In prosecuting the major Nazi war criminals, The International Military Tribunal at Nuremberg was a milestone in international criminal law. Following the unprecedented atrocities committed during World War II by the Nazis, it was clear that the political leaders of the regime had to face criminal charges. The London Charter, created by the Allied Forces in August 1945, established the Tribunal and assigned it jurisdiction over three primary offences; War Crimes, Crimes Against Peace, and Crimes Against Humanity1. However, in prosecuting the Nazis, the Tribunal (hereafter called ‘the Trial’) needed to overcome a wide variety of legal issues, all arguably stemming from the fact that the law was so undeveloped at the time. These issues, which are widely debated to this day, undermine the notion that the Trial was lawfully established, or fair to its defendants. In this essay, it is argued that as the Trial represented the first substantive step in international criminal prosecution (which, crucially, innovated with the basic law existing at the time), it was lawfully established, and fair to its defendants.
One issue that the Trial highlighted, was the impact such a trial would have on state sovereignty. It appears that in order to be subject to the jurisdiction of the Tribunal, the sovereign state of Nazi Germany must first have consented to it; in line with Austinian philosophy prevalent in the 19th and early 20th Century, the idea of a sovereign power being subjected to higher law was something of a contradiction in terms2. However, the Trial proceeded without the consent of Nazi Germany, which Sadat notes ‘seemed to lay to rest, at least as a practical matter, the theory that the constitution of an international criminal tribunal impermissibly contravenes the sovereignty of states per-se’3. This development undermines a belief that the Trial and the three charges it levelled were lawfully established, and fair.
To try and overcome the sovereignty issue, the judges held that as Nazi Germany had surrendered to the Allies unconditionally, they had consented to the exercise of their combined sovereignty in creating the London Charter4. The judges at the Trial also drew attention to the Hague Convention of 19075, the Kellogg-Briand Pact of 19286, and the Geneva Convention of 19297; these were international instruments that Germany had ratified, which, in their view, implied that Germany had consented to the exercise of international jurisdiction.
However, one cannot overlook how strong an institution state sovereignty was at the time of the Trial. It is here that the first way, in which the Trial was a milestone is highlighted; though trials of a similar nature had gone before Nuremberg, they had all been conducted in domestic courts using domestic law, precisely because of the fear of undermining state sovereignty8. Moreover, although international treaties and Conventions (like the ones mentioned above) existed prior to the Trial, there was never a mention of criminal liability within them. As a result, international law at the time, in Tomuschat’s words, ‘could be dismissed as marginal or even insignificant’9, and crucially, state sovereignty was as strong as ever. Therefore, in conducting the Trial, an important principle of the international order was ignored, and the Nazi leaders were accused of violating laws they or their predecessors had not agreed to adhere to. This suggests that despite the judges’ efforts, the Trial was not lawfully established, nor was it fair to its defendants.
However, Birkett (an alternate judge at the IMT) notes that international law does not necessarily operate on the basis of consent. For Birkett, international law is a far more organic institution, in that it ‘grows and develops as the consciousness of nations grows and widens and deepens’10. His view is supported by the existence of peremptory norms in international law, which apply even in instances where explicit state consent is not present11. Indeed, state sovereignty cannot serve to shield those who commit crimes as grave as those of the Nazis; as such, one must conclude that despite its sovereignty-piercing abilities, the Trial was lawfully established and fair.
Nullum Crimen Sine Lege
Another issue that the Trial struggled to deal with was that its proceedings breached a core principle of legality; nullum crimen sine lege, or ‘no crime without law’12. Simply put, this principle holds that it is unjust to create and enforce laws that criminalise an act after it has been committed. In particular, Crimes Against Peace (Art. 6(a) of the Charter) and Crimes Against Humanity (Art. 6(c)) attract this issue (as war crimes was better established in the law at the time). Prior to their use at the Trial, Crimes Against Peace and Crimes Against Humanity arguably lacked presence in international criminal law.
