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Before 1945, international law was generally understood as a law between states. States could be held responsible for breaches, but the individuals who made the decisions were largely out of reach. The trial of the major war criminals before the International Military Tribunal at Nuremberg changed that. Its judgment, delivered on 30 September and 1 October 1946, established that those who plan and carry out the gravest crimes are personally answerable to the international community.

Creating the Tribunal

As the Second World War ended, the Allies debated what to do with the surviving leaders of Nazi Germany. Some favoured summary execution. The United States, supported by others, insisted on a trial. On 8 August 1945, the United States, the United Kingdom, France and the Soviet Union signed the London Agreement, with the Charter of the International Military Tribunal annexed to it. Each of the four powers appointed a judge and an alternate. The British judge, Lord Justice Geoffrey Lawrence, presided.

The Charter defined three categories of crime in Article 6: crimes against peace (planning and waging a war of aggression), war crimes (violations of the laws and customs of war) and crimes against humanity (murder, extermination, enslavement, deportation and persecution of civilian populations). It also provided that the official position of a defendant, including as head of state, would not free him from responsibility (Article 7), and that acting on superior orders would not be a defence, though it might be considered in mitigation (Article 8).

The Trial

The trial opened on 20 November 1945 in the Palace of Justice in Nuremberg, a city chosen partly for its symbolism as the site of Nazi party rallies. Twenty-four men were indicted. One committed suicide before the trial began, another was found unfit to stand trial, and Martin Bormann was tried in his absence. The prosecution, led by US Supreme Court Justice Robert H. Jackson, relied heavily on the regime’s own documents. In his opening statement, Jackson told the tribunal that the victorious powers had chosen to stay the hand of vengeance and submit their captive enemies to the judgment of the law.

The Judgment

The tribunal convicted nineteen defendants and acquitted three. Twelve were sentenced to death, three to life imprisonment and four to terms of between ten and twenty years. Ten of those sentenced to death were executed on 16 October 1946; Hermann Göring killed himself the night before.

The judgment’s most famous passage addressed the argument that only states, not individuals, bear responsibility under international law. The tribunal rejected it, observing that crimes against international law are committed by men, not by abstract entities, and that only by punishing individuals who commit such crimes can international law be enforced.

The defence also argued that crimes against peace were newly invented and that punishing them breached the principle of no punishment without law, nullum crimen sine lege. The tribunal answered that aggressive war had already been renounced as an instrument of policy, notably in the Kellogg–Briand Pact of 1928, and that the principle was one of justice rather than an absolute limit on sovereignty. It would be unjust, the tribunal reasoned, to let those who attacked neighbouring states without warning go unpunished.

Criticism

Nuremberg has never been free of criticism. Some called it victors’ justice: only Axis defendants were tried, and one of the judging powers, the Soviet Union, had itself invaded its neighbours. The charge of crimes against peace, in particular, was attacked as retroactive. These criticisms are important, and they shaped later efforts to build international criminal justice on a more impartial basis.

The Legacy

In December 1946, the UN General Assembly affirmed the principles of international law recognised in the Charter and judgment of the tribunal, and in 1950 the International Law Commission formulated the Nuremberg Principles. Nuremberg’s legacy runs through the Genocide Convention of 1948, the tribunals for the former Yugoslavia and Rwanda in the 1990s, and the Rome Statute of the International Criminal Court in 1998. In Bangladesh, the International Crimes (Tribunals) Act 1973 drew on the same categories of crime to address atrocities committed during the 1971 Liberation War.

For students, Nuremberg is the foundation of international criminal law: the principle of individual responsibility, the rejection of immunity for official position and of superior orders as a defence, and the enduring debate over legality and fairness in trying the defeated.

Sources

1. Avalon Project (Yale Law School), Nuremberg Trial Proceedings, Charter and Judgment: https://avalon.law.yale.edu/subject_menus/imt.asp
2. United States Holocaust Memorial Museum, The Nuremberg Trials: https://encyclopedia.ushmm.org/content/en/article/the-nuremberg-trials
3. UN International Law Commission, Principles of International Law recognized in the Charter of the Nürnberg Tribunal (1950): https://legal.un.org/ilc/texts/instruments/english/draft_articles/7_1_1950.pdf