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Nuremberg and its Legacy

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Luigi Daniele

on 20 November 2016

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Transcript of Nuremberg and its Legacy

Nuremberg IMT and its Legacy
Genealogy of International Criminal Jurisidiction
"Harvard Research in International Law: Jurisdiction with Respect to Crime", 1935
Establishment of Nuremberg IMT
Agreement
by the Government of the United States of America, the Provisional Government of the French Republic, the Government of the United Kingdom of Grea Britain and Northern Ireland and the Government of the Union of Soviet Socialist Republics
for the Prosecution and Punishment of the MAJOR WAR CRIMINALS of the EUROPEAN AXIS
Counts:
War Crimes:
Crimes Against Peace
(the precedent, the defense and the judges)
Was war a crime?
ARTICLE 9
" UNIVERSALITY - PIRACY
A State has jurisdiction with respect to any crime committed outside its territory by an alien which constitutes piracy by international law ".
ARTICLE 10.
UNIVERSALITY - OTHER CRIMES
A State has jurisdiction with respect to any crime committed outside its territory by an alien, other than the crimes mentioned in Articles 6, 7, 8, and 9, as follows:

(a) When committed in a place not subject to its authority but subject to the authority of another State, if the act or omission which constitutes the crime is also an offence by the law of the place where it was committed,
if surrender of the alien for prosecution has been offered to such other State or States and the offer remains unaccepted, and if prosecution is not barred by lapse of time under the law of the place where the crime was committed. The penalty imposed shall in no case be more severe than the penalty prescribed for the same act or omission by the law of the place where the crime was committed.

(b) When committed in a place not subject to the authority of any State, if the act or omission which constitutes the crime is also an offence by the law of a State of which the alien is a national,
if surrender of the alien for prosecution has been offered to the State or States of which he is a national and the offer remains unaccepted, and if prosecution is not barred by lapse of time under the law of a State of which the alien is a national. The penalty imposed shall in no case be more severe than the penalty prescribed for the same act or omission by the law of a State of which the alien is a national.

(c) When committed in a place not subject to the authority of any State, if the crime was committed to the injury of the State assuming jurisdiction, or of one of its nationals, or of a corporation or juristic person having its national character.
(d) When committed in a place not subject to the authority of any State and the alien is not a national of any State.
Hostis Humani Generis
(Enemies of Mankind)
Crimina Iuris Gentium
(Crimes of the Law of Nations)
Aut dedere, aut judicare (extradite or prosecute)
Individual Criminal Liability disconnected by Sovereignty
Which is, in Nuremberg, the main overturn respect the hypotheses of the Harvard Research ?
London Agreement
(8th August 1945):
IMT Charter (you) :
What happened two days before (6th August, 1945)?
ART. 6.
[...]
The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility:
(a) CRIMES AGAINST PEACE: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing;
(b) WAR CRIMES: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity;
(c)CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.
(a) CRIMES AGAINST PEACE: namely,
planning, preparation
, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing;

(b) WAR CRIMES: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity;

(c)CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.
Penal Issues: Modes of Liability
murder and ill-treatment of civilian population ;
deportation for slave labor and for other purposes of the civilian population ;
murder and ill-treatment of prisoners of war , and of other members of the armed forces [...] ;
killing of hostages;
plunder of public and private property;
exaction of collective penalties;
wanton desctruction of ctities, towns and villages and devastation not justified by military necessity
conscription of civilian labour
forcing civilians of occupied territories to swear allegiance to a hostile power;
germanization of occupied territories.
Crimes Against Humanity:
(A) MURDER, EXTERMINATION, ENSLAVEMENT, DEPORTATION, AND OTHER INHUMANE ACTS COMMITTED AGAINST CIVILIAN POPULATIONS BEFORE AND DURING THE WAR
(B) PERSECUTION ON POLITICAL, RACIAL, AND RELIGIOUS GROUNDS IN EXECUTION OF AND IN CONNECTION WITH THE COMMON PLAN MENTIONED IN COUNT ONE
namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population
, before or during the war;
or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.
War
nexus?
ARTICLE I
The High Contracting Parties solemly declare in the names of their respective peoples that they condemn recourse to war for the solution of international controversies, and renounce it, as an instrument of national policy in their relations with one another.

ARTICLE II
The High Contracting Parties agree that the settlement or solution of all disputes or conflicts of whatever nature or of whatever origin they may be, which may arise among them, shall never be sought except by pacific means.

