Reflection of Punishment for Heads of State in Nuremberg Charter

The trial of the major Nazi war criminals (in all twenty –four leaders were indicted) started on 20 November 1945 and lasted till 1 October 1946 in the Palace of Justice at Nuremberg⁶⁰⁵. By the Charter, constitution, jurisdiction and functions of the Tribunal were defined.⁶⁰⁶

In the wake of the Nuremberg Trials it became accepted that national courts may exercise criminal jurisdiction over crimes against international law under the principle of universal jurisdiction -hence regardless of the locus delicti and the nationality of the victim and the suspect.⁶⁰⁷

Some have argued that the Nuremberg Tribunal was a collective exercise of universal jurisdiction by a treaty-based international court and constitutes a precedent for the ICC.⁶⁰⁸ However, others have argued that the Allied States that established the Tribunal were exercising sovereign powers in Germany at the relevant time and that the Nuremberg Tribunal was thus based on the consent of the state of nationality.⁶⁰⁹

605Ibid, p.89

606International military tribunal(Nuremberg), Judgment and Sentences, 41 AJIL 1947, p.172, passim[hereinafter Nuremberg’s Judgment]

607from the text of Nuremberg Judgment, ‘together what any one of them might have done singly’ some argued that this meant the Tribunal based its jurisdiction on the universality principle, in: International Military Tribunal(Nuremberg), Judgment and Sentences,41 AJIL1947, p.216, In: Alebeek, op-cit, p.210

608Scharf M, The ICC’s Jurisdiction over the Nationals of Non-Party States: A Critique of the U.S. position, 64 Law & Contemporary Problems (2001) 103-106; Danilenko M, ICC Statute and Third States, in: A.

Cassese, P. Gaeta, and J. Jones, The Rome Statute of the International Criminal Court: A Commentary, Vole.

II (Oxford: Oxford University Press, 2002)1881-1882;Paust J, The Reach of ICC Jurisdiction Over Non-Signatory Nationals, 11 Vanderbilt Journal of Transnational Law (2000)3-5. Also arguing that the

Nuremberg Tribunal was based on universal jurisdiction are Schwelb E, Crimes against Humanity, 23 BYIL (1946)178,208; Woetzel R. K, The Nuremberg Trials in International Law (New York: Prager,1962) at 87-89; Randall K, Universal Jurisdiction under International Law, 66 Texas Law Review (1988)804-806, In:

Akande Dapo, The Jurisdiction of the International Criminal Court over Nationals of non-Parties: Legal Basis and Limits, 1 JICJ 2003, p.627

609Morris M, High Crimes and Misconceptions: The ICC and Non-Party States, Law & Contemporary Problems (2001) 37-42, see also the works cited at Woetzel, Ibid, 78 at note 62, and Kelsen H, The Legal Status of Germany According to the Declaration of Berlin, 39 AJIL (1945) 518, In: Akande, Ibid

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At the London Conference the French delegate argued that individuals could not be held responsible for acts of state⁶¹⁰. International law is concerned only with the actions of states, and therefore cannot punish individuals, or (alternatively) cannot punish them for carrying out the orders of a sovereign state⁶¹¹. Already in 1943 the Allied Powers had stated their intent to bring the Nazi war criminals to justice after the war.⁶¹²

The idea that a whole state should be ‘punished’ collectively for the policies and decisions of individuals (and without also punishing the responsible individuals who have made crucial policy decisions) seemed to be misdirected⁶¹³. The Nuremberg Tribunal rejected the doctrine of State sovereignty in favor of that of individual criminal responsibility⁶¹⁴. The judgment expressed that:

“It is important to remember that article 227 of the Treaty of Versailles provided for the constitution of a special Tribunal, composed of representatives of five of the Allied and Associated Powers which had been belligerents in the first World War opposed to Germany, to try the former German Emperor ‘for a supreme offence against international morality and the sanctity of treaties’.

…In article 228 of the Treaty, the German Government expressly recognized the right of the Allied Powers to bring before military tribunals persons accused of having committed acts in violation of the laws and customs of war”.⁶¹⁵

“It was submitted that international law is concerned with the actions of sovereign States, and provides no punishment for individuals; and further, that where the act in question is an act of State, those who carry it out are not personally responsible, but are protected by the doctrine of the

610Said he: ‘It may be a crime to launch a war of aggression on the part of a state that does so, but does not imply the commission of criminal acts by individual people who have launched a war…’ To this the British delegate countered: ‘Don’t you imply that the people who have actually been personally responsible for launching the war have committed a crime?’ But the French delegate held this ground: ‘We think that would be morally and politically desirable but that it is not international law’, London Conference, p.297, In:

Minear, op-cit, p.43

611 Robertson Geoffrey, Crimes Against Humanity, The Struggle for Global Justice, 1999,p.205, passim

612The Moscow Declaration signed by Roosevelt, Stalin, and Churchill on 1 November 1943, Declaration of German Atrocities, 1 November 1943, reprinted in (1944 Supplement) 38 AJIL 3, 7-8, In: Alebeek, op-cit, p.207

