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J.I.C.J. 2011, 9(4), 881-903
Journal of International Criminal Justice
2011
At the origins of crimes against humanity: clues to a proper understanding of the nullum crimen principle in
the Nuremberg judgment
Guido Acquaviva
2011 Oxford University Press
Subject: International law. Other Related Subject: Criminal law. Human rights
Keywords: Crimes against humanity; Judgments and orders; Language; No punishment without law
Legislation cited: Universal Declaration of Human Rights 1948 (United Nations) art.11
Charter of the International Military Tribunal for the Trial of Major War Criminals 1945 art.6
Case cited: Judgment in the Trial of the Major War Criminals at Nuremberg Unreported October 1, 1946
*881 Abstract
Over the past decades, scholars have noticed a few significant discrepancies between the English and the
French versions of the Nuremberg Judgment, in particular with regard to the notion of crimes against hu-
manity and its concrete application. By comparing these two versions with the Russian one, this article at-
tempts to provide additional insights into the significance attached to the principle of legality by the various
participants in the Nuremberg trial. The conclusion is that, while the different versions of the Nuremberg
Judgment are hardly reconcilable through the usual methods of interpretation, an analysis of the cultural
and legal background of the judges assists in effectively explaining the discrepancies. Such an analysis also
suggests further original avenues of enquiry into international criminal judgments in general.
1. Introduction
After the demise of Latin, and then of French, as the languages of choice for inter-state intercourse, multiple
versions of international instruments are often official, all authoritative but at the same time each reflecting
the language and legal tradition of the various drafters and signatories. It should be no surprise, therefore,
that discrepancies are noticed at times in these different versions -- and interpretation of the international in-
strument in question becomes more complex. The same occurs for oral records, at least since the time *882
interpretation became a common feature of international meetings and proceedings.1
Contemporary international criminal tribunals avoid the problem of multiple official languages by issuing
rulings in only one authoritative language (although their constitutive instruments are often in multiple lan-
guage versions). Thus, for instance, following in the footsteps of the International Court of Justice (ICJ),2
the International Criminal Tribunals for the former Yugoslavia and Rwanda (ICTY and ICTR) issue their
decisions with the expression, for example, [d]one in English and French, the English version being author-
itative.3 While errors of translation do occur, and smaller discrepancies between the texts abound, the
parties and the public can always have recourse to the authoritative version in order to ascertain the exact
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meaning of a decision.
While scholarly interest has been devoted mainly to language inconsistencies in treaties and other conven-
tional instruments,4 a limited number of practitioners and academics have adverted to issues of interpreta-
tion in other documents that enjoy considerable international importance, such as United Nations' resolu-
tions and judicial decisions issued by international tribunals.5
In this context, a few significant discrepancies have been noted between portions of the English and the
French versions of the Judgment in the Trial of the Major War Criminals at Nuremberg (Nuremberg Judg-
ment) dealing with crimes against humanity.6 These are not the only discrepancies existing in the various
versions of the Nuremberg Judgment,7 but they are significant *883 because they seem to highlight a ten-
sion among the judges regarding the understanding and the application of the principle of legality (nullum
crimen sine lege ) to international law in general, and to crimes against humanity in particular. This article
takes the unusual step of comparing the text of the Nuremberg Judgment in all three of its official languages
-- English, French and Russian -- to more closely analyse these discrepancies in the International Military
Tribunal (IMT)'s application of crimes against humanity and assess what impact such differences may have
on the understanding of nullum crimen.
2. The Nullum Crimen Principle in Relation to Crimes Against Humanity
The principle of nullum crimen sine lege,8 often referred to as the principle of legality, is articulated in the
Universal Declaration of Human Rights in the following terms:
No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a
penal offence, under national or international law, at the time when it was committed.9
With reference to international law, it has been observed that [a] person may be held guilty of an act or an
omission that was not punishable by the applicable national law at the time the offence was committed so
long as this was punishable under international treaty law or customary law at the time the offence was com-
mitted.10
From the viewpoint of general criminal policy, the principle of legality has historically reflected the idea
that psychological coercion could contribute to the prevention of crime and that such coercion would only
emanate from clear legal enunciation of offences.11 The purpose of nullum crimen is nowadays better de-
scribed, however, as that of safeguarding individuals against the arbitrary power of prosecuting authorities
and undue judicial discretion *884 (hence the corollary of banning convictions on the basis of analogy).12
The ICTY, for instance, described the rationale of the principle of legality to be the requirement of spe-
cificity and the prohibition of ambiguity in criminal legislation, noting that [w]ithout the satisfaction of
these principles no criminalisation process can be accomplished and recognized.13
The early steps of the development of the notion of crimes against humanity in relation to individual crimin-
al responsibility are well known.14 During the Second World War, the Allied Powers realized that some of
the worst acts perpetrated, particularly by German officials, had not actually been committed against foreign
nationals, but rather against Germany's own citizens on racial, political or other discriminatory bases. They
could therefore not be considered criminal under the then applicable laws or customs of war.15 The drafters
of the Nuremberg Charter saw obvious political and legal problems with declaring such acts international
crimes for the first time.16 Rather than extending or reinterpreting the existing definition of war crimes,
however, the delegates thought it feasible to suggest the criminalization of the acts in question almost as if
they formed part of or were closely linked to the crime of aggression.17 The product of this exercise in law
making actually allows various interpretations of the scope for crimes against humanity at Nuremberg and
has puzzled scholars and practitioners to date.
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The Nuremberg Charter ended up including a provision on crimes against humanity, which was enshrined in
Article 6(c). According to this provision, however, such crimes had to be committed in execution of or in
connection with any crimes within the jurisdiction of the Tribunal.18 Unsurprisingly, the addition of this
sentence did not prevent this category of crimes being *885 challenged during the Nuremberg trial and in
later years on the basis that the accused had been charged for acts that were not already criminal at the time
of their commission.19
Although early reservations on how the principle of legality had been applied at Nuremberg mainly con-
cerned crimes against peace, crimes against humanity essentially posed the same conceptual dilemma due to
their novelty in the legal (criminal) landscape.20 Concerns about the breach of nullum crimen in turn raised
issues as to the legitimacy of the IMT as a whole and, by implication, of its judgment, which so heavily re-
lied on the legal characterization of Nazi aggression and of the atrocities Germany and her allies commit-
ted in Europe during the Second World War.
The question of the application of the principle of legality to the IMT proceedings is indeed complex and has
sparked lively debates in academic and political circles that have not yet abated. Leaving the issue of crimes
against peace aside, it is worth mentioning that the most immediate argument in favour of the legitimacy of
crimes against humanity was found in the text of Article 6(c) of the Nuremberg Charter itself, where -- as
stated above -- the idea was expressed that crimes against humanity would be punishable by the IMT only
when committed in execution of, or in connection with, any crime within the jurisdiction of the Tribunal.21
Furthermore, from the start it became common amongst practitioners and scholars to note that crimes against
humanity are almost all ordinary crimes according to the municipal laws of the persons to be accused, valid
at the moment they were committed,22 and that, once the Nuremberg Judgment was rendered, it became
clear that [c]rimes against humanity were also, to a large extent, lumped together with war crimes.23 Con-
cerns about the retroactive application of criminal law to the detriment of the accused could thus, at least to
a certain extent, be allayed.
In any event, of the 22 accused at Nuremberg, 18 were charged with crimes against humanity (count 4), and
16 actually convicted. There is little doubt that the four judges -- Geoffrey Lawrence (United Kingdom),
presiding, Francis Biddle (United States of America), Henri Donnedieu de Vabres (France) and Iona Nikit-
chenko (USSR) -- as well as their alternates -- Norman Birkett, John Parker, Robert Falco and Alexander
Volchkov -- relied upon the notion of crimes against humanity in entering their convictions.
