeated the Axis power consisting of the member country Germany, Italy, and Japan. The victorious allied group established IMT (International Military Tribunal) in Nuremberg, Germany was main aim to punish and prosecute military personnel and political leader for crimes against peace including violation of any international treaties customs, and laws war crimes, and atrocities against human violation of their right and threaten their life by using force and military equipment upon them.

The trial was headed by US army General Douglas MacArthur Latter on the lesser International Military tribunal for the east (IMTFE) setup in Tokyo was not created through an international agreement like IMT (International Military tribunal).

In 1945 the pots dam declaration was signed by the USA china and the United kingdom strongly criticized the action of Japan during world war II in which all three countries demanded surrender and stern justice for all the victims of world war and soon will be the military personnel and higher political officer should be arrested in Japan but the Japan did not follow the declaration order and war with Japan was continuing on that same day the united State of America dropped the second atomic bomb at Nagasaki after six days latter the Japan had surrendered. In 1946 the annexed post dam declaration Japan agreed to sign and adhere to the declaration order and set up the International Military Tribunal for the East (IMTFE) in Tokyo.

The International Military tribunal for the east (IMTFE) has the same jurisdiction as the IMT (International Military tribunal) to punish and prosecute military personnel and political official for crimes against peace including violation of any international treaties customs and laws war crimes and atrocities against human right violation Crime against individual disturbance of world peace and atrocities against humanity.

Background Of Tokyo Trial

After the second world war countries decided to punish the individual who was behind the world war and had the capacity to stop the war but could not do it. The international military tribunal (IMT) was established in Nuremberg, Germany as an outcome of an international agreement its main aim was to prosecute war criminals but In Japan, military personnel had not surrendered yet and they are still participating in the war so, therefore, to prosecute war criminal of Japan the three-nation china, united kingdom and the united state of America in 1945 signed the Potsdam declaration called for Japan "unconditional surrender" and declared that "stern justice shall be meted out to all war".

The war in Europe had ended but the war with Japan was continuing so at that time Potsdam declaration was signed Japan did not stop the war after the passing out of the declaration the soviet union did not sign the declaration because it did not announce the war on Japan after a few weeks later the United state of America did not have the option to stop Japan to end the war and therefore on that same day the united State of America second time bombarded the city Nagasaki with atomic bomb after six-day latter the Japan had surrender.

The Japan military personnel signed The International Military Tribunal for the Far East (IMTFE). It was an outcome of the Potsdam declaration or an international agreement to prosecute war criminals of Japan and it is not similar to the International military tribunal (IMT) was set up by an international agreement.

In the Moscow conference which was held in December 1945 the united state of America, the soviet union (presently known as Russia), and the united kingdom headed by General Mac Arthur who was a supreme commander of the Allied power all three countries agreed to a dictatorship government ruling the Japan and basic structure in subjugation to a Japan government and thus General Mac Arthur was given an order to "issue all orders for the implementation of the Terms of Surrender, the occupation, and control of Japan, and all directives supplementary thereto."

Germany General Mac Arthur established the International Military Tribunal for the Fast East (IMTFE) in Nuremberg in January 1946. He used his authority to make a declaration that was attested to the IMTFE's charter. The jurisdiction to bring charges against someone for crimes against humanity and war crimes was outlined by the International Military Tribunal for the Far East (IMTFE), and it was very similar to the definition given in the International Military Tribunal (IMT) or Nuremberg Charter.

The International Military Tribunal (IMT), also known as the Nuremberg Charter, gave General Mac Arthur the power to choose the judges for the IMTFE from countries like Australia, Canada, China, France, India, the Netherlands, the Philippines, the Soviet Union, the United Kingdom, and the United States of America, which also included nations that had signed Japan's instrument of surrender.

There were also prosecution teams in each of these nations. However, it had jurisdiction over offenses that occurred between 1931, when Japan occupied Manchuria and turned it into a colony, and 1945 when Japan finally submitted to the Allies. Nine top Japanese government figures and eighteen military officers were prosecuted under its auspices.

The International Military tribunal for the fast east (IMTFE) ruled all of the defendants guilty and sentenced them to punishment ranging from the imprisonment of seven years to the death penalty. There were two defendants who died during the trial. The member of the Japanese Imperial family and Japanese emperor Hirohito was not included in the prosecution of the nine judges. The aim of this article is to briefly define the background and facts of the popular Tokyo trials for prosecuting war criminals in Japan.

The Tokyo trial has always been the apple of discord between the two schools of jurisprudence positivism and the natural school of jurisprudence. Both schools argue distinct opinion over the Tokyo trial positivist school argue that it is conducted to full fill their ulterior motive and hence they argue that before world war II no rule was made for the prosecution of war crimes and Criminalize of destructive warfare had not taken place, therefore, the individual held not liable and prosecute for participating and initiating in it.

On the other hand, the natural school argues that Japan promotes a dictatorial form of government and is devoid of morality. To punish the actions of the Japanese dictatorship government, it is necessary to prosecute the war criminals of Japan.