ARTICLE III
The present Treaty shall be ratified by the High Contracting Parties named in the Preamble in accordance with their respective constitutional requirements, and shall take effect as between them as soon as all their several instruments of ratification shall have been deposited
(Kellog-Briand Pact, 1928)
"With regard to crimes against humanity, there is no doubt whatever that political opponents were murdered in Germany before the war, and that many of them were kept in concentration camps in circumstances of great horror and cruelty. The policy of terror was certainly carried out on a vast scale, and in many cases was organised and systematic. The policy of persecution, repression and murder of civilians in Germany before the war of 1939, who were likely to be hostile to the Government, was most ruthlessly carried out. The persecution of Jews during the same period is established beyond all doubt. To constitute crimes against humanity, the acts relied on before the outbreak of war must have been in execution of, or in connection with, any crime within the jurisdiction of the Tribunal. The Tribunal is of the opinion that revolting and horrible as many of these crimes were, it has not been satisfactorily proved that they were done in execution of, or in connection with, any such crime. The Tribunal therefore cannot make a general declaration that the acts before 1939 were crimes against humanity within the meaning of the Charter"
(IMT, Judgement, “The Law relating to War Crimes and Crimes Against Humanity”)
"
On several occasions the League had to decide upon the lawfulness or unlawfulness of action by force of one member against another member, but it
always condemned such action by force merely as a violation of international law by the State, and never thought of bringing up for trial the statesmen, generals, and industrialists of the state which recurred to force.
And when the new organization for world peace was set up last summer in San Francisco, no new legal maxim was created under which an international tribunal would inflict punishment upon those who unleased an unjust war.

The present Trial can, therefore, as far as Crimes against Peace shall be avenged, not invoke existing international law,
it is rather a proceeding pursuant to a new penal law, a penal law enacted only after the crime. This is repugnant to a principle of jurisprudence sacred to the civilized world, the partial violation of which by Hitler's Germany has been vehemently discountenanced outside and inside the Reich. This principle is to the effect that only he can be punished who offended against a law in existence at the time of the commission of the act and imposing a penalty. This maxim is one of the great fundamental principles of the political systems of the Signatories of the Charter for this Tribunal themselves"
(
Motion Adopted by all Defense Counsel, 19 November 1945)
"
It was submitted, that ex post facto punishment is abhorrent to the law of all civilized nations, that no sovereign power had made aggressive war a crime at the time that the alleged criminal acts were committed, that no statute had, defined aggressive war, that no penalty had been fixed for its commission, and no court had been created to try and punish offenders.
In the first place, it is to be observed that the maxim nullum crimen sine lege is not a limitation of sovereignty, but is in general a principle of justice. To assert that it is unjust to punish those who in defiance of treaties and assurances have attacked neighboring states without warning is obviously untrue, for in such circumstances the attacker must know that he is doing wrong, and so far from it being unjust to punish him, it would be unjust if his wrong were allowed to go unpunished.
Occupying the positions they did in the Government of Germany, the defendants, or at least some of them, must have known of the treaties signed by Germany, outlawing recourse to war for the settlement of international disputes; they must have known that they were acting in defiance of all international law when in complete deliberation they carried out their designs of invasion and aggression. On this view of the case alone, it would appear that the maxim has no application to the present facts.
This view is strongly reinforced by a consideration of the state of international law in 1939, so far as aggressive war is concerned. The General Treaty for the Renunciation of War of 27 August 1928, more generally known as the Pact of Paris or the
Kellogg-Briand Pact,was binding on 63 nations, including Germany, Italy, and Japan, at the outbreak of war in 1939. [...] The question is, what was the legal effect, of this pact? The nations who signed the pact or adhered to it unconditionally condemned recourse to war for the future as an instrument of policy, and expressly renounced it. After the signing of the pact, any nation resorting to war as an instrument of national policy breaks the pact. In the opinion of the Tribunal, the solemn renunciation of war as an instrument of national policy necessarily involves the proposition that such a war is illegal in international law; and that those who plan and wage such a war, with its inevitable and terrible consequences, are committing a crime in so doing"
(IMT, Judgement, par. 462)
Nullum crimen, nulla poena sine lege:
More general, foundational contradictions
Where does the power of establishment of the Tribunal come from?

Is "justice" an absolute or relative value? Which is the minimum requirement for a punishment to be "just"?

