12.3 THE BACKGROUND TO THE ESTABLISHMENT OF THE IMT
12.3.1 The law and jurisdiction of the IMT at Nuremberg
The London Charter for the Nuremberg IMT (Nuremberg Charter)8is brief but is of enormous significance for the development of international criminal law. The Charter defines offences and sets out the parameters for individual criminal responsibility with regard to these offences. Both the Charter and the judgment of the IMT have been extremely influential on the evolution of the law and procedure of more contemporary institutions, namely, the International Tribunals for the Former Yugoslavia and Rwanda (ICTY and ICTR, respectively), as well as the newly established International Criminal Court (ICC).
The jurisdiction of the IMT was set out under Art 6 of the Tribunal’s Charter, which provided:
The tribunal established by the agreement referred to in Art 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 organisations, committed any of the following crimes.
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 labour 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.
6 See generally T Taylor,The Anatomy of the Nuremberg Trials: A Personal Memoire,1993, London:
Bloomsbury; A Tusa and J Tusa,The Nuremberg Trial,1983, London: Macmillan.
7 Charter of the International Military Tribunal at Nuremberg (IMT Charter), Art 1.
8 UKTS 4 (1945), Cmnd 6671; 5 UNTS 251; 39AJIL Supp(1945), 257.
(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, organisers, 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.
Mindful that these offences had not been set out in this manner before, in its judgment, the IMT set out the legal basis behind the offences. The Tribunal approached its explanation in a bullish way, stating that:
The Charter makes the planning or waging of a war of aggression or a war in violation of international treaties a crime; and it is therefore not strictly necessary to consider whether and to what extent aggressive war was a crime before the execution of the London Agreement. But in view of the great importance of the questions of law involved, the tribunal has heard full argument from the prosecution and the defence, and will express its view on the matter.9
The IMT rejected the argument presented by the defence that the Charter breached the principle that there can be no punishment without law,nullum crimen sine lege, nulla poena sine lege,by arguing that this maxim was a principle of justice and not a limitation of sovereignty. Its rationale was that if a war of aggression is illegal in international law, then it necessarily follows that those who plan and wage such a war are committing a crime.10
The IMT found that:
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.11
The inherent problem with formulating the offence of crimes against peace lies with the fact that even if aggression could be deemed to have been illegal by 1939, this would at best be considered an act entailing State responsibility rather than personal criminal responsibility. The League of Nations Covenant had by no means prohibited recourse to armed force for the settlement of international disputes, although it had established a complex conciliatory mechanism that was aimed at delaying recourse to violence rather than prohibiting it altogether.12New attempts to define aggression as an international crime took place with the 1923 Draft Treaty on Mutual Assistance and the 1924 Protocol for the Pacific Settlement of International Disputes. Article I of the 1923 Draft Treaty declared that aggressive war was an international crime, as did also the 1924 Protocol. Although the Protocol did not enter into force, 48 States recommended its ratification in the League Assembly, thereby indicating a
9 IMT judgment, reprinted in 41AJIL(1947), 172, p 217.
10 Ibid,p 218.
11 Ibid,p 217.
12 See I Brownlie,International Law and the Use of Force by States,1963, Oxford: OUP, p 62.
willingness to outlaw such behaviour.13Where prior attempts to prohibit war had formally failed, the 1928 General Treaty for the Renunciation of War as an Instrument of National Policy, also known as the Kellog-Briand Treaty or Pact of Paris,14outlawed recourse to war entirely. However, not even the Pact of Paris specifically penalised aggression and, hence, it can hardly be asserted that as a matter of positive international law the perpetration of aggression entailed with certainty the personal liability of the culprit. The IMT in its judgment made reference to the aforementioned instruments, to which Germany was a party, the result of which was to denunciate the waging of aggressive war as well as certain methods of warfare, and nonetheless found that the crime of aggression had been established under customary law.
Interestingly, the Tribunal attempted an analogy with the 1907 Hague Conventions and its annexed Regulations, stating that neither the Hague Regulations expressly penalised the breaches contained therein—that is, much like the Pact of Paris—but went on to say that breaches of this nature have long been prosecuted by national courts.15This analogy hardly supports the Tribunal’s argument, since it is an example of a legal instrument having attained the status of customary law through consistent and continuous State practice, whereas the same cannot be said of the crime of aggression. A number of scholars, such as Finch, rejected the argument that the crime of aggression could have been established by reference to unratified treaties and resolutions of international conferences that were not sanctioned by subsequent national or international action. He argued, moreover, that if aggressive war in violation of international treaties was a crime entailing individual responsibility, then such responsibility should also encompass those in the UK and France that compelled Czechoslovakia to consent to German aggression, as well as those Soviet officials that were responsible for the invasion of Poland in violation of their non- aggression pact with Germany of 23 August 1939—although Germany had herself invaded Poland 16 days earlier.16Other jurists, nonetheless, were of the view that the waging of an aggressive war was an international crime.17
Since a war of aggression could only be committed by persons in the highest echelons of authority and after formulating a plan to that effect, the Tribunal set out the parameters of criminal participation in crimes against peace. First, it held that the conspiracy charge could only apply to the crime of aggressive war, although the indictment had applied it to all the offences in the Charter. It rejected the prosecution’s argument that any significant participation in the workings of the Nazi Party since its inception in 1919 was evidence of involvement in a conspiracy to commit the offences that were within the Tribunal’s jurisdiction, holding that the conspiracy must not have been too far removed from the time of decision and of action.18The
13 On 24 September 1927, the Assembly of the League of Nations unanimously adopted a resolution regarding wars of aggression, whose preamble expressly stated that such wars constituted international crimes. See IMT judgment, reprinted in 41AJIL(1947), 172, p 220.