Issue To Conduct Fair Tokyo Trial

There are many questions related to the issue. To conduct a fair and transparent trial in Tokyo there should not be a scope of Injustice with the Japan prosecute. The first dilemma is whether the principle of natural law helps to achieve justice at the Tokyo trial of the victims of World war II or if the just trial is conducted based on natural law theory as a weapon for revenge by the victorious allied group.

The second dilemma was whether in the trial right of prisoners in the name of morality and setting precedent were considered and whether the trial was based on the principle of equality applied to all the nation. There are many jurists who have argued that no tribunal was established to prosecute the war criminal of United States of America political leaders and Military personnel for bombarding the city Nagasaki and Hiroshima with an atomic bomb and in the international sphere it is termed a victor justice and many classic philosophers argue that victor belongs to the justice.

Nobody can ever justify the molestation of thousands of Chinese women by the Japanese military personnel and the judgment was passed by the two tribunal International Military tribunal for the fast east (IMTFE) and IMT (International Military tribunal) by the way justice was meted out will victorious cast aspersion in the mind on lots of Japanese people. All of the questions remained unanswered for the jurist and will continue to hang out for the decade to come.

Jurisprudential Conflict Over Tokyo Trial

There have always been loggerheads ideologically between two giants of jurisprudence: the Natural Law and the Analytical Positivist School. After the second world war, the trial had been started to prosecute the war criminals of Japan and Nuremberg which is truly reflective of the fact that jurists have a distinctive opinion over the Tokyo war-crime trial. The natural law jurist argued that an individual gets a fair and unbiased trial without ulterior motives before a court which negatively affects the individual dignity.

There is another law jurist who argued that through the path of natural law we cannot achieve justice and by using natural law as a medium justice cannot be achieved. Mala Fide's motives were completed in the name of justice by different powerful countries. There were no free and fair trials of war criminals in Japan while prosecuting the war criminals in Japan it showed that jurists have disguised arguments some supported the Tokyo trial arguing that Japan promotes a dictatorial form of government and is devoid of morality to punish the act of Japan dictatorship government it is necessary to prosecute the war criminal of Japan but other jurists argue that powerful country with Ulterior motive and Mala intention to prosecute the war criminal of Japan to show their power in the world stage and they were not conducted a free and fair trial of war criminal of Japan. Therefore history truly reflects that justice differentiated as vendetta was provided while prosecuting the war criminals of Japan to punish their acts done during world war II.

The Tokyo trial played a very significant role and is bound to become a focal point in the deliberation on international law. The two schools of jurisprudence positivist and natural law school have a conundrum between the two colossi of the jurisprudence to make their mark with a witness in the Tokyo trial. The positivist school argued that before world war II no rule was made to prosecute the war criminal and Criminalize destructive warfare had not taken place therefore the individual was held not liable and prosecuted for participating in and initiating aggressive warfare.

On the other hand, the natural school argues that Japan military personnel had committed an abominable crime against the doctrine of individual responsibility which states that public conscience stemmed from morality. According to the principle of natural law, justice cannot be achieved if morality is not protected and the crime committed by the Japanese military personnel and political leader has stirred the moral standard of the nation across the globe and Japan promotes the dictatorial form of government and its devoid of morality to punish the act of Japan dictatorship government it is necessary to prosecute the war criminal of Japan. The American prosecutor Joseph Keenan defines trial in their own words as "served as a cockpit for a death struggle between two completely irreconcilable and opposed types of legal thinking."

The two American law professors Lon L. fuller and his correspondent H.L.A Hart demonstrated the debate between the natural law and positivist law philosophy in the Tokyo trial in which they argue that the dynamic of conventional law is distinct from the international law and law and morality are a separate term which demonstrated the exchange of idea of debate between natural law and positivist law philosophy.

The American law professor H.L.A Hart supported the positivist view in arguing that law and morality were separate and believe that separation between the law as it is and the law as should be according to this philosophy legal rights and moral rights of the individual are not related to each other. The H.L.A Hart believes that the method of deciding the judgment of a case is through logic and deduction and not through social and moral aims.

On the other hand, American law professor Lon L. fuller had a totally opposite view and criticized the philosophy of American law professor H.L.A Hart supported the Natural view and believe that law and morality are correlated to each other and morality is the source of law binding power and believe that foundation of law based on the common morality of the law.

The American law professor Lon L. Fuller was a prominent natural law jurist who deliberated the protagonist's view on the Tokyo trial. He was an ardent supporter of the fact that conventional law or customary law is differentiated from the changing international law. According to him, the law is made by the divine and people act as a medium to maintain the affairs of the state and protect the sovereignty taken in the gloss of Blackstone Philosophy which concentrates the idea on the law being dictated by the divine or any supreme authority himself.

According to the Blackstone law of nature, the law is stated by the divine himself concentrating on the maxim that the king cannot do any wrong to the law made by the god himself and therefore it is a supreme authority of the law and it is superior to any other law at the time being.

