The Legacy of Nuremberg

The Nuremberg trial, later followed by the Tokyo trial, is a milestone in the development of international law. For the first time in modern history, the leaders of a defeated country were indicted for committing serious crimes jeopardizing the bases of peaceful coexistence among individual human beings and peoples: crimes against peace, war crimes and crimes against humanity. German objections criticizing crimes against peace as having no legal basis and, therefore, contradicting the principle nullum crimen sine lege, were justified. To date, the legal position has not changed, since the international community has consistently refrained from including aggression in the lists of offences prosecutable under the statutes of the currently existing international criminal courts. However, no well-founded objections could be raised against the indictment for war crimes and crimes against humanity. Concerning offences of such abhorrent nature, no offender can invoke nullum crimen that protects only legitimate confidence. To hold to account political leaders, directly under international law, for criminal actions organized and ordered by them is a necessity in a world where the basic axioms of the international system have changed: state sovereignty has lost its absolute character and is counterbalanced by the requirements of human rights protection. The emergence of international criminal justice embodies the concept of international community in the most palpable manner. Fortunately, some of the defects of the Nuremberg trial have been remedied today: no arbitrary picking and choosing of the accused by the prosecution is possible before the International Criminal Court; prosecutors as well as the judges of all existing judicial bodies are carefully selected by the international community with a view to avoiding any illegitimate bias. 1. Nuremberg as a Milestone To indict the leaders of Nazi Germany who had survivedWordWar II before the International Military Tribunal (IMT) at Nuremberg was truly a revolutionary step. Although according to a long tradition, international law had permitted * Professor of Public Law, International Law and European Law, Humboldt University, Berlin; member of the Institut de Droit international; former member of the UN Human Rights Committee; former member and Chairman of the UN International Law Commission. [[email protected]] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Journal of International Criminal Justice 4 (2006), 830^844 doi:10.1093/jicj/mql051 Oxford University Press, 2006, All rights reserved. For permissions please email: [email protected] to try members of the armed forces of an enemy state committing war crimes, during the 19th and the 20th centuries no actual cases occurred where the political leadership of a defeated country had been put on trial. The relevant negative practice was predicated on the assumption that wars were a fact of life and that nothing could be gained by instituting criminal proceedings against the responsible office holders after the end of hostilities. To some extent, this Liberalism may have reflected the spirit of a monarchical past, when in Europe almost all of the reigning houses were tied to one another by close family bonds. Under these circumstances, it was felt inappropriate to raise obstacles making it difficult to re-establish peace after war. In fact, criminal trials, if not conducted by the own courts of a defeated country, would almost certainly have led to resentment and even feelings of revenge in an international environment where nationalism in a narrow, chauvinist sense was a characteristic feature of all European countries. It is true that the indictment contained in the Versailles Treaty against the German Kaiser, Wilhelm II, is referred to again and again by textbooks as giving an account of the slow emergence of international criminal law. But the relevant provision, Article 227, constituted a curious blend of strongly moral and sketchy legal arguments. No real effort was made to show that the German Kaiser had indeed perpetrated an offence punishable under international law. Essentially, the ‘arraignment’ was meant to support the clause in Article 231 according to which Germany and its Allies had to bear responsibility for all the loss and damage caused by the war. Additionally, the clause served to clear the victorious Allied Powers of any contributory responsibility. That the main motivation behind Article 231 was political became manifest very soon after the Allied Powers had requested the Netherlands to extradite the Kaiser, who had found a place of refuge there.When the Dutch Government denied that request, the Allied Powers did not insist on their wish. The matter was tacitly dropped. 1 See, for instance, E. David, Principes de droit des conflits arme¤ s (3rd edn., Brussels: Bruylant, 2002), 646^647; UK Ministry of Defence (ed.),The Manual of the Law of Armed Conflict (Oxford: Oxford University Press, 2004), 421. 2 ‘The Allied and Associated Powers publicly arraign William II of Hohenzollern, formerly German Emperor, for a supreme offence against international morality and the sanctity of