Crimes Against Peace, defined as ‘planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties’13 arguably had no basis in international criminal law prior to the Trial. Though the judges sought to use the Kellogg-Briand Pact of 1928 and Hague Convention of 1907 as evidence of earlier creation of the crime14, crucially neither the Pact nor the Convention included criminal law implications for violations of their terms15. As a result, it can be argued that Crimes Against Peace was far from a criminal offence by the time of the Trial.
The same issue applies in the case of Crimes Against Humanity. Although an intention to create an offence of Crimes Against Humanity came in the wake of the First World War16, efforts were scuppered by The United States of America and Japan, who were suspicious of a vague and potent offence coming into being17. Therefore, it was only at the Trial that Crimes Against Humanity was ‘newly minted’18, defined as ‘namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population’19.
However, both the drafters of the London Charter and the judges at the Trial had expected nullum crimen to be an issue, and innovated so as to limit the role retroactive law played at the Trial. In the case of Crimes Against Humanity, the drafters defined the crime as ‘murder, extermination… and any other inhumane acts committed against any civilian population, before or during the war…in execution of or in connection with any crime within the jurisdiction of the tribunal’20. This precise wording meant that any charge for Crimes Against Humanity had to be linked to an appropriate war crime, which was already a well-established criminal offence at the time21. Though this meant only Crimes Against Humanity committed after the war began were within the Trial’s jurisdiction (as war crimes must be committed during a war), the linking process undertaken by the Charter drafters helps avoid the nullum crimen criticism22.
In overcoming nullum crimen issues with Crimes Against Peace, the judges at the Trial also sought assistance from the pre-existing offence of war crimes. The judges reasoned that even though the Hague Convention did not criminalise war crimes, the conduct covered by the Convention had thereafter been treated as war crimes23. In the same way, although the Hague Convention did not criminalise violations of peace, its inclusion was enough to conclude that any such violations should be considered a crime. In what could now be characterised as an appeal to customary international law, the judges believed that the lack of criminalisation was irrelevant.
Crimes Against Peace & Vagueness
However, the creation of Crimes Against Peace raised a further issue, one that continues to this day. Defined as ‘planning, preparation, initiation or waging of a war of aggression’, it is clear that some ambiguity exists when it comes to defining a war of ‘aggression’. Indeed, at what point does an act of self-defence or struggle for self-determination become ‘aggression’? This issue was not approached at the Trial at all, leading some to remark that the offence is ‘dubious and propagandistic’24.
To make matters worse, no precise definition of ‘aggression’ has yet to emerge, seventy years on from the Trial. A definition was created for the ICC’s Rome Statute at the Kampala Review Conference25, in which any aggression had to constitute a ‘manifest violation’ of the UN Charter by virtue of its ‘character, gravity and scale’26; however, Gillett argues that this definition is still too vague for effective use27, despite the fact it represents an evolution of the one used at the Trial. Therefore, if the international community is unable to create a definition as of 2015, how can one justify charging individuals with the offence seventy years prior? It must be concluded that Crimes Against Peace, for lack of clarity, was not lawfully established at the Trial, or fair to use.
However, a lack of clarity does not necessary mean we must discard Crimes Against Peace (or ‘aggression’). According to Futamura’s, the crime has struggled to develop due to ‘no recurrence of the unique circumstances that made the Nuremberg and Tokyo Tribunals possible: unconditional surrender of an obvious aggressor and violator of international law’28. In other words, the acts of Nazi Germany during World War II were so clearly aggressive by anyone’s measure that no definition was required. As a result, the Trial represents an anomaly in international criminal law; Crimes Against Peace was lawfully established, but in a world where aggressors like the Nazis no longer exist, the crime has entered hibernation. Therefore, vagueness alone is not sufficient in arguing that the Trial was not lawfully established, or fair.
The International Legal Community
It can also be argued that the Allies, taking it upon themselves to prosecute the Nazi leaders, failed in a number of ways to adhere to basic principles of fairness upon drafting the Charter and conducting the Trial. Much of what happened suggests a great deal of decisions were being made on a political basis. As such, it can be argued that the Allied forces were not a lawfully established authority, capable of legally and fairly prosecuting the defendants.
