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Boister, Neil --- "New Zealand and the ‘Supreme International Crime ’: Vengeance or Hypocrisy?" [2008] NZYbkIntLaw 23; (2008) 6 New Zealand Yearbook of International Law 137

Last Updated: 7 February 2019

NEW ZEALAND AND THE ‘SUPREME INTERNATIONAL CRIME’: VENGEANCE OR HYPOCRISY?

Neil Boister^[∗]

I. INTRODUCTION

Seventy years ago the German army invaded Poland, starting the Second World War. The Nuremberg International Military Tribunal (the Nuremberg IMT), which tried German leaders inter alia for the crime of aggression, in a sense, finished that war. The Nuremberg IMT pronounced aggression the ‘supreme international crime’.^[1] The US Prosecutor, Supreme Court Justice Robert Jackson said in his opening statement:

But the ultimate step in avoiding periodic wars, which are inevitable in a system of international lawlessness, is to make statesmen responsible to law. And let me make clear that while this law is first applied against German aggressors, the law includes, and if it is to serve a useful purpose it must condemn aggression by any other nations, including those which sit here now in judgment. We are able to do away with domestic tyranny and violence and aggression by those in power against the rights of their own people only when we make all men answerable to the law. This trial represents mankind's desperate effort to apply the discipline of the law to statesmen who have used their powers of state to attack the foundations of the world's peace and to commit aggressions against the rights of their neighbors.^[2]

On the 19^th of August, Green MP Dr Kennedy Graham’s International Non-Aggression and the Lawful Use of Force Bill 2009 (the development of the Bill is discussed later in this collection of papers) came up for debate in the New Zealand Parliament.^[3] The main thrust of the Bill was to make it an offence for New Zealand’s leaders to commit an ‘act of aggression’ in violation of the UN Charter.^[4] When it was first debated, the Minister for Foreign Affairs, Dr Wayne Mapp, rose in response to indicate that while the Government supported the development of a crime of aggression within the International Criminal Court (ICC), it would not support the Bill, not even to send it to select committee, primarily because it would restrict New Zealand’s discretion to use force when force was not sanctioned by the Security Council or in self-defence. He gave the example of the use of force by NATO, clearly illegal in international terms, against Serbia to save the Albanians in Kosovo from Serbian atrocities and asked rhetorically whether New Zealanders would want to restrict the use of such force when it was not sanctioned by the UN. He also pointed to interventions in the South Pacific, such as in the Solomon Islands, which did not initially get Security Council approval.^[5]
New Zealand, like many other states, appears to be trying to have it both ways – to support the criminalisation of aggression and retain the option to use force in intervention when not sanctioned by international law. The problem is that aggression is a process – it may be to achieve a value – say justice for the Albanians in Kosovo – or a property goal – lebensraum for the Germans. But as currently formulated, the crime of aggression is disinterested in these motives; it is interested only in those who deliberately violate the prohibition on the use of force in international law in pursuit of them. The crime protects a different rule and a different value – the sovereignty and territorial inviolability of states. It may be, that as the definition of aggression is developed under the Rome Statute,^[6] a margin of appreciation will be built in that allows some limited use of force in breach of a strict interpretation of the UN Charter (the necessity for a Security Council sanction of prosecution would have the same effect). The purpose of this short paper is to illustrate that New Zealand has not always been so ambivalent about the criminalization of aggression.
At Nuremberg, after setting out the provenance of the Charter for the Tribunal in US, Russian, French and British action, Justice Jackson was at pains to point out to the Tribunal that there was significant support for the prosecution of the crime of aggression, including from New Zealand. He said:

But the Agreement which sets up the standards by which these prisoners are to be judged does not express the views of the signatory nations alone. Other nations with diverse but highly respected systems of jurisprudence also have signified adherence to it. These are Belgium, The Netherlands, Denmark, Norway, Czechoslovakia, Luxembourg, Poland, Greece, Yugoslavia, Ethiopia, Australia, Haiti, Honduras, Panama, New Zealand, Venezuela, and India. You judge, therefore, under an organic act which represents the wisdom, the sense of justice, and the will of 21 governments, representing an overwhelming majority of all civilized people.^[7]

However, New Zealand did not only provide passive support for the Nuremberg process and the crime of aggression in 1946. Between 1946 and 1948, it participated directly in the prosecution and judgment of 28 Japanese leaders at the International Military Tribunal for the Far East (hereinafter the Tokyo IMT) for the crime of aggression in East Asia and the Pacific, and joined in the decision to hang seven of them.