*886 Scholars have nonetheless noted that the IMT often conflated the notions of war crimes and crimes
against humanity when entering convictions. Proof of this has often been found in the fact that the IMT only
convicted two defendants -- Julius Streicher and Baldur von Schirach -- of crimes against humanity inde-
pendently of war crimes. As will be shown below, the discrepancies in the various versions of the Nurem-
berg Judgment seem to justify the conclusion that the judges held different views on whether crimes against
humanity could stand alone or had instead to be based on a concomitant finding of guilt for war crimes. It is
indeed hard to dispel the impression that at least some of the judges considered crimes against humanity
punishable only because the conduct was, at the same time, also a war crime.
While these reflections are rather common in contemporary discourse on the origins of crimes against hu-
manity, this matter has seldom been linked to the discrepancies between the English and the French texts of
the Nuremberg Judgment. Two of the most significant discrepancies in question -- which have long attracted
the attention of scholars -- are indeed related to the nullum crimen principle as understood and specifically
applied by the judges to crimes against humanity. It would seem that a proper understanding of the various
theories at play -- and probably even of the actual discussions that occurred on crimes against humanity in
secret deliberations among the eight judges -- would benefit from a comprehensive analysis of these discrep-
ancies in order to understand whether they hint at deeper clashes of ideas and conceptions.
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3. Discrepancies in the Nuremberg Judgment
Contrary to what occurs in contemporary international criminal tribunals, the Nuremberg Judgment was is-
sued in three official, and equally authoritative, languages: English, French and Russian.24
In fact, although the Nuremberg Charter is adamant in stating that [a]ll official documents shall be pro-
duced, and all court proceedings conducted, in English, French and Russian and in the language of the De-
fendant,25 this latter reference to German does not appear to have been applied to the final judgment itself.
This is likely because the working languages amongst the judges and other IMT staff were English, French
and Russian -- German was considered essential only to enable participation, and ultimately a fair trial, for
the accused during the proceedings, but not at the moment of the final judgment.26
*887 It should be noted that the Nuremberg Judgment, before being printed and published, was actually read
in its entirety to the accused and the public at the final court hearings of the trial. The judges took turns in
reading out portions of the judgment in English, French and Russian and the accused were hearing simultan-
eous interpretation from each of these languages into German.27 This fact strengthens the conclusion that all
of these three versions are to be considered official, while the German text -- a mere product of the interpret-
ation in the courtroom -- should not be deemed official.
While it would be easy to smooth the differences that scholars identified by simply relying on the text that is
objectively cited more in the legal literature (i.e. English), especially when writing for an English-speaking
audience, this outcome lacks analytical rigour. In fact, for various reasons discussed below, all these three
languages are important. Moreover, the drafters of the Charter and the participants in the proceedings were
plainly aware of the language difficulties and possible discrepancies. When a significant discrepancy was
found in the Charter itself (Article 6(c), yet another instance of problematic features of crimes against hu-
manity),28 the representatives of the four Powers rushed to adopt a Protocol to rectify the mistake. This
amendment was deemed necessary because all those three texts (English, French and Russian) were
originals and no other appropriate way could be found to reconcile the texts. Thus, it is clear that the
drafters of the Charter, and the main players during the trial, were aware of the difficulties that could ensue
from the various languages involved at trial, when and if the inevitable discrepancies would arise.29
*888 Before attempting a proper analysis of the issues raised by the textual differences of the various offi-
cial versions of the Nuremberg Judgment, these versions should first be carefully considered.
At page 219 of the Nuremberg Judgment (English version), under the heading The Law of the Charter, the
following stark statement is made: the maxim nullum crimen sine lege is not a limitation of sovereignty, but
is in general a principle of justice, adding that [o]n this view of the case alone, it would appear that the
maxim has no application to the present facts. The corresponding text reads, at page 231 of the French ver-
sion, as follows: Nullum crimen sine lege ne limite pas la souverainet des tats; elle ne formule qu'une
rgle gnralement suivie. The remark then appearing in the English text and related to the facts of the case
before the IMT is simply absent from the French version.
Later in the judgment, at page 304 of the English version, when discussing Streicher's conviction, the judg-
ment reads:
Streicher's incitement to murder and extermination at the time when Jews in the East were being killed under
the most horrible conditions clearly constitutes persecution on political and racial grounds in connection
with War Crimes, as defined in the Charter, and constitutes a crime against humanity.
The French version of the same portion related to Streicher's conviction reads (at page 324):
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Le fait que Streicher poussait au meurtre et l'extermination, l'poque mme o, dans l'Est, les Juifs
taient massacrs dans les conditions les plus horribles, ralise la perscution pour des motifs politiques et
raciaux prvue parmi les crimes de guerre dfinis par le Statut, et constitue galement un crime contre
l'Humanit .
While other differences exist between the two texts of the judgment, as mentioned above the present article
will focus on these specific two, which are it is clear -- closely linked one to the other.30 These discrepan-
cies are indeed significant: the choice between them entails a substantially different understanding of the im-
port of the principle of nullum crimen sine lege.
*889 These two differences are intertwined because they both relate to the way the judges ostensibly inten-
ded to apply to the proceedings the principle of legality, to be understood as the principle according to which
no conviction can be passed for conduct that was not defined criminal at the time it was carried out.
4. Interpreting the Discrepancies
A. The Main Issues
What scholars have usually not done so far is to look at all three official languages as a point of departure.
The following chart, showing the three versions of the two above-referenced passages related to crimes
against humanity, may assist in this exercise.
[] the maxim
nullum crimen
sine lege is not
a limitation of
sovereignty, but
is in general a
principle of
justice [] On
this view of the
case alone, it
would appear
that the maxim
has no applica-
tion to the
present facts'.
[] la maxime: Nullum crimen sine lege ne limite pas la souverainet des tats; elle
ne formule qu'une rgle gnralement suivie. []31
## ##

[]
##.32
Streicher's in-
citement to
murder and ex-
termination at
the time when
Jews in the East
were being
killed under the
most horrible
conditions
clearly consti-
tutes persecu-
tion on political
Le fait que Streicher poussait au meurtre et l'extermination, l'poque mme o,
dans l'Est, les Juifs taient massacrs dans les conditions les plus horribles, ralise la
perscution pour des motifs politiques et raciaux prvue parmi les crimes de guerre
dfinis par le Statut, et constitue galement un crime contre l'Humanit.33
##34
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and racial
grounds in con-
nection with
War Crimes, as
defined in the
Charter, and
constitutes a
crime against
humanity.
*890 There is no doubt, looking at the above table, that the three versions of the two passages in question di-
verge in some, often significant, respects. In particular, the French version of the passage on the principle of
legality, instead of speaking of a principle of justice, insists on the fact that the nullum crimen is a rule (
rgle) that does not limit the sovereignty of states (the words rule and states do not appear in English or
Russian). Moreover, and more importantly, the French text does not have any reference to the fact that prin-
ciple of legality would be inapplicable to proceedings before the IMT.
If one reads only the English and Russian texts, it would seem that the nullum crimen maxim is merely a
general principle not binding on the judges, probably in light of the recognition that the Nuremberg Charter
provided the boundaries of the IMT jurisdiction and applicable law. This understanding would allow the
judges to convict the defendants for crimes against humanity regardless of their established guilt for the cor-
responding war crimes, by balancing the principle of nullum crimen with the principle that punishing
heinous conduct such as massive extermination and persecutions cannot be deemed unjust.31 In other words,
on the basis of these texts, nullum crimen is merely a principle of justice. Not being a clear and binding rule,
it allows a court the possibility of weighing other competing principles, assessing in particular whether it
would be more just to leave this type of crime unpunished or, instead, punish them on the basis of
(retroactive) law. The English and Russian versions hint at this dichotomy, and reach the unambiguous con-
clusion that the nullum crimen principle should actually not be applied in the circumstances prevailing at
Nuremberg.
