The agreement to establish an international criminal tribunal was drafted at a conference held in London from June 26 to August 8, 1945. At the end of the conference, the London Agreement of August 8, 1945, was signed by the representatives
60 See Declaration of German Atrocities, supra note 59.
61 See John F. Murphy, NORMS OF CRIMINAL PROCEDURE AT THE INTERNATIONAL
MILITARY TRIBUNAL, THE NUREMBERG TRIAL AND INTERNATIONAL LAW 62 (Ginsburgs & Kudriavstev eds., 1990).
62 Id., referring to the brief of Sir Malkin of the British Foreign Office entitled “Against the Establishment
of an international Court”).
63
Telford Taylor, supra note 22, at 32.
64
M. Cherif Bassiouni, supra note 16, at 24.
of the four Allied Powers.66 The London Agreement provided for the establishment of an international military tribunal “for the trial of war criminals whose offences have no particular geographical location whether they be accused individually or in their capacity as members of organizations or groups or in both capacities.”67 The Charter creating the International Military Tribunal (IMT) was annexed to the London Agreement.68
2.4.1.a. The Ratione Materiae of the International Military Tribunal
Article 6 of the IMT Charter conferred jurisdiction on the IMT to try individuals accused of (i) crimes against peace, (ii) war crimes, and (iii) crimes against humanity.
(i) Crimes Against Peace:
This is defined as the 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.69 Perhaps, other than the article 227 of the Treaty of Versailles which provided for the failed prosecution of the Kaiser, there was no other legal precedent in international law for the prosecution of individuals for crimes against peace, which meant the preparation and waging of a war of aggression.70
However, in contrast to the ambiguity inherent in article 227 of the Treaty of Versailles reference to “international morality and the sanctity of treaties”, Article 6(a) of
66 Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, August 8,
1945, 82 U.N.T.S. 279, 59 Stat. 1544 [hereinafter the London Agreement]. The London Agreement was signed by Robert H. Jackson, U.S.A.; Robert Falco, French Republic; Jowitt C., United Kingdom of Great Britain and Northern Ireland, and I. T. NIKITCHENKO, Union of Soviet Socialist Republics
67 Id., art. 1.
68 Agreement for the Prosecution and Punishment of Major War Criminals of the European Axis, August 8,
1945, the Charter of the International Military Tribunal, 82 U.N.T.S. 279, 284, 59 Stat. 1544, 1546 [hereinafter the IMT Charter]. Nineteen other nations adhered to the Nuremberg Charter.
69
Id., art. 6(a).
29
the IMT Charter referred to the waging of war in violation of “international treaties.”71 This was a remarkable clarification in that it explained the basis of the crime against peace. Also, by prohibiting the waging of war in violation of international treaty, article 6(a) made the crime of aggression a universal crime which can be applied against any nation.72
It is however noteworthy that no international convention has explicitly made aggression an international crime.73 The main reason for this development has been attributed to the inability of States to agree definitively on what constitutes aggression,74 as States continue to shift positions based on political expediency.75 The last attempt at defining aggression was made during the Preparatory Committee on the Establishment of an International Criminal Court.76 The effort proved unsuccessful resulting in the exclusion of the crime of aggression in the Rome Statute of the International Criminal Court.77
71 IMT Charter, supra note 68, art. 6(a).
72 M. Cherif Bassiouni, supra note 16, at 29 (citing the REPORT OF Robert H. Jackson, United States
Representative to the International Conference on Military Trials at vii-viii (U.S. Gov’t Prtg. Off. 1949) [hereinafter Jackson Report].
73 M. Cherif Bassiouni, supra note 16, at n. 69 (observing that while the U.N. Charter prohibits aggression,
and the Security Council has the power under Chapter VII to take measures, including sanctions, to preserve and maintain peace in accordance with the Charter’s articles 2(3), 2(4), 39-51, there has never been an international convention explicitly making aggression an international crime.
74 M. Cherif Bassiouni, supra note 16, at n. 69 (noting that other than the General Assembly’s 1974
Resolution, G.A. Res. 3314, U.N. GAOR, 29th Sess., Supp. No. 31, at 143, U.N. Doc. A/9631 (1974), defining aggression which was adopted by consensus, there is no definition of that crime).
75 M. Cherif Bassiouni, supra note 16, at 29 (noting that the United States has held different positions on
the matter between World War I, World War II, and the Cold War era).
76 M. Cherif Bassiouni, supra note 16, at n. 69 (citing the Report of the Prepatory Committee on the
Establishment of an International Criminal Court, Vol. I, U.N. GAOR, 51st Sess., Supp. No. 22, paras. 212- 93, U.N. Doc. A/51/22 (1996)) [hereinafter Preparatory Committee Report].