II. THE TOKYO IMT – NEW ZEALAND’S FIRST INTERNATIONAL
CRIMINAL TRIAL

A. Introduction

The Tokyo IMT is 60 years old. Yet there are few in New Zealand today who know much about this trial of Japan’s war leaders, held between 1946 and 1948, and in which New Zealand participated.^[8] This neglect is not particularly surprising. Critics have labelled the trial ‘victor’s justice’, because the victors – a US lead coalition joined by New Zealand – prosecuted the defeated Japanese leaders for a crime that did not exist prior to the prosecution.^[9] The Tokyo IMT was one of a large number of Allied trials of Japanese personnel accused of war crimes. It differed from the other trials because it did not deal with the middle and junior ranks allegedly responsible for war crimes such as maltreatment of Prisoners of War (POWs). It was instead a trial of Japan’s leaders primarily for their alleged responsibility for crimes against peace, crimes that had only ever been prosecuted before at Nuremberg.
The Allied leaders – Stalin, Roosevelt and Churchill – had enunciated a clear intention to mete out ‘stern justice’ to ‘war criminals’ in a Declaration made at Potsdam in the ruins of the German Reich on 26 July 1945. Japan and the nine Allied Powers that signed the Instrument of Surrender on 2 September 1945 undertook to ‘carry out the provisions of the Potsdam Declaration in good faith’ and to follow the orders of the Supreme Commander for the Allied Powers – General Douglas MacArthur – in giving effect to the Declaration.^[10] One of MacArthur’s tasks was thus the punishment of war criminals. Under instruction from his superiors in Washington he established the Tokyo IMT by proclamation. According to its Charter the purpose of the Tokyo IMT was the trial of ‘major war criminals’. The Proclamation required that each such criminal be charged with crimes against peace, but the Charter also provided for the Tokyo IMT’s jurisdiction over war crimes and crimes against humanity.
From a legal point of view, the way in which the Tokyo IMT was established avoided much of the controversy associated with Nuremberg. While the Nuremberg IMT was based on a treaty among the four major Allied Powers and imposed a process on Germany without German participation, the Tokyo IMT was based on a treaty – the Instrument of Surrender – between the Allies on one hand, and Japan on the other, which explicitly contemplated war crimes trials. The main complaint made by Japanese defence counsel was that Japan had not anticipated prosecution of its leaders for crimes against peace. The best answer to this is that when it signed the Instrument of Surrender, Japan granted MacArthur, as Supreme Commander, the discretion to proclaim that war criminals included those responsible for crimes against peace. When the defence challenged the legality of the Tokyo IMT, the response was set by the draft opinion of the members for the UK, Canada and New Zealand. They made it clear that they could not see what the issue was; the Allies were entitled under international law to try war crimes and it was not for the defence to challenge how they did so or what crimes they applied.^[11] The defence’s stronger argument was that making aggressive war may have been an international wrong – a wrong against a State, but it was not a crime at the time Japan invaded Asia or the Pacific.
The 28 accused were indicted in March 1946 on 36 counts of crimes against peace, 16 of murder and only three counts of conventional war crimes. Two years later, 25 of the accused were convicted on at least one of 10 counts, including a conviction of at least one count of crimes against peace. Seven were sentenced to death, 16 to life, one to 20 years and one to seven years.

B. A Trial of Japan’s Leaders

The accused were a selection of Japanese leaders across a 15 year period of war-making in Asia and the Pacific. They included ideologues such as Shumei Okawa, finance officials such as Hoshino, Naoki, commanders in the field such as the commander at Nanking General Matsui, Iwane, civilian leaders such as Prime Minister Hirota, Kōki, the Emperor’s closest advisor Kido, Kōichi, and military leaders including the ‘Hitlerised’ (by Western propaganda) General Tōjō, Hideki.
Although Australia, the USSR, China and New Zealand, were in favour of the indictment^[12] of the Emperor Hirohito, he was not indicted apparently at MacArthur’s insistence, because of the risk of political unrest in occupied Japan. In private correspondence, the Associate Prosecutor from New Zealand, Brigadier R H Quilliam, illustrated that members of the prosecution were aware of the reason for this:

It has always been obvious that, excepting for the fact that it was important from the point of view of policy that the Emperor should not be made a defendant, he should have been prosecuted.^[13]

The majority judgment of the Tokyo IMT was silent on the issue. However, its views are probably well represented by the opinion of the New Zealand Judge Harvey Northcroft’s who said after the trial that the Emperor was inclined against the aims of the conspirators, did not have much power and lacked the personal qualities to make a difference. Northcroft concluded:^[14]

Whatever his responsibility in law for the aggressive schemes to which he was privy, it is certain that he took no active part in fostering them. It would not seem, therefore, that the trial of the Emperor was warranted by the demands of justice.

