2 Nuremberg Trials
2 Nuremberg Trials
2 Nuremberg Trials
After the surrender of the Axis Powers, the World War II officially came to a close.
However, the horrific consequences of the Nazi ideology shocked the entire world.
The Nazis had tortured and slaughtered over six million Jews including prisoners of
war, dissenters and innocent civilians. When all the actions taken by Nazis under the
garb of the war was revealed, the international community wanted justice for the
victims and retribution for the oppressors. However, there existed no precedent which
would allow one sovereign state to prosecute another such state. That is the core of
the controversy surrounding the Nuremberg Trials. The Allies were victorious in the
war. They used their position to mould the international law at that time in a way that
would allow them to try and punish Germany for the crimes it committed. This
decision influenced the entire realm of international criminal law for both good and
bad. This project aims to discuss the various ways in which the Nuremberg Trials left
a mark on the future of international law.
The Allies had been considering the idea of punishing the war criminals since the
signing of the Moscow Declaration in 1943 by U.S president F.D Roosevelt, British
Prime Minister Winston Churchill and Joseph Stalin.1 The idea of summarily
executing the criminals were also considered but dismissed.
However, around 1945, the four allied powers assembled in London at the
International Conference of Military Trials, it was believed that such an execution
could not be carried out without the accused persons being given the opportunity to be
heard and defend themselves in a proper trial. Such a step was necessary to ensure
that the Principles of justice and fairness are upheld.
1
ABOUT THE TRIALS AND THE NUREMBERG
TRIBUNAL
The Nuremberg trials were a series of military trials in the city of Nuremberg,
Germany. In these trials, senior Nazi officials were tried for the crimes that were
committed during World War II. The first trial was of the major war criminals that
were held between 20 November 1945 and 1 October 1946. Twenty-Four defendants
and seven organisations were prosecuted.
This trial was significant in formation of the seven Nuremberg Principles which
contain the principles recognised by the Charter for the International Military Tribunal
and its judgements. The principles include:2
Individual responsibility
Liability of the heads of state or government under international law
Orders by superior is not a valid defense
List of crimes punishable under international law
The trials included twelve more trials which included the ‘Judge’s Trial’ and the
‘Doctor’s Trials’ which resulted in the prosecution of the judges, lawyers and doctors
responsible for implementing and promoting the Nazi program for ‘racial purity’ by
abusing their authority. The tribunal also acknowledged ten principles, which went on
to form the basis of modern medical ethics.
The London Charter had outlined several crimes which were punishable in
international law. The judgment drew four charges from the London Charter:4
The charges were conspiracy to wage aggressive war, crimes against peace, war
crimes, and crimes against humanity.
The second category, crimes against peace, had no existing definition in international
law. The London charter defined it as: "planning, preparation, initiation, or waging of
a war of aggression, or a war in violation of international treaties, agreements, or
2 K. Weller and A.Wagner,. What Are The Nuremberg Trials And Why Do They Still Matter Today?
(2018) [online] RightsInfo. Available at: https://rightsinfo.org/nuremberg-trials-still-matter/ [Accessed
25 Aug. 2018].
3 Supra note 1.
4 Mary Jean Lopardo , Nuremberg Trials and International Law, University of Baltimore Law Forum:
Vol. 8 : No. 2 , Article 18 (1978)
2
assurances, or participation in a common plan or conspiracy for the accomplishment
of any of war crimes or crimes against humanity."5
The third category, war crimes, was a well-established concept in international law. It
was defined in the London Charter as follows:
“Violations of the laws or customs of war. Such violations shall include, but not be
limited to, murder, ill-treatment or deportation to slave labor or for any other purpose
of civilian population of or in occupied territory, murder or ill-treatment of prisoners
of war or persons on the seas, killing of hostages, plunder of public or private
property, wanton destruction of cities, towns or villages, or devastation not justified
by military necessity.”6
The fourth category, crimes against humanity, had a foundation in international law.