Are all subjects (or perpetrators) equal before the 'Nuremberg' law? Example?
"
The making of the Charter was the exercise of the sovereign legislative power by the countries to which the German Reich unconditionally surrendered; and the undoubted right of these countries to legislate for the occupied territories has been recognized by the civilized world. The Charter is not an arbitrary exercise of power on the part of the victorious nations, but hi the view of the Tribunal, as will be shown, it is the expression of international law existing at the time of its creation; and to that extent is itself a contribution to international law".
(IMT, Judgement)
" The Tribunal established by the Agreement referred to m Article 1 hereof for the trial and punishment of the major war criminals of the European Axis countries shall have the power to try and punish persons who, acting in the interests of the European Axis countries, whether as individuals or as members of organizations, committed any of the following crimes [...] " (
IMT Charter, art. 6)
Atomic bombs?
"Victors' Justice" ?
" Then the second element contained in a) is: it must be carried out by Axis powers. We would think that had no place in any definition because it makes an entirely partisan declaration of law.
If certain acts in violation of treaties are crimes, they are crimes whether the United States does them or whether Germany does them, and we are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us. Therefore, we think the clause "carried out by the European Axis" so qualifies the statement that it deprives it of all standing and fairness as a juridical principle
".
(Justice Robert Jackson - Chief US Prosecutor at the IMT, during the International Conference on Military Trials, London, 1945)
"There is thus a sharp distinction between the question as to the origin of customary law in the mere popular conviction and as to its applicability by a court. There may be customary law in the sense that it exists in the conviction of the people; yet it may not be law applicable by a court because the prerequisites to its applicability by the court are lacking. Herein comes THE USAGE which is wanting in the present case. The people should not merely be conscious of their law but they must live their law, —they must act and conduct themselves according to it. This living according to law is required not as a mere form of manifestation but also as a means of cognition of customary law.
When the conduct of the nations is taken into account the law will perhaps be found to be THAT ONLY A LOST WAR IS A CRIME
".
(
Justice Radhabinod Pal, Dissenting Judge of the IMTFE
)

Superior Orders
IMT Charter Art. 8:
The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires.

Captured allied pilots tried in 1944 by the Third Reich... their defence of superior orders was also rejected:
'The pilots cannot validly claim that as soldiers they obeyed orders. No law of war provides that a soldier will remain unpunished for a hateful crime by referring to the orders of his superiors, if their orders are in striking opposition of all human ethics, to all international customs in the conduct of war ’
(Press Statement reported by Y. Dinstein). The defence of superior orders was also denied to the German soldiers who participated in an attempt to murder Hitler-
Absolute liability approach:
Manifest Illegality:
Respondeat Superior:
complete defense
(overinclusive?)
(underinclusive?)
ICC St. art. 33:
(1) The fact that a crime within the jurisdiction of the Court has been committed pursuant to an order of a government or of a superior, whether military or civilian, shall not relieve that person of criminal responsibility unless:
(a) The person was under a legal obligation to obey orders of the government or the superior in question;
(b) The person did not know that the order was unlawful; and
(c) The order was not manifestly unlawful.
(2) For the purposes of this Article, orders to commit genocide or crimes against humanity are manifestly unlawful.

Eichmann in Jerusalem:
Hannah Arendt:
Banality of Evil
Individuals in sistemic/situational criminality:
Milgram experiment
Zimbardo: Stanford Prison Experiment
Principles of International Law recognized in the
Charter of the Nürnberg Tribunal and in the
Judgment of the Tribunal
PRINCIPLE I
Any person who commits an act which constitutes a
crime under international law is responsible therejor
and liable to punishment.
PRINCIPLE II
The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law
PRINCIPLE III
The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law.
PRINCIPLE V
Any person charged with a crime under international law has the right to a fair trial on the facts and law
PRINCIPLE IV
The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.
PRINCIPLE VI
The crimes hereinafter set out are punishable as crimes under international law:
a. CRIMES AGAINST PEACE:
(i) Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances;
(ii) Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i).
b. WAR CRIMES:
Violations of the laws or customs of war which include, but are not limited to, murder, ill-treatment or deportation to slave-labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war, of persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified
by military necessity
c. CRIMES AGAINST HUMANITY:
Murder, extermination, enslavement, deportation and other inhuman acts done against any civilian population, or persecutions on political, racial or religious grounds, when such acts are done or such persecutions are carried on in execution of or in connexion with any crime against peace or any war crime.
“Why should mass murdering go unpunished only because committed during an armed conflict and by perpetrators using their State/military roles as shields against any personal liability?” (Vassalli G., La giustizia penale internazionale. Studi, Milan, 1995, 1)

(Text adopted by the International Law Commission at its second session, in 1950, and submitted to the General Assembly )
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