of
Nuremberg
Abstract
Christian Tomuschat.
The Nuremberg trial, later followed by the Tokyo trial, is a milestone in the
development of international law. For the first time in modern history, the leaders
of a defeated country were indicted for committing serious crimes jeopardizing
the bases of peaceful coexistence among individual human beings and peoples:
crimes against peace, war crimes and crimes against humanity. German objections
criticizing crimes against peace as having no legal basis and, therefore, contradicting
the principle nullum crimen sine lege, were justified. To date, the legal position has
not changed, since the international community has consistently refrained
from including aggression in the lists of offences prosecutable under the statutes
of the currently existing international criminal courts. However, no well-founded
objections could be raised against the indictment for war crimes and crimes against
humanity. Concerning offences of such abhorrent nature, no offender can invoke
nullum crimen that protects only legitimate confidence. To hold to account political
leaders, directly under international law, for criminal actions organized and ordered
by them is a necessity in a world where the basic axioms of the international
system have changed: state sovereignty has lost its absolute character and is
counterbalanced by the requirements of human rights protection. The emergence of
international criminal justice embodies the concept of international community in
the most palpable manner. Fortunately, some of the defects of the Nuremberg trial
have been remedied today: no arbitrary picking and choosing of the accused by the
prosecution is possible before the International Criminal Court; prosecutors as well
as the judges of all existing judicial bodies are carefully selected by the international
community with a view to avoiding any illegitimate bias.
1. Nuremberg as a Milestone
To indict the leaders of Nazi Germany who had survived Word War II before the
International Military Tribunal (IMT) at Nuremberg was truly a revolutionary
step. Although according to a long tradition, international law had permitted
Professor of Public Law, International Law and European Law, Humboldt University, Berlin;
member of the Institut de Droit international; former member of the UN Human Rights
Committee; former member and Chairman of the UN International Law Commission.
[chris.tomuschat@gmx.de]
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Journal of International Criminal Justice 4 (2006), 830^844
doi:10.1093/jicj/mql051
Oxford University Press, 2006, All rights reserved. For permissions please email: journals.permissions@oxfordjournals.org
831
to try members of the armed forces of an enemy state committing war crimes,1
during the 19th and the 20th centuries no actual cases occurred where the
political leadership of a defeated country had been put on trial. The relevant
negative practice was predicated on the assumption that wars were a fact of life
and that nothing could be gained by instituting criminal proceedings against
the responsible office holders after the end of hostilities. To some extent, this
Liberalism may have reflected the spirit of a monarchical past, when in Europe
almost all of the reigning houses were tied to one another by close family
bonds. Under these circumstances, it was felt inappropriate to raise obstacles
making it difficult to re-establish peace after war. In fact, criminal trials,
if not conducted by the own courts of a defeated country, would almost
certainly have led to resentment and even feelings of revenge in an international environment where nationalism in a narrow, chauvinist sense was a
characteristic feature of all European countries.
It is true that the indictment contained in the Versailles Treaty against the
German Kaiser, Wilhelm II, is referred to again and again by textbooks as
giving an account of the slow emergence of international criminal law. But
the relevant provision, Article 227,2 constituted a curious blend of strongly
moral and sketchy legal arguments. No real effort was made to show that
the German Kaiser had indeed perpetrated an offence punishable under international law. Essentially, the arraignment was meant to support the clause
in Article 231 according to which Germany and its Allies had to bear responsibility for all the loss and damage caused by the war. Additionally, the clause
served to clear the victorious Allied Powers of any contributory responsibility.
That the main motivation behind Article 231 was political became manifest
very soon after the Allied Powers had requested the Netherlands to extradite
the Kaiser, who had found a place of refuge there.When the Dutch Government
denied that request,3 the Allied Powers did not insist on their wish. The matter
was tacitly dropped.4
1
3
4
See, for instance, E. David, Principes de droit des conflits arme s (3rd edn., Brussels: Bruylant,
2002), 646^647; UK Ministry of Defence (ed.), The Manual of the Law of Armed Conflict (Oxford:
Oxford University Press, 2004), 421.
The Allied and Associated Powers publicly arraign William II of Hohenzollern, formerly
German Emperor, for a supreme offence against international morality and the sanctity of
treaties.
A special tribunal will be constituted to try the accused, thereby assuring him the guarantees
essential to the right of defence. It will be composed of five judges, one appointed by each of the
following Powers: namely, the United States of America, Great Britain, France, Italy and Japan.
In its decision, the tribunal will be guided by the highest motives of international policy, with a
view to vindicating the solemn obligations of international undertakings and the validity of
international morality. It will be its duty to fix the punishment which it considers should be
imposed.
The Allied and Associated Powers will address a request to the Government of the Netherlands
for the surrender to them of the ex-Emperor in order that he may be put on trial.
See note of 21 January 1921, reprinted in W.G. Grewe, Fontes Historiae Iuris Gentium, vol. 3/2
(Berlin and New York: Walter de Gruyter, 1992), 731.
More solid was the affirmation that German officers liable of war crimes should be prosecuted
and possibly be extradited to the Allied Powers for that purpose (Art. 228). The reluctant
832
5
6
prosecution of the alleged offenders before the German Reichsgericht in Leipzig suffered from
manipulative obstruction, see G. Hankel, Die Leipziger Prozesse (Hamburg: Hamburger Edition,
2003).
See article by C. Burchard, supra in this Symposium.
For a summary of the criticisms see F. Berber, Lehrbuch des Volkerrechts, vol. 2 (2nd edn.,
Munchen: Beck, 1969), x 50, at 250 et seq.; G. Dahm,Volkerrecht, vol. 3 (Stuttgart: Kohlhammer,
1961), 290^293.
R.H. Minear,Victors Justice ^ The Tokyo War Crimes Trial (Princeton: Princeton University Press,
1971), at 75^76. Under Article 2 of the Tribunals Charter, The Tribunal shall consist of no less
than six members nor more than eleven members, appointed by the Supreme Commander for
the Allied Powers from the names submitted by the Signatories to the Instrument of Surrender,
India and the Commonwealth of the Philippines. See also H. Ahlbrecht, Geschichte der
volkerrechtlichen Strafgerichtsbarkeit im 20. Jahrhundert (Baden^Baden: Nomos, 1999), 41^44;
A. Cassese, International Criminal Law (Oxford: Oxford University Press, 2003), 332.
Of 27 August 1928, LNTS 94, at 57.
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this also had to entail consequences for individuals responsible for preparing
war and making the relevant determinations on launching it.9
This reasoning was far from convincing. It is one thing to declare war
unlawful with regard to inter-state relationships, but a totally different thing
to acknowledge it as an offence entailing individual criminal responsibility.
Most of the rules of international law, which are binding on states produce no
direct effects on individual human beings. The IMT made a dramatic leap,
deriving the criminality of aggression from its character as an internationally
wrongful act according to the classic scheme of international law as a system
of rights and obligations among states. To this very date, doubts have been
voiced as to the viability of this legal deduction. Without a new understanding
of international law as the basis of an international order predicated on the key
concept of peace, the reasoning of the IMT could hardly be sustained.
The criticisms did not stop there. From the German side, it was further
argued that the trial was flawed by its fundamental discriminatory nature.10
In fact, the IMT had been established for the trial and punishment of the
major war criminals of the European Axis countries. Crimes committed by
members of the Allied Powers did not come within the jurisdiction of the IMT.
Attempts by defence counsel to introduce unlawful conduct of the victors side
were rigorously blocked by the judges. Thus, the deliberate air attacks directed
against the civilian population in German cities like Hamburg and Dresden
could not be raised. It is true that the horrors of the atrocities committed
by the Nazi authorities, many times with the active involvement of the
German Wehrmacht, surpassed by far the charges that could be levelled against
the Allied Powers. However, such charges were by no means marginal or
negligible. In any event, the one-sidedness of the prosecution did not
contribute to strengthening the legitimacy of the trials. Even many Germans
who, as a matter of principle, welcomed the trials felt uncomfortable on
account of their unbalanced character.
Another inconsistency was constituted by the measures taken against the
German population after the war. Under the Statute of the IMT, deportation
to the detriment of a civilian population was recognized both as a war crime
and a crime against humanity. However, at the same time as the Statute was
drafted, the Allied Powers agreed at Potsdam11 to expel (transfer) the German
populations not only from the countries where they had lived as minorities
(Poland, Czechoslovakia, Hungary), but also from the German territories east of
the new Oder-Neie line. Although they stated that any transfers that take
place should be effected in an orderly and humane manner, it was clear from
the very outset that their decision amounted in fact to the legitimation of
9 See Trial of the War Criminals before the International Military Tribunal, Nuremberg 14 November
1945^1 October 1946, vol. 1 (Nuremberg: IMT, 1947), at 223.
10 Dahm, supra note 6, at 292, speaks of exceptional law for the defeated (Ausnahmerecht fur die
Besiegten).
11 Potsdam Agreement of 2 August 1945, reprinted in I. von Munch (ed.), Dokumente des geteilten
Deutschland (Stuttgart: Kroner, 1968), 32, x XIII.
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835
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This was the translation of the Nuremberg philosophy into positive law.
Lamentably, the German Government had the unfortunate idea of entering
a reservation regarding this provision, in the following terms:
In conformity with Article 64 of the Convention [Article 57 since the entry into force of
Protocol No. 11], the German Federal Republic makes the reservation that it will only apply
the provisions of Article 7 paragraph 2 of the Convention within the limits of Article 103
paragraph 2 of the Basic Law of the German Federal Republic. This provides that any act is
only punishable if it was so by law before the offence was committed.
It seems as if the drafters of this clause had wanted to reject the essence
of the corresponding clauses of the two comprehensive human rights
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18 Ibid., at 39 x 5.
19 It is logical, though, to subject the jurisdiction of the ICC to the two propositions of nullum
crimen sine lege and nulla poena sine lege, Arts 22 and 23 of the Rome Statute.
20 This was done by the International Law Commission at its second session in 1950, see United
Nations, The Work of the International Law Commission (5th edn., New York, 1996), 167.
21 The main protagonist of that school was H. Triepel, Volkerrecht und Landesrecht (Leipzig:
Hirschfeld, 1899, reprint Aalen: Scientia, 1958).
838
22 The relevant subject matters were and still are counterfeiting of foreign currency, slave trade,
forced prostitution, drug trade, etc.
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23 See the definition given by the author, International Law: Ensuring the Survival of Mankind
on the Eve of a New Century, 281 Recueil des cours (1999), 88: an ensemble of rules, procedures
and mechanisms designed to protect collective interests of humankind, based on a perception
of commonly shared values.
24 International Criminal Tribunal for the former Yugoslavia (ICTY), established by Security
Council resolution 827, 25 May 1993; International Criminal Tribunal for Rwanda (ICTR),
established by Security Council resolution 955, 8 November 1994.
840
Article 3 continues:
An individual who is responsible for a crime against the peace and security of mankind
shall be liable to punishment . . .
The language chosen in the Rome Statute is very similar (Article 25(2)):
A person who commits a crime within the jurisdiction of the Court shall be individually
responsible and liable for punishment in accordance with this Statute.
841
842
there is no basis for such a conviction in the statutes of the currently existing
international criminal courts and tribunals. Although in the former Yugoslavia
aggression was something very real, the Security Council preferred not to
touch upon this burning question. Aggression does not figure among the
heads of jurisdiction assigned to the ICTY. In the case of the ICC, it would
have been almost natural to vest it with a corresponding title of jurisdiction
in order to continue the line commenced at Nuremberg. At first glance,
the Rome Statute seems to mirror the Charter of the IMT in the most
perfect manner. The crime of aggression is mentioned in Article 5 as an
offence falling within the competence of the ICC. But Article 5(2) makes an
important reservation that renders the statement of principle de facto
inapplicable.27
It stands to reason that such an amendment to the Rome Statute will hardly
ever be approved. Thus, Article 5(2) is a clear indication of the lack not
only of practice, but also of opinio juris. The statement enunciated both in
General Assembly Resolution 2625 (XXV) (on Principles of International Law
Concerning Friendly Relations and Co-operation among States in Accordance
with the Charter of the United Nations) and in Resolution 3314 (XXIX)
(on the Definition of Aggression) to the effect that a war of aggression
constitutes a crime against the peace, for which there is responsibility under
international law28 do not specify the kind of responsibility envisaged. During
the drafting process, the issue was deliberately left open.29 Many good reasons
militate for an understanding that views the two sentences just as reference
to state responsibility in the classic sense, albeit in its most drastic form
that entails particularly grave consequences as they now can be found in
the ILC Articles on responsibility of states for internationally wrongful acts
(Article 41).30
The British House of Lords in a recent judgment31 endeavoured to rescue the
Nuremberg convictions notwithstanding this disclaimer, but did so rather
ineptly. The House of Lords could have reasoned more cogently by distinguishing between acts of aggression and wars of aggression. One can hardly
believe that broad consensus will ever be attained on the definition of an act
of aggression. Is a short-term armed intervention, carried out with a view to
27 The Court shall exercise jurisdiction over the crime of aggression once a provision is adopted
in accordance with Arts 121 and 123 defining the crime and setting out the conditions under
which the Court shall exercise jurisdiction with respect to this crime. Such a provision shall be
consistent with the relevant provisions of the Charter of the United Nations.
28 Particularization of the principle of non-use of force, x 2. Under Resolution 3314 (XXIX), the
text was slightly changed (Art. 5(2)): A war of aggression is a crime against international peace.
Aggression gives rise to international responsibility.
29 See B. Graf zu Dohna, Die Grundprinzipien des Volkerrechts uber die freundschaftlichen Beziehungen
und die Zusammenarbeit zwischen den Staaten (Berlin: Duncker & Humblot, 1973), 100.
30 Taken note of by General Assembly Resolution 56/83, 12 December 2001.
31 R v. Jones [2006] UKHL 16, 29 March 2006.
843
32 See on the rescue operation carried out in Albania, C. Kre, Die Rettungsoperation der
Bundeswehr in Albanien am 14. Marz 1997 aus volker- und verfassungsrechtlicher Sicht, 57
ZaoRV (1997) 329.
33 It abstained together with Algeria, Brazil and China.
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supported a state whose responsibility for the holocaust became all too visible
after 8 May 1945.
However, some of the inherent weaknesses of the Nuremberg trials have
been remedied. First of all, consideration has been given to excluding a pickand-choose approach to international criminal prosecution. According to
Articles 13 and 14 of the Rome Statute, only situations may be referred to the
ICC. Hence, it is not open to states or to the Security Council to put on trial
just one or a few alleged offenders identified by name. Nor is it admissible to
distinguish between the two sides in a conflict. The situation comprises an
ensemble of facts with all of its actors and occurrences. It is this basic feature
of the Rome Statute that prompted the United States to demand a resolution
of the Security Council excluding from ICC jurisdiction all members of an
operation established or authorized by the UN, provided that their national
state was not a party to the Rome Statute. This demand was accepted in the
Security Council twice34 but failed after the scandalous treatment of prisoners
in the Abu Ghraib prison had come to light.
As far as the composition of the bench is concerned, not only the Rome
Statute, but also the statutes of the ICTYand the ICTR contain carefully drafted
provisions according to which all contracting parties in the case of the
ICC or the entire international community in the case of the ICTY and
the ICTR participate in the selection of the judges. Accordingly, nobody can
claim any longer that victors justice is imposed on a defeated nation.
Still, those states that have to date declined to ratify the Rome Statute
among them three of the permanent members of the Security Council as well
as the five great Is India, Indonesia, Iran, Iraq, Israel remain in a
privileged position since their nationals are not subject to the jurisdiction of
the ICC ratione personae. However, if their nationals commit an international
crime in the territory of a State Party to the Rome Statute they too cannot
escape criminal accountability. Lastly, the Security Council may at any time
refer a situation to the ICC. Under this provision, however, there exists a basic
inequality in that a permanent member of the Security Council can at any time
block such a planned referral.