In the early winter of 1942, the governments of the Allied powers announced their intent to punish the Nazi war criminals. However, the plans on how to deal with the Nazi leaders after the war was relatively vague. The ‘Moscow Declaration’ of The Big Three (the Soviet Union, the United States and the United Kingdom) stated that the war criminals should be punished according to the joint decision of the governments of the allies. Yet unanimity on the method of punishment at that time was hard to find. Stalin voted for a bloody solution. He wanted 50.000 to 100.000 German officers liquidated without standing trial. Luckily for the German officers, the British and Americans had a much milder solution in mind. A lot of meetings between the Allies eventually led to the establishment of an International Military Tribunal (IMT), formally opened in Nuremberg on November 20, 1945.
Twenty-four major political and military leaders of Nazi Germany, indicted for aggressive war, war crimes and crimes against humanity were brought to trial before the International Military Tribunal. The establishment of the tribunal was an important moment in the history of international criminal law and has led to the tendency of forming a tribunal to judge war crimes. The Nuremberg Tribunal was one of the earliest examples of an ad hoc international criminal court and was therefore the trials were not without any difficulties. In this article, I will describe several legal obstacles which the Allies faced during the Nuremberg trials.
The commitment of the Western Allies was to turn the tribunal into more than just a mock trial “victor’s justice.” This was not an easy task, because the crimes that the Nazi leaders were charged with were never written down. The crimes were not included in any law until 1945 when the Charter of the International Military Tribunal was introduced. It was this moment that the allies encountered their first problem. By introducing this retroactive criminal legislation and use this legislation to punish the Nazi leaders, they would violate the principle of legality.
The tribunal openly admitted in court that this was a violation of this principle, but the defence was rejected. In this case, the principle of legality had to give in to a higher principle: these men were convinced of the immorality and illegality of their actions and had to stand trial. The principle of legality is a general principle of justice and it would be an unjustified outcome that people who knowingly violated the law, could successfully rely on it. For many this was a satisfying outcome, but whether the violation of the principle of legality was allowed is still debated by several lawyers nowadays.
Of greater importance was the issue with the impartiality of the Tribunal. The eight judges of the Tribunal represented the four allies: the United States of America, the United Kingdom, France and the Soviet-Union. Besides the fact that they had a common hostility towards Germany, they all protected each other from their own acts in the war. Stalin and Hitler agreed on dividing Poland in 1939 between the ideological mortal enemies. How is this not an act of aggression? As for the British, they were far from innocent in WWII.
Why for instance was RAF Air Marshal Arthur “Bomber’ Harris, who bombed the centre of Dresden and killed thousands of civilians, not prosecuted? It is hard to believe that these acts are allowed when used as retaliation. If the allies wanted to proceed the criminal prosecution for crimes against humanity and peace than they had to be consistent. But the consistency was nowhere to be found, since Germany was the only country that got punished for its war crimes. This inconsistency was a major flaw of the Nuremberg Tribunal and was heavily criticised.
One of the most difficult problems that the allies faced was determining the guilt of the suspects who claimed that they were acting under orders of their superior and that they did not commit the crime of their own free will. There was an understandable concern that the defendants might use this defence in an infinite regression in which all responsibility would point to Hitler, who was at that moment conveniently dead.
Article 8 of the Charter of the International Military Tribunal constituted a ban on raising superior orders as a complete defence, choosing instead to permit the IMT its own discretion as to whether to consider superior orders as a mitigating factor. This way, the defence could only lead to reduction of punishment, but could never free the defendant of prosecution. The inclusion of article 8 in the Charter was legitimized by the criterion of moral choice. When someone has a higher military rank, he has more freedom in interpreting and deviating orders. All suspects were high in the military order of Nazi Germany. This was the ratio for making it impossible for the Nazi leaders to use the defence of superior orders to get them free of all charges as stated in article 8 of the Charter
Most people seem to forget the controversies surrounding the Nuremberg trials and conclude that the process has been an exceptional measure under exceptional circumstances.
Even though the Nuremberg trials were not flawless, men tried to make the best out of the extremely difficult situation. It was the first time individual liability under international criminal law was applied. In addition, the Tribunal had to operate in a morally exhausted world where the contours of new political divisions were already visible.
Considering the legal difficulties concerning the principle of legality and impartiality of the Tribunal, it would have saved the Allies a great amount of time and effort if they simply would have carried out summary executions. However, they did not execute the Nazi leaders, which was the common procedure for that time. Instead they formed a tribunal which was a turning point in international criminal law.
The Allies ensured that it did not turn into a mock trial. This was mostly because the United States made great efforts to prevent this situation. In addition, it became the example for every future international tribunal or criminal court. Because of this, most people seem to forget the controversies surrounding the Nuremberg trials and conclude that the process has been an exceptional measure under exceptional circumstances
1. A. Jettinghof, ‘Berechting van de Behemoth. Het precaire succes van het Neurenberg tribunaal’, Nijmegen Sociology of Law Working Papers Series 2011, p. 11.
2. International Military Tribunal of Nuremberg, 22 Judgment (1948), 203, 462.
3. H. Van der Wilt, ‘Judgement At Nuremberg’, Ars Aaqui 2015.
4. W. Dankers Are, Internationaal Militair Tribunaal (IMT) Neurenberg 7 november 2017, https://www.tracesofwar.nl/articles/4901/Internationaal-Militair-Tribunaal-IMT-Neurenberg.htm?c=gw.
5. H. McCourbrey, ‘From Nuremberg to Rome: Restoring the Defence of Superior Orders’, the International and Comparative Law Quarterly 2001, afl. 2.
6. A. Jettinghof, ‘Berechting van de Behemoth. Het precaire succes van het Neurenberg tribunaal’, Nijmegen Sociology of Law Working Papers Series 2011, p. 16.