If one reads the French, however, the conclusion is utterly different: the nullum crimen maxim appears to
rise to the level of a full-fledged rule, binding the IMT regardless of the dictates of the London Charter
(which would at most establish the jurisdiction of the IMT, not the applicable law). The conclusion is inex-
orable, in such (French) perspective, that Streicher could only *891 be convicted of crimes against humanity
if his deeds also at the same time (galement ) amounted to war crimes, firmly established in customary
law at the time of their commission. Antonio Cassese has shown the similarities of the French text justifying
Streicher's conviction with the position of the French Chief Prosecutor at Nuremberg, who had stated that
the charges of crimes against humanity were linked to the more precise legal notions of Crimes against
Peace and War Crimes and merely constituted the systematic perpetration for political ends of crimes that
already existed under the criminal systems of all civilized countries.32 This view is supported by historical
accounts according to which Judge Donnedieu de Vabres during deliberations was one of the proponents of
entering a conviction against Streicher for war crimes too, although he had not even been indicted under that
count.33 This was, in a sense, a way to avoid infringing on the principle of legality, for in this manner there
would be no separate conviction for crimes against humanity -- the category of crimes which was arguably
not defined properly before the acts in question had been committed.34
The Russian text has two main interesting features. First, it is different from both the English and the French
in that it considers nullum crimen as a general principle of justice. The English and French texts talk instead
of nullum crimen being in general a principle of justice or, respectively, une rgle gnralment suivie .
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Second, and more importantly, the Russian version appears to be the most precise of the three in keeping
crimes against humanity distinct from war crimes, when it states that Streicher's actions constitute persecu-
tion on political and racial grounds in connection with the commission of war crimes, as defined in the
Charter (in order to establish the jurisdictional requirements of Article 6(c)). It then proceeds to conclude
that these crimes thus [or in this way] constitute crimes against humanity (making the factual finding re-
quired on the basis of the charges). Overall, this text supports the English version in not requiring a finding
of guilt for war crimes before establishing guilt for crimes against humanity, thus maintaining a clearer dis-
tinction between the two categories.
In conclusion, despite their differences, the English and Russian versions appear to consider Streicher's indi-
vidual criminal responsibility for crimes against humanity as a legitimate outcome, in view of the circum-
stance that the principle of legality was deemed inapplicable in the instant case, probably due to the enorm-
ity of the crimes in question. The French version does not explain how a conviction could actually be
entered against Streicher for persecution, except for suggesting that the criminalization of the conduct in
question complied with nullum crimen because it amounted to a war crime.
*892 B. Interpretation of International Instruments in Different Languages
International law possesses rules on reconciling texts drafted in different authoritative languages. Rules on
interpretation are for instance contained in Articles 31 through 33 of the 1969 Vienna Convention on the
Law of Treaties (Vienna Convention),35 which are considered to be declaratory of custom. The interpretat-
ive exercise provided for in the Vienna Convention, in Article 33(4), requires that:
when a comparison of the authentic texts discloses a difference of meaning which the application of articles
31 and 32 does not remove, the meaning which best reconciles the texts, having regard to the object and pur-
pose of the treaty, shall be adopted.
These rules, however, are chiefly meant to apply to treaties. The Nuremberg Judgment, although a funda-
mental text in international law (its principles, including the definition of crimes against humanity, were
later transposed into the Principles of International Law adopted by the International Law Commission in
1950),36 is not akin to an international convention in multiple languages. It would be deceptive, therefore,
to argue that these canons of interpretation should be used in interpreting international judgments such as the
Nuremberg Judgment, not just because of the ostensible scope of application of Article 33(4) (i.e. treaties),
but in particular due to the different rationale underpinning interpretation of judgments.
When faced with an international instrument drafted in two or more authoritative languages, scholars have
often described the process for the interpreter as one of identifying the outcome which respects the different
languages but, at the same time, extracts from the treaty the best reconciliation of the discrepancies among
the versions.37
The main conclusion from international case law addressing this issue is that reconciliation, as intended by
Article 33(4) of the Vienna Convention, does not necessarily mean always attempting to find the least com-
mon denominator of the various linguistic variants of the text.38 On the contrary, reconciliation may well
result in choosing one text over another, when the *893 former is more consistent with the context in which
the interpreter is working.39
Following this approach, it would appear at first blush possible to attempt and find a way to reconcile the
three different versions of the two passages under consideration. The French text is alone in suggesting that
the principle of legality is a full-fledged rule and that a conviction for crimes against humanity can only be
entered once a similar finding is made for war crimes. It is therefore the most restrictive text of the three,
since the other versions would appear to at least allow this possibility (even though a first reading of those
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two versions suggests otherwise). In other words, following ordinary canons of treaty interpretation, the
French text is covered by the English and Russian ones, while the opposite is not true -- the French would
therefore be dispositive and prevail over the English and Russian ones.
However, interesting, this solution is unpersuasive for a number of reasons. The French version of the first
text listed above lacks any reference to the finding that, on the facts of the Nuremberg Judgment, nullum cri-
men was deemed simply not an issue by a majority of the judges. In other words, the French text does not
assist in explaining why Streicher could be convicted for crimes against humanity when he was not con-
victed of (or even charged with) war crimes. In this respect, the French text, if considered as prevailing over
the English and Russian ones, would run counter to the very outcome of the Judgment -- the fact that
Streicher was indeed convicted for crimes against humanity and not war crimes. It is hard to reconcile that
version with the result -- conviction under count 4 reached by the whole of the bench -- and with the fact
that two languages out of the three official ones are actually more in tune with that result.40
More generally, the rules provided for in the Vienna Convention appear difficult to apply to judicial rulings.
On the one hand, it is true that international criminal tribunals have consistently held that the rules of inter-
pretation referenced above are applicable to non-conventional instruments, such as the ICTY Statute
(annexed to a UN Security Council Resolution).41 However, in the case of a judgment -- a document ex-
tremely *894 different from treaties and other similar international instruments -- it is arduous to say what
the object and purpose were at the time of drafting. In reality, if one were to push the matter and strive to
find the object and purpose of the Nuremberg Judgment in order to reconcile the various texts set out
above, one would inevitably have to face the fact that, at least for some participants in the IMT, the purpose
of whole enterprise was to convict the criminals and mete out stern punishment, and not to provide any
meaningful fair trial.42 Suffice it to mention, in this respect, the public announcements of Judge Nikitchen-
ko before the trial, according to whom [t]he whole idea [of the proceedings at Nuremberg] is to secure
quick and just punishments for the crime[.] If the judge is supposed to be impartial, it would only lead to
unnecessary delays.43 In this respect, establishing the meaning of passages of the judgment on the basis of
the object and purpose of the Nuremberg trial according to (some of) its participants would either be im-
possible or would most probably lead to extremely questionable results.
It is therefore submitted that any interpretation of a judicial ruling in a criminal case issued in two or more
authoritative languages should not be based on the rules of reconciliation expressed by the Vienna Con-
vention as interpreted by the ICJ, since these rules were conceived for treaties and are generally applied to
law-making international instruments other than judgments. Other theories of interpretation should therefore
be explored.
*895 C. Interpretation of Domestic Laws and Judgments in Different Languages
As hinted above, even if their constitutive instruments are silent on the matter, contemporary international
criminal tribunals have abandoned the practice of issuing judgments in more than one authoritative lan-
guage. It is therefore not possible to turn to their experience in order to reach a solution to this dilemma.
Domestic systems do not appear to be of real assistance in attempting to ascertain possible solutions to this
problem either. Even in multilingual countries where, due to the co-existence of various official languages,
statutes are enacted in more than one official version, judgments in criminal cases are generally issued in
one language only.
