동경재판과 ‘평화에 反한 죄’

• 발행기관: 고려대학교 글로벌일본연구원
• 저자명: 김석연
• 간행물 정보: 『일본연구』第16輯, 295~324쪽, 전체 30쪽
• 주제분류: 사회과학 > 지역학
• 파일형태: PDF
• 발행일자: 2011.08.31

영문 초록

Echoing the Nuremberg precedent, the majority of the judges at the Tokyo Trial ruled that its Charter did not violate the principle of legality in light of the Kellogg-Briand Pact and other interwar pronouncements renouncing war as an instrument of national policy. In his dissenting opinion, Radhabinod Pal of India contended that those international efforts fell short of creating a customary law to the effect of outlawing “aggressive” war. Instead, he continued, national sovereignty was intact as the fundamental basis of international relations: the use of force remained a legitimate means of self-defense, to be exercised as long as the state in question had a “bona fide belief in the existence of some sufficient objective condition.” Japan’s war, in his view, was essentially justifiable in that regard. Apart from the legal technicalities, he seems to have at least retrospectively resonated with Japan’s wartime slogan of “liberating” Asia, too. His sympathy for Japan betrayed his disapproval of the international status quo which, plagued with imperialism, had long been forged through the violence of the victor nations. The Western powers’ call for peace, then, loomed as a hypocritical ruse for preserving their own interests. In the end, Pal was an ideologically partisan judge in his own right. In defending Japan’s cause, moreover, he was unconscionably indulgent in interpreting the conditions and scope of self-defense. On the ex post facto nature of the Crimes against Peace per se, as it remains a contentious issue even today, Pal may have made a valid point; the paucity of individual indictments for aggression in the postwar years further suggests its incomplete state as a justiciable crime. All the same, as advocates of the Trial argue, the slow yet persistent pursuit of a viable mechanism for punishing aggression in and of itself may vindicate the legal minds behind Nuremberg and Tokyo. One might also note that, with practical and ideological prerequisites of war crimes trials brought off, the end of World War Ⅱ had occasioned a rare and auspicious moment for the growth of international criminal law.

목차

Abstract

Ⅰ. 머리말

Ⅱ. 뉘른베르크와 ‘관습의 혁신’

Ⅲ. 국제관계의 현상유지에 反한 세계관

Ⅳ. ‘조약’이라는 전제와 ‘자위권’ 행사의 조건

Ⅴ. 맺음말

참고문헌

키워드

東京裁判 平和に反する罪 ラダビノー ドㆍパー ル 罪刑法定主義 Tokyo Trial Crimes against Peace Radhabinod Pal principle of legality