Nuremberg: Birth of International Law
Over 200 participants gathered today at Georgetown University Law Center in Washington, D.C. for an all-day program to commemorate the 60th anniversary of the military trials held at Nuremberg from 1945-1949. Nuremberg prosecutors Henry King, Benjamin Ferencz, and Whitney Harris told their gripping stories, capturing in detail the first trials in history for crimes against humanity. Nuremberg’s precedent as the model for bringing individual perpetrators to justice was highlighted in context to current tribunals: the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), the Special Court for Sierra Leone (SCSL), and the trial of Saddam Hussein. Are ad hoc tribunals established for a particular purpose sufficient to serve global justice? Does the world need a permanent International Criminal Court?
Why is Nuremberg an Important Milestone in International Law?
Henry T. King, Jr., a Nuremberg Prosecutor, told the audience, “Nuremberg marked a beginning…Nuremberg was designed to replace the law of force with the force of law.” (emphasis added).
The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated.
The International Military Tribunal, also known as the Nuremberg Court, and the twelve Nuremberg trials marked the first trials in history for prosecutions of individuals, rather than nation states, on crimes against global peace. Four powers – the United States, the United Kingdom, France, and the Soviet Union – participated and an additional twenty-three countries supported it. The accused were charged under the London Charter of the International Military Tribunal, which defined three types of crimes: crimes against peace, war crimes, and crimes against humanity. Twenty-four people and seven organizations were charged with the equivalent of genocide. All defendants pleaded “not guilty.”
Innovations of Nuremberg
Henry King spoke to three innovations of Nuremberg that served as the guiding principles adopted by future tribunals:
- Limitations on national sovereignty
Nation states could no longer claim absolute immunity for their actions and abrogate their responsibility under international law. - Individual liability
Under the London Charter, individuals could be held liable for their actions
Previously, violations of international law could only be charged against nation states, not individuals. The rationale of Nuremberg held that individuals initiate, direct, and engage in committing war crimes and they should be prosecuted accordingly. Moreover, the Charter did not permit the accused to claim exemption from responsibility because he was following orders. Rudolph Hoess, the commandant at Auschwitz who admitted responsibility for executing 2.5 million people, pleaded “not guilty” based on a defense that he acted upon superior orders. While not a successful defense for individual immunity, following orders was considered as a valid reason for mitigating the sentence of the accused. - International human rights movement
Nuremberg modernized the laws of war to recognize the rights of victims to justice in an international court.
Lessons of Nuremberg
Henry King discussed the pros and cons of Nuremberg, and how these lessons can be applied to improve future tribunals and the International Criminal Court:
- Pro: Fairness
Robert Jackson placed emphasis on due process. Three defendants were acquitted because the evidence did not support the charges against them. All defendants secured proper legal representation by experienced lawyers. - Pro: Trial before judges
Borrowing from civil law, Nuremberg trials occurred before a panel of judges rather than a jury. - Pro: Role of lawyers in international law
King feels that the practice of public international law largely derived from Nuremberg. The trials placed lawyers in positions of great responsibility. Prosecutors could not be seen as mere tools to implement a foreign political vengeance against the accused. Lawyers needed to protect the concepts of fairness, checks and balances, and justice through the establishment of a framework of international law and its enforcement. To him, Nuremberg demonstrated the contributions lawyers can make to peace and to a world where individuals who violate international behavior and norms are punished for their crimes. - Con: Charges too broad
Albert Speer, a defendant, told King that the indictment was too sweeping and inflexible. Thus, Speer felt he had to plead “not guilty” to all the charges or stand falsely accused on some charges. Speer would have preferred the option to plead not guilty to some of the charges and guilty to other charges.
Excerpt from Henry King’s speech:
Nuremberg introduced the concept that individuals and states were subject to international law – including the limitations on sovereignty. This was indeed a remarkable step forward in the world in which Nuremberg was created. Nuremberg in a true sense imposed limitations on national sovereignty, which had run wild after nation states had been freed from the Pope’s domination under the Treaty of Westphalia of 1648. Under the principles of Nuremberg, neither nation states nor their leaders were permitted to be sole arbiters of their destiny.
By limiting national sovereignty, Nuremberg bestowed on individuals specific rights and obligations that were transcendent over their parallel rights and responsibilities to their nation states. Nuremberg modernized the laws of war and created a denominator under which all citizens of the world could live and be judged. In so doing, Nuremberg launched the international human rights movement.
Closing Remarks
Whitney R. Harris, a Nuremberg prosecutor, concluded the day with powerful and dramatic descriptions of the atrocities, the challenges of the investigations, and the weighty responsibilities upon the judges and lawyers to ensure fair and legitimate trials. He spoke with an immeasurable sense of hope for future generations and for a world where justice is based on law, not force. The crowd provided a standing ovation of several minutes.
Michael H. Byowitz, Chair, ABA Section of International Law
David Crane, former Chief Prosecutor, Special Court for Sierra Leone
Whitney Harris, Nuremberg Prosecutor
Unidentified
Afternoon Sessions
In the near future, I’ll also post notes from the afternoon sessions on the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), the Special Court for Sierra Leone (SCSL), and the trial of Saddam Hussein. Are ad hoc tribunals established for a particular purpose sufficient to serve global justice? Does the world need a permanent International Criminal Court?
I missed the luncheon keynote by Robert Drinan because I was taking a final examination.
About the Program
C-SPAN3 recorded the event. An edited video will feature select speeches and will be available widely from the American Bar Association. The program was co-sponsored by the ABA Section of International Law, the Robert H. Jackson Center, and the Washington Foreign Law Society.
Historical Records
The Robert H. Jackson Center is dedicated to preserving the memory of the Nuremberg Trials. The Center needs donations of transcripts, videos, and books for the archives and for the exhibit rooms. Financial contributions to the Center are also needed and serve to underwrite improvements and continued educational programming.