The Swiss Federal Supreme Court, for instance, adopts the language of the proceedings that led to the case
being brought before it. When these rulings are published, they are officially published in the original lan-
guage. The only official portion of translation -- prepared by the Supreme Court itself -- is found in the ab-
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stract (Regeste, regeste, regesto ) at the beginning of each published ruling. These abstracts are an extremely
concise summary of the ruling, but are not technically part of the decision itself, with the consequence that
no problem of discrepancies arises. When the Swiss Supreme Court has to interpret a term in a legislative
text, it will consult all three texts (German, French and Italian), as they are all equally authoritative, and try
to ascertain the most appropriate meaning by reconciling the texts and the legislative intent.44 In Canada,
when the Supreme Court is faced with statutes enacted in both English and French, it uses the common
meaning (most often, the narrower construction) to choose amongst two clear, yet irreconcilable, linguistic
versions.45 Even there, however, one version is generally the original, while the other one is a mere transla-
tion.46
Thus, domestic practice is not very helpful in providing clear guidance on the proper way to ascertain the
true meaning of the aforementioned passages on crimes against humanity and the principle of legality. Na-
tional debates on multi-lingual statutes and judicial processes do, however, suggest something of interest to
the analysis that is being conducted here. Scholars studying language issues raised in national legislation and
jurisprudence have noted that *896 these differences tend to highlight the legal and cultural differences un-
derpinning the various terms and expressions used.47 For example, participants in Canadian courts will not
just simply refer to the version of the statutes in their respective preferred language, which would be under-
standable, but will also make a number of cultural assumptions about the statutes on the basis of their legal
training, which is shaped to a large extent by the language in which it was imparted.
Whereas no definite rule on interpretation of judicial rulings in different languages emerges from the limited
amount of domestic systems taken as examples, domestic experience bears testimony to the fact that differ-
ent judges, schooled in different languages and legal traditions, may have problems in even discussing on
the same terms when addressing a problem posed by an international trial. In a sense, legal training and lan-
guage shape the mind, and thus the understanding of legal concepts. In order to assess the import of this in-
tuition for international criminal justice, it is necessary to turn our attention to the way in which the Nurem-
berg Judgment was actually drafted, and to the legal and cultural milieus of those who wrote it.
D. The Quest to Establish the Judges' Original Intent
1. The Drafting of the Judgment
A less formal approach than the ones foreshadowed above calls for an analysis of how the Nuremberg trial
actually occurred and of the way the judgment was drafted and issued, keeping in mind the cultural differ-
ences underpinning the languages used by the judges deliberating. While it is a general principle that judicial
deliberations are secret, decades of research have led historians and legal scholars to shed some light on the
process undergone at Nuremberg to reach the verdict.
When analysing the Nuremberg process as a whole (rather than the judicial proceedings only), one is struck
by the impact it had on interpretation and translation techniques. Not only did the IMT spur the invention of
the modern simultaneous interpretation system,48 but also laid the ground for theoretical and technical ad-
vances in translation. Court reporters, for instance, changed every 25 minutes in order to review their own
work and prepare a full transcript of the hearings a few hours after the hearing itself.49
When the judges met to begin final debate on the verdicts, it was amidst tight security measures -- phones
would be disconnected during deliberations and waste paper, including notes, would be put in special bags
to be burned.50*897 During deliberations, while all eight judges participated in discussions, only the four
principals could cast their vote on the verdicts themselves.51
Neither Judge Donnedieu de Vabres nor Judge Nikitchenko spoke or understood English -- interpreters re-
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portedly had to be employed at every closed session of the Tribunal in order to enable deliberations.52 The
discussions at these sessions were apparently quite heated and soon the impossibility of getting eight judges
using three different languages to reach agreements on specific words or phrases emerged.53 Historians
seem to agree that the first version of the judgment was drafted in English by Judge Birkett,54 while the
English-speaking judges' aides had actually been working on several legal questions even prior to the close
of the proceedings.55 This draft was then translated into French and Russian under tight security measures,
each paragraph numbered so that the discussion could proceed more swiftly by referring to those.56 It would
thus seem that the (English) first draft was translated into French and Russian and was used by the interpret-
ers at the various sessions as the basis for judges' deliberations.
It is therefore complex establishing who, apart from Judge Birkett, had more influence in the drafting of the
crimes against humanity sections of the Nuremberg Judgment. Considering the similarity of the English and
the Russian texts (read and understood by six out of eight judges) as opposed to the French one (translated
by the language staff, redrafted by one of the two French judges, or a combination of the two), it is ex-
tremely unlikely that the judges during deliberations ever decided to rely on the French text regarding the
principle of legality and Streicher's conviction under count 4.
This conclusion is partly supported by fact that the judgment was read out to the accused by the different
judges in instalments. Since what the accused heard in the courtroom on judgment day was the interpretation
of what each judge was reading, it is important that the two passages in question were both read from the
English text by an English-speaking judge. The sequence was reportedly not random, but had rather been de-
cided by Judge Lawrence.57 What the defendants heard in both these instances was, therefore, the interpret-
ation into German of what was being read in English. Since the English version is *898 what the primary in-
tended addressees of the judgment were hearing, this would support the conclusion that the English text is to
be deemed, in a sense, more official than the French (and the Russian, for that matter).58
2. Different Language Versions as Different Legal Traditions
On the basis of the foregoing, it would appear that the English and Russian versions of the two passages in
question better reflect the original intent of the majority of the judges participating in the Nuremberg. The
maxim nullum crimen was considered inapplicable to the case under consideration -- even if the sentence ex-
plaining this reasoning is missing from the French version and Streicher was convicted for crimes against
humanity as a category clearly distinct from war crimes, although the French version suggests otherwise.
Such an outcome finds pivotal support in other considerations. Various judges, as well as other participants
in the Nuremberg enterprise reiterated after the trial that the principle of legality was not to be understood
as a binding rule of international law at the time, but merely a general principle of justice, which therefore
could give way to other -- potentially conflicting principles, such as the need to punish the war criminals
for such serious offences on the basis of a sort of natural law. As far as international proceedings were
concerned, a commonly held view was that if an act was, at the moment of its performance morally, though
not legally wrong, a law attaching ex post facto a sanction to the act is not contrary to the moral idea
which is at the basis of the principle in question.59
With respect to judges and scholars from a common law background, and who presumably read the Nurem-
berg Judgment in its English version, the record is replete with assertions to the effect that nullum crimen
should *899 not have been considered a rule binding on the IMT.60 Even today, while no doubt is expressed
that the principle of legality is a fundamental rule applicable both in domestic criminal prosecutions and in
international ones,61 its applicability to the IMT proceedings is still questioned, just like it was in 1946.62
Soviet scholars and diplomats expressed the same conclusion both before and in the aftermath of the Nurem-
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berg trial, when they discussed why the principle of legality should not be deemed to apply as a rule of inter-
national law or that, in any event, criticism could be easily brushed aside due to the nature of the conduct
imputed to the major war criminals.63 In general, *900 Soviet legal scholarship after the Second World War
considered the interaction between general human morality and international law as the basis for the pro-
hibition of crimes against humanity (amongst other delicta iuris gentium ) at the international level.64 No is-
sue of nullum crimen is usually raised in this respect.65 Decades later, Soviet and Russian scholarship --
even if recognizing that crimes against humanity and aggression could theoretically pose a nullum crimen is-
sue -- tenaciously continued challenging allegations of unfairness in this respect.66
It is mainly the French judge Donnedieu de Vabres and scholars evidently relying on the French version of
the Nuremberg Judgment who point out that Streicher's conviction could only be entered because his acts
also amounted to war crimes, in line with his understanding of the Charter's provisions.67 Some of these
scholars come to the conclusion that crimes against humanity did not pose problems of nullum crimen at
Nuremberg because such crimes are effectively already criminalized in domestic jurisdictions.68 Others are
more cautious, denying any issue with the principle of legality at Nuremberg and simply noting the connec-
tion between crimes against humanity and crimes against peace, rather than war crimes, as a way to establish
the Tribunal's jurisdiction.69
*901 In any event, the assumption that in the Nuremberg Judgment war crimes and crimes against humanity
form one whole due to a perceived lack of independence of the latter category is still at the heart of most
discussions on the topic in French legal literature.70 At least since the late 1930s, French legal scholarship
expressed the belief that the principle of legality was an aspect so fundamental to the spirit of modern justice
that it also existed at the international level.71 This notion is in keeping with mainstream French criminal
law tradition in that period, which among other things, looked at the withering of the nullum crimen rule in
Germany -- but also in the USSR -- with great suspicion and clearly required taking a stand against the
principle (or rule )'s dilution.72 It appears that Donnedieu de Vabres was resolved to follow this tradition
faithfully, even if this risked undermining the legitimacy of one of the first international criminal trials in the
world. Unsurprisingly, French legal scholarship on international crimes maintained the same view after the
Nuremberg Judgment.73
Although it is uncommon to try and read international criminal judicial rulings through the lens of the cul-
tural background of the judges issuing them,74 the Nuremberg Judgment -- having been issued in three dif-
ferent official languages directly reflecting the milieus of the eight judges -- appears to be a prime example
of legal training and theories making their way into the texts of the judgment. The fact of having studied and
worked in one cultural environment may clearly have an impact on the mindset and the terms of reference
relied upon by a judge when issuing a ruling.