14 94 LNTS 57.
15 Op cit,IMT judgment, note 9, p 218.
16 G Finch, ‘The Nuremberg Trial and International Law’, 41AJIL(1947), 20, pp 26–28.
17 S Glueck, ‘The Nuremberg Trial and Aggressive War’, 59Harv L Rev(1946), 396; Lord Wright, ‘War Crimes Under International Law’, 62LQR(1946), 40.
18 Op cit,IMT judgment, note 9, p 222.
IMT found that plans to wage aggressive war had been revealed as early as 5 November 1937, if not earlier, but this involved many separate plans rather than a single conspiracy embracing them all. The Tribunal was of the opinion that a crime against peace required not mere participation in the Nazi conspiracy, but also an intention to commit aggressive war. Thus, Schacht was acquitted of this charge, because he terminated his financial and armament building activity in 1937, after discovering Hitler’s intention to invade other nations.19The IMT held that, even though the plan or conspiracy may have been conceived by only one person, its status as a conspiracy remains unaltered where other persons participate in its execution. Indeed, as the Tribunal pointed out since Hitler could not have waged aggressive war on his own, it was evident that those executing the plan did not avoid responsibility ‘by showing that they acted under the directions of the man who conceived it’.20The unsatisfactory, from a legal point of view, formulation of the crime against peace in Art 6(a) of the IMT Charter did not readily evolve as a principle of either treaty or customary law in the post-Nuremberg era. It was not until the 1998 ICC Statute that it was included, albeit without any force until an appropriate definition is agreed upon by participating States.
However, the IMT was more vague when it came to justifying the existence of crimes against humanity. It had been common knowledge that atrocities against German Jews and minority groups had been carried out by the Nazi regime, as well as similar offences against other civilians of other countries occupied by Germany. Whilst the brutality against civilians of other countries during the course of fighting or occupation might have been covered by ‘established’ international law on war crimes and aggression, atrocities against a State’s own citizens were not.Article 6(c) of the Charter, concerning crimes against humanity, was drafted so as to encompass these acts, which had occurred on such a massive scale that they could not be ignored. Article 6(c) of the Charter covered acts against ‘any’ civilian population.21However, the IMT sidestepped any discussion of precedents for crimes against humanity in international law. Instead, it took the approach of delineating its own jurisdiction over such offences:
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.22
Although it had found that the Jewish minority in Germany, as well as other minority groups, had been subjected to acute discrimination and extermination policies long before the outbreak of the Second World War, in order to describe these pre-war acts as crimes against humanity it had to establish that they were committed in ‘execution of, or in connection with, any crime within the jurisdiction of the tribunal’. Evidently, the Tribunal was not prepared to go that far, possibly because of the evidentiary difficulties this exercise would entail, taking account of the limited resources and time it was allocated in carrying out its task.Alternatively, it could be said that because there was more than ample evidence of large scale atrocities perpetrated against
19 Q Wright, ‘The Law of the Nuremberg Trial’, 41AJIL(1947), 38, p 67.
20 Op cit,IMT judgment, note 9, p 223.
21 Art 6(b) dealt with acts committed against the ‘civilian population of or in occupied territory’.
22 Op cit,IMT judgment, note 9, p 249.
civilians and other minority groups in the course of the war there was no need to indulge, at least for the purposes of that particular prosecution, in other events that were harder to establish in legal terms. The Tribunal did not, however, exclude the possibility that crimes against humanity might be committed also before a war.
Although Art 6(c) required a link between crimes against humanity and crimes against peace or war crimes, it was not entirely clear whether international law required an additional nexus between crimes against humanity and the existence of an armed conflict. Control Council Law No 10 later provided for the prosecution of crimes against humanity, without requiring a nexus to other crimes in the IMT Charter, or other crimes in general. In fact, prosecutions under this law by US military courts resulted in the conviction of hundreds of Nazi soldiers and officers and, significantly, these courts were not limited to the examination of post-1939 events, but looked into crimes perpetrated before the outbreak of the war. Article 6(c) of the Charter distinguished two categories of punishable acts: first, murder, extermination, enslavement, deportation and other inhuman acts committed against any civilian population, before or during the war; and second, persecution on political, racial or religious grounds.23 The legality of the concept of ‘war crimes’ was unquestionable, although the defence argued that the Tribunal did not enjoy jurisdiction for violation of the laws or customs of war. This argument was correctly rejected on the basis that war crimes prosecutions against aliens had a long history in the law of nations.24Since any nation could initiate criminal proceedings, it was therefore possible for a group of nations, in this case the Allies, to do so in concert. As far as the law of nations was concerned, the concept of war crimes was precisely delineated under treaty and customary law.
