Professor Henry King (2003) declared that, “there is no greater challenge currently confronting the international community than that of defining the scope of international human rights.” And rightly so, as we observe the present day atrocities committed all over the world as well as how the progression of international law has developed systems to adjudicate on these controversial matters. One of the most pioneering landmark cases in international law is the Nuremberg War Trials.
Along with its significance, perhaps, it is also one of the most debatable. Judge Charles E. Wyzanski, Jr. (1946) wrote: “to those who support the trial it promises the first effective recognition of a world law for the punishment of malefactors who start wars or conduct them in bestial fashion” (p.66). On the other hand, Wyzanski argues that, “to the adverse critics the trial appears in many aspects a negation of principles which they regard as the heart of any system of justice under law.” Such a chasm in opinion created several theoretically relevant points in analyzing the history of international criminal law.
It is often said that history is written by the victors. The United States, the United Kingdom, the Soviet Union, and France, victors of the 1939-1945 World War II, organized these trials to implead the Nazi leaders for “aggressive acts and war crimes.” About six million Jews and nearly five million other Europeans were murdered en masse in a phenomenon called the Holocaust.
On August 8, 1945, the representatives of the four Allied powers formally adopted The Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, and Establishing the Charter of the International Military Tribunal (IMT). Two months after, this Agreement and the IMT Charter became the legal basis for the indictment of the Nazi leaders on the four counts discussed below.
Nuremberg Principles: the Four Counts of Indictment
Four Counts of Indictment were the basis of the charge against the Nationalsozialistische Deitsche Arbeiterpartei (Nazi party) leadership by the International Military Tribunal. These Counts include: conspiracy to commit aggressive war, crimes against peace, war crimes, and crimes against humanity. Critics of the Nuremberg Trials maintain that these Counts were in the nature of an ex post facto law, or one that was not a criminal act when it was first committed, yet became punishable later on by statute or legislation (Wyzanski, 1946).
After all, one of the most elementary legal principles is one that holds: nullum crimen, nulla poena sine lege — there is no crime where there is no law punishing such. Supporters of the Nuremberg Trials contend that international law, natural law and civil law jurisdictions adhere to the agreements between states and are compelled to adopt the internationally recognized standards, including the doctrines enshrined in the Nuremberg Trials.
Count 1: Conspiracy
Conspiracy, commonly stated as, “the act of one is the act of all,” or the collusion of two or more people in the commission of an offense, was established as an additional and separate substantive offense from Counts One to Three. To assert conspiracy is to define that there is a wrong done when, acting together for an unlawful end, he who joins in that action incurs liability not only for the act planned, or participated in, or could reasonably be foreseen to happen, but also for every single act that his co-conspirators committed.
For instance, Julius Streicher was found guilty by the International Military Tribunal at Nuremberg for direct incitement and encouraging the commission of war crimes in the following: “…a punitive expedition must come against the Jews in Russia. A punitive expedition which will provide the same fate for them that every murderer and criminal must expect. Death sentence and execution. The Jews in Russia must be killed. They must be exterminated root and branch (Schabas, 2000, p. 278-279).”
Wyzanski (1946) asks: “what is the basis for asserting such a broad and substantive crime in international law? Aside from the notion being new, is it not fundamentally unjust?” He reasons that a trial, when used as propaganda, is to debase justice. This is one of the strongest arguments posited by the critics of the Nuremberg Trials.
Count 2: Crimes Against Peace
Germany was a party to nine international treaties that condemn the plotting and waging of wars of aggression (the type where a state is the instigator of the war, and not merely in defense of national security). The Geneva protocol declared wars of aggression as international crimes — not merely uncivilized ways of waging war but also the waging in any way of uncivilized wars (Wyzanski, 1946).
Count 3: War Crimes
War crimes are in violation of the rules on warfare defined in international conventions, to which Germany was a party. This systematic course of conduct toward both civilians and combatants, excessive destruction of territories, with clear knowledge of the defendants, was deemed to be punishable, according to the 1946 article by Charles E. Wyzanski, Jr. It is aggression itself that was criminalized.
This Count was the most criticized for being retroactive legislation since the history of warfare has not absolved the organizers of the Nuremberg International Military Tribunal from their own acts of warfare in their respective colonies. The Allied Forces (United States, United Kingdom, Soviet Union, and France) were also known for committing war time atrocities in their own jurisdictions but critics point out that only the Nazis were held to account for their wartime liabilities. Other aggressive wars prior to World War II were not punished by international tribunals prior to the one constituted at Nuremberg.
Count 4: Crimes against Humanity
The horrors of Auschwitz and other parts of Germany and Europe where Jews, Poles and Gypsies were massacred in cold blood were defined as crimes against humanity, as described in the opening address to the Nuremberg Trials by US Supreme Court Justice Robert H. Jackson (King, 2003). Despite the innocence of the civilians, they were subject to various atrocities ordered by the Nazi leadership: deliberate and systematic genocide of racial and national groups of certain occupied territories, as charged in the case of France et al. v. Goering et al., 22 IMT 203 (1946) as cited by William Schabas (pp. 37-38).