In the Nuremberg case, the anomalous outcome of three partially different versions on an issue as pivotal as
the legal foundation of a conviction for *902 crimes against humanity might be also due to the circumstance
that no single judge could thoroughly and accurately check all three versions before they were considered fi-
nal and official. As stated above, contemporary international criminal tribunals issue their decisions in one
authoritative language. There is no doubt, however, that cultural training, preconceptions and inbuilt notions
nonetheless can make their way into the final judgment: they are probably just more difficult to spot for the
reader due to the artificial use of one language by all concerned. While this is an interesting area to ex-
plore, it lies beyond the scope of the present article.
5. Conclusions
It is not easy to establish how the discrepancies in the various versions of the Nuremberg Judgment related
to crimes against humanity came to be and what they truly mean. However, there is some basis to surmise
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that the French judges -- and Donnedieu de Vabres in particular -- tried hard to ensure that the nullum cri-
men principle was consecrated as a full-fledged rule directly applicable by the IMT vis--vis the defendants.
Thus, the principle of legality made its way into the French text of the judgment as a rule of international
law (jus cogens, as we would probably call it today) trumping even the letter of the London Charter, which
clearly allowed for convictions on crimes against humanity alone, as long as the facts showed a connection
with crimes against peace and war crimes. English-speaking and Soviet judges instead found themselves
agreeing -- perhaps somewhat oddly -- that the nullum crimen principle could cede way to higher considera-
tions of justice in the extreme circumstances dictated by the Nuremberg trial.
If these conjectures were proven true, they would bear testimony to Judge Donnedieu de Vabres's appreci-
ation of the importance of the nullum crimen maxim even in the face of extreme public pressure to convict, a
pressure undoubtedly present at Nuremberg. While this appreciation did not in the end prevent any finding
of guilt at Nuremberg, Donnedieu de Vabres's insistence -- maybe even to the point of knowingly tailoring
the French version of the judgment to suit his values -- undoubtedly reiterated the importance of the prin-
ciple of legality in all kinds of criminal trials, at a time when it enjoyed an uncertain status within interna-
tional law.75
The remarks above seem to suggest, on the one side, that the way in which (various versions of) the Nurem-
berg Judgment reached us depend on how the various judges understood the problem that crimes against hu-
manity pose vis--vis the principle of legality, and on the solutions offered to each one of them by their lan-
guage, training and legal background. On the other side, these different texts themselves have gone on to in-
fluence the legal discourse on crimes against humanity to this day, affecting scholars and practitioners *903
in different ways -- essentially, depending on which language they were relying upon.
Instead of attempting to establish the true meaning of the passages in question in the Nuremberg Judgment
-- the original intent behind this article one might actually find it more fascinating to delve into the cultural
roots of the legal reasoning offered by the judges, at Nuremberg as before any international court. This is a
common theme in international adjudication (and scholarship as well) -- the fact that international criminal
judgments are today issued in only one authoritative language merely hides the different legal traditions un-
derpinning their reasoning, but does not necessarily reconcile them.
Chef de cabinet, Office of the President, Special Tribunal for Lebanon (STL); Co-chair, Editorial Committee
of this Journal. The views expressed herein are those of the author and do not necessarily reflect the views
of the STL. [guido_acquaviva@yahoo.com]
1. F. Gaiba, The Origins of Simultaneous Interpretation - the Nuremberg Trial (Ottawa: University of Ott-
awa Press, 1998), at 27-29 (explaining how interpretation in diplomatic circles was only born around 1920,
after languages other than French were assigned official diplomatic status). On the repercussions of inter-
pretation, see also J. Karton, Lost in Translation: International Criminal Tribunals and the Legal Implica-
tions of Interpreted Testimony, 41 Vanderbilt Journal of Transnational Law (2008) 1.
2. See Art. 39 ICJSt.
3. See the early protestations of ICTY Judge Jules Deschnes in Separate Declaration of Judge J. Deschnes
on the Defence Motion for Interlocutory Appeal on Jurisdiction, Tadic (IT-94-1-AR72), Appeals Chamber, 2
October 1995 (noting that one cannot and should not tolerate, in this Tribunal, that the French speaking jur-
ists must, either work in a language with which they are less fluent, or risk to be scientifically overrun while
awaiting an official text to which they are entitled, 18). Despite this strong warning, the ICTY has contin-
ued to issue its rulings in either English or French, depending on the composition of the bench.
4. The legal literature on this topic is extremely wide. See, among others, G. Fitzmaurice,The Law and Pro-
cedure of the International Court of Justice: Treaty Interpretation and Certain Other Treaty Points, 28 Brit-
J.I.C.J. 2011, 9(4), 881-903 Page 12
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ish Year Book of International Law (1951) 1; S. Rosenne, Conceptualism as a Guide to Treaty-Inter-
pretation, in Le droit international l'heure de sa codification: tudes en l'honneur de Roberto Ago
(Milano: Giuffr, 1987) 417; R. Gardiner, Treaty Interpretation (Oxford: OUP, 2008), at 353 ff.; M.E. Villi-
ger, Commentary on the 1969 Vienna Convention on the Law of Treaties (Leiden: Brill, 2009), at 450 ff.
5. See, recently, A. Orakhelashvili, The Interpretation of Acts and Rules in Public International Law
(Oxford: OUP, 2008), especially at 487 ff.
6. A. Cassese, International Criminal Law (Oxford: OUP, 2007), at 105-106 (fns 19 and 21).
7. See, for instance, Y. Dinstein, The Defence of Obedience to Superior Orders in International Law
(Leiden: Sijthoff, 1965), at 149, describing discrepancies related to the findings on Art. 8 of the Nuremberg
Charter on superior orders.
8. The Latin expression was formulated by the German scholar von Feuerbach. See P.J.A. Feuerbach, Lehr-
buch des gemeinen in Deutschland gltigen peinlichen Rechts (11th edn., Giessen: Heyer, 1832), at 12-19
(translated and reprinted in English as The Foundations of Criminal Law and the Nullum Crimen Principle,
5 Journal of International Criminal Justice (2007) 1005-1008).
9. Universal Declaration of Human Rights, GA Res. 217 A (III), UN Doc. A/810 (10 December 1948), Art.
11(2). The principle has been reiterated at both international and domestic levels and is now considered to
be part and parcel of the fundamental principles of a fair trial that must be recognized in all judicial systems.
10. M. Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary (2nd rev. edn., Strasbourg:
N.P. Engel, 2005), at 281.
11. M. Boot, Genocide, Crimes Against Humanity, War Crimes: Nullum Crimen Sine Lege and the Subject
Matter Jurisdiction of the International Criminal Court (Antwerp: Intersentia 2002), at 84.
12. On this issue, see J. Nilsson, The Principle Nullum Crimen Sine Lege, in O. Olusanya (ed.), Rethink-
ing International Criminal Law: the Substantive Part (Groningen: Europa Law Publishing, 2007) 35.
13. Judgment, Delalic et al. (IT-96-21-T), Trial Chamber, 16 November 1998, 402.
14. G. Acquaviva and F. Pocar, Crimes against Humanity, Max-Planck Encyclopedia of Public Interna-
tional Law (2008, online edition, [www.mpepil.com], last visited on 17 February 2011).