Efforts to codify and enforce this law had begun as early as 1864 with the adoption of the Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field.25The most significant codification of thejus in belloprinciples was that undertaken in the context of the 1899 and 1907 Hague Peace Conferences, where a number of conventions regulating conduct in warfare were adopted. Most important among these was, undoubtedly, the 1907 Hague Convention IV on Respecting the Laws and Customs of War on Land and the regulations annexed thereto. The IMT found that the evidence furnished by the prosecution demonstrated beyond doubt the perpetration of pre-planned war crimes that were to be committed whenever the Fuhrer and his close associates thought them to be advantageous.
This was done, for example, in relation to the plunder and ill-treatment of Soviet civilians and their property, the exploitation of slave labour of other occupied territories, as well as the murder of captured enemy commandos and Soviet Commissars.26The existence of these policies was revealed by reference to orders that were issued and circulated by some of the accused, such as the 1941 ‘Night and Fog Decree’ that was issued by Hitler and signed by Keitel, under which persons who committed offences against the Reich or the German forces in occupied
23 See E Schwelb, ‘Crimes against Humanity’, 23BYIL(1946), 178.
24 Ex p Quirin,317 US 27 (1942) andRe Yamashita,327 US 1 (1946).
25 18 Martens Nouveau Recueil General de Traites, p 607. The 1868 Additional Articles Relating to the Condition of the Wounded in War extended the humanitarian principles enunciated in the 1864 Convention to Warfare at Sea.
26 Op cit,IMT judgment, note 9, p 224.
territories, except where the death sentence was certain, were to be taken secretly to Germany and handed over to criminal organisations for trial or punishment.27As is evident, the IMT dealt with war crimes as far as this concept encompassed a policy.
Subsequent military tribunals had ample opportunity to prosecute individuals who had willingly implemented and executed such policies during the war.
Significantly, the Charter provided for the determination by the Tribunal of the criminal character of indicted German organisations, whose purpose was to serve as a precedent in cases before other military tribunals. The Tribunal declared that the SS (Hitler’s bodyguards) and its subsidiary the SD, the Gestapo and the Leadership Corps of the Nazi Party were criminal. The SA (stormtroopers), the Reich Cabinet and the High Command were acquitted without prejudice to the individual liability of their members. In exercising its power to declare organisations criminal, the Tribunal pointed out that membership of such organisations did not necessarily entail the liability of each member. Rather:
A criminal organisation is analogous to a criminal conspiracy in that the essence of both is co-operation for criminal purposes. There must be a group bound together and organised for a common purpose. The group must be formed or used in connection with the commission of crimes denounced by the Charter. Since the declaration with respect to the organisations and groups will, as has been pointed out, fix the criminality of its members, that definition should exclude persons who had no knowledge of the criminal purposes or acts of the organisation and those who were drafted by the State for membership, unless they were personally implicated in the commission of acts declared criminal byArt 6 of the Charter as members of the organisation. Membership alone is not enough to come within the scope of these declarations.28
The Charter went on to develop the extent of individual criminal responsibility for the offences set out in Art 6 by specifically excluding their official position or the fact that the accused were acting under orders as a defence.29The IMT did not deal in any great detail with the defence of superior orders for two reasons. First, as it was dealing with the most senior Axis officials it had already found that the majority of them were co-conspirators in the waging of aggressive wars, and each according to his position had planned the commission of offences against the occupied civilian populations.
Secondly, the orders circulated to the respective High Commands and Hitlerite groups were either issued by Hitler, but in the acquiescence and prompting of the accused, or were alternatively authored by them. The Tribunal held that the defence of superior orders could be urged in mitigation of punishment in cases where ‘moral choice was in fact possible’. Hence, even in the extreme event that any one of the accused was under a direct order from Hitler, his position in the Reich structure would, in fact, be so high that a moral choice should have been possible. The same is not always true of the soldier on the battlefield, where the order and its consequences are not directly or immediately clear and the threat of punishment for disobedience is certain.30
The judgment of the IMT at Nuremberg was delivered on 30 September 1946 and sentences were pronounced on 1 October 1946. Of the 22 indicted—the accused
27 Op cit,IMT judgment, note 9, p 229. Similarly, Keitel was found to have issued the ‘Commissar Order’
in 1941, and the ‘Commando Order’ in 1942.
28 Op cit,IMT judgment, note 9, p 251.
29 IMT Charter, Arts 7–8.
30 See ICC Statute, Art 33; see also MJ Osiel, ‘Obeying Orders: Atrocity, Military Discipline, and the Law of War’, 86Cal L Rev(1998), 939.