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 connection with any crime within the jurisdiction of the International Tribunal, enumerated the crimes falling under the definition of “crimes against humanity” submitted by the American delegation to the Charter of the International Military Tribunal that heard the Nuremberg Trials (Schabas, 2000, p.36).
Nazi defendants Bormann, Goering, von Ribbentrop, and Jodl among others, were sentenced to death by hanging. On October 16, 1946, ten of them were hanged while Goering committed suicide. Bormann was tried in absentia prior to that while Hess, Doenitz, and five others were awarded ten years to life imprisonment in Spandau Prison, Berlin. 185 defendants were tried subsequently by US judges, including Nazi Party officials, judges, business executives, and doctors.
From November 20, 1945 until October 1, 1946, the Nuremberg Palace of Justice in Nuremberg City, Germany became the host of a series of trials fraught with contentious debates. These trials before the International Military Tribunal adjudicated on war crimes. The most prominent was the first trial which prosecuted 24 of the top Nazi Germany (Nationalsozialistische Deitsche Arbeiterpartei) leadership in the realms of politics, economy and military. Of the 23 were originally charged, 12 were meted out death sentences but only 10 were imposed. Even organizations involved fell under the penumbra of these war crimes (Wyzanski, 1964).
Applicable Historical Theory
Historical theories birthed by the Nuremberg trials include international law concepts, the formation of a tribunal, and responses to the defenses invoked by the accused. United Nations member States adopted the four counts of indictment as definitions of internationally punishable acts. These theories were further codified in the Charter of the IMT which acquired jurisdiction over States that ratified the Agreement. Some defenses rooted in customary law were raised: head of State immunity; superior orders; and tu quoque (the adversary committed similar atrocities).
Of these, the IMT at Nuremberg denied the defense of head of State immunity because it was formally provided in the Charter that “constitutionally responsible rulers, public officials or private individuals” are liable. The defense of superior orders was also excluded by the IMT to dispel ambiguities. The Nuremberg Trials underscored the moral duty of citizens to disobey inhumane orders that contravene natural law principles of justice. However, the defense of tu quoque was glossed over at Nuremberg since the World War II behavior of the Allied powers would render the legal justifications of the IMT vulnerable to attack (Schabas, 2000, pp. 314-342).
Historical Theory In Comparison to Our Current Criminal Justice System
The United Nations General Assembly Economic and Social Council created an ad hoc committee to draft a convention on the crime of genocide. In this convention, they resolved to formulate Nuremberg Principles into the provisions. Several UN member States raised the ideological angle in linking genocide to “race theories” like Fascism-Nazism. Thus, the Nuremberg principles were adopted in the preamble, by its analogy to punishing war criminals for similar acts of genocide (Schabas, 2000, p. 62-64).
Before the April 1994 genocide in Rwanda, the hate-mongering Radio Mille Collines was broadcasting messages to incite the population to commit massacres of the Tutsi and some Hutu civilians (Schabas, 2000, p.279). There is a chilling similarity to the situation of Nazi Germany where the Nuremberg court found such direct incitement punishable for direct incitement of acts of genocide, hatred, and violence which led to the Jewish Holocaust, among others. The criminal justice system of today and that of the Nuremberg era are both united in recognizing the criminal nature of hate propaganda and adopting measures to curb incitements to violence by adjudicating against the perpetrators.
The US war on Iraq also raises delicate issues that can be attributable to the Nuremberg precedent. The historical theories and defenses raised would pose a strong ideological challenge to the criminality of certain acts that States commit against other States in the guise of protecting national security and the hegemonic concepts of development. While the US-Iraq war is said to be a fluid legal arena, the IMT of Nuremberg may have much to say on the matter.
Sixty two years ago until the present, the precedent set by the Nuremberg Trials is still being used as the rallying point for other analogous crimes. The four counts of indictment were codified into a formal Agreement along with the Charter for the IMT. Defenses normally recognized under customary law were denied by express provision of the Charter. Although the criminalization of these counts was still imperfect, provoking legal contentions even, the millions of lives lost during the war deserve the chance to have the scales of justice tilted in their favor. Through the constantly evolving international legal theories, one can only hope that humanity would be able to devise ways to put an end to the abject horror of war.
Schabas, W. (2000). Genocide in International Law: The Crimes of Crimes. Cambridge: Cambridge University Press.
King, Henry. (2003, May 1). Robert Jackson and International Human Rights. Retrieved November 20, 2007, from http://www.roberthjackson.org/Man/theman2-6-6/
Wyzanski, C. E., Jr. (1946, April). Nuremberg–A Fair Trial? Dangerous Precedent. The Atlantic Monthly, Volume 177, No. 4, 66-70.