Nuremberg Trials and the Birth of the International Criminal Order

Almost 75 years have elapsed since World War II came to a close. After the Axis powers surrendered, the postwar world was shocked by the xenophobic Nazi ideology that regarded Jews as “parasitic vermin”. This led to the annihilation of millions of Jews, including prisoners of war and dissenters, and took away the lives of innocent civilians.

The international community was eager to provide justice to the victims and wanted retribution of the oppressors. The Allies had emerged victorious and attempted to mould the situation in a way that authorised them to try and punish Germany for the crimes it had committed. This idea of punishing the war criminals germinated after signing the Moscow Declaration which led to the formation of the International Military Tribunal in 1942 by the then US President Franklin D. Roosevelt, British Prime Minister Winston Churchill and Former Premier of the Soviet Union Joseph Stalin.

Knowing that atrocities were common to warfare, the United States and its allies set out at the outset of the Nuremberg trial to prove that many in Hitler’s Nazi regime had exceeded the scope of military barbarism and, instead, actively pursued crimes against humanity. [1] Thus, these trials ensured that humanity would remain sheltered by an international legal shield and even the Heads of State could be held criminally responsible and punished for the crimes committed by them.

The outcome of the Nuremberg trials was a judgment which imposed criminal sanctions against specific individuals who were held personally responsible for planning and waging the Nazi war of aggression. [2] 

These trials were a milestone in developing the international criminal law community for the first time in modern history. This is primarily because the leaders of a defeated state were indicted for committing heinous crimes, hence, jeopardising the bases of peaceful coexistence amongst individuals.

The London charter gave the International Military Tribunal jurisdiction over three offences:[3]

1. Crimes against Peace: namely, 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 the foregoing.

2. War Crimes: namely, violation of the laws or customs of war. Such violations shall include but are not to be limited to, murder; ill treatment or deportation of slave labour or for any other purpose of ill-treatment of prisoners of war or persons on the seas; killing of hostages; plunder of public property or private property; wanton destruction of cities, towns or villages, or devastation, not justified by military necessity.

3. Crimes against Humanity: namely, murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial, 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.

The idea of summary execution – which meant that a person who is accused of the crime is killed immediately without the benefit of a full and fair trial – was considered but later dismissed.

 It was realised that execution could not be carried out without the accused person being given the opportunity to be heard in order to defend themselves in a proper criminal trial. Such a step ensured that principles of justice and fairness were upheld.

Controversy surrounding the Trial                                        

The maxim “Nullum Crimen Sine Lege” is a principle in the Criminal Law wherein an individual should not and cannot face criminal punishment barring an act that was criminalised by law before he/she performed it. The German author Franz Von Liszt, relying on the teachings of the founders of modern Criminal Law, Anselm Feuerbach, called this principle the “Magna Carta of the Criminal Law” [4]

Till date, what is widely debated is the retroactive application of the rules upon which the prosecution has based its charges. However, it has been stated that the term ‘aggression’ was already a crime before the Constitution of London Charter was drawn. This was constituted during the two Hague Conventions under the Pacific settlement in International disputes and the Treaty of Versailles in 1919.

Moreover, the Nuremberg Trials are often seen as a portrayal of Victor’s Justice. This means that the victorious judged the vanquished which was one of the reasons why aerial bombing was intentionally withdrawn from the list of war crimes.

There are still scattered opinions whether all the crimes prosecuted before the tribunal had been criminal under international law at the time they were committed.

Lessons learnt from the Nuremberg Trials                      

The Nuremberg Trials established a legal and political paradigm for the framework of the International Criminal Justice system, thereby, opening up a new page for universal history.

Earlier, the criminal justice system was guided by two principles : territoriality and nationality.[5] The state sovereignty had been the pillar of international legal order which was eliminated after the Nuremberg Trial; thus, barring political leaders from evading criminal punishments under the garb of their official positions. 

The Charter also addressed the most common defences claimed by the defendants. They were acting in accordance with the order from the superiors. However, it was stated that the official position of defendants, whether as heads of state or responsible officials in government departments, shall not be considered as freeing them from responsibility or mitigating punishment.[6]

However, the first few decades after the Nuremberg Trial was a period of slow progress in the development of the International Criminal Law. The Nuremberg Trials were never intended to be just a historical event. Those who participated in these trials saw them as the beginning of a new era of accountability.[7] At the Trial, the German law of the Nazi period played no role as a basis of prosecution. It was international criminal law that the tribunal trusted.

However, the Nazi acts were not the only confined incidents of aggression. The world witnessed millions of people being murdered in Vietnam, Rwanda and Yugoslavia before it was ready to enforce International Criminal Law. 

 After the Cold War ended, the United Nations established ad-hoc tribunals in response to the atrocities perpetrated in former – Yugoslavia and Rwanda. These ad hoc tribunals later led to the development of International Criminal Court formed under the Rome Statute. 

The International Criminal Court constituted some core principles of the Nuremberg Trial : the need for accountability for serious crimes and the importance of fair trials.The definitions in the ICC Statute are also more comprehensive in comparison to the trial’s charter, thus establishing a groundwork for the present-day modern international criminal law.

[1] The Nuremberg Trial, Mitchell Bard, Greenhaven Press, 2002

[2] Mary Jean Lopardo (1978) “Nuremberg Trial and International Law”, University of Baltimore Law Forum : Vol 8, No.2, Article 18

[3] Charter of the International Military Tribunal, Constitution of the International Military Tribunal, Article 6

[4] Principles of International Criminal Law, Gerhard Werle & Florian Jesberger 9, Oxford University Press, United Kingdom 3rd ed.

[5] Christian Tomuschat, Journal of International Criminal Justice 4 (2006), 837

[6] Charter of International Military Tribunal, Constitution of International Military Tribunal, Article 7

[7] Conference on “Judgement at Nuremberg”, Judge Phillips Kirach 

Divya Gupta from Amity Law School, Delhi

Editor: Sanskriti Sood

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