１．Tokyo Trials (1946)
Problems with the application of ex post facto law are often raised regarding the Tokyo Trials. However, the "crimes" themselves, as charges (indictments), were vague, incomprehensible, and merely moral norms. If the charges used in the Tokyo Trials were considered "crimes," then most post-World War II American presidents, secretaries of defense and state, military leaders, intelligence officials, White House officials, and senior government officials would be deemed "criminal offenders." If the above "crimes" were applied, how many American presidents could we name who would not be deemed "war criminals"?
The selection of judges at the Tokyo Trials was also completely unacceptable. Judge Pal was the only decent person. In fact, the Tokyo Trials' verdicts cannot be considered decent legal documents written by decent lawyers.
The trial procedures were also plagued by repeated aberrations, and were far from due process of law. Even I, who had no connection or vested interest with the "defendants" and studied the trial as just another historical event, felt outraged. It was a method that inspires a sense of justice.
As was said at the time, the Tokyo Trials had a strong flavor of being a one-sided political spectacle orchestrated by the "victorious nations" (which included the Soviet Union). The "conservative" Allied commentator who brazenly insists, "That's fine. "
However, to this day, I have never come across an article or book that rationally explains the legal legitimacy of the Tokyo Trials, both in terms of substantive law and procedural law.
This is our starting point.
２．Hitler (der Führer)
If Hitler had been captured alive, could he have been found guilty as a "war criminal"? Many people will surely construct a forceful argument for him being a "political prisoner." However, the question remains as to whether he can be found guilty of criminal offenses in legal theory. Where, who, and under what procedures have the right to judge? Both procedural and substantive legal issues are at stake.
One could also argue that "human activities are inseparable from politics. Even if we cannot guarantee purely modern legal legitimacy, if a political spectacle called a trial can serve as an opportunity to move the world in a positive direction, then that is not a bad thing." For those who are satisfied with a view of rewarding good and punishing evil, that may be fine.
However, at the time, it was extremely difficult to explain the legal legitimacy of such a case.
３． Former President Truman
After former President Truman had left office and retired from public life, if we borrowed a time machine from Doraemon, raided his home, arrested him, brought him to Japan, and put him on "trial," could we find him "guilty" of a criminal offense? Like former President Roosevelt, he committed various acts of mass murder, including indiscriminate city bombings and attacks on civilian ships like the Seikan Ferry, but it is believed that he would not at least deny ordering the dropping of the atomic bomb.
Since the Meiji era, Japanese criminal law has adopted the "personal principle" when it comes to the crime of murder. "Personal principle" is the antonym of "Territorial principle," and is the idea of punishing people based on their attributes. Simply put, when a "Japanese national" is murdered, Japanese jurisdiction applies (Japan can exercise its state power to arrest and detain suspects and have them appear in court) no matter where on Earth the crime occurred, what nationality the perpetrator is, or where on Earth the perpetrator hides (if the perpetrator flees to a place outside of Japanese territory, the statute of limitations stops running from that point on).
Setting aside the question of whether there is "evidence" (physical evidence) that former President Truman ordered the dropping of the atomic bomb, given his character, I believe he would confess. If former President Truman had confessed or turned himself in, it would not be impossible to find him guilty of murder under Japanese criminal law.
But, a confession alone is not enough to prove guilt, so A confession must be corroborated by other evidence (corroborating evidence), such as witnesses (corroboration principle).
If Japanese police officers were to suddenly attack and detain him in another country, this would constitute an illegal act under procedural law (Criminal Procedure Law). There is a "theory" that such an illegal act can be "cured" by some subsequent action, but this is a minority "heterodox theory."
Therefore, from a substantive law perspective, it is possible that he could be found guilty. Also, from a procedural law perspective, if former President Truman had come to Japan of his own volition, turned himself in at a Japanese police station, and confessed to the crime, it is possible that he could be found guilty of "murder."
However, whether the above "crimes" can be called "war crimes" is a separate issue.
４．General Noriega (Commander-in-Chief of the Panamanian Armed Forces)
In 1989, General Noriega launched a military coup-like operation shortly after losing the Panamanian presidential election. However, a few days later, U.S. forces invaded Panama, and the DEA arrested General Noriega.
President Trump's aides may be using the kidnapping of General Noriega as a model for their own actions. However, the above case is special event.
General Noriega had received funding from the CIA since the 1950s and provided information to the CIA through the Panamanian intelligence service. After seizing power in the military, he acted as something of a double agent, cooperating with Libya (Colonel Gaddafi) and Cuba (Castro). His actions, which could be seen as a betrayal of the CIA, led to an invasion by former CIA Director President Bush (Sr.).
General Noriega never held political office. However, because he controlled the military and was a de facto dictator, there was a political need to remove him from Panama. The United States would find it unacceptable to allow a military dictator who secretly allied with Libya and Cuba to control the Panama Canal.
It is the same as: Japan would also find it unacceptable for China to control the Taiwan Strait or the Strait of Malacca.
General Noriega's trials were held in the United States, France (in absentia), and Panama. He was found guilty in all cases and served his sentence.
General Noriega's trial was also a case in which the legal legitimacy was highly questionable, but it was a case of strong geopolitical necessity.
Even if the actions of political leaders could be considered political crimes (political responsibility), it was difficult to charge them with "criminal guilt." Converting political responsibility into criminal responsibility was difficult from the perspective of substantive law, due process, and proof.
In 1993, the International Criminal Tribunal for the Former Yugoslavia was established in The Hague, Netherlands, by a UN Security Council resolution. Because the Yugoslav Civil War began in 1991, there were issues of ex post facto law, just like the Tokyo and Nuremberg Trials. At the time, there was no permanent International Criminal Court.
In addition to the issues of ex post facto law, the Tokyo and Nuremberg Trials charged abstract "crimes," violating modern criminal law principles such as the principles of specificity, legality, responsibility, and proportionality.
In the case of the International Criminal Tribunal for the Former Yugoslavia, on the other hand, the crime of genocide was established during the civil war. The Srebrenica massacre, in which Serb forces killed approximately 8,000 people, occurred in 1995.
The trial of former President Milosevic began in 2001. The death penalty is not a statutory punishment. This was the first case in which a former head of state was tried for criminal responsibility by an international court, but former President Milosevic died during the trial.
The International Criminal Tribunal for the Former Yugoslavia was established pursuant to a UN resolution, but there is no denying that it contains a contradiction. Leaders of major powers are not held responsible for war crimes, while leaders of "small" countries are.
Simply put, the above situation violates the "principles of proportionality" and "principles of equality," general principles of modern criminal jurisprudence. It raises the question, "Why is this person being treated as a criminal while that other person is not？"
As things stand, this issue will always haunt us.
Those who deny that the Iraq War (2003) was an act of aggression are now thought to be in the minority. While former President Bush (son) praised himself in a book he wrote after leaving office, former Secretary of State Powell did at least admit his mistakes in his autobiography (the Japanese translation of the book I read while he was alive).
However, Mr. Powell does not offer any apologies to the Iraqi people in his book. Instead, he wrote something along the lines of: I was led to believe incorrect information due to an intelligence error. Either way, if we had left Hussein alone, he would have ended up doing something bad, so in the end, it was correct for the United States to invade Iraq, capture him, and eliminate him.
President Obama also used the term "Iraq invasion" in his speeches from the beginning of his term.
The International Criminal Court was established in 2002, the year before the Iraq War. The Court's penalties are, in principle, prison sentences of up to 30 years. Life imprisonment is possible when "the extreme gravity of the crime and the individual circumstances of the offender warrant it."
Given Mr. Hussein's age at the time, a 30-year sentence would have been sufficient. However, it would be difficult for the International Criminal Court to criminally punish a head of state who was detained in a war of aggression based on a unilateral US accusation. Rather, it was the US president, vice president, and secretary of defense who invaded Iraq and killed so many civilians that the International Criminal Court should have criminally punished.
In the Hussein trial, President Hussein, who was detained by US forces that invaded Iraq, was tried in an Iraqi court and sentenced to death for the "crime of genocide" against the Iraqi people. Perhaps the US needed to sentence Hussein to death rather than 30 years in prison in order to justify its war of aggression.
I remember somewhere that a US soldier who accompanied Hussein during his trial wrote, "He had a sense of humor and chatted with me amiably. He should have been sentenced to life in prison (instead of death)."
But that's not the issue.
This trial also requires an acrobatic and outlandish "theory" to justify it from a legal perspective.
７．Decapitation Operation
As mentioned above, criminally prosecuting and convicting politicians, especially top leaders, poses both theoretical and practical challenges.
In Japanese criminal law, theories such as the theory of conspiracy and joint principal offense and the theory of indirect principal offender are used when trying Yakuza bosses (For a recent example, see the cases of Taishū-k
ai (2025) and Kudo-kai (In 2021, Mr.Satoru Nomura was sentenced to death by the district court. In 2024, the original sentence was overturned on appeal and he was sentenced to life imprisonment. His sentence is currently being heard by the Supreme Court.)).
However, these theories are difficult to prove.
As a result, some countries' dictators are eager to use the "decapitation operation." During the Ukraine War, Russian forces advanced directly toward the Ukrainian presidential palace immediately after launching their invasion. People around the world were astonished by the shoddy "operation" of Russian tanks traveling in a line (a traffic jam) on a single, narrow road running through Ukraine's vast, dense forests, complete with a long line of tank wrecks.
Apparently, the Russian "decapitation operation" was thwarted by the efforts of Ukrainian special forces.
Now, the Chinese president is plotting the same thing, attempting to assassinate the president of Taiwan. Learning from the Russian military's failures, Xi Jinping has devised a meticulous strategy and is providing specific training to the Chinese military.
In Japan, police also conducted "operations" targeting leaders of motorcycle gangs and "Hangure" gangs some time ago. Such groups tend not to develop individuals with strong leadership and unifying power, and they often collapse quickly when they lose their charismatic leader.
However, Taiwan and Ukraine are democracies and members of the liberal world. Even if their current leaders were to suddenly die from illness or an accident, it is unlikely that the will to resist among the people of Taiwan or Ukraine would weaken. Moreover, if their leaders were killed by an agent of an invading nation, it would likely become a "Remember ____！" situation, which would have the opposite effect.
Lack of such basic insight is one of the characteristics of a dictator.
８．President Putin
President Putin is wanted by the International Criminal Court as a "war criminal."
For the Ukrainian people, it would be unsatisfactory if not only the Russian president and foreign minister, but all military and government officials were punished.
However, last year, he boldly visited China and watched a military parade alongside the Chinese president. They called it a "victory against totalitarianism," not a "victory for totalitarianism."
If President Putin visits a country that is not obligated to arrest and extradite criminals to the International Criminal Court, Ukrainian, American, or British special forces could detain and arrest him and potentially prosecute him.
However, he likely learned a lot from General Castro, who evaded the US military's "decapitation operations" hundreds of times, so he is unlikely to make such a mistake.
President Maduro's arrest is a blatant decapitation operation, with absolutely no legal justification.
The world knows that President Trump's invasion of Venezuela is aimed at acquiring resources such as crude oil and rare earths. People all over the world know that "drugs" is nothing more than an excuse.
Former President Saddam Hussein granted China oil drilling rights, but was unwilling to grant them to the United States or the United Kingdom. Japan was granted oil drilling rights along the border with Iraq by Iran, but received complaints from the United States, which has no diplomatic relations with Iran.
Venezuela is also said to export 85% of its crude oil to China.
President Trump is unlikely to be interested in legal legitimacy. He would likely be satisfied if he could resolve the issue politically in one fell swoop.
President Maduro will be tried by a US court.
The United States is a rare country in the world where courts (on behalf of politicians) realize and promote political justice.
In most countries, it's the other way around. In most countries, courts play a role in giving the green light to the misdeeds of political and administrative power. In most countries, the courts, masquerading as "neutral third parties" under the separation of powers, ratify the actions of political power and strengthen political and administrative enforcement.
However, the American judicial culture is unique, respecting "access to justice" and "due process."
On the other hand, the United States is also a country where democratic control extends to a strong degree to the courts, a non-democratic branch of government (jury system, elections). In this respect, American judicial procedures differ from those of other developed countries.
The prosecution argues, "Because there was fraud in the Venezuelan presidential election, the United States does not recognize Maduro as president. Because he is not president, he is not entitled to immunity. Therefore, even if US special forces suddenly raided his home in Venezuela and arrested him, it would still be a legitimate criminal procedure."
This is an absurd claim and is not something a lawyer should say. It is the sorrow of a civil servant.
If the judge in charge of the trial were of normal intelligence, President Maduro would be found innocent. If the judge pandered to those in power and convicted President Maduro by twisting around absurd arguments, it would be like a religious trial for some kind of unusual new cult.
Conversely, Venezuela could try President Trump and the members who attacked President Maduro's home for arrest, imprisonment, property damage, abduction, and carrying weapons under Venezuela's criminal code. Because it was a criminal act committed within the jurisdiction of Venezuela, this would be legal. In that case, a guilty verdict would be certain (Photos and videos of the attackers have been released).
With this incident, President Trump has tarnished Maria Machado's Nobel Peace Prize. While she praised the incident, President Trump has shown a willingness to abandon Machado and negotiate with the interim president. Even if President Trump were to launch a "second invasion," kidnap Interim President Rodriguez, and install Machado as president, would the Venezuelan people be proud of her and their democracy？
It is difficult to establish democracy that is imposed by the military force of another country. Iraq is a prime example of this.
In the future, Venezuela is expected to become like a US colony or autonomous territory.
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