THE CATHOLIC UNIVERSITY OF EASTERN AFRICA

FACULTY OF LAW

NAME: NATHAN O. MOGONCHI

REG: 1033112

UNIT TITLE: INTERNATIONAL CRIMINAL LAW

UNIT CODE: CLS 438

LECTURER: DR. GRACIEUX MBUZUKONGIRA

DATE: 6TH JULY, 2022

QUESTION: A COMMENTARY ON THE INTERNATIONAL MILITARY TRIBUNAL

AT NUREMBERG
Abstract

The Nuremberg Trials were a significant turning point in the history of international criminal law
because of their archaic nature as well as their insights into the establishment of contemporary
international criminal law. A new system of international criminal justice was created as a result
of their actions, and it now consists of national courts, special tribunals, combined tribunals, and
finally the International Criminal Court. These organizations are all founded in Nuremberg. This
essay argues that the International Military Tribunal at Nuremberg has had a significant impact
on the development of modern international criminal law through both its existence and its
guiding principles.

Introduction

In his opening statement before the International Military Tribunal at Nuremburg, Justice Robert
H. Jackson stated, ''We must never forget that the record on which we judge these defendants
today is the record on which history will judge us tomorrow."1

The legitimacy of Nuremberg's establishment, the practices used, and its long-term ramifications
have all remained hot topics ever since it was established. It is acknowledged that Nuremberg
continues to play a significant role in the development of international criminal law. It is highly
possible that Nuremberg will continue to be held in the same respect as it was in the 1940s and
1950s.

The Nuremberg Trials were a significant turning point in the history of international criminal
law. This is due to both its pioneering nature and its insights into the development of
contemporary international criminal law. As a reaction to the horrors of World War II, this
collection of trials was notable in and of themselves. They also spawned a brand-new framework
for international criminal justice that includes national courts. Ad hoc tribunals, combined
tribunals, and then the International Criminal Court, a long-standing international criminal court,
are the other options. These organizations all have Nuremberg roots.2 In this paper, the author

1
'Opening Statement Before The International Military Tribunal - Robert H Jackson Center' (Roberthjackson.org)
<https://www.roberthjackson.org/speech-and-writing/opening-statement-before-the-international-military-
tribunal/> accessed 6 July 2022.
2
(Icc-cpi.int) <https://www.icc-cpi.int/sites/default/files/NR/rdonlyres/ED2F5177-9F9B-4D66-9386-
5C5BF45D052C/146323/PK_20060930_English.pdf> accessed 6 July 2022.
will try to show how Nuremberg, with its current existence and guiding ideas, has a
revolutionary significance for the worldwide criminal justice system.

The International Military Tribunal, the Subsequent Nuremberg Proceedings3, and the "zonal
trials"4 were the three main components of the Nuremberg Trials. The first two were held
between 1945 and 1949 at the Palace of Justice in Nuremberg, Germany and fall within the
scope of this commentary. The zonal trials fall out of the scope of this commentary.

In order to effectively set up Nuremberg's past, present, and future implications for war criminal
proceedings both now and in the future. Nuremberg's significance can only be understood by
analyzing its historical context. In order to demonstrate the revolutionary significance of the
legal position up until the Nuremberg Tribunals in the development of contemporary
international criminal law, the author will first describe it. The setup and operation of the
Nuremberg Trials will then be described. Last but not least, Nuremberg-related changes to
international criminal law will be discussed in terms of both substantive and procedural issues.

Pre-Nuremburg

Individuals had already been tried before a court for their activities during warfare prior to the
Nuremberg Tribunals.5 Except for one that was meant to be an ad hoc tribunal for the atrocities
of the First World War, none of these attempts to try the guilty had the same level of perceptual
depth as the Nuremberg Trials. In accordance with customary international law, up until
Nuremberg, only national courts had the authority to bring criminals to justice for crimes
committed in that nation, and these trials tended to concentrate on minor offenders for isolated
and well-established breaches of the law of war.

3
In the post-World War II occupied Germany, the Control Council and Coordinating Committee of the Allied
Control Authority published a number of enactments and authorized papers, including Control Council Law No. 10
governed the Punishment of Persons Guilty of War Crimes.

