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The Nuremberg Trials: Impact on International Criminal Law and Jurisprudence

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.

How Did The Idea For A Tribunal Germinate?
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.[i][ii] 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.

Where Was The Authority Derived From?
Therefore, the Allied powers signed a convention known as the Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis Power. This convention is sometimes referred to as the London Agreement or the Nuremberg Charter. This charter laid down the standards by which the accused would be tried and allowed the Allied powers to conduct such trials. The Nuremberg tribunal was established which subsequently tried the war criminals.

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:[iii]
· 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 majority of the prosecution’s evidence included the governmental files of Germany which was seized by the Allies. The judges considered 100,000 documents and heard 94 witnesses. They ultimately found 19 defendants guilty of at least one charge and declared three organisations to be criminal. The sentences ranged from ten years’ imprisonment to death by hanging, and were imposed on 12 defendants.[iv]

The London Charter had outlined several crimes which were punishable in international law. The judgment drew four charges from the London Charter: [v]
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 assurances, or participation in a common plan or conspiracy for the accomplishment of any of war crimes or crimes against humanity."[vi]
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.”[vii]

The fourth category, crimes against humanity, had a foundation in international law.

Such crimes were defined as follows:

“Murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.”[viii]

The Revival Of Natural Law

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."[ix]

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.

The defence did not deny the facts upon which the charges rest but challenged their legal qualification.[x] 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.[xi] 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.[xii]

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’.[xiii] 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. [xiv]

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’.

[xv] 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.[xvi]

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?
The Nuremberg trials were controversial even among those who wanted the major criminals punished.[xvii] 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.[xviii]
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".[xix]
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. [xx]

Quincy Wright explained the opposition to the Tribunal as:

“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?”[xxi]

Retrospective Application
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.

Defense of Orders by Superior
Research Question: Can individuals be prosecuted for the crimes committed by them in the course of following official orders?
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."[xxii]

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)[xxiii].

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. [xxiv]

The Nuremberg trials made three important contributions to international law [xxv].

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 principles [xxvi].

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 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 International Criminal Court:

Research Question: Did the IMT create the foundation for the establishment of ICC?
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 legacy[xxvii].

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 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.

End-Notes
[i][i]
[ii] Encyclopedia.com. (2018). Nuremberg Trials | Encyclopedia.com. [online] Available at: https://www.encyclopedia.com/social-sciences-and-law/law/law/nuremberg-trials [Accessed 25 Aug. 2018].
[iii] 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]
[iv] Supra note 1.
[v] Mary Jean Lopardo , Nuremberg Trials and International Law, University of Baltimore Law Forum: Vol. 8 : No. 2 , Article 18 (1978)
[vi] Supra note 4
[vii] Supra note 1
[viii] Id.
[ix] Id.
[x] 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].
[xi] Id.
[xii] Id.
[xiii] Augusto Zimmermann, Legislating Evil: The Philosophical Foundations of the Nazi Legal System 13 International Trade and Business Law Review 221, 231. (2010)
[xiv] D. Mirabella, The death and resurrection of natural law. West Australian Jurist, 2, 251-259 (2011).
[xv] Lawrence Douglas, The Shrunken Head of Buchenwald: Icons of Atrocity at Nuremberg. Representations, (63), pp.39-64. (1998)
[xvi] Id.
[xvii] Supra note 1
[xviii] Id.
[xix] International Military Tribunal (1947). Trial of the Major War Criminals. 42 volumes Nuremberg, Germany.
[xx] Supra note 1
[xxi] 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].
[xxii] Supra note 16
[xxiii] 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].
[xxiv] Supra note 1
[xxv] Id.
[xxvi] Id.
[xxvii] P. Kirsch, Applying the Principles of Nuremberg in the International Criminal Court. Wash. U. Global Stud. L. Rev., 6, p.501. (2007)

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