15. See, in particular, M.C. Bernays, Memorandum of 15 September 1944 (Subject: Trial of European War
Criminals), document No. 16, reprinted in B.F. Smith, The American Road to Nuremberg - The Document-
ary Record 1944-1945 (Stanford: Hoover Institution Press, 1982) 33-34.
16. J. Nilsson, Crimes Against Humanity, in A. Cassese (ed.), Oxford Companion to International Crimin-
al Justice (Oxford: OUP, 2009) 284.
17. Minutes of the Conference Session of 23 July 1945, in Report of Robert H. Jackson, United States Rep-
resentative to the International Conference on Military Trials (Washington, DC: Department of State Pub-
lications, 1949) 330-331. Justice Jackson elaborated that [w]e think it is justifiable that we interfere or at-
tempt to bring retribution to individuals or to states only because the concentration camps and the deporta-
tions were in pursuance of a common plan or enterprise of making an unjust or illegal war in which we be-
came involved. We see no other basis on which we are justified in reaching the atrocities which were com-
mitted inside Germany, under German law, or even in violation of German law, by authorities of the German
state. Without substantially this definition, we would not think we had any part in the prosecution of those
things []. (Ibid. at 333).
18. Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, and
Charter of the International Military Tribunal, London, 8 August 1945, Art. 6(c).
19. See Motion Adopted by All Defense Counsel, 19 November 1945, in Trial of the Major War Criminals
Before the International Military Tribunal (Nuremberg, 1947), at 168-170. In this respect, see inter alia, Q.
Wright, Law of the Nuremberg Trial, 41 American Journal of International Law (Am J Int'l L ) (1947) 38,
at 44-45.
20. See, among others, Wright, supra note 19, at 54-61.
21. But see below, fn. 28 for some problematic features in the drafting of this provision in the English and
French versions.
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22. H. Kelsen, The Rule Against Ex Post Facto Law and the Prosecution of the Axis War Criminals, 2 The
Judge Advocate Journal (1945), at 10.
23. E. Schwelb, Crimes Against Humanity, in 23 British Year Book of International Law (1946) 178, at
206-207.
24. The texts referred to in the present paper are: Trial of the Major War Criminals (London: HMSO,
1946-1948), vol. 22 (English); Procs des grands criminels de guerre devant le Tribunal Militaire Interna-
tional - texte official en langue franaise (Nuremberg, 1947) (French); N.S. Lebedeva et al. (eds), Nurn-
bergskii Prozess (Moscow: Juridicheskaja Literatura, 1996) 561 ff (reproducing the text in the Soviet, now
Russian, archives related to the Nuremberg trial).
25. Nuremberg Charter, Art. 25.
26. See, for instance, Gaiba, supra note 1, at 32-34.
27. T. Taylor,The Anatomy of the Nuremberg Trials (New York: Knopf, 1993), at 574.
28. The issue arose because the definition of crimes against humanity in English and French contained a
semicolon instead of a comma, which could lead to the conclusion that only persecution -- and not the other
crimes under Article 6(c) -- had to be committed in execution of, or in connection with, any crime within the
jurisdiction of the Tribunal. The original English text read: [] murder, extermination, enslavement, de-
portation, and other inhumane acts committed against any civilian population, before or during the war; or
persecutions on political, racial or religious grounds in execution of or in connection with any crime within
the jurisdiction of the Tribunal, []. The amended text, which follows the original Russian one, instead
reads: [] 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
execution of or in connection with any crime within the jurisdiction of the Tribunal []. The French ver-
sion was also modified by the Protocol in order to ensure a consistent approach towards all crimes against
humanity (and is actually now the clearest of the three). See Schwelb, supra note 23, at 193-195 and G.
Schwarzenberger, The Judgment of Nuremberg, 21 Tulane Law Review (1947) 329, at 350-351.
29. Justice Robert H. Jackson himself, US Chief Counsel for the Prosecution at Nuremberg, was very well
aware not just of the language barriers, but also of the cultural differences that such barriers signaled and of
the way these could be overcome in time. In a piece authored in 1947, for instance, he wrote: On the Con-
tinent, as you know, cross-examination is very little used by members of the bar. Witnesses in criminal cases
are examined by the court itself, and therefore the Continental bar is not experienced in cross-examination.
In fact, there was no Russian equivalent for the term cross-examination. The French made little attempt to
use cross-examination. Most of the cross-examining was done by the British, who are adept at it, or by the
Americans. The Soviets at first hesitated -- and then apparently they found it to be great fun, and cross-
examined everybody. See R. Jackson, Nuremberg Trial of the Major Nazi Leaders, in 70 New York State
Bar Association Report (1947) 147, at 157. Similar cultural difficulties were of course also noted by Soviet
authors; see, amongst others, A.I. Poltorak, Niurnbergskii Epilog (Moscow: VIMO SSSR, 1969), at 550
(who distinguishes not just common law from continental systems, but also between soviet and bourgeois
legal theories). Poltorak was the secretary of the Soviet mission to Nuremberg; his book of memoirs about
his experience during the trial provides substantial valuable information.
30. As regards the conviction of Baldur von Schirach, the English, French, and Russian texts are close
enough in stating that [Austria's] occupation is, therefore, a crime within the jurisdiction of the Tribunal,
as that term is used in Article 6(c) of the Charter. As a result, murder, extermination, enslavement, deporta-
tion, and other inhumane acts and persecutions on political, racial, or religious grounds in connection
with this occupation constitute a crime against humanity under that Article (at 564). From a language per-
spective, it appears therefore that there would be no need to discuss in any detail this other example of con-
viction for crimes against humanity only.
31. This is the understanding of Streicher's conviction in Schwelb, supra note 23. Surprisingly, considering
the developments of international law between 1946 and 1962, this would also be the position of the Su-
preme Court of Israel in the Eichmann case (English text in 36 International Law Reports (1968) 277, at
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282: one may indeed agree that the sense of justice generally recoils from punishing a person for an act
committed by him for which at the date of its commission he could not have known -- since it had not been
yet prohibited by law -- that he would become criminally liable. But this value judgment cannot be extended
to the odious crimes attributed to the appellant, all the more so when dealing with the range and magnitude
of their commission as described in the judgment. In such a case the above-mentioned maxim [not rule ]
loses its moral value and is deprived of its ethical foundation.)
32. Opening Statement, 17 January 1946, in IMT, vol. 5, at 371, cited in Cassese, International Criminal
Law, supra note 6, at 106.
33. B. Smith, Reaching Judgment at Nuremberg (New York: Basic Books, 1977), at 202.
34. Nonetheless, one could point out that the French version's assumption that a conviction could be entered
against Streicher for persecution as a war crime equally breaches the nullum crimen principle (or rule), since
persecution had not been defined a war crime before.
35. Vienna Convention on the Law of Treaties, 23 May 1969, entered into force on 27 January 1980 (1155
UN Treaty Series 331).
36. See UNGA Res. 95(I) (1946) and Principles of International Law Recognized in the Charter of the Nurn-
berg Tribunal and in the Judgment of the Tribunal (UN Doc. A/CN.4/L.2), Principle VI, letter (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
(the text is available in English only on the official website of the International Law Commission).
37. Gardiner, supra note 3, at 380.
38. Cf. Mavrommatis Palestine Concessions Case, Permanent Court of International Justice (PCIJ), Series
A/2, Judgment 30 August 1924, at 18 with Competence of International Labour Organization (ILO) Case,
Permanent Court of International Justice (PCIJ), Advisory Opinion, 12 August 1922, Series B, Nos 2 and 3
and Case Concerning Elettronica Sicula S.p.A. (ELSI), United States of America v. Italy, ICJ, Judgment 20
July 1989.
39. Gardiner, supra note 4, at 363.
40. The general remarks about nullum crimen appear under the general heading The Law of the Charter --
while the bulk of the discussion there is about crimes against peace, this passage was clearly intended to re-
spond to any suggestion about breaches of the principle of legality, thus including any conviction for crimes
against humanity.