Such crimes were defined as follows:
Robert h. Jackson, an associate justice of the U.S. Supreme Court, led the prosecution
team. Jackson commenced the trial with an opening statement, "The wrongs which we
seek to condemn and punish have been so calculated, so malignant, and so devastating
that civilization cannot tolerate their being ignored because it cannot survive their
being repeated…. That four great nations flushed with victory and stung with injury,
stay the hand of vengeance and voluntarily submit their captive enemies to judgment
of the law is one of the most significant tributes that power has ever paid to reason."8
The twentieth century stood witness to two world wars. It was the at that time that the
weapons of mass destruction were propagated and the word ‘genocide’ was invented.
While Legal Positivism remained the dominant legal theory up until mid- nineteen
century, it attracted criticism after its failure to protect against the abuse of power
during the Second World War. WWII was one of the most terrifying events the world
had seen and disturbed the world leading to the resuscitation of natural law.
5 Supra note 4
6 Supra note 1
7 Id.
8 Id.
3
The defence did not deny the facts upon which the charges rest but challenged their
legal qualification.9 It was argued that the accused had committed the acts in spite of
their moral implications as those acts were entirely legitimate in accordance with the
law of time and place. Hence, the actions were in compliance with the norms issued
by the state. They were not only authorised but were legally obliged to do so. 10 Thus
on the basis of “obedience to the head of state” the accused had no choice but to
follow orders and therefore they should not be declared guilty.
Countering the above claims it was said that the Nazi regime advocated the violation
of the natural rights that are supposed to be inherent. So, any law laid by the state
must follow the universally accepted principles including right to life, liberty,
freedom, right to non-discrimination etc. Therefore, as the German state grossly
violated the universal natural principles, the law laid by them does not earn legitimacy
and can not save the accused from prosecution.11
Positive Law was the default legal theory of that period. This meant that law which
had a legitimate source, that is, ‘had been properly enacted by the state, and was not
to be rendered void as a result of its immorality’.12 The prosecutors at the Nuremburg
Trials could not condemn the actions of the Nazi leaders if they followed the
legitimately enacted laws of the State. Therefore, to be successful, they had to look
past Legal Positivism and appeal to natural law.13 The Chief-Prosecutor, Robert H.
Jackson, avoided referring directly to natural law, but instead appealed to universal
criminal jurisdiction ‘by locating a deep normative core in the existing practices of
civilized nations’.14 The decision in the Nuremburg Trials led to the ‘Nuremburg
Principle’, which basically imposes an obligation upon individuals to disobey the laws
which can be clearly identified as violating higher moral principles. 15 So while the
judgment never referred to natural law directly, in essence, it was the deciding aspect.
CONTROVERSY
Research Question: Were the allied powers justified in elevating themselves to have
the power to try the war criminals and whether such a trial can be called fair?
9 Topalli, I. (2018), The Role of Natural Law after World War II (Case of Nuremberg Trial). [online]
Journals.univ-danubius.ro. Available at: http://journals.univ
danubius.ro/index.php/juridica/article/view/2744/2588 [Accessed 25 Aug. 2018].
10 Id.
11 Id.
12 Augusto Zimmermann, Legislating Evil: The Philosophical Foundations of the Nazi Legal System 13
International Trade and Business Law Review 221, 231. (2010)
13 D. Mirabella, The death and resurrection of natural law. West Australian Jurist, 2, 251-259 (2011).
14 Lawrence Douglas, The Shrunken Head of Buchenwald: Icons of Atrocity at
Nuremberg. Representations, (63), pp.39-64. (1998)