4
Major war criminals were to be handled by the International Tribunal, and the countries where the crimes in
question were committed were to handle the prosecutions of lesser offenders. The tribunals of the various
occupying forces were given control over a limited number of these Trials. There were some offenses that are
referred to as "small" war crimes, which are the reverse of "major" war crimes, among those that were convicted
during the zonal trials. Different nations, including Germany, Poland, Austria, France, the United States, and Israel,
hosted them.
5
Willard B. Cowles, 'Trials Of War Criminals (Non-Nuremberg)' (1948) 42 American Journal of International Law.
After the Second World War, the Allies began to carefully evaluate the lessons learned from the
Post-First World War period in order to make an informed choice on the character of the
upcoming Judicial Institution. The Leipzig trials and the attempt to establish an ad hoc tribunal
following the First World War were highlighted as the most comparable examples. In fact,
following the First World War, the international order swung the scales in favor of the German
courts, who were looking for a chance to be granted the authority to judge their own citizens in
Leipzig.6 The Commission7 made a suggestion to create an ad hoc tribunal to try people
accountable for war crimes and abuses of human rights which occurred during the post-First
World War era. However, the initiative was doomed to suffer the same fate as its forerunners and
was never implemented. On the other hand, it helped pave the way for the Nuremberg Trials by
fostering a favorable impression of the idea of bringing the Kaiser before an international court.

The Nuremburg Trials

Following the Second World War, representatives from the Allies gathered in London to develop
an agreement to create an international military tribunal for the trial of key war criminals while
taking into account prior experiences, a charter for the tribunal as well as an indictment of the
key Nazi figures.8

The accord itself and the Charter of the Tribunal made up the two components of the London
Agreement.9 The International Military Tribunal was established by the London Charter of
August 8, 1945, "for the just and quick trial and punishment of the chief war criminals of the
European Axis." This remark makes it very evident that the Tribunal had the right to bring the
main European Axis war criminals to trial. To make clear the significance of Nuremberg for the
global system of international criminal justice, one must draw attention to a number of
significant provisions in the Charter.

24 prominent Nazis were accused of committing the crimes listed in the Charter in the
indictment. Twenty-four defendants were tried, and sixteen were found guilty of war crimes and
crimes against humanity, twelve of crimes against peace, and eight of conspiracy to commit
6
I. Bantekas and S. Nash, International Criminal Law (2nd edn, Cavendish Publishing 2003).
7
'The Commission on the Responsibility of the Authors of the War and on the Enforcement of Penalties for
Violations of the Laws and Customs of War' established by the Paris Peace Conference in 1919.
8
There was a problem harmonizing legal concepts and procedures between the Common Law countries, Britain
and the United States, and Civil Law Countries, the USSR and France.
9
Also known as the Nuremburg Charter
crimes against peace. Three of the accused were exonerated. Nineteen defendants were found
guilty, and twelve received death by sentences. On many counts, a number of the defendants
were found guilty. In October of 1945, one defendant committed suicide, while the trial of a
second defendant was adjourned indefinitely owing to a terrible illness. In absentia, a final
defendant received a death sentence.10

According to the Charter's Article 2, The Tribunal would have four members, each with a
backup. Each of the original signatories was required to nominate one member and one alternate.
A majority vote was required to make decisions in accordance with Article 4. In the event that
the votes were evenly divided, the Tribunal's president's vote—who was chosen by the members
—would have the final say. However, decisions regarding convictions and penalties needed the
support of at least three Tribunal members.

The Charter's attempt to "reach acts which are so horrible that they are crimes not only against
the victims but against mankind" is one of its most crucial elements. Three categories of crimes
were deemed to fall under the purview of the Tribunal: crimes against peace, war crimes, and
crimes against humanity.11 This marked a significant shift in how "international crime" was
perceived. Nuremberg emphasized the reality that any behavior severely undermining principles
that are cherished globally is illegal under international law. As a result, such behavior impacts
the entire world community and shouldn't be within the sole control of the nation whose soil it
occurred on or whose citizens did it. Additionally, the international community must have a prior
right to attempt to punish its offenders.12

Additionally, the Nuremberg Tribunal was successful in bringing to justice the key figures of the
Nazi regime as well as the organizations whose members participated in the atrocities committed
during the war. The historic verdict of the Nuremberg Tribunal stated that men, not inanimate
objects, commit crimes against international law, and the only way to make sure that its rules are
followed is to punish those who do it.