Sir William Webb, the Australian president of the Tribunal, and Judge Henri Bernard, the French Judge, disagreed and made this patent in separate judgments. The leaders of the zaibatsu, large industrial conglomerates which had supported the Japanese war effort such as Mitsubishi, also escaped indictment. For Northcroft, they were merely ‘willing tools’ in the hands of the military, indistinguishable in this sense from the rest of the Japanese people.^[15]

C. A Multi-National Trial

MacArthur appointed the 11 member bench in February 1946, drawing on a single nominee each from the USSR, UK, US, China, France, the Netherlands, Canada, Australia, India, the Philippines, and New Zealand.^[16] There were no Japanese judges, despite the fact that Charter did not prohibit the appointment of Japanese judges and Japan was a party to the Instrument of Surrender. Northcroft, after the trial, commented that neutral judges would have been ideal but those conditions had yet to be realised.^[17]

Figure 1. Judges of the Tokyo IMT
(Courtesy of the MacMillan Brown Archives, University of Canterbury)

Front row: Lord Patrick (UK); General Cramer (US); the President of the Tribunal, Sir William Webb (Australia); Judge Mei (China); General Zaryanov (USSR).

Back row: Judge Pal (India); Judge Röling (Netherlands); Judge Bernard (France); Judge MacDougall (Canada); Judge Northcroft (New Zealand) and Judge Jaranilla (Philippines).

D. A US Trial

The US was the primary architect of the trial. It was driven by a need to avenge Pearl Harbour and other subsequent massacres such as the Bataan death march, but also to educate the Japanese people about the wrongs Japan had committed and to undermine the governmental system in Japan so that it could be rebuilt in ways that suited US purposes.
The Allies' main policy organ in Japan itself was the Allied Council in Japan, with which General MacArthur was supposed to consult. The US tended, however, to minimise the Council’s influence.^[18] After the Emperor of Japan formally renounced his divinity, Quilliam commented in The Times of 4 February 1948: ‘The Emperor has renounced his divinity. It has been taken up by General MacArthur’.^[19] There was no Allied condominium in respect of Japan.
The US designs were, however, hampered by the poor quality of the personnel it sent to execute them. The Chief Prosecutor, Joseph Keenan, who was assisted by the other Allied Associate Prosecutors, was a former Deputy US Attorney General renowned as a ‘gang-buster’ and a political fixer. His performance was heavily criticised. Quilliam for one became convinced that the prosecution was being seriously prejudiced by Keenan, and precipitated a series of meetings at which the US prosecutors finally agreed to attempt to get Keenan to resign^[20] but MacArthur refused, denying he had the authority. Although clearly angry about the situation, Quilliam commented privately:

I feel that it would be unwise for New Zealand to make representations to the United States when it is known that with a full knowledge of Keenan’s unfitness, incompetency, and drunkenness, that Country and also General MacArthur have decided that he should continue in his appointment.^[21]

New Zealand clearly had problems with the way the trial was run. Together with the UK, it had objected to the replacement of the original US appointee to the bench, Judge Higgins, by the US Judge Advocate General, Judge Cramer, after the trial had begun,^[22] and suggested that Cramer sit only as an observer in respect of any trials that had commenced or that the trial begin again de novo,^[23] but the US did not agree^[24] and the replacement took place. The New Zealand Prime Minister Peter Fraser found the US justification for this ‘unconvincing’, but left the matter to ‘the judgment of history’.^[25]
As US public support for the trial declined and Japan’s role as a potential ally in the Cold War increased the US sought to bring the trial to a swift close. A member of the New Zealand Legation in Washington commented at the time on the ‘very very poor’ reporting of the trial in the US.^[26] When the trial was over, the US buried it and got the convicts paroled as quickly as possible, the last being released within 10 years of conviction. However, the US was not the only state represented at the Tokyo IMT.

E. An Asian Trial

The Tokyo IMT was also the venue for the well-known dissenting judgment of the Indian Judge Radhabinod Pal, who savaged the trial as a sham employment of legal process to satisfy the Allied thirst for revenge. His analysis had bite because the trial straddled the questions of self-determination of Asian states, but it failed as a critique of the behaviour of Asian states towards one another. Most pertinent in this regard was China. While many think of the trial as a US trial in response to Pearl Harbour, the trial record reveals that most of the evidence led was about Japan’s two-phase invasion of China – of Manchuria starting in 1932 and of the rest of China starting in 1937 – and the atrocities committed there by the Japanese.