15 Id.
4
The Nuremberg trials were controversial even among those who wanted the major
criminals punished.16 Harlan Stone, Chief Justice of the U.S. Supreme Court at the
time, described the proceedings as a “sanctimonious fraud” and a “high-grade
lynching party.” William O. Douglas, then an associate U.S. Supreme Court justice,
said the Allies “substituted power for principle” at Nuremberg.17
Neither of the parties was allowed to challenge the authority of the tribunal in any
manner, legal, political or military. The IMT believed that its jurisdiction blooms from
the London Agreement that was signed by the Allies in pursuance of their inherent
legislative powers over the vanquished nations. According to the tribunal, each Ally
carried the right to legislate over the territory that it occupied. By establishing the
IMT, the court said, the Allies "had done together what any one of them might have
done singly".18
The IMT was authorised to try four counts of complaints: conspiracy, crimes against
peace, war crimes, and crimes against humanity. It included conspiracies to commit
crimes against peace, and covered persons who committed such crimes in their
individual capacities. Crimes against peace included the planning, preparation,
initiation, and waging of aggressive war in violation of international treaties,
agreements, or assurances. Crimes against peace differed from other war crimes, the
tribunal said, in that they represented the "accumulated evil" of the Axis powers.19
“The assumptions underlying the Charter of the United Nations, the Statute of the
International Court of Justice, and the Charter of the Nuremberg Tribunal are far
removed from the positivistic assumptions which greatly influenced the thought of
international jurists in the nineteenth century. Consequently, the activities of those
institutions have frequently been vigorously criticized by positivistic jurists ... [who]
have asked: How can principles enunciated by the Nuremberg Tribunal, to take it as
an example, be of legal value until most of the states have agreed to a tribunal with
jurisdiction to enforce those principles? How could the Nuremberg Tribunal have
obtained jurisdiction to find Germany guilty of aggression, when Germany had not
consented to the Tribunal? How could the law, first explicitly accepted in the
Nuremberg Charter of 1945, have bound the defendants in the trial when they
committed the acts for which they were indicted years earlier?”20
Retrospective Application
16 Supra note 1
17 Id.
18 International Military Tribunal (1947). Trial of the Major War Criminals. 42 volumes Nuremberg,
Germany.
19 Supra note 1
20 Q. Wright, The Law of the Nuremberg Trial. The American Journal of International Law, [online]
41(1), p.38. (1947). Available at: https://www.jstor.org/stable/2193853 [Accessed 25 Aug. 2018].
5
It is a general principle of law which state that individuals must not be held criminally
liable for conduct that was not illegal at the time it occurred. This principle played a
significant role at Nuremberg. Concerns about the standing of the IMT arose with
respect to defendants' arguments that they were only obeying the German law and
performing their duties. German law under the Nazi regime had become a tool to
legalise and promote extreme discrimination and persecution of the Jews and other
minorities, the invocation of national law as a defence, particularly regarding crimes
against humanity, proved largely unconvincing to the IMT judges, who had a mandate
to apply international law to the proceedings. The drafters of the London Charter
struggled with these defenses; and defense counsels frequently regarded them as
mitigation for their clients' wartime actions.
Justice by victor?
The IMT can be viewed as representative of "victor's justice" and its hypocritical
nature, meaning that the victors in World War II judged the vanquished. Such a view
suggests that the trials might be blemished by the lack of investigation and
prosecution of any war crimes that the allied powers themselves might have
committed during the wars. Aerial bombing was deliberately excluded as a war crime
in the London Charter for the IMT. Including it would make prosecution of German
aerial bombings appear as victor's vengeance, unless parallel investigations of
American and British bombings of German cities also are undertaken.
The London Charter addressed one of the most common defences for defendants who
claimed they were only acting, and had to act, according to orders from superiors:
"The fact that the Defendants acted pursuant to order of his Government or of a
superior shall not free him from responsibility, but may be considered in mitigation of
punishment if the Tribunal determines that justice so requires." The Nuremberg
defendants' rank and their direct role in influencing and forming the policies for the
Nazi regime, left them with no room to convincingly claim that they were acting on
the orders of superiors. They often played a significant role in policy making which
were initiated by the orders of leaders such as Hitler. These orders were blaringly
criminal in nature. Their individual responsibility cannot be ignored by passing the
blame to their superiors. The IMT pronounced that, "[t]he true test, which is found in
varying degrees in the criminal law of most nations, is not the existence of the order,
but whether moral choice was in fact possible."21
21 Supra note 16
6
ROLE IN SHAPING THE INTERNATIONAL CRIMINAL
SYSTEM:
The Nuremberg trials initiated the start of international criminal law, an area which is
still developing.
The principles evolved during the Nuremberg trials influenced the United Nations
Genocide Convention (1948) and Universal Declaration of Human Rights (1948), as
well as the Geneva Convention on the Laws and Customs of War (1949). In addition,
the International Military Tribunal supplied a useful precedent for the trials of
Japanese war criminals in Tokyo (1946-48); the 1961 trial of Nazi leader Adolf
Eichmann (1906-62); and the establishment of tribunals for war crimes committed in
the former Yugoslavia (1993) and in Rwanda (1994)22.