10
Alan Bullock, 'The Trial Of German Major War Criminals By The International Military Tribunal Sitting At
Nuremberg, Germany, The Trial Of German Major War Criminals By The International Military Tribunal Sitting At
Nuremberg, Germany And The Trial Of German Major War Criminals. Proceedings Of The International Military
Tribunal Sitting At Nuremberg, Germany' (1947) 23 International Affairs.
11
The Nuremburg Charter, Art. 6.
12
D. Nsereko, 'Bringing Aggressors To Justice: From Nuremberg To Rome | Botswana Law Journal' (Botswana Law
Journal, 2005) <https://journals.co.za/doi/10.10520/AJA18172733_131> accessed 6 July 2022.
These trials mark the first effort in history to hold people accountable for the conception, launch,
and conduct of wars of aggression by the states for which they hold official positions. Therefore,
holding a senior government position may neither absolve one of responsibility or lessen the
severity of punishment. Acting under the direction of a superior could not absolve one of
responsibility, but it might be considered to lessen the severity of punishment.

The revelation of state sovereignty and the idea that people in positions of official authority were
personally responsible for their actions under international criminal law during the course of the
conflict are what stand out in this situation. This shift in how state sovereignty is perceived is
similar to another shift in how the same notion is perceived in other international conflict
settlements. Indeed, in the area of business law, "lifting the veil of incorporation"13 has the same
legal foundation as lifting the state protection from the former officials. As a result, neither of the
fields respects national sovereignty as a barrier to personal accountability.

The principle established by the Tribunal was reaffirmed by the United Nations Assembly in the
Resolution of December 10, 194614 which approved the principles of the Tribunal's Charter and
Judgment and stated that anyone who commits an act that violates international law is
responsible and subject to punishment on an individual basis, and that the preparation and
conduct of aggressive wars falls under this category.

The UN General Assembly instructed the International Law Commission to formulate the
principles of International Law recognized in the Charter of Nuremburg and in the judgement of
the tribunal.15 The Nuremberg precedent, which may have had the greatest impact on the
application of international criminal law of any international legal source, is confirmed by seven
guiding principles.16

Despite the Nuremberg Tribunal's widespread recognition as a turning point in international

criminal law and relations, the trial procedure has drawn sharp criticism. Three things are the
subject of these criticisms. The first point dealt with how the Trial was ex post facto because it
recognized the aggressive war as a crime. The proceedings entailed punishment in breach of the
13
In business law, where a company’s shareholders are using a company as a device to avoid responsibility, the law
and therefore the courts circumvent the abuse.
14
(Legal.un.org) <https://legal.un.org/avl/pdf/ha/ga_95-I/ga_95-I_ph_e.pdf> accessed 6 July 2022.
15
United Nations General Assembly Resolution 177(II)
16
Harry M. Rhea, 'The Nuremberg Effect On Contemporary International Criminal Justice' (2008) 21 Criminal Justice
Studies.
principle of nullum crimen, nulla poena sine lege, and finally, the Tribunal was criticized for
enforcing "victor’s justice."

Attorneys for the defendants filed a joint motion with the Tribunal the day before the trial
started, on November 19, 1945, arguing that the trial was ex post facto in prosecuting aggressive
war as a crime. At a later point in the trial, the argument was reiterated. In its ruling, the Tribunal
determined that the Charter did not constitute ex post facto legislation but rather described
existing law.17

A more serious issue was the nullum crimen, nulla poena sine lege rule that was in effect during
the proceedings. However, taking into account this fact, the standards of the conducts described
in the crimes which were controlled in the Charter make these acts unlawful and harmful within
the Nuremberg framework. Additionally, "the mechanical application of nullum crimen, nulla
poena sine lege to defend the Nazi aggressors would be incongruous not only with the history of
the theory, but also with its intended outcome.18

Finally, it was recalled that the judges were all citizens of the conquering nations while
evaluating the criticisms of "victor's justice". Furthermore, the Charter's guiding law was not
applied consistently. Only the defeated nations were held to the standards of guilt. The Russians,
for instance, weren't compelled to defend their activities in Poland or Finland. The Americans
were not compelled to defend Hiroshima, like the Russians were. However, Nuremberg had not
brought about this imbalance. It results from a prehistoric international order. In dealing with
conventional war crimes, for instance, the victor has used a unilateral standard.19

Post-Nuremburg

With the exception of the Cold War, war criminal prosecutions continued after Nuremberg in
various legal arenas all over the world. The situation altered with the end of the Cold War in
1989, and the notion of international criminal justice once more became a viable option.20

The perceptions of international criminality and the pursuit of these crimes have changed, as is
seen from the information provided above. The United Nations now formed ad hoc tribunals in
17
General treaty for the Renunciation of war of August 27, 1928
18
Bernard D. Meltzer, 'A Note On Some Aspects Of The Nuremberg Debate' (1947) 14 The University of Chicago
Law Review.
19
Ibid Note 18, p. 469.
20
Ibid Note 18, p. 469.
reaction to atrocities worldwide, first in the Former Yugoslavia and then in Rwanda, nearly fifty
years after Nuremberg. These judicial sub organs were established by the Security Council in
accordance with Chapter VII of the UN Charter.21 The establishment of the International
Criminal Court was made possible by the success of these tribunals, which allowed the
international community to go forward. A convention agreed in 1998 by 160 states gathered in
Rome established the International Criminal Court (ICC). Many of the rules of the Rome Statute,
which created the ICC, are derived from the Nuremberg Trials, and it also incorporates advances
in post-Nuremberg international law.

The ICC is designed to hold people accountable for the most serious international crimes, much
like the Nuremberg Tribunal did. Regarding the crimes covered by the Rome Statute, the official
ICC authorities are not immune from prosecution.22 In other words, higher officials can no longer
use the debunked principle of noninterference in internal matters as a cover to break international
law covertly. Additionally, they are unable to use their official status as an excuse to evade the
reach of international law.

The crimes and their definitions as defined in the Nuremberg Charter are crucial when analyzing
the significance of Nuremberg. War crimes and crimes against humanity were both subject to the
Nuremberg Trials. Additionally, the Nuremberg Tribunal had jurisdiction over crimes against
peace, which are known as acts of aggression in the ICC Statute.23 The ICC also has jurisdiction
over these matters.

Additionally, the ICC Statute defined the crime of "genocide" in Article 6 and, when contrasted
to Nuremberg, the ICC has advanced international criminal law by doing so. Additionally, the
Rome Statute's descriptions of the offences are more precise than the London Charter's.

The Nuremburg Tribunals employed a mixture of both Common Law and Civil Law systems
which are strongly witnessed in the ICC Statute. Moreover, the ICC has fixed some gaps in the
Nuremburg Tribunal. First, according to the Rome Statute, the ICC cannot act in an ex post facto

21
United Nations, 'Chapter VII: Action With Respect To Threats To The Peace, Breaches Of The Peace, And Acts Of
Aggression (Articles 39-51) | United Nations' (United Nations)
<https://www.un.org/en/about-us/un-charter/chapter-7> accessed 6 July 2022.
22
The Rome Statute, Art. 27.
23
The states were unable to come to terms with a definition of aggression or the requirements for the Court's
jurisdiction to be exercised. Therefore, after the crime of aggression has been established and the terms for the
exercise of the court's jurisdiction have been reached, only then would the ICC begin to act.
manner. Unlike the Nuremburg Tribunal which was established as a form of a “victor’s justice”,
the ICC was freely established by states through an international treaty.

Last but not least, the ICC Statute takes into account recognized advancements in international
law since Nuremberg. As an illustration, the ICC was given jurisdiction over the crime of
genocide, and the ICC Statute specifically designated crimes of sexual violence as crimes against
humanity.

Conclusion

As was made abundantly obvious above, the significance of the Nuremberg and other tribunals'
rulings goes beyond the identification, conviction, and sentencing of those accountable for
crimes committed during armed wars. Their importance can be attributed to the fact that they set
new precedents and altered how the general public views the criminal justice system on a global
scale. There was no commonly recognized system of international criminal law before the
Nuremberg Tribunal and the London Charter. Modern international criminal law has,
nevertheless, evolved since Nuremburg.

What matters is the purpose of having these kinds of legal authority, regardless of whether they
are ad hoc or national tribunals, when evaluating the issues and difficulties the ICC and other
international criminal courts face. Everywhere in the globe, the underlying motivations for first
establishing Nuremberg and then the ICC remain relevant. The issues that the international
criminal law is addressing through its legal tools are the ongoing conflicts in Africa, Asia, and
the Middle East. The joint panel established in 2005 to try Saddam Hussein was also the nearest
illustration of this fact. Since governments, international organizations, and nongovernmental
organizations (NGOs) in particular have duties to ensure Nuremberg's success, it is obvious that
its significance and repercussions on international criminal law are not abstract or purely
theoretical explanations.
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International Military Tribunal Sitting At Nuremberg, Germany And The Trial Of German Major
War Criminals. Proceedings Of The International Military Tribunal Sitting At Nuremberg,
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Cowles W, 'Trials Of War Criminals (Non-Nuremberg)' (1948) 42 American Journal of

International Law

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