There are some other great legal philosophers who emphasized the idea that the law is totally devoid of human desire binding to people at that time whereas after the introduction of natural law emphasized the idea that law morality and the divine should be the foundation stone to govern the people at the time being.

It had been observed that all the archaic laws during the ancient period were based on the combination of religion and divine order; it was not distinguished from the law. Friedrich Gierke stated that natural law as unity derived its power from the theory of divine rule that God made the law himself consist of one faith, one empire, and one church.

It was a drift from the ideologies of the modern classical era of natural law school including thinkers like Hobbes, Kant and Rousseau amalgamated from the theory of divine sources and formed the legal principle on humans separately. He believed that the extensive ambition of nations to acquire land and resources of other countries and make their colonies led to the circumstance of world war II which caused aggressive warfare among countries and shook the foundation of humanity.

The American law professor Lon L. Fuller's idea traces can be found in Gustav Radbruch's theory which he criticized for the emergence of ideologies like Nazism and fascism and strongly criticized the dictatorial form of government led by Japan. He stated that a pan's aggressive and brutal invasion of their neighboring country had caused a moral catastrophe to threaten the life of individuals infringing their rights and violating the natural order of peace in the world.

It is a very challenging factor for the world to put a stop to Japan's invasion of neighboring countries because if the Japan had right to change its geographical and economic standards by invasion on other country territory and capturing their resource and participating in aggressive brutal warfare then every other nation had the same right thus it badly impact the world peace order if every country conquered another country territory in the seek of expansion of their country territory and capturing the precious resources of other countries.

The argument was divided into two categories of war, the first one for restoring peace and bringing back normalcy called them just wars the second one is unjust nature which wreaked havoc. This made disturbed the peace and integrity of the state.

The American law professor Lon L. Fuller supported the Tokyo trial and argued that the trial will help as a vade mecum for development and progress in international law so that nuclear war included in the unjust war category will be prevented in the future and stop massive destruction of human resources and life. He believes that natural law is a category that permits us to evaluate positive law and to measure its intrinsic justice taken from the view of Del Vecchio, philosopher of natural law.

There was a loggerhead between the ideology of the hideous axis power and the nobility of the allied power. The two American law professor Lon L. Fuller quoted his emanated claim that the 'rich, deep odor of the witches' cauldron' his legal philosophy is based on the contention that positivist law assertions to save humankind and maintain world peace was nothing but utopia. It had a deeper meaning than words.

His discussion on crime against peace had a pressing concern about the Mala Fide's intention of prosecuting authorities and not conducting a free and fair trial in the Tokyo Trial it reminisced about the destruction caused by the power in Asia between Allied power and axis power. Owing to his deeper concern he argues about the charge and trial conducted to prosecute the Japan war criminal by axis power for egocentric reasons for the sake of maintaining "Have and Holder '' the status quo which has been maintained by force and pure opportunism.

According to Robert Jackson, one of the Nuremberg trial's prosecutors, "aggressive warfare is an illegal instrument for resolving those grievances or for altering those conditions, whatever grievances a nation may have, however unpleasant it considers the current status quo." After the end of World War II, Fuller made the suggestion that everyone respect the sovereignty and integrity of sovereign states' borders, regardless of whether a war is just or unjust

Conclusion
The Hart and fuller debate reflect the contradicting point of view between positivism and natural law about the Tokyo war crimes trial. Hart argues that it is conducted to fully fill their ulterior motive and hence they argue that before world war II no rule was made for the prosecution of the war criminal and Criminalize of destructive warfare had not taken place, therefore, the individual was held not liable, and prosecuted for participating and initiating in it.

On the other hand, Fuller argues that Japan promotes a dictatorial form of government and is devoid of morality to punish the actions of the Japanese dictatorship government. It is necessary to prosecute the war criminals of Japan. He is a prominent natural law jurist who argues that Japanese law treats them as non-laws, political leaders, and military personnel who perpetrated atrocities under the Japan dictatorship government and were prosecuted before the International Military tribunal for the fast east (IMTFE).

However, Hart argues that after the second world war retrospective laws have been framed to prosecute the war criminals of Japan, and many jurists against the idea of retrospective criminal statutes are frowned upon but the Japan dictatorship government was exceptional. In fact in the Tokyo trial, certain laws including crimes against peace and humanity were applied retrospectively to prosecute war criminals in Japan.

In conclusion, it is observed that both hart and fuller argue minimum morality of law is that law should not be immoral, but immorality does not ground to disqualify them for being law, and hence "minimum morality" is required to smoothly function of society like in Tokyo trial "minimum morality" required to conduct fair and justice to prosecute war criminal of Japan.

Fuller denied the principle of "minimum morality" but Hart recognized the rule of minimum morality and argued that for a law to qualify as a law in simple terms law has to be made by the constitution of a country then called valid law. The minimum morality rule was used in the Tokyo trial to prosecute the war criminals of Japan.

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