Except Israel’s prosecution of Adolf Eichmann, the international criminal law had
nothing significant to offer during the cold war. However, after the Cold War
International Criminal Justice became a possibility. As a response to the atrocities that
took place at that time, the International Criminal Tribunal for the Former Yugoslavia
was formed in 1993. Again after the 1994 genocide in Rwanda, the International
Criminal Tribunal for Rwanda was set up. Further, the adoption of the Genocide
Convention in 1948 also opened discussions for the establishment of a court for the
trial of international crimes.23
First, they established a precedent that all persons, regardless of their status, can be
held individually accountable for their behaviour during times of war. Defendants
cannot shield themselves from personal responsibility by blaming the country or
government, under whose orders they committed the particular war crime.
Second, the Nuremberg trials established that individuals cannot guard themselves
from liability for war crimes by asserting that they were simply following orders
issued by a superior in the official hierarchy. Orders to initiate aggressive warfare, to
violate recognized rules and customs of warfare, or to persecute civilians and
prisoners are considered illegal under the Nuremberg principles25.
Third, the trials outlined the war crimes that are punishable under international law:
crimes against peace, crimes against humanity, and crimes in violation of
transnational obligations embodied in treaties and other agreements. Before the
22 HISTORY.com. (2018). Nuremberg Trials - World War II - HISTORY.com. [online] Available at:
https://www.history.com/topics/world-war-ii/nuremberg-trials [Accessed 25 Aug. 2018].
23 Supra note 1
24 Id.
25 Id.
7
Nuremberg trials, these crimes were not well defined, and persons who committed
such crimes had never been punished by an international tribunal.
The UN General Assembly affirmed in Resolution 95(I) of December 11, 1946, the
"Principles of International Law Recognized by the Charter of the Nuremberg
Tribunal." The illegality of aggression was further discussed in a 1974 UN General
Assembly resolution defining aggression with regard to state responsibility, and in the
Draft Code of Crimes against the Peace and Security of Mankind, which was adopted
by the International Law Commission.
The ICC was established through a treaty negotiated by 160 states meeting in Rome in
1998. It stems from the two core principles of Nuremberg: the need for accountability
for serious crimes and the significance of fair trials.
The ICC Statute builds noticeably on the initial crimes tried at Nuremberg in two
ways.
First, the definitions in the ICC Statute are more detailed than those in the Nuremberg
Charter and the statutes of recent ad hoc tribunals.
Second, the ICC Statute reflects ingrained developments in international law since
Nuremberg. The most evident example is that the ICC has jurisdiction over the crime
of genocide. During Nuremberg trials, the crime of genocide did not exist as such.
This crime has become established in customary international law after the adoption
of the Genocide Convention in 1948.
One of the criticisms that the Nuremberg trials carry with them is the fact that the
Tribunal was set up to deal with crimes that did not exist. This apparent flaw has been
corrected in case of the ICC. The ICC cannot act in an ex post facto manner. Only
those crimes committed after the Statute entered into force can be tried by the Court.
Further, the crimes that the ICC may try are defined in detain in the Statute. In many
ways the ICC can be said to be a continuation of the Nuremberg legacy26.
CONCLUSION
All said and done, the Nuremberg trials were not biased trials. The defendants were
allowed the right to counsel, along with evidentiary and procedural protections. The
26 P. Kirsch, Applying the Principles of Nuremberg in the International Criminal Court. Wash. U. Global
Stud. L. Rev., 6, p.501. (2007)
8
IMT held three defendants of war crimes to be not guilty and acquitted most of the
remaining defendants of some charges.
It can be safely derived that if there had been an entity which required reciprocal
justice, the trials might not have happened. The Allied powers could not have meekly
accepted an investigation into their own deeds if such an examination was ordered.
All the flaws aside, international criminal law made a great leap with the help of the
Nuremberg verdicts. Principles such as individual criminal accountability, fair trial,
natural rights etc were upheld. The trials must be praised for the attention to due
process and natural rights. Thus, it would be fitting to say that the Nuremberg trials,
while not perfect, substantially altered the nature of international law.
9
BIBLIOGRAPHY
10
Note: This service is not intended for secure transactions such as banking, social media, email, or purchasing. Use at your own risk. We assume no liability whatsoever for broken pages.
Alternative Proxies: