THE ICFAI UNIVERSITY, DEHRADUN

ICFAI LAW SCHOOL

INTERNATIONAL CRIMINAL LAW

A PROJECT ON

“THE INFLUENCE OF THE NUREMBERG TRIAL ON

INTERNATIONAL CRIMINAL LAW”

SUBMITTED TO: MR. GYANENDRA TRIPATHI

SUBMITTED BY

RAUNAK SINHA

BBA LL.B (HONS.)

5th YEAR

ENROLLMENT NO.-1505C00098

SUBMISSION DATE: 03-09-2019

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 TABLE OF CONTENT

PAGE NO.

1. INTRODUCTION 03

2. THE NUREMBERG TRIBUNALS 04 - 07

3. THE INFLUENCE OF NUREMBERG 07 - 09

4. CONCLUSION 10

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 INTRODUCTION

The first forty years after Nuremberg was a period of slow progress in developing international
criminal law. There is no doubt that international criminal law has developed in recent years. Indeed
if international criminal law is defined as the prosecution of individuals for ‘international crimes’
such as war crimes or Crimes Against Humanity then there was no such law for most of the twentieth
century. On the eve of the twentieth century attempts to regulate warfare in The Hague Conference of
1899, and again in 1907, were constrained by notions of State sovereignty. As the Nuremberg judges
pointed out in 1946, ‘The Hague Convention nowhere designates such practices [methods of waging
war] as criminal, nor is any sentence prescribed, nor any mention made of a court to try and punish
offenders.’1

The Nuremberg trials established that all of humanity would be guarded by an international legal
shield and that even a Head of State would be held criminally responsible and punished for
aggression and Crimes Against Humanity. The right of humanitarian intervention to put a stop to
Crimes Against Humanity – even by a sovereign against his own citizens – gradually emerged from
the Nuremberg principles affirmed by the United Nations.

The awareness of the inadequacy of the law and the willingness to do something to enforce such new
principles was slow in coming. The failure of the international community to develop binding norms
of international criminal law was glaringly illustrated by the slow pace of various UN committees
charged in 1946 with drafting both a code of crimes against the peace and security of mankind and
the statutes for an international criminal court.

1
Cited by Andres Clapham in From Nuremberg to The Hague: The Future of International Criminal Justice, Philippe
Sands, Cambridge University Press, 2003, p. 31

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A. THE NUREMBERG TRIBUNALS

1.International Military Tribunal (IMT) Three months after the end of World War II the United
States, Great Britain, the Soviet Union and France, signed an agreement creating the International
Military Tribunal (IMT), known as the “Nuremberg Tribunal,” for the Prosecution and Punishment
of the Major War Criminals of the European Axis. Only four categories of crimes were to be
punished:

Conspiracy (conspiring to engage in the other three counts),

Crimes Against Peace (planning, preparing and waging aggressive war),
War Crimes (condemned in Hague Conventions of 1899 and 1907) and
Crimes Against Humanity (such as genocide), which by their magnitude, shock the conscience of
human kind.

Each provision of the 30-articles was carefully considered in order to reach an accord that seemed
fair and acceptable to the four partners representing the United States, Great Britain, France and the
Soviet Union. On the eight day of August 1945, the Charter was signed and the first International
Military Tribunal in the history of mankind was thereby inaugurated.

A Chief Prosecutor had been appointed for each of the four victorious powers. Designated by
President Harry S. Truman as U.S. representative and chief counsel at the IMT Supreme Court
Justice Robert H. Jackson planned and organized the trial procedure and served as Chief Prosecutor
for the USA. He set the tone and goals: “That four great nations, flushed with victory and stung with
injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the
law is one of the most significant tributes that Power has ever paid to Reason…We must never forget
that the record on which we judge these defendants today is the record on which history will judge us
tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well. We must
summon such detachment and intellectual integrity to our task that this trial will commend itself to
posterity as fulfilling humanity’s aspirations to do justice.”2

From November 20, 1945, until August 31, 1946, all sessions of the tribunal were held in Nuremberg
under the presidency of Lord Justice Geoffrey Lawrence. In its comprehensive judgment, the
Tribunal traced the history of international criminal law and the growing recognition in treaties,

2
cite R.H. Jackson, The Case Against the Nazi War Criminals (NY, Knopf, 1946, pp 3-7)

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conventions and declarations, that aggressive war was an illegal act for which even a head of state
could be brought to account. There was no longer anything ex facto about such a charge. Leaders
who deliberately attacked neighboring states without cause must have know that their deeds were
prohibited and it would be unjust to allow them to escape merely because no one had been charged
with that offense in the past. “The law is not static” said the Tribunal, “but by continued adaptation
follows the needs of a changing world.” Aggressive war was condemned as “the supreme
international crime.”3

The evidence, based in large part on captured German records, was overwhelming that crimes of the
greatest cruelty and horror had been systematically committed pursuant to official policy. The IMT,
citing The Hague Conventions and prevailing customs of civilized nations, rejected Germany’s
argument that rules of war had become obsolete and that “total war” was legally permissible.
Regarding Crimes Against Humanity (such as extermination and enslavement of civilian populations
on political, racial or religious grounds), the law took another step forward on behalf of humankind -
a step that was long overdue. The findings and judgment of the IMT helped to usher in a new era for
the legal protection of fundamental human rights.

The lead IMT defendant, Field Marshal Hermann Goering, after he was sentenced to be hanged, was
sentenced to death in absentia. Other defendants were hanged or sentenced to long prison terms.
Some were acquitted and released. The Charter was adhered to by nineteen other nations and both
Charter and Judgment of the IMT were unanimously affirmed by the first General Assembly of the
United Nations. They have become expressions of binding common international law.

2. Principles of the Nuremberg Tribunal, 1950

The Definition of what constitutes a war crime is described by the Nuremberg Principles, a document
that came out of this trial.

Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the
Judgment of the Tribunal. Adopted by the International Law Commission of the United Nations,
1950.4

3
For cite see ICC, p. 72-73.
4
Authentic text: English Text published in Report of the International Law Commission Covering its Second Session, 5
June – 29 July 1950, Document A/1316, pp. 11-14.

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Principle I Any person who commits an act which constitutes a crime under international law is
responsible therefore and liable to punishment.

Principle II The fact that internal law does not impose a penalty for an act which constitutes a crime
under international law does not relieve the person who committed the act from responsibility under
international law.

Principles III The fact that a person who committed an act which constitutes a crime under
international law acted as Head of State or responsible Government official does not relieve him
from responsibility under international law.

Principle IV The fact that a person acted pursuant to order of his government or of a superior does
not relieve him from responsibility under international law, provided a moral choice was in fact
possible to him.

Principle V Any person charged with a crime under international law has the right to a fair trial on
the facts and law.

Principle VI The crimes hereinafter set out are punishable as crimes under international law:

a. Crimes Against Peace: a. Planning, preparation, initiation or waging of a war of aggression or a

war in violation of international treaties, agreements or assurances;

b. War Crimes: Violations of the laws or customs of war which include, but are not 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, of 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.

c. Crimes Against Humanity: Murder, extermination, enslavement, deportation and other inhuman
acts done against any civilian population, or persecutions on political, racial or religious grounds,
when such acts are done or such persecutions are carried on in execution of or in connection with any
crime against peace or any war crime.

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Principle VII Complicity in the commission of a crime against peace, a war crime, or a crime
against humanity as set forth in Principles VI is a crime under international law.

3. Twelve Subsequent Trials at Nuremberg

Contrary to the original plans, no subsequent international tribunal took place because the four Allies
were unable to agree on joint subsequent trials.

As a compromise, the quadripartite Control Council that governed Germany enacted a law
authorizing each of the four Powers to carry on with such prosecution in its own zone of occupation
as it might see fit. From 1947-1949, twelve U.S. military trials involving politicians, military
personnel, businessmen and industrialists, doctors, lawyers, members of the Foreign Office, etc.,
were held in Nuremberg. Similar trials were conducted in the French, British and Soviet zones of
occupation.

B. THE INFLUENCE OF NUREMBERG

B.1 Influence on the Development of International Criminal Law

B.1.1The United Nations

The Nuremberg Principles and the conception of Crimes Against Humanity did not only affect the
formation of International War Crimes Tribunals. Its impact caused several effects beyond creating a
mere term to be used in military tribunals and political purposes. One of these effects was the United
Nations Resolution 96 (1), drawn up on the 11th of December 1946, stating that “Genocide is a crime
under international law, contrary to the spirit and aims of the United Nations and condemned by the
civilized world.” Deriving from the Nuremberg concept of Crimes Against Humanity, and the crimes
perpetrated by the Nazis in their total war, this declaration was finally embodied two years later in
the Convention on the Prevention and Punishment of the Crime of Genocide of 1948. This
convention criminalized genocide and related activities in the international sphere, and the
convention itself is heavily influenced by many of the Nuremberg principles. It also extended this
crime against humanity beyond periods of war and the specific scenario of the Second World War.
The Genocide Convention was not, per se, a major advancement in the upholding of international
human rights, especially considering its provision in Articles V and VI, which provide that states
should regulate their legal systems accordingly to criminalize such acts in the domestic sphere, and

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that those found guilty of the crime of genocide should be tried in the courts of the country where the
acts were committed in absence of a competent international tribunal with consented jurisdiction
over the matter, and many academics have shown to be quite skeptical about its practical
possibilities. However, on the theoretical arena the Convention Against Genocide is a development
from the precepts set in Nuremberg, in such a sudden and ad hoc manner, especially where
codification of Crimes Against Humanity is concerned. The Convention takes the main aspect of
these crimes, extirpates it from a broad definition, and narrows it down into one separate and
codified principle. Genocide as defined in Articles II and III practically cover all those measures
taken by the Nazis during their persecution and brutal extermination of certain social, religious and
cultural groups: those same atrocities which the members of the Court dubbed as Crimes Against
Humanity took concrete form in this Convention.

In 1948 the United Nations issued the Universal Declaration of Human Rights, the first legal
document to recognize such rights as binding, and creating the notion of Human Rights as we
understand it today. The influence which Nuremberg and to a certain extent the Tokyo trials had upon
the formulation and conception of such a declaration cannot be understated. Nuremberg had for the
first time in international law traced a definite distinction between jus ad bello a doctrine concerned
exclusively on the conduct in warfare, and jus ad bellum, which concerns itself with the justice or
legality of the waging of war. By introducing the new principles of Crimes Against Peace and Crimes
Against Humanity, Nuremberg effectively fathered a globalized concern towards certain attitudes in
war and, by extension, for the rights of all human beings suffering the effects of certain modes of
violence. This supposed impact on the Universal Declaration has been backed up by the fact that
some academics have stated that the UN Charter itself was almost a product of Nuremberg and the
issues raised before, during and after the Trial.

B.1.2 Codification of Law via the United Nations

The first General Assembly of the new U.N. unanimously affirmed the legal principles laid down in
the Charter and Judgment of the IMT: aggression, war crimes and Crimes Against Humanity were
punishable crimes for which even a head of state could be held to account. Superior orders would be
no excuse but could be considered in mitigation. Inspired by the horrors revealed at the Nuremberg
Trials, the Assembly passed another resolution calling for a convention to prohibit and punish the
crime of genocide – by such a tribunal as might later prove acceptable to the parties. Experts were

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soon designated to draw up a Code of Crimes Against the Peace and Security of Mankind and to
draft statutes for an international criminal court to punish such offenses.

B.1.3 The Geneva Conventions

The U.N., which was founded in 1945 from the ashes of World War II, took the lead in the late 1940s
in defining war crimes and trying to establish guidelines designed to prevent such horrors in the
future. In December 1948, the U.N. General Assembly passes a resolution called the Convention on
the Prevention and Punishment and Punishment of the Crime of Genocide. The resolution was one of
the so-called Geneva conventions, named after the Swiss city where they were signed.

In the 1948 convention, genocide was defined as certain acts “committed with the intent to destroy,
in whole or in part, a national, ethnical, racial or religious group, as such.” Article I of the convention
stated, “The contracting parties confirm that genocide, whether committed in time of peace or in time
of war, is a crime under international law which they undertake to prevent and to punish.” Article 3
read in part, “The following acts shall be punishable: genocide; conspiracy to commit genocide;
direct and public incitement to commit genocide; attempt to commit genocide; complicity in
genocide.” The list of punishable crimes was derived directly from the Nuremberg prosecutors’
charges.

The Fourth Geneva Convention, agreed to by the General Assembly in 1949, also dealt with war
crimes. Known formally as the Convention on the Protection of Civilian Persons in Time of War, it
required U.N. nations to enact laws that made it illegal to commit or order others to commit “grave
breaches” of the Convention, and to actively seek to bring such offenders to trial. The grave
breaches, which constitute the heart of the contemporary definition and understanding of war crimes,
include various acts committed against protected persons and property, including “willful killing,
torture or inhumane treatment willfully causing great suffering or serious injury to body or health,
unlawful deportation or transfer or unlawful confinement of a protected person.”

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 CONCLUSION

International crimes, particularly war crimes and Crimes Against Humanity, have been, regrettably,
all too common. Ongoing violence and widespread civil unrest continue in numerous situations,
those responsible for atrocities have rarely faced justice. With a substantially increased risk of further
terrorist attacks in the aftermath of the September 11th terrorist attacks and the Bali bombings, the
development of appropriate legislative and institutional responses to international crimes has
acquired a new urgency.

For more than four decades after the establishment of the Nuremberg and Tokyo tribunals the
enforcement of international criminal law remained an exclusively national responsibility and the
report card is appalling. This is not to suggest that the international community needs an effective
international regime to replace or supplant national courts and processes. Rather, the suggestion here
is for an effective international supplement to national structures and processes – a multilateral
institutional framework to hold some key individuals to account while simultaneously providing a
catalyst for more effective national enforcement of international criminal law.

The Nuremberg Tribunals were a precedent and a promise. As part of the universal determination to
avoid the scourge of war, legal precedents were created that outlawed wars of aggression, war crimes
and Crimes Against Humanity. The implied promise held forth to the world was that such crimes
would be condemned in future, wherever they occurred and that no person or nation would be above
the law. After half a century, it now seems possible that the promise may yet to be fulfilled.

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