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Within this space and with the support and expertise of Global Community judges we hope to build up a complete reference of all available International Law and precedents in regard to the International Law. Those jursits with the necessary expertise, please assist us. This will be extremely helpful and a source of reference for those who do not have access to other sources.

As a point of departure the following summary has been drawn from Wikipedia:

The International Criminal Court

In 2002, the International Criminal Court (ICC) was established in The Hague (Netherlands) and the Rome Statute provides for the ICC to have jurisdiction over genocide, crimes against humanity and war crimes. Article 7 of the treaty stated that:

For the purpose of this Statute, “crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack^[8]:

(a) Murder;

(b) Extermination;

(c) Enslavement;

(d) Deportation or forcible transfer of population;

(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;

(f) Torture;

(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;

(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;

(i) Enforced disappearance of persons;

(j) The crime of apartheid;

(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

According to the Commentary on the Rome Statute:

[Crimes against humanity] are particularly odious offences in that they constitute a serious attack on human dignity or grave humiliation or a degradation of one or more human beings. They are not isolated or sporadic events, but are part either of a government policy (although the perpetrators need not identify themselves with this policy) or of a wide practice of atrocities tolerated or condoned by a government or a de facto authority. However, murder, extermination, torture, rape, political, racial, or religious persecution and other inhumane acts reach the threshold of crimes against humanity only if they are part of a widespread or systematic practice. Isolated inhumane acts of this nature may constitute grave infringements of human rights, or depending on the circumstances, war crimes, but may fall short of meriting the stigma attaching to the category of crimes under discussion. On the other hand, an individual may be guilty of crimes against humanity even if he perpetrates one or two of the offences mentioned above, or engages in one such offence against only a few civilians, provided those offences are part of a consistent pattern of misbehavior by a number of persons linked to that offender (for example, because they engage in armed action on the same side or because they are parties to a common plan or for any similar reason.) Consequently when one or more individuals are not accused of planning or carrying out a policy of inhumanity, but simply of perpetrating specific atrocities or vicious acts, in order to determine whether the necessary threshold is met one should use the following test: one ought to look at these atrocities or acts in their context and verify whether they may be regarded as part of an overall policy or a consistent pattern of an inhumanity, or whether they instead constitute isolated or sporadic acts of cruelty and wickedness.

Nuremberg Principles

The Nuremberg Principles were a set of guidelines for determining what constitutes a war crime. The document was created by necessity during the Nuremberg Trials of Nazi party members following World War II.

Under UN General Assembly Resolution 177 (II), paragraph (a), the International Law Commission was directed to “formulate the principles of international law recognized in the Charter of the Nuremberg Tribunal and in the judgment of the Tribunal.” In the course of the consideration of this subject, the question arose as to whether or not the Commission should ascertain to what extent the principles contained in the Charter and judgment constituted principles of international law. The conclusion was that since the Nuremberg Principles had been affirmed by the General Assembly, the task entrusted to the Commission was not to express any appreciation of these principles as principles of international law but merely to formulate them. The text below was adopted by the Commission at its second session. The Report of the Commission also contains commentaries on the principles (see Yearbook of the Intemational Law Commission, 1950, Vol. II, pp. 374-378).

The guidelines are as follows:

Contents 1 Principle I 2 Principle II 3 Principle III 4 Principle IV 5 Principle V 6 Principle VI 7 Principle VII 8 See also 9 Reference 10 Further reading 11 Footnotes

Principle I

Any person who commits an act which constitutes a crime under international law is responsible therefore 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 a 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 of slave labor or for any other purpose of the 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:

Murder, extermination, enslavement, deportation and other inhumane acts done against any civilian population, or persecutions on political, racial, or religious grounds, when such acts are done or such persecutions are carried on in execution of or in connection with any crime against peace or any war crime.

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.

Influence on the development of international criminal law

The Nuremberg trials had a great influence on the development of international criminal law. The International Law Commission, acting on the request of the United Nations General Assembly, produced in 1950 the report Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgement of the Tribunal (Yearbook of the International Law Commission, 1950, vol. III). The influence of the tribunal can also be seen in the proposals for a permanent international criminal court, and the drafting of international criminal codes, later prepared by the International Law Commission.

Part of the defence was that some treaties were not binding on the Axis powers because they were not signatories. This was addressed in the judgment relating to war crimes and crimes against humanity^[30] contains an expansion of customary law “the Convention Hague 1907 expressly stated that it was an attempt ‘to revise the general laws and customs of war,’ which it thus recognised to be then existing, but by 1939 these rules laid down in the Convention were recognised by all civilised nations, and were regarded as being declaratory of the laws and customs of war which are referred to in Article 6 (b) of the [London] Charter.” The implication under international law is that if enough countries have signed up to a treaty, and that treaty has been in effect for a reasonable period of time, then it can be interpreted as binding on all nations not just those who signed the original treaty. This is a highly controversial aspect of international law, one that is still actively debated in international legal journals.

