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The book examines the historical trials from different perspectives, including the legal concepts used and debates that took place; the infl uence of the trials within a broader social context, both at their time and later; the collection of evidence; and preservation, compilation and research of historical documents. It not only analyses the trials in their historical and social contexts, but emphasises their present day signifi cance, also as regards the prevention of core international crimes, especially in Asia. The book offers insights on retaining and compiling historical materials concerning these trials as important historical records and new developments in evidence collection in contemporary international criminal courts.

When examining the war crimes trials after the Second World War, many have criticised the involvement of political elements in these trials. Asia, in particular, seems to suffer most from the “illness” or “abnormality” of political involvement in the judicial process, from Tokyo to today’s international criminal justice endeavours, such as in Cambodia, East Timor and so forth. The Chinese trials of Japanese war criminals after the war have not received much attention because of the lack of first-hand records and many other reasons. But the political considerations in these trials are also obvious and have often been criticised by commentators. By contrast, others defend these trials by emphasising their adherence to judicial guarantees despite the political dimensions. Both attitudes are based on the same presumption, that is, politics is an “evil” that should be separated from judicial processes. The latter should be “pure” and “just”, and that means staying away from “dirty” politics. This chapter considers it over-simplistic to make such a clear-cut separation between justice and politics, and to render it as a black-andwhite dichotomy. By examining the trials of Japanese war criminals by both the Nationalist government in the immediate aftermath of the Second World War and by the People’s Republic of China (‘PRC’) in the 1950s, the chapter seeks to demonstrate how politics plays out in the design and operation of judicial mechanisms. It argues that in a complex social background as existed at the end of a war, judicial proceedings are only one of the means available to meet the various needs of society. Justice might not be the sole, or the most important, goal of the judicial process, which might be designed and used by the decision makers to facilitate other priorities, such as the very existence of the nation or regime, or the maintenance of order and stability...

Since the establishment and operationalisation of the International Criminal Tribunal for the former Yugoslavia (‘ICTY’) and the International Criminal Tribunal for Rwanda (‘ICTR’), many elements of international criminal law have undergone significant development. Sentencing, however, remains a rather underdeveloped area. It still possesses few clear guidelines, and is surrounded by inconsistency and unpredictability. This chapter deals with one particular aspect in international criminal sentencing, namely mitigating circumstances. It attempts to sketch the evolution of the practice and law of mitigating circumstances from the post-Second World War international war crimes trials to two recent convictions and sentencing of the International Criminal Court (‘ICC’). This chapter examines the various mitigating circumstances considered in the judicial discourse of international criminal courts and tribunals in different eras, including war crimes trials after the Second World War, trials at the ICTY and ICTR, and finally the ICC. By means of this historical investigation, the analysis traces the development of the law in this area and identifies key trends. From this, it can be observed that the scope of mitigating circumstances considered by international courts and tribunals has expanded considerably. More importantly, behind this is an amplification of the underlying ideologies of international criminal justice and their goals and aims. In the early trials, the main focus in determining sentencing was the culpability of the accused person and proportionality of sentences. More recent practice, however, has paid more attention to broader goals, such as the accused’s contribution to the reconciliation of a given society. Yet there is no consistent approach as to which is the priority among the different, and at times contradictory, ideologies, and thus also no clear and consistent guidelines on the weight to be attached to the different mitigating circumstances. As a result, this tends to exacerbate the confusion and uncertainty in international criminal sentencing, making it even more inconsistent and unpredictable.

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