Nuremberg
Table of Contents
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The Nuremberg trials (German: Nürnberger Prozesse) were a series of military tribunals held after World War II by the Allied forces under international law and the laws of war. The trials were most notable for the prosecution of prominent members of the political, military, judicial, and economic leadership of Nazi Germany, who planned, carried out, or otherwise participated in the Holocaust and other war crimes. The trials were held in Nuremberg, Germany, and their decisions marked a turning point between classical and contemporary international law. (Source)
1. Establishment
Charter establishing the International Military Tribunal at Nuremberg was signed on August 8, 1945. (Ironically, three moths after the German surrender, two days after the first nuclear bombing in Hiroshima and one day prior to a nuclear weapon being used on the city of Nagasaki)
The legal basis for the trial was established by the London Charter, which was agreed upon by the four so-called Great Powers on 8 August 1945, [17] and which restricted the trial to "punishment of the major war criminals of the European Axis countries.
Some 200 German war crimes defendants were tried at Nuremberg, and 1,600 others were tried under the traditional channels of military justice.
The legal basis for the jurisdiction of the court was that defined by the Instrument of Surrender of Germany.
The definition of what constitutes a war crime is described by the Nuremberg principles, a set of guidelines document which was created as a result of the trial. The medical experiments conducted by German doctors and prosecuted in the so-called Doctors' Trial led to the creation of the Nuremberg Code to control future trials involving human subjects, a set of research ethics principles for human experimentation.
2. Prinicpal Message
Individuals are responsible for what they do, and will be held accountable for committing serious crimes under international law. At Nuremberg these serious crimes included crime against peace (that is, planning, preparing for, or participating in acts of aggressive warfare), war crime, and crime against humanity.
2.1. Individual Accountability
"Any person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment"
The fact that there is no punishment of the act under internal law does not relive teh person who committed the act from responsibility under international law. Nor does the fact that the person acted as a Head of State or as a responsible government official relieve that person of responsibility. Nor does the fact that the person acted pursuant to superior orders, so long as a choice was in fact possible to him, relieve him of responsibility.
3. Critique: Nuremberg and Nuclear Weapons
(Source)
I think it is reasonable to speculate that if the Germans had had two or three atomic bombs, as we did at that time, and had used them on European cities prior to being defeated in the Second World War, we would have attempted to hold accountable those who created, authorized, and carried out these bombings. We would likely have considered the use of these weapons on cities by the Nazi leaders as among the most serious of their crimes.
The question which I want to address is not whether war crimes were committed at Hiroshima and Nagasaki. Under the rules of international humanitarian law they were, and they were also committed by the bombings of London, Coventry, Hamburg, Dresden and Tokyo. The primary targets of all these bombings were civilians, and the indiscriminate killing of civilians has always in modern times been understood to be a clear violation of the laws of war.
3.1. Stand of International Court of Justice
General Assembly of the United Nations in December 1994, asked: “Is the threat or the use of nuclear weapons in any circumstances permitted under international law?”
In a multi-part answer to the question, the Court found the following: “…that the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law.
“However, in view of the current state of international law, and of the elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in which the very survival of a State would be at stake.”
Judge Bedjaoui, the president of the Court, said in his declaration upon releasing the Court’s opinion, “I cannot insist strongly enough on the fact that the inability of the Court to go beyond the statement it made can in no way be interpreted as a partially-opened door through which it recognizes the legality of the threat or use of nuclear weapons.”
The International Court of Justice added to their opinion a clarification of Article VI of the Non-Proliferation Treaty. The Court unanimously found that: “There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control.”
3.2. Lack of permanent International Criminal Court (FALSE)
One of the great shortcomings of the current international institutional structure is the lack of a permanent International Criminal Court. Two Ad Hoc Tribunals have been created by the United Nations Security Council one for the former Yugoslavia and one for Rwanda. The jurisdiction of both of these tribunals, however, is limited by time and space.
The Nuremberg trials initiated a movement for the prompt establishment of a permanent international criminal court, eventually leading over fifty years later to the adoption of the Statute of the International Criminal Court.
4. Unfairness in Nuremberg
- The Allied were not tried for the war crimes they committed.
- One of the charges included conspiracy to commit aggression against Poland. Soviets and Germans had a pact to partition Poland. Germans were tried however Soviet leaders were not.
- ex post facto laws">One could argue that, one can't be tired for the laws made after crime was committted. The london charter definition of what constituted a crime against humanity was unknown when many of the crimes were committed. However the Tribunal itself strongly disputed that the London Charter was ex post facto law, pointing to existing international agreements signed by Germany that made aggressive war and certain wartime actions unlawful, such as the Kellogg-Briand Pact, the Covenant of the League of Nations, and the Hague Conventions of 1899 and 1907.
