Between 1870 and 1945, the Imperial Japanese Army and Navy provided uniquely broad legal protection to subordinates who perpetrated crimes under the orders of military superiors. Legal immunity was provided not only to soldiers who obeyed orders contrary to international law, but also to those who under orders violated domestic standing legislation of the Japanese Army. This gave rise to a so-called “paradox of obedience”: while disobedience among officers was rampant, their subordinates were expected to unquestionably obey their orders, even in rebellion against the Japanese government. This mix of blatant disobedience to the system at large on the one hand, and blind obedience to immediate superiors on the other, was a remarkable feature of the Imperial Japanese armed forces. Drawing on legal codes, court cases and juridic writings, we analyze how this “paradox of obedience” encouraged mutinies as well as atrocities, especially in the 1930s and during the Asia-Pacific War.

The conventional historic account maintains that international criminal law (ICL) was ‘born’ after the Second World War. This account is incomplete, as William Schabas's book, The Trial of the Kaiser (2018), captivatingly shows by richly portraying the (aborted) First World War initiative to try the German Kaiser before an international tribunal. However, this article (after providing an overview of Schabas's book) argues that Schabas's account of a First World War ICL ‘birth’ is also incomplete. ICL during the First World War era was but one link in a much longer historical chain. The essay demonstrates this fact by presenting certain elements of the long (forgotten) history of ICL, which provide answers to questions that have been left unanswered, not only by the conventional account (of a Second World War ICL ‘birth’) but also by Schabas's account (of a First World War ICL ‘birth’). As the article discusses, the unveiling of a greater ICL history indicates that international criminal tribunals are not a modern innovation, and reveals the origins of ‘crimes against humanity’, of ‘aggression’ and of the universal jurisdiction doctrine. The essay further discusses reasons for the non-remembrance of the long history of ICL, the importance of acknowledging that history, and the likelihood of it becoming widely acknowledged in the near future.

At the close of World War II (WWII), Winston Churchill suggested summarily executing the remaining Nazi leadership. Franklin Delano Roosevelt disagreed, insisting on prosecuting them in an international military tribunal. This is considered the “birth” of International Criminal Law (ICL), following a consensus that “[t]he Nazi atrocities gave rise to the idea that some crimes are so grave as to concern the international community as a whole.” A few earlier instances of penal action against violators of the laws of war are acknowledged, but they are dismissed as unrelated to current ICL, because (presumably) these cases are sporadic domestic legal actions that lack a common doctrine.