F. An Australian Trial

Perhaps the most complex figure at the trial was its President, Sir William Webb, former Chief Justice of Queensland (he had just been appointed to the Australian High Court). Heavily criticised for his handling of the trial, his relations with his “British” colleagues the Scot Lord Patrick, the New Zealander Northcroft and the Canadian Judge MacDougall, soured shortly after the trial began, when they criticised his draft judgment on the legal issues involved in the jurisdiction of the Tribunal and drafted their own. Northcroft’s view of Webb is illustrative. He commented in a private letter in July 1946:

I am satisfied that he has a good brain and that his judicial instinct is entirely sound. At the same time he is brusque to the point of rudeness, he does not control the court with dignity, he is peremptory and ungracious in his treatment of counsel and witnesses, and instead of giving shortly his legal justification, which in most cases exists, for his decisions, he leaves everyone in the Court with the impression that his rulings are dictated by petulance or impatience, and an impression which may easily develop in the future, of prejudice. At the present moment I think these criticisms are unjust, but I fully expect them to be made, and I think the responsibility for them will come from Webb himself and not from those who will criticise him.^[27]

Webb’s draft judgment was condemned by Northcroft, a former moderator of law exams, as reading like ‘a student’s not very good essay on international law’.^[28] By May of 1947, Northcroft had changed his mind on Webb’s judicial intelligence:

He is very vain (so of course are many of us) but he is stupid too and his vanity often provokes his stupidity. ... He has brains but they are not of the order nor equipped in the way one expects in a Judge. They are more of the kind one sees in the unintellectual but cunning type of politician. He has shown himself to be untruthful and he can be mean.^[29]

Relations grew so bad that Northcroft, Patrick and MacDougall all requested permission from their governments to resign but were refused.^[30] Northcroft considered criticism of Webb’s and Pal’s absence during the trial as justified^[31] and thought it would ‘condemn the trial utterly’.^[32] He requested that the New Zealand Prime Minister consider withdrawing New Zealand from the Court, but the Prime Minister Peter Fraser declined to do so.^[33] Ironically, it has been suggested that Webb was recalled to Australia for a period during the closing stages of the trial because Fraser had complained about him to the Australian Prime Minister Ben Chifley at the Canberra Conference in 1947.^[34]
The result of this feuding was the breakdown of judicial coherence. Northcroft revealed the split in a letter to the Chief Justice of New Zealand:

A strong or even sensible President would have cleared off the questions of law at the time we heard the argument. There is a simple view which most of us regard as unanswerable. We think the Charter declares the law and that we are merely a fact finding body. If the law of the Charter is bad we are not empowered to review it. Our appointment is only to implement the Charter and we are given no authority to pronounce upon its statement of the law. If any of us disagreed with the law of the Charter we should have declined to accept office under it. Others, including some who hold the foregoing conclusions, think this is an opportunity to write learned treatises on international law in defence of the Charter, but each upon different grounds. Still others, one of whom was of the original nine, deny the law of the Charter and our right to try these accused at all. One of these dissentients has written a draft “dissenting judgment” of no less than 250 pages and another dissentient has written not so lengthily but still at very considerable length. This Tribunal, if it is to make a useful contribution to international law, must be entirely or substantially of one mind. The chance to secure that, I fear, has gone.^[35]

Although he signed it, Webb played little part in the majority judgment that was finally issued in the name of the Tribunal. Webb and the Philippines Judge, Jaranilla, both wrote separate supporting judgments, while Pal, the Frenchman, Bernard, and the Dutchman, Röling, dissented in whole or in part. But the majority judgment was largely the work of his three ‘British’ colleagues, including the New Zealander, Northcroft.

G. A New Zealand Trial

The Tokyo IMT was New Zealand’s first foray into the world of international criminal law. New Zealand was not conducting its own Class B and C trials in the Pacific largely because of the small numbers of New Zealanders taken prisoner by the Japanese – most New Zealand POWs were held in Europe. In the UN War Crimes Commission (UNWCC), New Zealand had supported the notion that crimes against peace were international crimes.^[36] Yet when it came to applying that idea in practice, New Zealand hesitated. A telegram sent in late 1945, from the Secretary of State for Dominion Affairs to the New Zealand Minister of External Affairs, suggests some reluctance to get involved in an international tribunal to prosecute major war criminals in Japan along the lines of the Nuremberg Tribunal.^[37] The initial surprise in New Zealand, Canada and Australia at the Potsdam Declaration’s demand for trial of Japanese war criminals, transformed, once the process was under way, into some enthusiasm for a place at the table and resulted in the declaration of an interest in prosecution of these alleged criminals.^[38]
Drawn into the process by the political magnetism of the emerging superpower, New Zealand played a direct role in the ratification of the process by which the Tribunal was established. On 21 August 1945, it had been invited, along with the UK, China, Australia, Canada, the Netherlands, and France, to form an international consultative body on the terms of Japan’s surrender. They were joined on 7 October 1945 by India and the Philippines.^[39] This Far East Asian Commission, which transformed into the Far Eastern Commission (FEC), met in the former Japanese Embassy in Washington. New Zealand was represented by Sir Carl Berendsen, the New Zealand Ambassador to the US. The FEC’s primary action was to sanction General MacArthur’s establishment of the Tokyo IMT.
As a minor power New Zealand had some difficulty with the US over acknowledgement of its role in the trial. It vehemently opposed a US draft indictment that had joined the four major powers and the Japanese Government in bringing the charges, arguing that all states and countries that had signed the Instrument of Surrender should be joined.^[40] Moreover, in terms of Article 8 of the Tokyo Charter any ‘United Nation with which Japan had been at war’ could appoint an Associate Prosecutor to assist the Chief Prosecutor in the prosecution. The US conceded and in its final form the Indictment joined the Allies involved in the war against Japan, although the order suggests a hierarchy: the US, China, UK, USSR, Australia, Canada, France, Netherlands, New Zealand, India and the Philippines.
As noted above, Quilliam prosecuted for New Zealand. It was most probably through his input that the Indictment alleged a limited range of inchoate crimes against New Zealand including the grand conspiracy in count 1 to conquer ‘all the countries and islands’ in the Pacific Ocean, a more limited conspiracy to dominate the area in count 4, and the ‘planning and preparing’ of a war of aggression against New Zealand in count 10. As we have seen, Quilliam’s view of the trial grew more negative as it went on, principally because of the US control and of the personality of the Chief Prosecutor, Keenan. He commented:

The fact is that the Americans have assumed the responsibility for the conduct of the trials and they have made a very bad job of it. Their basic error was in appointing Keenan and in allowing him to continue in his appointment, but there are many other causes, for which the Americans must be held responsible, that have operated to the prejudice of the trials.^[41]

Qulliam’s compatriot, Judge Erima Harvey Northcroft was among the most experienced and senior judges on the bench in Tokyo.

Figure 2. Judge Erima Harvey Northcroft
(Courtesy of the MacMillan Brown Archives,
University of Canterbury)

Northcroft was 62 in 1946. He had been awarded the DSO in WWI, held the post of Judge Advocate General in New Zealand, and had been appointed to the High Court in 1939.
Despite the super-heated political context of a trial after four years of war against Japan, Northcroft retained his judicial composure. Concerned about the validity of the procedure, it was Northcroft, then acting President, who requested MacArthur provide at least one American lawyer per accused as a defence counsel because of the inexperience in the adversarial process of Japanese lawyers.^[42] Ironically, he later condemned the same US lawyers, who used the full gamut of US defensive tactics, as being ‘technical and obstructive to the greatest degree’.^[43] Northcroft was also defensive of the trial process, arguing, for example, that evidence construing Japan’s actions as self-defence against aggressive Western powers, had been refuted by a reasoned and objective enquiry.^[44] With regard to the rather sketchy findings against each individual accused he said after the trial:

The guilt or innocence of each individual depended not upon a single act or circumstance, but upon the cumulative effect of all evidence showing the membership of that individual in a conspiracy to wage an aggressive war or wars, his knowledge of the purposes of that conspiracy, and the part which he played in promoting it. It was only by studying the whole record of the individual concerned that his responsibility for crimes against peace could be assessed.^[45]

However, he was not always onside with his fellow judges on the factual issues. His doubts, for example, about whether Australia and New Zealand (which had declared war before being attacked by Japan) had actually been attacked or had been attackers, drew a sharp rebuff from Webb.^[46]
In addition, at a substantive level, Northcroft was keen to assert that the issues before the court were the subject of legal not political decision-making. Quilliam was among those who argued that the Tokyo Charter should have simply proclaimed, in continuity with the assumptions made by the Cairo Conference and the Potsdam Declarations, that Japan had committed aggression, leaving it to the Tokyo IMT to decide on individual guilt.^[47] In Quilliam’s view:

If the Prosecution are required to discharge the onus of proving affirmatively that Japan was guilty of waging an aggressive war, it would appear to follow that the Tribunal has the power to find that in fact Japan was guiltless, and that on the other hand, the countries of the United Nations in fighting against Japan were guilty of initiating and waging aggressive war. It would probably shock the people of those countries if they realised that such a finding is legally possible. They would understand that the Tribunal might decide that on the evidence submitted to it, a particular individual was not guilty. They would, however, be unable to understand how it could come about that Japan could be exonerated, and their own countries held guilty. It would appear to be scarcely credible that the Governments of the countries of the United Nations have agreed, by undertaking the prosecution, to the Tribunal deciding the question of the responsibility of the War.^[48]

But Northcroft felt otherwise, stating that following this course of action ‘would have made plausible the popular criticism that such trials are acts of vengeance or retribution visited by victorious nations upon the vanquished’.^[49] The most significant modern analogue to Quilliam’s argument is the danger of leaving decisions about prosecution of aggression in the ICC to the UN Security Council, dominated by the five permanent members.
Northcroft was obviously aware of the weakness of the precedent to be set by a divided court, particularly in respect of the crime of aggression. In a private letter to the Chief Justice of New Zealand, he said:

If a Court of this standing is seriously divided, and I feel sure it will be, then the modern advances in international law towards the outlawry of war may suffer a serious setback. The Judgment of the Nuremberg Court seems to be generally approved and considered a valuable contribution to international law. Varying opinions from this Court including sharp dissent from Nuremberg must be disastrous. This I feel sure will happen.^[50]

And so it did. Unsurprisingly, Northcroft was circumspect about the usefulness of the trial:

I can only hope that the judgment itself, when it comes to be written, will indicate for future students of International Law that at least the Bench has done its work properly. ^[51]

In a report made after the trial to the NZ Prime Minister he cautioned against engaging in such a trial again:

I suppose it is unlikely for a long time ... that there will be another invitation to send a New Zealand Judge on a similar errand. Were such a proposal to be made, however, I suggest it would require the gravest consideration if, as with this Tribunal, it were to be substantially an American affair. ^[52]

Instead he advocated the establishment of a permanent international criminal court as a matter of urgency, with jurisdiction to try all major breaches of international criminal law, including crimes against peace.
Northcroft was assisted by Flight Lt. Harold Evans, who later became a District Court Judge in Christchurch, and rather unsurprisingly, like the Dutch Judge, Röling, a peace activist. Evans was overwhelmed with the amount of work in processing the record so New Zealand sent out a young barrister, Captain Quentin Quentin-Baxter, to serve as Northcroft’s clerk. Quentin-Baxter had an inordinate impact on the judgment, as he later had on the teaching and practice of international law in New Zealand. He drafted the factual findings on the conspiracy – which were accepted almost without alteration by the Majority – and form the basis of the judgment today. These factual findings included the finding that Japan intended to dominate the whole Asia-Pacific region, from East India and Burma on the one hand to Australia and New Zealand on the other.^[53]

III. CONCLUSION

It would seem that New Zealand was coaxed into participating in the Tokyo IMT by an initially enthusiastic US, and probably came to regret doing so. The trial has been condemned by its critics as vengeance. But there was a trial, evidence, argument. Apart from Northcroft, Quilliam, Quentin-Baxter and Evans, a skim through the footnotes of this paper will reveal that New Zealanders, who were highly influential in the development of New Zealand’s foreign policy, participated in one way or another in this process – Sir Carl Berendsen, G.R. Powles, Foss Shanahan, A.D. McIntosh. As a result of Nuremberg and Tokyo, the crime of aggression exists. Today, the New Zealand government does not want to apply that crime to its own leaders. Might not the Japanese now claim that New Zealand’s reluctance in this regard compounds revenge with hypocrisy?
The criminalisation of aggression remains on the international agenda. In 2010, in Uganda, the Review Conference of the Rome Statute will discuss the adoption of a definition of the crime of aggression in order to become justiciable before the ICC. As a party to the Rome Statute New Zealand will take part in that discussion, and it will have to decide whether to support that definition or not. If it does, it will have to accept an obligation to legislate that crime into being in New Zealand criminal law. It would be ironic if New Zealand chose not to accept this obligation, given that New Zealand prosecuted aggression at Tokyo. And if the effort in Uganda fails, or stalls, what then of the International Non-Aggression and Lawful Use of Force Bill?

