Case Study: The Nuremberg Trial

The Nuremberg Trial was the first historical precedent for bringing to trial

and punishing the most dangerous war criminals. Twelve trials, involving over a
hundred defendants and several different courts, took place in Nuremberg from
1945-1949. The most attention has focused on the first Nuremberg trial of twentyone major war criminals. Numerous of the eleven subsequent Nuremberg trials,
however, involved matter no less serious; and issues at least as interesting; as the
Major

War

Criminals

Trial1. The

Nuremberg

war

crimes

trial

echoed

the

widespread sense among the anti-Nazi Allies in the second world war against
Germany. From the beginning of the conflict, revolting evidence of regular
massacre, on an exceptional degree, poured out of occupied Europe. In reply of
such horrors, in the beginning of 1942 the Allied leaders began to put together a
common policy over several years of negotiation, when news of wartime mayhem
filled the Western news media. In October 1943, the leaders of the Three Powers
signed and published the Declaration on the responsibility of the Hitlerites for the
atrocities committed where it was stated that the guilty will be tried on the spot
by the peoples who had suffered violence at their hands2.

The document of the first years of the war highlighted interest mainly on the
responsibility of the Hitlerites for crimes against humanity and war crimes. The

1
2

Doug Linder, The Nuremberg Trials, jurist.law.pitt.edu, 2000

The Nuremberg Trial., Vol. 1, pp. 17-18.

reasons are apparent: the massacre committed by the Hitlerites in all the occupied
countries stirred up the deep indignation of the peoples, called for instant measures
for the punishment of the criminals 3. Discussions intensified when the victory
appeared close in 1944. It was still on the way in 1945, when the Allied troops
broke into Germany itself and also when the vicious Allied aerial assault
devastated German towns and cities, turning them to debris. The Allied leaders
rejected proposals for the summary execution of Nazi leaders and eventually
negotiated an agreement planned to correspond a display of potentially inconsistent
goals: the punishment of major Nazi war criminals through an International
Military Tribunal (IMT); the creation of an trustworthy record of the dishonest
nature of the National Socialist regime; and a swift decision of the matter 4. They
decided to hold the trial in the ruined Bavarian city of Nuremberg, chosen partly
for its symbolic significance- Nuremberg had in the early years been the heart of
the Nazi movement. This year long trial of the major war criminals became
known as the Nuremberg Trial5.

The Charter of the International Military Tribunal at Nuremberg

(Nuremberg Charter or IMT Charter), decided along with the London Agreement

George Ginsburgs and V.N. Kudriavtsev, The Nuremberg Trial and International Law, (Dordrecht:
Martinus Nijhoff Publishers, 1990).
4
Stephan Landsman, Crimes of the Holocaust: The Law Confronts Hard Cases, (Philadelphia: University
of Pennsylvania Press, 2005).
5
Michael R. Marrus, The Nuremberg War Crimes Trial 1945-46: A Documentary History, (Boston:
Bedford Books, 1997).

on 8th August 1945 by the four triumphant powers of Second World War6, can be
regarded as the birth certificate of the international criminal law. The Charters
central declaration was that crimes against peace, war crimes, and crimes against
humanity demands individual responsibility under international law. For the first
time, individuals were held criminally liable under international law. Possibly the
well-regarded passage in the judgment of the International Military Tribunal
observed on this: Crimes against international law are committed by men, not by
abstract entities, and only by punishing individuals who commit such crimes can
the provisions of international law be enforced7.

The London Agreement concluded by the four victorious powers in 1945 provided
for the creation of an international military tribunal for the trial of war criminals
whose offences have no particular geographical location 8. These major war
criminal were to be tried on the foundation of the Nuremberg Charter. War
criminals whose crimes could be localized to a specific countrys territory were to
be

prosecuted

by

the

respective

countries. Allied

occupation

courts

(Besatzungsgerichte) would have jurisdiction over war crimes committed by

Germans within the borders of the German Reich9.

Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, the
IMT Charter is included as an appendix to the Agreement.
7
IMT judgment of 1st October 1946, in The Trial of German Major War Criminals, Proceedings of the
International Military Tribunal Sitting at Nuremberg, Germany, Part 22, p. 447.
8
London Agreement, Article 1.
9
Control Council Proclamation, No. 1, 30th August 1945.

Crimes against peace are first among the crimes in Article 6 of the Nuremberg
Charter. These concern the planning, preparation and waging of a war of
aggression. The Charter considers infringement of the laws and customs of war
punishable as war crimes. While the criminalization of war crimes intends to
protect the rights of foreign citizens, crimes against humanity contain offences
against ones own citizens. Hence the domestic field is also incorporated in
international law. Crimes against humanity is based on the suggestion that certain
serious attacks on individuals put on an international aspect when they are
systematically aimed at a specific civilian population. Genocide would be the
imperative example of this new breed of crime, even though it was mentioned
neither in the Charter nor the judgment of the Nuremberg Tribunal. The Charter
specifically highlighted that the domestic legality of a crime did not prevent its
prosecution. Individual criminal responsibility did not depend on whether the act
infringed the laws of the country in which it took place. Hence it was reasonable
that, the offenders official capacity did not block punishment as provided by
Article 7 of the Nuremberg Charter10.