41. See for instance the ICTY Trial Chamber in Delalic which, as a general introduction to its legal findings,
elaborated in a comprehensive way on the methods of interpreting the ICTY Statute and, in general, interna-
tional instruments applicable to international criminal proceedings (Judgment, Delalic et al. , IT-96-21-T,
Trial Chamber, 16 November 1998, 158-165 and 1161). See also Joint and Separate Opinion of Judge
McDonald and Judge Vohrah, Nsengiyumva (ICTR-96-12-A), Appeals Chamber, 3 June 1999, 14
(Because the Vienna Convention codifies logical and practical norms which are consistent with domestic
law, it is applicable under customary international law to international instruments which are not treaties).
Complementing these pronouncements, the ICJ has recently warned that outright application of the Vienna
Convention to a UN Security Council resolution might be inappropriate, at least if not accompanied by other
criteria. See ICJ, Accordance with International Law of the Unilateral Declaration of Independence in Re-
spect of Kosovo, Advisory Opinion of 22 July 2010, 94 (While the rules on treaty interpretation embodied
in Articles 31 and 32 of the Vienna Convention [] may provide guidance, differences between Security
Council resolutions and treaties mean that the interpretation of Security Council resolutions also require that
other factors be taken into account. Security Council resolutions are issued by a single, collective body and
are drafted through a very different process than that used for the conclusion of a treaty. Security Council
resolutions are the product of a voting process [], and the final text of such resolutions represents the view
of the Security Council as a body. Moreover, Security Council resolutions can be binding on all Member
States, irrespective of whether they played any part in their formulation. The interpretation of Security
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Council resolutions may require the Court to analyse statements by representatives of members of the Secur-
ity Council made at the time of their adoption, other resolutions of the Security Council on the same issue,
as well as the subsequent practice of relevant United Nations organs and of States affected by those given
resolutions) (internal citations omitted).
42. The fact that the IMT was considered by the Soviets as an exercise in education and enlightenment
rather than a true judicial process is for instance the conclusion in F. Hirsch, The Soviets at Nuremberg: In-
ternational Law, Propaganda, and the Making of the Postwar Order, 113 American Historical Review
(2008) 701, at 713.
43. Quoted in M.J. Bazyler,The Role of the Soviet Union in the Military Tribunal at Nuremberg and Impact
on Its Legacy, in H.R. Reginbogin, C.J. Safferling, W.R. Hippel (eds), Die Nrnberger Prozesse:
Vlkerstrafrecht seit 1945 - The Nuremberg Trials: International Criminal Law Since 1945 (Mnchen: Saur,
2006) 45. While this aim might seem repugnant to believers in international criminal justice, it should be re-
called that acquittals did occur at Nuremberg and that, therefore, the Soviet judge's view did not prevail in
this respect.
44. An example in criminal law is the interpretation of the words illegal traffic in Art. 19(1)(7) of the
Swiss Narcotics Act (Betubungsmittelgesetz, Loi sur les stupfiants, Legge sugli stupefacenti ), a law be-
longing to the Swiss Criminal Code. Art. 19(1)(7) makes it an offence to finance illegal traffic in narcotics.
The Supreme Court looked at the words trafic illicite , and traffico illecito in the French and Italian text
and found that they better define the prohibition than the German words unerlaubter Verkehr . Thus, the
offence of financing illegal traffic in narcotics was restricted to drug trafficking in the sense of commerce
(see BGE 121 IV 293, text available in the original German on the website of the Supreme Court: ht-
tp://www.bger.ch/it/index). The issue is regulated by Law on the Swiss Federal Supreme Court of 17 June
2005 (RS 173.110), Art. 54.
45. See, inter alia, R. v. Daoust [2004] 1 S.C.R. 217, 2004 SCC6.
46. At the beginning of each judgment in English, for instance, the Canadian Supreme Court adds the caveat
Traduction franaise officielle .
47. See, for the example of Canada, R. Leckey, Prescribed by Law/Une rgle de droit, 45 Osgoode Hall
Law Journal (2007) 571.
48. See, in general, Gaiba, supra note 1.
49. See, for instance, Poltorak, supra note 29, at 17 and 23-28.
50. J.E. Persico, Nuremberg - Infamy on Trial (New York: Penguin, 1994), at 383.
51. Ibid. , at 384; Poltorak, supra note 29, at 145 and 534 (according to whom all eight judges participated
in the actual writing of the Judgment). The Soviets had suggested that a vote of two judges should be con-
sidered sufficient for conviction, but the agreement was reached that an actual majority (three out of four)
would be required. See Persico, supra note 54, at 384.
52. G. Lawrence,The Nuremberg Trial (an address given at Chatham House on 5 December 1946), reprin-
ted in G. Mettraux (ed.), Perspectives on the Nuremberg Trial (Oxford: OUP, 2008), at 298; Gaiba, supra
note 1, at 71.
53. Smith, supra note 37, at 145.
54. Ibid. , at 119.
55. Taylor, supra note 27, at 549, referring to Biddle's notes.
56. Smith, supra note 37, at 144. See also, Persico, supra note 54, at 390: in order to prevent leaks of in-
formation, the translators were sequestered in a former military barracks, pages were apparently provided to
typists in random order and the defendants' sentences were left blank until the last minute.
57. Persico, supra note 54, at 395.
58. See also, the official text in German of the Nuremberg Judgment published in 1947 by the Allied Control
Council in Germany. The section on nullum crimen reads: Zunchst muss bemerkt werden, da der Rechts-
satz nullum crimen sine lege keine Beschrnkung der Souvernitt darstellt, sondern allgemein ein
Grundsatz der Gerechtigkeit ist (Firstly, it needs to be remarked that the legal norm nullum crimen sine
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lege does not constitute a limitation to sovereignty but it is in general a principle of justice). The relevant
portion of Streicher's conviction reads: Streichers Aufreizung zum Mord und zur Ausrottung, die zu einem
Zeitpunkt erging, als die Juden im Osten unter den frchterlichsten Bedingungen umgebracht wurden, stellt
eine klare Verfolgung aus politischen und rassischen Grnden in Verbindung mit solchen Kriegsverbrechen,
wie sie im Statut festgelegt sind, und ein Verbrechen gegen die Menschlichkeit dar. (Streicher's incitement
to murder und to extermination, which was done at a time when the Jews in the East were killed under the
most horrendous circumstances, constitutes a clear case of persecution on political and racial grounds linked
to such war crimes as entrenched in the Statute and a crime against humanity). See Der Prozess gegen die
Hauptkriegsverbrecher vor dem internationalen Militrgerichtshof - Band 1. Amtlicher Wortlaut in
deutscher Sprache. Einfhrungsband (Nrnberg: International Military Tribunal, 1947) 245 and 343. The
similarities with the English version are striking. I am grateful to Till Gut, formerly with the University of
Cologne, for pointing this out to me and helping me with the translation.
59. H. Kelsen,Collective and Individual Responsibility in International Law with Particular Regard to the
Punishment of War Criminals, 31 California Law Review (1943) 530, at 544.
60. F. Biddle, The Nrnberg Trial, 91 Proceedings of the American Philosophical Society (1947), at
298-299; N. Birkett, International Legal Theories Evolved at Nuremberg, 23 International Affairs (1947)
317, reprinted in Mettraux (ed.), Perspectives, supra note 56, at 299 (in particular at 306, where he states
that Nullum crimen sine lege is not a rigid thing. It is a principle of justice, that is all); Lawrence, supra
note 56, at 294-295; B.V.A. Rling, The Law of War and the National Jurisdiction Since 1945, 100 Re-
cueil des Cours (1960) 370 (The heinousness of the crimes committed by the Nazi Germans excludes any
moral hesitation to punish those acts. Still, in principle, objections could be made.). See further Judge
Rling's Separate Opinion at the International Military Tribunal for the Far East, where he stated, inter alia,
that this maxim is not a principle of justice but a rule of policy, valid only if expressly adopted, so as to
protect citizens against arbitrariness of courts , as well as against arbitrariness of legislators . As such,
the prohibition of ex post facto law is an expression of political wisdom, not necessarily applicable in
present international relations. (in B.V.A. Rling and C.F. Rter (eds), The Tokyo Judgment, 29 April
1946-12 November 1948, vol. 2 (Amsterdam: APA, 1977), at 1059). See also, Q. Wright, The Law of the
Nurenberg Trial, 41 Am J Int'l L (1947), at 59-60.
