The regime of Hitler in Germany indulged in serious violation of human rights of various communities. Concentration camps were freely used for genocide, extermination, torture, and slave labour, which constituted the issues of the Holocaust. Such issue of crime required an adequate punishment. This issue began to be discussed before the end of the war. At the Moscow conference in 1943, it was decided that the Nazis were to be punished by a joint decision. At the Yalta Conference, it was decided to try the German leaders as war criminals.

The issue was the means in which justice was to be meted out to the Nazi leaders. Britain, France and Soviet Union wished to mete out severe punishment that meant summary execution. After all, the crime against humanity committed by Nazis could not be merely a legal question. In the US government, Secretary of War Henry L. Stimson preferred a trial, while the Secretary of Treasury Henry Morgenthau preferred a harsh treatment. The US ultimately made their decision in favour of a trial.

The Allies set up a War Crimes Commission. The Commission held a series of meetings in London in 1944 and prepared the list of persons to be tried and debating on how those listed as war criminals were to be tried. The principles were an outcome of groundwork done during 1944-45, most notably by Henry L. Stimson, John J. McCloy, Murray Bernays, William C. Chanler, Samuel Rosenman, and Robert H. Jackson. Consequent to this, the London Charter was drawn up in August 1945, where the Allies met and signed on the Charter. The Charter created the International Military Tribunal and created the rules for trial and its procedure and defined the crimes that were to be tried. In the trials there were four main prosecutors representing the United States, Great Britain, France and the Soviet Union in the trial. Justice Robert Jackson was the United States chief prosecutor. These Powers not only provided the prosecutors, but also the judges for the Tribunal.

The London Charter was original in its codification and technically an ex post facto law. However the concerns were not entirely new. The distinction between soldiering and civilian population had already been well established, and the conduct of occupying troops and the rights of the civilians were well recognised. The circumstances that required for such a law to be promulgated, was that in human civilisation, such brutality was unprecedented. The international laws of Hague Convention, Geneva Convention etc. were simply not equipped to deal with such an issue. The London Charter properly codified the principles for the purpose of the trial. The charter defined three categories of crimes - war crimes, crimes against peace and crimes against humanity. The limitation that it faced was that it did not have any precedent, and that the events were unique in its occurrence. However the trial overcame much of that by adopting certain flexibilities. The Charter contained elements of Anglo-American and civil (continental) laws that were incorporated in the working of the International Military Tribunal. The working of the trial differed in many respects to the US laws and court procedures. While in US, the prosecution shows evidence as the cause for trying a defendant, in civil law, all proof is presented with indictment, and such was not the case in the trials. Under the London Charter, there was no trial by jury. There was no provision for appeal; however, the defendants could request the Allied Government of Germany - the ‘Control Council’ to consider reduction in their sentences. The defendants were allowed to make un-sworn statements at the end of the trial. As such, the defendants could represent themselves or could be represented by an attorney of their choice if they so wished.

The International Military Tribunal was inaugurated on October 18, 1945, in the Supreme Court Building in Berlin. Iola T. Nikitschenko, the Soviet judge presided over its first session. The prosecution indicted twenty four Nazis and against six Nazi organisations. Provisions of international agreements like The Hague Convention of 1907 and the Geneva Convention of 1929 were cited to support the prosecution case. The charge against the defendants related to crimes against peace, war crimes, and crimes against humanity.

The Judges at Nuremberg applied the principle of individual responsibility on those charged. This meant that each of these individuals had to be given the right to trial before being held personally responsible. Most of those tried accepted that they had committed such acts. However they said that they were merely following orders. However, the London Charter had already held that neither official position nor the orders of a superior could be a valid defence. The top twenty-four Nazis who were named in the original indictment, of them nineteen were judged guilty and twelve of them were sentenced to death. Despite the original plan, no subsequent international tribunal took place. Instead between 1947 and 1949 twelve U.S. military trials were conducted at Nuremberg. Similar trials were also held in the French, British and Soviet zones of occupation.

The International Law Commission of the United Nations also adopted the Nuremberg principles in 1950. The International Law Commission was directed by the General Assembly under the resolution 177 (II) (a) to “formulate the principles of international law recognized in the Charter of the Nuremberg Tribunal and in the judgment of the Tribunal.” The United Nations General Assembly had already unanimously affirmed and recognized these principles of international law that had been recognized by the Charter of Nuremberg Tribunal and the judgment of the Tribunal. As the Nuremberg Principles had been affirmed by the General Assembly, the International Law Commission adopted them. The text of the Nuremberg Principles is:

Principle I - Any person who commits an act which constitutes a crime under international law is responsible therefor 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 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 V - Any person charged with a crime under international law has the right to a fair trial on the facts and law.

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 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 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: Atrocities and offenses, including but not limited to murder, extermination, deportation, imprisonment, torture, rape, or other inhumane acts committed against any civilian population, or persecutions on political, racial or religious grounds whether or not in violation of the domestic laws of the country where perpetrated.

Principle VII - Complicity in the commission of a crime against peace, a war crime, or a crime against humanity as set forth in Principle VI is a crime under international law.

Epilogue:

The Nuremberg trials have also attracted criticism. An important problem relates to holding individuals responsible for the crimes of a government. Even the Hague Convention holds signatory powers responsible and nowhere are individuals said to be culpable. Many observers have criticised it for holding individual officers responsible for following orders of their superiors. It has also attracted criticism for being an ex post facto legislation. The accepted doctrine is expressed in Nullum Crimen Sine Lege, meaning that a person cannot be sentenced to punishment under a law, for a crime unless he had infringed the law in existence at the time when the offence had been committed and that such a law prescribes the requisite punishment. Also, during Vietnam War, the question emerged when US government justified its military intervention, others contended that under the Nuremberg principles they were legally bound not to participate in a war that they regarded as aggressive war.

The Nuremberg Principles today forms an important dimension of international law and forms the basis of the working of cases related to genocide and ethnic cleansing.

Further Reading:

1) Robert E. Conot, Justice at Nuremberg, Harper & Row (1983)

2) Bradley F. Smith, The Road to Nuremberg, Basic Books (1981)

3) Telford Taylor, The Anatomy of the Nuremberg Trials, Little Brown (1992)

4) Bradley F. Smith, Reaching Judgment at Nuremberg, Basic Books (1977)

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