The International Military Tribunal announced its judgment on 30 th September and

1st of October 1946. Either a spotlight or a weakness of the judgment rest in its
explanation of the criminality of wars of aggression, fundamentally derived from
the Treaty Providing for the Renunciation of War as an Instrument of National Policy

10

Gerald Werle, Principles of International Criminal Law, (The Hague: T.M.C. Asser Press, 2005).

of 27th August 1928 (Kellogg-Briand Pact)11. On crimes against humanity, the Court
expressed that political adversaries of the Nazis had been murdered or imprisoned
even before the war, and in the process also mentioned to the singling out of the
Jews. But based on the wording of Article 6 (C) of the Nuremberg Charter (in
execution of or in connection with any crime within the jurisdiction of the
Tribunal), the Court required a connection between crimes against humanity and
war crimes or wars of aggression. Seldom this link could not be established for
actions taking place before the start of the war12.

The triumphant powers course of action after the Second World War was

controversial in legal and political considerations 13. The two essential oppositions to
the Nuremberg model questioned its political authority, on the one hand, and its
legal basis, on the other. The allegation of visitors justice was promoted above all
by the fact that no prosecutions for Allied war crimes ever occurred 14. Eventually
questions aroused whether the people bearing primarily responsibility on the Axis
side before the Court as they had started and waged an aggressive war- or only
because they had lost it. From, a legal perspective the judgment was criticized
primarily for infringing the prevention on retroactive punishment, a principle

11

See; www.yale.edu/lawweb/avalon/imt/kbpact.htm>.
. Gerald Werle, Principles of International Criminal Law, (The Hague: T.M.C. Asser Press, 2005)
13
See M.C. Bassiouni, Introduction to International Criminal Law, 2003, pp. 404.
14
See M.C. Bassiouni, International Criminal Law, Vol. 3, 2nd edition, 1999, p. 31 and p. 45.
12

essentially accepted by the Nuremberg Tribunal itself15.

Opinion remains divided as to whether all the crimes prosecuted before the
International Military Tribunal had already been criminal under international law at
the time they were committed 16. Nevertheless, it is inevitable that punishment of
war crimes based on a secure basis in the law as it existed at the time they were
committed. In respect of crimes against humanity, it was at least acknowledged that
the diverse crimes, such as murder, enslavement, torture, and rape, were illegal in
practically all legal systems at the time. Hence it was not the criminality of the
acts themselves that presented a objective for attack, but their prosecution under
the legal heading of crimes against humanity and their direct criminalization under
international law17.

Crimes against peace faced the strongest oppositions 18. Whereas the illegality of
aggressive war under international law was justified firmly by the Court, the step
from illegality to criminalization would have called for a stronger basis. The Court
simply stated: In the opinion of the Tribunal, the solemn renunciation of war as
an instrument of national policy necessarily involved the proposition that such a
war was illegal in international law; and that those who planned and waged such
a war, with its inevitable and terrible consequences, were committing a crime in so

15

See K. Ipsen, Volkerrecht, 5th edition, 2004, 42 marginal no. 22.

See M.C. Bassiouni, Introduction to International Criminal Law, 2003, pp. 408.
17
Gerald Werle, Principles of International Criminal Law, (The Hague: T.M.C. Asser Press, 2005).
18
See K. Kittichaisaree, International Criminal Law, 2001, p. 44.
16

doing19.

It can at least be presented, in support of this conclusion , that serious

breaches of the international laws of war had usually been considered criminal
without the existence of any utter declaration of criminality, and that therefore
waging an aggressive war also was criminal because of its illegality under
international law20.

In the following stages, the principles applied and developed by the Nuremberg
Tribunal were constantly confirmed to be part of international law. Therefore, the
question whether Nuremberg merely established existing law or created new law is
of interest today only to the historian of international law. As far as the possible
breach of the prevention on retroactivity is concerned, from todays point of view
it is agreed that the principle of non-retroactivity was not intended to defend from
punishment abuses of power that defy international law21.

Today it is certain that the Nuremberg Principles are steadily established as

customary international law. Nuremberg achieved what had failed after the First
World War. The criminality of the most terrible infringement of international law

19

IMT judgment of 1st October 1946, in The Trial of German Major War Criminals, Proceedings of the
International Military Tribunal Sitting at Nuremberg, Germany, Part 22, p. 445.
20
See Marginal Nos. 1161 et seq.
21
G. Werle, Neue Juristische Wochenschrift, 2001, pp. 3001 et seq.

was from now on a concrete part of the international legal system22.

22

Gerald Werle, Principles of International Criminal Law, (The Hague: T.M.C. Asser Press, 2005).