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The Nuremberg Trials and the Development of International Criminal Law

By Sofia Aujla-Jones

With just over 75 years having passed since the Nuremberg Trials, the legacy of the trial of 22 Nazi officials for crimes against humanity has never been so pertinent. With record numbers of refugees displaced from their homes, and human rights violations committed in Xinjiang, Myanmar, Rwanda, Cambodia—to name but a few—we must continue to press for accountability and justice. The Nuremberg Trials still influence how we regard these outrages. This article will examine the salient role that the Nuremberg Trials and its legacy play in our lives today, and the extent to which they changed the conduct of modern wars and conflicts.

The Nuremberg Trials were a result of the defeat of Nazi Germany by the Allied forces in the Second World War in May 1945. Among the Allies and the victims of Nazi crimes, there was a shared desire to bring to justice those responsible for the war and the atrocities committed during its course, most notably, the attempt to exterminate the Jewish population of Europe. The International Military Tribunal (IMT), which opened in November 1945, was dedicated to bringing legal processes and standards to bear, so that those Nazi officials who worked at the centre of the regime could be given a fair trial and held accountable for the atrocities committed by the Nazi state across the whole of the continent.

At Nuremberg, Nazi officials were charged on three counts. Firstly, Crimes Against Peace (planning, preparing, and waging aggressive war), War Crimes (condemned in the Hague Conventions of 1899 and 1907) and Crimes Against Humanity (torture, murder, extermination, genocide).[1]

Nuremberg helped to define the terms of international criminal law. Through jurisprudence practiced by the IMT, which consisted of the charter, the indictment, and the judgement, and the substantive crimes charged and adjudicated, including crimes against peace, war crimes and crimes against humanity, a new basis was created for finding fresh principles of international law which could be applied in the future.[2] Critics condemned the IMT, claiming that international justice could not be served whenever the victorious party in a war tried the defeated. The advocates of this position also suggested that there existed no judicial or legislative precedent in modern history for the creation of the IMT. In defence of its creation, its supporters alleged that international law was not statutory in nature, but founded on principles of reason and justice defined in terms of treaties and assurances, with most of its principles comprising customary, unwritten laws developed over the years.[3]

Supporters of the IMT also pointed to the body of international law which preceded the Second World War, which was specifically related to the conduct of war. The Hague Conventions of 1899 and 1907, and the Geneva Convention of 1929 covered protections of sick or wounded enemy soldiers; the treatment of prisoners, and of the civilian population. However, this international law only applied to the signatories to the conventions, was not explicit about the crimes identified at Nuremberg, and did not cover the waging of aggressive war as an act of state policy.

Given that previous international law did not explicitly cover the prosecutions at Nuremberg, and that there was no legal precedent for the charter of the IMT, the ensuing judgement at Nuremberg set the revolutionary precedent that to violate international legal principles was a crime, even when no specific treaty provisions existed precisely defining the crime and sanctions to be applied. Therefore, many legal historians conclude that the Nuremberg trials ushered in a new era which saw the development of universal legal protections of fundamental human rights under international law.

The legal precedent of the trials also established key institutional and instrumental principles that have been translated into recent international prosecutions. These institutional developments included the establishment of the first ‘ordinary’ IMT. The 1948 U.N General Assembly Resolution stated that “there will be an increasing need of an international judicial organ for the trial of certain crimes of international law.”[4] This acknowledged the need for the simultaneous expansion of codification of international law on crimes against humanity and the rapid development of institutional legal processes and institutions which would ensure its successful implementation and protection. The International Law Commission subsequently drafted two statutes for the permanent International Criminal Court by the early 1950s. Although the process was disbanded during the Cold War, the draft served as a key document in the final draft statute presented to the General Assembly of 1994.

The International Criminal Court, established in 2002, is an international court with jurisdiction to prosecute individuals for the international crimes of genocide, crimes against humanity, war crimes, and the crime of aggression. However, there has been resistance to accepting the jurisdiction of the ICC, most notably in the US and some African states.