61. T. Meron, International Law in the Age of Human Rights: General Course on Public International Law,
301 Recueil des Cours (2003) 121-132; S. Lamb, Nullum Crimen, Nulla Poena Sine Lege in International
Criminal Law, in A. Cassese et al. (eds), The Rome Statute of the International Criminal Court: a Com-
mentary (Oxford: OUP, 2002) 733, at 735-755. In relation to how the Nuremberg Judgment has been read in
this type of scholarship, see inter alia: S. Glaser, Les pouvoirs du juge en droit international pnal, 75 Re-
vue Pnale Suisse (1959) 77, at 86-92; B. Van Schaak, Crimen Sine Lege : Judicial Lawmaking at the Inter-
section of Law and Morals, 97 Georgetown Law Journal (2008) 119, at 140; L. Grover, A Call to Arms:
Fundamental Dilemmas Confronting the Interpretation of Crimes in the Rome Statute of the International
Criminal Court, 21 European Journal of International Law (2010) 543, at 551.
62. A. Cassese, Nullum Crimen Sine Lege, in A. Cassese (ed.) Oxford Companion to International Crimin-
al Justice (Oxford: OUP, 2009) 438-441; G. Werle, Principles of International Criminal Law (2nd edn., The
Hague: Asser Press, 2009), 36-39; M. Lippman, Crimes against Humanity, 17 Boston College Third World
Law Journal (1996) 171, at 190-191 (on nullum crimen ) and 194 (on Streicher's conviction). See also, H.
Waldock, General Course on Public International Law, 106 Recueil des Cours (1962) 221 (according to
whom the criminality under international law of crimes against humanity was still equivocal at the time). A
rare example of official criticism of the Nuremberg Judgment on this basis occurred during the negotiations
for the Genocide Convention, when the representative for Peru attacked the trial as an improvisation which
disregarded the nullum crimen rule. See UN Doc. A/C.6/SR.109, cited in W. Schabas, Genocide in Inter-
national Law (Cambridge: CUP, 2000) 79.
63. A.N. Trainin, Hitlerite Responsibility under Criminal Law (London: Hutchinson, 1945) (originally pub-
lished in the USSR in 1944 and then translated into English, French, and German), in particular at 33-34, 59,
J.I.C.J. 2011, 9(4), 881-903 Page 17
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88. Trainin later worked as a legal adviser to the Soviet mission at Nuremberg. See also: Poltorak, supra
note 29, at162 and 532 and F.I. Kozhevnikov,Velikaja otechestvennaja voina Sovetskogo Sojuza i nekotorie
voprosy mezhdunarodnogo prava (Moscow: IMY, 1954), at 36 (where the author however conflates the dis-
cussions on aggression and crimes against humanity) and 172 ff. (where the various declarations since June
1941 putting on notice, so to speak, German leaders and officials about their responsibility are listed). On
the historical origins of the Soviet conceptions of international criminal law and their impact on the drafting
of the Nuremberg Charter, see G. Ginsburgs, Moscow's Road to Nuremberg: the Soviet background to the
Trial (The Hague: Martinus Nijhoff, 1996), at 78, 96-98; M. Yu. Sorokina, On the Way to Nuremberg: The
Soviet Commission for the Investigation of Nazi War Crimes, in B.A. Griech-Polelle (ed.), The Nuremberg
War Crimes Trial and Its Policy Consequences Today (Baden-Baden: Nomos, 2009), at 21.
64. G. Tunkin, Law and Force in the International System (Moscow: Progress Publishers, 1985), at 148-149.
65. A.M. Larin, Nuremberg Trial: the Law against War and Fascism, originally published in Russian in
1995 and reprinted in Mettraux (ed.), Perspectives, supra note 56, at 553.
66. See, for instance, N.S. Lebedeva, Podgotovka Niurnbergskogo Prozessa (Moscow: Nauka,1975) 126,
130-132, 138-140. More recently, N.A. Zelinskaja and I.V. Dremina-Volok, Prinzipy nullum crimen sine
lege i ex post facto v mezhdunarodnom ugolovnom prave, in G.I. Bogusha and E.N. Trikoz (eds), Mezh-
dunarodnoe ugolovnoe pravosudie: Sovremennie problemy (Moscow: IPPP, 2009) 121, at 124-126.
67. H. Donnedieu de Vabres, Le procs de Nuremberg devant les principes modernes du droit pnal inter-
national, 70 Recueil des Cours (1947), at 520 and 526, fn. 1; see also, P. de Lapradelle, Le procs des
grands criminels de guerre et le dveloppement du droit international, in Nouvelle Revue de droit interna-
tional priv (1947), cited by Donnedieu de Vabres in various passages of his course before the Hague
Academy.
68. M. Herzog,Les principes juridiques de la rpression des crimes de guerre, in Revue pnale Suisse
(1946), at 277 ff.
69. J. Descheemaeker, Le Tribunal Militaire International des grands criminels de guerre (Paris: Pedone,
1947), at 20-27, 35, 79-80. See also, J. Graven, Les crimes contre l'humanit, 76 Recueil des Cours (1950),
at 466-467, who regrets that the IMT was not more courageous in establishing crimes against humanity as
crimes per se rather than in connection with war crimes and crimes against peace.
70. See, for instance, E. Zoller,La dfinition des crimes contre l'humanit, 120 Journal de droit interna-
tional (1993) 549, at 554-555 (citing only the French version of Streicher's conviction passage and referring
to Donnedieu de Vabres's misgivings); H. Fujita, Le crime contre l'humanitdans les procs de Nuremberg
et de Tokyo, in 34 Kobe University Law Review (2000) 5-8 (citing Donnedieu de Vabres's position on the
matter that crimes contre l'humanitsont confondus avec les crimes de guerre ); S. Garibian, Souverainet
et lgalit en droit pnal international: le concept de crime contre l'humanitdans le discours des juges
Nuremberg, in M. Henzelin and R. Roth (eds), Le droit pnal l'preuve de l'internationalisation (Genve:
Georg, 2002) 29, especially at 44-45 (discussing various cultural influences, but only referring to the French
version of the Judgment); J.-M. Varaut, Le procs de Nuremberg - Le glaive dans la balance (Paris: Perrin,
1992), at 376-379.
71. M.G. Cohn, La thorie de la responsabilit internationale, 68 Recueil des Cours (1939) 324.
72. M. Ancel, La rgle nulla poena sine lege dans les lgislations modernes, 2 Annales de l'Institut de
droit compar de l'universit de Paris (1936) 245, at 262; see also, the two reports entitled Est-il dsirable
que le juge puisse retenir et punir un fait qui ne rentre pas expressment sous les termes d'une disposition
lgale? by M. Ancel and S. Glaser, 14 Revue internationale de droit pnal (1937) at 249 and 348, respect-
ively.
73. See, for instance, S. Glaser, Infraction internationale - ses lments constitutifs et ses aspects juridiques
(Paris: Librairie gnrale de droit et de jurisprudence, 1957), 50-51.
74. One recent attempt, in relation to ICTY and ICTR Appeals Chambers' judges and their progressive or
conservative attitudes, can be found in S. Jodoin, Understanding the Behaviour of International Courts:
An Examination of Decision-Making at the ad hoc International Criminal Tribunals, 6 Journal of Interna-
J.I.C.J. 2011, 9(4), 881-903 Page 18
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tional Law and International Relations (2010) 1.
75. See, however, the reflections, supra, in note 38.
END OF DOCUMENT
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