Political considerations arguably underpinned Art.1 of the London Charter, which excluded all acts of the Allied Forces (regardless of how questionable they were) from the Trial’s jurisdiction29. Additionally, only Allied states were represented on the judicial bench at the Trial, raising questions as to their impartiality30. These realities have prompted the language of ‘victor’s justice’ when describing the Trial. Though avoiding such a scathing remark, Tomuschat notes that the one-sided quality of the events hardly helped the Trial appear fair31, and the Allies failure to conform to basic judicial principles undermines their assumed position as a legitimate authority.
However, when evaluating the Allies’ conduct, the era in which the Trial occurred cannot be forgotten. In 1944, Lauterpacht writes ‘In the existing state of international law, it is probably unavoidable that the right of punishing war criminals should be uni-laterally assumed by the victor’32. Indeed, at the time of the Trial, the international legal framework was only in its infancy; the international community lacked an independent or representative body (like the International Criminal Court or United Nations) through which they could create and enforce law. A degree of political manoeuvring in the creation and conduct of the Trial was, sadly, quite inevitable.
In prosecuting the Nazi leaders, the Allied Forces clearly struggled with the implications of what they were doing; not only did they have to assume the role of a power above a collection of sovereign states, but an area of law had to be rapidly developed so as to deal with the catastrophe that had occurred in Europe during the war. However, through clever interpretation of pre-existing law and careful drafting of the Charter, the Trial appears to have been lawfully established. Though arguing that the Trial was also fair is much more difficult, given the primitive state of international law at the time, one must conclude that the Trial was as fair as it possibly could have been.
1The Charter of the International Military Tribunal at Nuremberg (1945), 82 UNTS 280.
2See J. Austin, The Province of Jurisprudence Determined (University of London 1832), p.232.
3L. Sadat, The International Criminal Court and the Transformation of International Law: Justice for the New Millennium (Transnational 2002), p.29.
4International Military Tribunal (Nuremberg), Judgment of 1st October 1946, p.52.
8See S. Roper, L. Barria, Designing Criminal Tribunals: Sovereignty and International Concerns in the Protection of Human Rights (Ashgate 2006), p.6.
9C. Tomuschat, ‘The Legacy of Nuremberg’, Journal of International Criminal Justice 4 (2006), 838.
10In G. Mettraux (ed), Perspectives on the Nuremberg Trial (OUP 2008), p.305.
11See Prosecutor v Furundzija  IT-95-17/1, at 121.
12See P. Feuerbach, Lehrbuch Des Gemeinen In Deutschland Gultigen Peinlichen Rechts (1801).
13Charter (n 1), Art.6(a).
14Judgment (n 4), p.50.
15I. Brownlie, International Law and the Use of Force by States (Oxford Clarendon Press 1963), p.83.
16J. Maogoto, ‘War Crimes & Realpolitik’ (Lynne Rienner Publishers 2004), p.49.
18K. Sellars,’Imperfect Justice at Nuremberg and Tokyo’ , European Journal of International Law, 1089.
19Charter (n 1), Art.6(c).
21K.Heller, Nuremberg Military Tribunals and the Origins of International Criminal Law(OUP 2011), p.129
22C.Bassiouni, Crimes Against Humanity: Historical Evolution and Contemporary Application (CUP 2011), p.29.
23Judgment (n 4), p.53.
24A. D’Amato, H. Gould, L. Woods, ‘War Crimes & Vietnam: The Nuremberg Defence and the Military Selective Service Register’ , California Law Review 57, 1063.
25See C. Kreß, L. Holtzendorff , ‘The Kampala Compromise on the Crime of Aggression', Journal of International Criminal Justice 8.
26Rome Statute (1998), A/CONF.183/9, Art.8(bis)(1).
27M. Gillett ‘The Anatomy of an International Crime: Aggression at the ICC’ , International Criminal Law Review 1, p.24.
28M. Futamura, War Crimes Tribunals and Transitional Justice: The Tokyo Trial and the Nuremberg Legacy, (Routledge 2008), p.31.
29Charter (n 1), Art.1.
30T. Locke, J. Riem, ‘Judging Nuremberg: The Laws, The Rallies, The Trials’ , German Law Journal 6, 1821.
31Tomuschat (n 9), p.833.
32In Mettraux (n 10), p.14