Prosecuting International Crimes in Africa - PULP - University of ...

40 Chapter 2
Tribunal 38 which was established by the Charter of the International
Military Tribunal, annexed to the London Agreement signed on 8 August
1945. 39 The Charter outlawed state officials’ defence of immunity for
crimes against peace (aggression), crimes against humanity and war
crimes. 40 Therefore, the immunity of state officials has been rejected at
least since the Nuremberg Trials. 41 Nevertheless, Adolf Hitler and Benito
Mussolini were never indicted.
The Charter of the International Military Tribunal was followed by the
Allied Control Council Law 10 on the Punishment of Persons Guilty of
War Crimes, Crimes against Peace and Against Humanity, 42 which
rejected the defence of immunity attaching to state officials. 43 The
Proclamation by the Supreme Commander for the Allied Powers issued on
19 January 1946 at Tokyo further called for the establishment of an
International Military Tribunal for the Far East. 44 The Tribunal was
established by the Charter of the International Military Tribunal for the
Far East (the Tokyo Charter) in 1946. 45 The Tokyo Charter outlawed the
defence of immunity of state officials in relation to international crimes. 46
Subsequent to World War II, international law on the doctrine of
immunity of state officials developed further. Different international
conventions, principles and statutes of international criminal tribunals and
courts rejected the defence of immunity of state officials before
international courts and tribunals. In fact, international law (both
conventional and customary international law) outlaws the defence of
immunity of a head of state in respect of international crimes. 47 In all these
38
MP Scharf Balkan justice: The story behind the first international war crimes trial since
Nuremberg (1997) 9-11. On the disposition and outcome of the Nuremberg Trials, see E
de Aragao (n 38 above) 16; MC Bassiouni Crimes against humanity in international law
(1992) 586-589.
39 Art 1 Agreement by the Government of the United States of America, the Provisional
Government of the French Republic, the Government of the United Kingdom of Great
Britain and Northern Ireland and the Government of the Union of Soviet Socialist
Republics for the Prosecution and Punishment of the Major War Criminals of the
European Axis.
40 Art 7 Charter of the International Military Tribunal, 1945.
41 K Kittichaisaree International criminal law (2001) 259.
42
Official Gazette of the Control Council for Germany Berlin, 31 January 1946.
43 Arts II (4)(a) & (5) Allied Control Council Law 10 on the Punishment of Persons
Guilty of War Crimes, Crimes against Peace and Against Humanity.
44
Art 1 Proclamation by the Supreme Commander for the Allied Powers, Tokyo, 19
January 1946. The proclamation was ordered and signed by Douglas MacArthur (the
Supreme Commander for the Allied Powers).
45
On the Tokyo Tribunal, see U Kei Beyond the judgment of civilization: The intellectual legacy
of the Japanese war crimes trials 1946-1949 (2003) 1-336; C Hosoya et al The Tokyo war
crimes trial (1986) 1-226.
46
Art 6 Charter of the International Military Tribunal for the Far East, 1946.
47
See, generally, Principle III Principles of International Law Recognized in the Charter
of the Nuremberg Tribunal and in the Judgment of the Tribunal, 1950 (1950) 82
Yearbook of the International Law Commission 374-378; Report of the International Law
Commission Covering its Second Session 5 June-29 July 1950 Doc A/1316 11-14; art 1