The United States' principal objection was over the concept of jurisdiction and its application to non-State parties. It also stated that the Statute must recognize the role of the Security Council in determining an act of aggression, for fear that US soldiers could be convicted on charges by the ICC. Israel also refused to ratify, stating that it failed to comprehend why the action of transferring populations into an occupied territory was included in the list of war crimes.[5]

The IMT at Nuremberg also upheld the right to a fair trial, a principle that the US representative and Chief Counsel at the IMT Supreme Court Justice, Robert H. Jackson argued would protect the institutional and legal legacy of the Nuremberg trials: “to pass these defendants a poisoned chalice is to put it to our lips as well”.[6]

Moreover, the traditional defence of “obedience to superior officers”, which had historically been an effective defence, was rejected; and a defence which relied on the argument that total war blurred boundaries between what was acceptable during conflict was also denied.

The crime of ‘genocide’ was not formally defined until the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. Nonetheless, the term ‘genocide’ appeared in Count three of the indictments of the Nazi leaders, which stated that those charged “conducted deliberate and systematic genocide- namely the extermination of racial and national groups- against the civilian populations of certain occupied territories in order to destroy particular races and classes of people, and national, racial or religious groups, particularly Jews, Poles, Gypsies and others.”[7] Therefore, the IMT helped to provide a definition of genocide that became applicable in subsequent international discourse, given that the UN convention on genocide was not adopted until 1948.

However, many historians reject that this genocide convention presented a landmark moment for human rights, pointing to Article V of the 1948 Convention, which states that if states regulate their legal systems accordingly to criminalise genocide in the domestic sphere, those found guilty should be tried in courts of the country where the acts were committed. These academics are sceptical about the effectiveness of a national trial for the crime of genocide. Nonetheless, Nuremberg set the precepts from which the Convention against genocide would develop, thereby extending international law to include genocide in the category of crimes against humanity.

The influence of Nuremberg on the United Nations’ issuing of the Universal Declaration of Human Rights in 1948 as binding cannot be overstated. By introducing the principles of Crimes Against Peace and Crimes Against Humanity, Nuremberg engendered a globalised concern for the rights of all human beings suffering the effects of certain modes of violence.

The Nuremberg Trials were founded on the idea that those who committed atrocities during the Second World War should be punished, and those breaking international law would be held accountable. Critics of the Nuremberg trials point to the fact that some of the Allied prosecutors came from the Soviet Union, a state which had carved up Poland in the Nazi- Soviet Pact of 1939; occupied the Baltic states in 1940, and waged aggressive war against Finland, which it invaded in November 1939. The Nuremberg Trials also did not prosecute numerous lower-level Nazi war criminals, some of whom found places in West German public and civic life during the Cold War. Despite the role of the Nuremberg Trials, genocide and war crimes continue to be prevalent, with examples in Uganda, Sudan, Rwanda, Somalia, and Bosnia, to name just a few. The work to protect human rights and to prosecute individuals responsible for crimes against humanity is far from over, if we are to ensure that atrocious human rights violations are a feature of the past and not the future.

[1]Rosen, Tove. ‘The Influence of the Nuremberg Trial on International Criminal Law’, Robert H.Jackson centre. [2] Ibid. [3] Lopardo, Mary Jean (1978) "Nuremberg Trials and International Law," University of Baltimore Law Forum: Vol. 8 : No. 2 , Article 18. pp.34-5 [4]U.N General Assembly, Dec. 5 1948. U.N General Assembly Resolution. Oslo: Lex Mercatoria [5]Rome Statute of the International Criminal Court, Published by the United Nations Department of Public Information, (October 1998) [6] Nuremberg Trials [1947] Second Day, Wednesday, 11/21/1945, Part 04 2 (International Military Tribunal), p.98. [7] Lemkin, Raphael. “Genocide.” The American Scholar, vol. 15, no. 2, 1946, pp. 227–230. JSTOR,


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