^[∗] Professor, School of Law, University of Canterbury, Christchurch, New Zealand. This paper is a development of a presentation given at the Colloquium on International Aggression as a Crime: Implications for International and Domestic Law.
^[1] IMT Judgment, 186, reprinted in ‘Judicial Decisions: International Military Tribunal (Nuremberg) Judgment and Sentences’ (1947) 41 American Journal of International Law 172.
^[2] The Trial of German Major War Criminals: Proceedings of the International Military Tribunal Sitting at Nuremberg, Germany, (Nuremberg: 1947), Volume II, 154.
^[3] Bill available at NZ Parliament, <http://www.legislation.govt.nz/bill/member/2009/0062/
latest/whole.html#dlm2252901> at 23 September 2009.
^[4] Charter of the United Nations, opened for signature 26 June 1945, 1 UNTS XVI (entered into force 24 October 1945).
^[5] New Zealand, Parliamentary Debates (Hansard), 19 August 2009, 656, 5740, online: <http://www.parliament.nz/en-NZ/PB/Debates/Debates/6/b/b/49HansD_20090819_00001543-International-Non-Aggression-and-Lawful.htm> at 16 November 2009.
^[6] Rome Statute of the International Criminal Court, opened for signature on 17 July 1998, 2187 UNTS 3 (entered into force 1 July 2002).
^[7] The Trial of German Major War Criminals, above n 2, 143.
^[8] The principal trial documents including judgment is reproduced in Neil Boister and Robert Cryer (eds), Documents on the Tokyo War Crimes Tribunal: Charter, Indictment and Judgments (2008), 16 (hereinafter Boister and Cryer, Documents). The original transcript of the trial (hereinafter Transcript) and Judgment of the Tribunal (hereinafter Judgment) in THE UNITED STATES OF AMERICA et al. AGAINST ARAKI, Sadao et al, Int. Mil. Trib. Far East, Nov. 4-12, 1948, is available at a number of locations including the MacMillan Brown Archives, University of Canterbury, Christchurch, New Zealand. The comprehensive published edition of the trial documents is R J Pritchard (ed), The Tokyo Major War Crimes Trial: The Records of the International Military Tribunal for the Far East with an Authoritative Commentary and Comprehensive Guide (1998-2005, 124 vols). A selection of the main sources available in English include: Neil Boister and Robert Cryer, The Tokyo International Military Tribunal: A Reappraisal (2008) (hereinafter Boister and Cryer, Reappraisal); Richard H Minear, Victor’s Justice: The Tokyo War Crimes Trial (1971); Yuma Totani, The Tokyo War Crimes Trial: The Pursuit of Justice in the Wake of World War II (2008).
^[9] See generally, Minear, above n 8.
^[10] Judgment, 48417, Annex A-2 of the Judgment.
^[11] Jurisdiction: Opinion of Members for the United Kingdom, Canada and New Zealand, no date, Papers of William Flood Webb, Box 1, Wallet 7, Jurisdiction, 3DRL/2481, Australian War Memorial, 19, 20.
^[12] Memorandum from Department of External Affairs, Wellington, to NZ High Commission, London, 2 February 1946, File no. EA 106/3/22, Part 2, Archives New Zealand.
^[13] Letter from Quilliam to Foss Shanahan, Department of External Affairs, Wellington, 31 October 1947, File No. 106/3/22, Part 6, Archives New Zealand.
^[14] Northcroft, below n 15, 3.
^[15] Mr Justice EH Northcroft, Memorandum for the Right Honourable the Prime Minister Upon the Tokyo Trials 1946-1948, 12, File no. EA 106/3/22, part 9, Archives New Zealand.
^[16] See Article 2 of the Tokyo Charter. The original US proposal had been for three judges each from the smaller states, such as New Zealand, and five from the larger - Memorandum from US Secretary of State to Secretary of External Affairs Wellington, 19 October 1945, setting out the US’s provisional proposals, File no. EA 106/3/22, Part 1, Archives New Zealand.
^[17] Northcroft, above n 15, 16.
^[18] Leslie C Green, ‘Law and Administration in Present-Day Japan’ (1948) 1 Current Legal Problems 188, 194, 196.
^[19] Ibid 196, footnote 23.
^[20] Quilliam remarked on Keenan’s inebriation on a number of occasions, and by his own admission put the matter before a meeting of the Associate Prosecutors held on 20 June 1946. At a meeting on 21 June 1946, Keenan’s assistant Eugene Williams revealed that Keenan was an alcoholic but had been abstemious for the twelve months prior to his appointment but had begun drinking again when he arrived in Tokyo – in a letter to McIntosh of 25 June, also in File no. EA 106/3/22, Part 3, Archives New Zealand.
^[21] Letter to A D McIntosh, Secretary of External Affairs, Wellington, 26 July 1946, File no. EA 106/3/22, Part 3, Archives New Zealand.
^[22] See Extract from Cable Summary No. 25 to NZ Legation in Washington, 29 July 1946, File no. EA 106/3/22, Part 3, Archives New Zealand.
^[23] See Letter to Brigadier Quilliam from PM’s Office Foss Shanahan, 27 July 1946, File no. EA 106/3/22, Part 3, Archives New Zealand.
^[24] See generally Letter from NZ Minister in Washington, Sir Carl Berendsen, to the Minister of External Affairs, Wellington, 10 September 1946, File no. EA 106/3/22, Part 4, Archives New Zealand.