The Nuremberg trials initiated a movement for the prompt establishment of a permanent international criminal court, eventually leading over fifty years later to the adoption of the Statute of the International Criminal Court.

• The Conclusions of the Nuremberg trials served to help draft:
  • The Genocide Convention, 1948.
  • The Universal Declaration of Human Rights, 1948.
  • The Convention on the Abolition of the Statute of Limitations on War Crimes and Crimes against Humanity, 1968.
  • The Geneva Convention on the Laws and Customs of War, 1949; its supplementary protocols, 1977.

Validity of the court

The validity of the court has been questioned for a variety of reasons:

• The defendants were not allowed to appeal or affect the selection of judges. A. L. Goodhart, Professor at Oxford, opposed the view that, because the judges were appointed by the victors, the Tribunal was not impartial and could not be regarded as a court in the true sense. He wrote:

“Attractive as this argument may sound in theory, it ignores the fact that it runs counter to the administration of law in every country. If it were true then no spy could be given a legal trial, because his case is always heard by judges representing the enemy country. Yet no one has ever argued that in such cases it was necessary to call on neutral judges. The prisoner has the right to demand that his judges shall be fair, but not that they shall be neutral. As Lord Writ has pointed out, the same principle is applicable to ordinary criminal law because ‘a burglar cannot complain that he is being tried by a jury of honest citizens.’” (”The Legality of the Nuremberg Trials”, Juridical Review, April, 1946.)

• The main Soviet judge, Nikitchenko, had taken part in Stalin’s show trials of 1936-1938,^[31].

• One of the charges, brought against Keitel, Jodl, and Ribbentrop included conspiracy to commit aggression against Poland in 1939. The Secret Protocols of the German-Soviet Non-Aggression Pact of August 23, 1939, proposed the partition of Poland between the Germans and the Soviets (which was subsequently executed in September 1939); however, Soviet leaders were not tried for being part of the same conspiracy,^[32]. Instead, the Tribunal proclaimed the Secret Protocols of the Non-Aggression Pact to be a forgery. In 1915, the Allied Powers, Britain, France, and Russia, jointly issued a statement explicitly charging, for the first time, another government (the Sublime Porte) of committing “a crime against humanity.” The argument could be made it was not until the phrase was further developed in the London Charter that it had a specific meaning. As the London Charter definition of what constituted a crime against humanity was unknown when many of the crimes were committed, it could be argued to be a retrospective law, in violation of the principles of prohibition of ex post facto laws and the general principle of penal law nullum crimen, nulla poena sine praevia lege poenali.

• The trials were conducted under their own rules of evidence; the indictments were created ex post facto and were not based on any nation’s law; the tu quoque defense was removed; and some claim the entire spirit of the assembly was “victor’s justice“. Article 19 of the Nuremberg International Military Tribunal Charter reads as follows:

“The Tribunal shall not be bound by technical rules of evidence. It shall adopt and apply to the greatest possible extent expeditious and nontechnical procedure, and shall admit any evidence which it deems to be of probative value.“

However, as described above, the unconditional surrender of the Axis powers was unusual and led directly to the formation of the international tribunals. In most cases those who are not prisoners of war are tried under their own judicial system if they are suspected of committing war crimes; in restricting the international tribunal to trying suspected Axis war crimes, the Allies were acting within normal international law.

US Supreme Court Chief Justice Harlan Fiske Stone called the Nuremberg trials a fraud. “[Chief US prosecutor] Jackson is away conducting his high-grade lynching party in Nuremberg,” he wrote. “I don’t mind what he does to the Nazis, but I hate to see the pretense that he is running a court and proceeding according to common law. This is a little too sanctimonious a fraud to meet my old-fashioned ideas.”

Associate Supreme Court Justice William Douglas charged that the Allies were guilty of “substituting power for principle” at Nuremberg. “I thought at the time and still think that the Nuremberg trials were unprincipled.”, he wrote. “Law was created ex post facto to suit the passion and clamor of the time.”

The majority of commentators, however, felt the Nuremberg Trials represented a step forward in extending fairness to the vanquished by requiring that actual criminal misdeeds be proved before punishment could ensue; including some of the defendants and their legal team:

Perhaps the most telling responses to the critics of Jackson and Nuremberg were those of the defendants at trial. Hans Frank, the defendant who had served as the Nazi Governor General of occupied Poland, stated, “I regard this trial as a God-willed court to examine and put an end to the terrible era of suffering under Adolf Hitler.” With the same theme, but a different emphasis, defendant Albert Speer, Hitler’s war production minister, said, “This trial is necessary. There is a shared responsibility for such horrible crimes even in an authoritarian state.” Dr. Theodore Klefish, a member of the German defense team, wrote: “It is obvious that the trial and judgment of such proceedings require of the tribunal the utmost impartiality, loyalty and sense of justice. The Nuremberg tribunal has met all these requirements with consideration and dignity. Nobody dares to doubt that it was guided by the search for truth and justice from the first to the last day of this tremendous trial.”

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