613Kemp, op-cit, p.76

614Kittichaisaree Kriangsak, International Criminal Law, 2001, p.18

615Nuremberg’s Judgment, op-cit, p.220, (Article 227 provided for the punishment of the German

Emperor(Wilhelm II)for ‘the supreme offence against international morality and the sanctity of treaties’, in any case, the Netherlands, where the German Emperor had taken refuge, refused to extradite him, chiefly because the crimes of which he was accused were not contemplated in the Dutch Constitution)

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sovereignty of the State. In the opinion of the Tribunal, both these submission must be rejected. That international law imposes duties and liabilities upon individuals as well as upon States has long been recognized… Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced”.⁶¹⁶

The charter recognizes that one who has committed criminal acts may not take refuge in superior orders nor in the doctrine that his crimes were acts of state, these twin principles working together have hitherto resulted in immunity for practically everyone concerned in the really great crimes against peace and mankind⁶¹⁷.In accordance with Article 7 of the Charter:

The official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment.

Article 7 of the Charter eliminated the ‘Act of State’ defense where a Head of State and others can claim that their conduct was inherent to national sovereignty and thus not questionable by others.⁶¹⁸

Article 7 expressly rejected the ‘sovereign immunity’ principle which the Americans had at Versailles insisted must protect military and political leaders⁶¹⁹. It was on this basis that Jackson blew away the dust of sovereignty in his prosecution opening, rejecting the notion that individual leaders could escape responsibility by arguing that they were merely agents of an immune state⁶²⁰. In his Report he declared that: “Nor should such a defence be recognized as the obstacle doctrine that a head of state is immune from legal liability, there is more than a suspicion that this idea is a relic of the doctrine of the divine right of kings, it is, in any event, inconsistent with the position we take toward our own officials, who are frequently brought to court at the suit of citizens who allege their rights to have been invaded, we do not accept the paradox that legal responsibility should be the least where

616Nuremberg’s Judgment, Ibid

617Robertson, op-cit, p.205

618Bernaz Nadia and Prouveze Remy, International and domestic Prosecutions, In: Bassiouni, The Pursuit of International Criminal Justice, op-cit , p.204, [hereinafter, Bernaz and Prouveze]

619Robertson, op-cit, p.204

620 Ibid, p.205

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power is the greatest, we stand on the principle of responsible government declared some three centuries ago to King James by Lord Justice Coke, who proclaimed that even a king is still ‘under God and the law’.” ⁶²¹

The Nuremberg Tribunal explicitly established the irrelevance of functional immunity:

“The principle of international law, which under certain circumstances protects the representatives of a State, cannot be applied to acts which are condemned as criminal by international law. The authors of these acts cannot shelter themselves behind their official position in order to be freed from punishment in appropriate proceedings…Individuals have international duties which transcend the national obligations of obedience imposed by the individual State. He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the State if the State in authorizing action moves outside its competence under international law”.⁶²²

The significance of this ruling is that it provides an authoritative basis for holding individuals at all levels, whether footsoldiers or leaders, liable for crimes against humanity⁶²³. The Principle of individual responsibility for crimes against international law and the principle of irrelevance of official capacity for the establishment of such responsibility was first confirmed in 1946 in a unanimously adopted resolution of the General Assembly ‘affirming the principles of international law recognized by the Charter of the Nuremberg Tribunal and Judgment of the Tribunal’.⁶²⁴

In 1950, the UN General Assembly adopted the ‘Principles of international law recognized in the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal’.⁶²⁵ Principle III states: ‘The Fact that a person who committed an act which

621In Report of Robert H. Jackson United States Representative to the International Conference on Military Trials, London 1945, US Department of State, 1949, at47 In: Cassese Antonio, When may Senior State Official be Tried for International Crimes? Some Comments on the Congo V. Belgium Case, 13 EJIL(2002), P.873, margin no.72, [hereinafter, Cassese, When may Senior]

622IMT, judgment of 1 0ctober 1946, In: The Trial of German Major War Criminals, Proceedings of the IMT Sitting at Nuremberg, Germany, Part22(1950), p.447 In: Werle, ICL2009, op-cit, pp.237-238

623Robertson, op-cit, pp.205-206

624UN GA Resolution 95(1), 11 December 1946, UN Doc A/64/Add 1(1946),Affirmation of the Principles of International Law Recognized by the Charter of the Nuremberg Tribunal, In: Alebeek, op-cit, p.209

625Resolution 177(II) of General Assembly of the United Nations, 21 November 1947, the General Assembly by this resolution directed the International Law Commission to ‘formulate the principles of international

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constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law’.

Another confirmation of this rule can be found in the adoption by the International Law Commission of the (1954 and 1996) Draft Code of Crimes against the Peace and Security of Mankind, which includes a provision on the irrelevance of official functions.⁶²⁶