Weaknesses and controversies
Although the aim of the Nuremberg and Tokyo trials was to draw a line between what was permitted and what was forbidden in war, many people believe that both the laws and the nature of the prosecutions were flawed.
The first criticism is that the laws were written ex post facto – that is, after the events they were concerned with. The crimes that the Nazis were charged with were not violations of international law at the time they were committed.
However, by legal precedent, the ex post facto defence fails if 'the accused knew or should have known that, in matters of international concern, he was guilty of participation in a nationally organised system of injustice and persecution shocking to the moral sense of mankind ...'
Given the lengths to which the Nazis went (and neo-Nazis still go) to try and cover up the truth about the death camps, it is clear that those giving the orders were fully aware of the crimes they were committing.
A second criticism is that the war crimes trials administered biased 'victor's justice'. The trials were financed, run and judged by the Allied nations, and only people from the Axis countries, which had lost the war, were tried.
In addition, no Germans were charged with causing aerial bombardment because potential defendants could have implicated Britain and the US for the firebombing of Dresden, with its death toll of 25,000–35,000, and the US for dropping atom bombs on Hiroshima and Nagasaki – clearly war crimes because they deliberately targeted civilians.
A third criticism is that the trials created an official version of the crimes that was both skewed and partial. For instance, despite the fact that Romany Gypsies were the only other ethnic group to be targeted for extermination by the Nazis in the same way as the Jews, no one was called to testify on their behalf and no war crimes reparations have ever been paid to the Roma as a people.