^[25] Letter from the PM Peter Fraser to the NZ Minister in Washington, Sir Carl Berendsen, 20 September 1946, File no. EA 106/3/22, Part 4, Archives New Zealand.
^[26] Letter from the G R Powles of the NZ Legation to Foss Shanahan, Department for External Affairs, 3 December 1947, File No. 106/3/22, Part 6, Archives New Zealand.
^[27] See Letter from Judge Northcroft to A D McIntosh, Secretary for External Affairs, Wellington, 2 July 1946, File no. EA 106/3/22, Part 3, Archives New Zealand.
^[28] Letter from Northcroft to NZ Chief Justice O’Leary, 18 March 1947, File no. EA 106/3/22, Part 5, Archives New Zealand.
^[29] Letter from Judge Northcroft to M Myers, Wellington, 18 May 1947, File no. EA 106/3/22, Part 5, Archives New Zealand. The letter was read to the Canadian and UK Judges and they agreed with its summation of Webb, and Northcroft intimates that all they shared his view. Northcroft later gave examples from the Record where Webb made decisions without consultation (13893), permitted improper and offensive questions by the defence
(14339-14341), was inexcusably disloyal to Lord Patrick (14625-6), publicly rebuked Northcroft for sending him a note (15444-15452; 15455-6), and primed the prosecution to give advice to the court on a matter before a planned discussion by the judges (16103-16106); Letter from Northcroft of 18 March 1947 to the NZ Chief Justice, Sir Humphrey O’Leary, File no. EA 106/3/22, Part 5, Archives New Zealand.
^[30] Letter from Northcroft of 18 March 1947 to the NZ Chief Justice, Sir Humphrey O’Leary, File no. EA 106/3/22, Part 5, Archives New Zealand.
^[31] Cable of 24 December 1947 to Foss Shanahan, New Zealand, File no. EA 106/3/22, part 6, Archives New Zealand.
^[32] Letter to Chief Justice O’Leary, Wellington, 10 November 1947, File No. 106/3/22, Part 6, Archives New Zealand.
^[33] See Memorandum, International Military Tribunal for the trial of Far Eastern War Criminals, 2 December 1947, Department of External Affairs, New Zealand, containing extracts of his letters, File No. 106/3/22, Part 6, Archives New Zealand.
^[34] Lord Patrick to Gascoigne, 9 October 1947, LC02 2992, Public Records Office, United Kingdom, cited in M Harries and S Harries, Sheathing the Sword: The Demilitarisation of Japan (1987), 167.
^[35] Letter from Northcroft to NZ Chief Justice O’Leary, 18 March 1947, File no. EA 106/3/22, Part 5, Archives New Zealand.
^[36] The UNWCC only confirmed the London Agreement after it had been reached, by a Resolution of 30 January 1946.
^[37] Telegram from Minister of External Affairs Canberra to Minister of External Affairs Wellington, 2 November 1945, referring to US provisional proposals, File no. EA 106/3/22, Part 1, Archives New Zealand.
^[38] Telegram from Secretary of State for Dominion Affairs to Minister for External Affairs Wellington, 24 October 1945, referring to US provisional proposals, File no. EA 106/3/22, Part 1, Archives New Zealand.
^[39] See ‘Statement on the Establishment of the Far Eastern Commission to Formulate Policies for the Carrying out of Surrender Terms’, (1945) 13 US Department of State Bulletin 545.
^[40] Cable of Secretary of State for Dominion Affairs, London, to Minister of External Affairs, Wellington, 8 March 1946; Cables of 9, 11, and 15 March 1946, from NZ Dept of External Affairs to NZ Prosecutor, File no. EA 106/3/22, part 1, Archives New Zealand. See also the Explanatory Memorandum on Indictment accompanying Quilliam’s letter to NZ External Affairs of 29 April 1946, File no. EA 106/3/22, part 2, Archives New Zealand New Zealand.
^[41] Letter to AD McIntosh, Secretary for External Affairs, Wellington, 2 July 1946, File no. EA 106/3/22, Part 3, Archives New Zealand.
^[42] Transcript, 38939.
^[43] Letter from Northcroft of 18 March 1947 to the NZ Chief Justice, Sir Humphrey O’Leary, File no. EA 106/3/22, Part 5, Archives New Zealand.
^[44] Mr Justice E H Northcroft, Memorandum for the Right Honourable the Prime Minister Upon the Tokyo Trials 1946-1948, p 18, File no. EA 106/3/22, part 9, Archives New Zealand.
^[45] Mr Justice E H Northcroft, Memorandum for the Right Honourable the Prime Minister Upon the Tokyo Trials 1946-1948, p 11, File no. EA 106/3/22, part 9, Archives New Zealand.
^[46] Memorandum to: All Judges, From: The President, 13 September 1948, Papers of William Flood Webb, Series 4, Wallet 19, 3DRL/2481, Australian War Memorial.
^[47] Brigadier R H Quilliam, Report on the Proceedings of the International Military Tribunal for the Far East, p 17-18, File no. EA 106/3/22, Part 7, Archives New Zealand.
^[48] Ibid 18-19
^[49] Northcroft, above n15, 14.
^[50] Letter from Northcroft to Chief Justice O’Leary, 18 March 1947, File no. EA 106/3/22, Part 5, Archives New Zealand.
^[51] See Letter from Judge Northcroft to A D McIntosh, Secretary for External Affairs, Wellington, 2 July 1946, File no. EA 106/3/22, Part 3, Archives New Zealand.
^[52] Letter to Chief Justice O’Leary, 13 September 1948, File No. 106/3/22, Part 8, Archives New Zealand.
^[53] Judgment, 48972.