(ii) War crimes:
War crimes are defined as violations of the laws and customs of war.78 Article 6(b) of the IMT Charter lists war crimes to include, murder, ill-treatment or deportation into 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, the killing of hostages, the plunder of public or private property, the wanton destruction of cities, towns or villages, or devastation not justified by military necessity.79
From the list of crimes, it is evident that the IMT Charter set out to prohibit acts which violate the traditional laws and customs of war. In compiling the list of war crimes, the drafters of the IMT Charter looked to The Hague Conventions of 1899 and 1907 on the Laws and Customs of War80 and the Geneva Convention of 1929 Relative to the Treatment of Prisoners of War.81 However, it should be noted that the referenced Hague Conventions and the Geneva Convention had no provisions on the punishment of individuals who violated their rules. Originally, prisoners of war were considered as war booty, treated as slaves, and oftentimes slaughtered. The 1899 Hague Peace Conference which was widened by the 1907 Hague Convention was directed at ensuring a humane treatment of prisoners of war. These rules proved insufficient in World War I, and were elaborated in the 1929 Geneva Convention.
(iii) Crimes Against Humanity:
This is defined as murder, extermination, enslavement, deportation, and other inhuman acts committed against any civilian population, before or during the war, or
78
IMT Charter, supra note 68, art. 6(b).
79 Id., art. 6(b).
80 The 1899 Hague Convention II and The 1907 Hague Convention IV Respecting the Laws and Customs
of War on Land, July 29, 1899 and October 18, 1907 respectively which entered into force on September 4, 1900 and January 26, 1910, respectively, 36 Stat. 2277, I Bevans 631.
81
The 1929 Geneva Convention Relative to the Treatment of Prisoners of War, July 27, 1929, entered into force on June 19, 1931, 118 L.N.T.S. 343, 47 Stat. 2021, 2 Bevans 932.
31
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.82
The objective of the crimes against humanity was to protect the civilian population from extermination and enslavement. Until the IMT Charter, crime against humanity was not a treaty law and it is doubtful whether they originated from international conventions, custom, and/or general principles of law.83 Thus, while article 6(c) of the IMT Charter conferred the IMT with jurisdiction over crimes against humanity committed “before or during the war” the fact that crimes against humanity has not been proscribed before the war led the drafters of the Charter to circumscribe the application of Article 6(c) only in situations where it could be linked to war crimes.84
The connection of crimes against humanity to war crimes was necessary to obviate the possibility of a successful attack of crimes against humanity committed before the war as ex post facto law.85 However, this requirement eviscerated the scope of Article 6(c) because it effectively excluded the prosecution of individuals for crimes committed before the outbreak of the war in 1939.86 Also, in some instances, the IMT was not able to differentiate between the crimes against humanity and war crimes.87
2.4.1.b. The Ratione Personae of the International Military Tribunal
The International Military Tribunal exercised personal jurisdiction over the “leaders, organizers, instigators and accomplices” who participated in the formulation or
82 IMT Charter, supra note 68, art. 6(c). 83 M. Cherif Bassiouni, supra note 16, at 26. 84 Id.
85
Id.
86
Id.
execution of a common plan or conspiracy to commit any of crimes under the IMT’s Charter.88 The IMT Charter stated that all of them are responsible for all acts performed by any persons in execution of such plan.89
Article 7 of the IMT Charter stripped the accused of any immunity they may enjoy as a result of their official position, whether as Heads of State or responsible officials in government departments.90 In addition, the IMT Charter for the first time abrogated the defense of “obedience to superior” order as an absolute defense from liability.91 Rather, the IMT Charter provided that it may be considered in mitigation of punishment if the Tribunal determines that justice so requires.92
Although the IMT Charter limited “obedience to superior order” as a mitigating factor, it should be noted that in some instances, the IMT did not follow the proscription of the defense of obedience to superior order to the letter of article 8. In those instances, the IMT allowed the defense as a complete bar to responsibility in situations where the junior officer had no alternative moral choice in refusing to carry out the superior order.93 This approach may be rationalized on the basis that the abrogation of the defense of obedience to superior order was contrary to what most military laws provided for at the time World War II started.94
88
IMT Charter, supra note 68, art. 6.
89 Id. 90 Id., art. 7. 91
Id., art. 8.
92 Id.
93 See generally, Nico Keijzer, MILITARY OBEDIENCE (1978); Leslie C. Green, SUPERIOR ORDERS
IN NATIONAL AND INTERNATIONAL LAW (1976); Yoram Dinstein, THE DEFENCE OF OBEDIENCE TO SUPERIOR ORDERS’ IN INTERNATIONAL LAW (1965).
94 M. Cherif Bassiouni, supra note 16, at 28 (citing Lassa Oppenheim, INTERNATIONAL LAW 264-65
(1st ed. 1906)). The BRITISH MANUAL OF MILITARY LAW, No. 443 (1914) relied upon Oppenheim in its formulation. Oppenheim’s recognition of the defense remained in the first five editions up to 1940, when it changed to become the basis for the IMT’s article 8 which denied the defense. U.S. Dep’t of the Army, Field Manual 27-10 (1940) reflected the same position in § 345(1). On November 15, 1944, a revision of § 345(1) limited, but retained, a qualified defense. But see, U.S. DEPT OF THE ARMY,
33
As a result of the agreement between the Allies that the IMT will only prosecute the major war criminals and that the German municipal and military courts would try the minor war criminals in the jurisdiction where the crime took place, only twenty-four war criminals were brought before the IMT.95 Eventually, only twenty-two of the twenty- four war criminals stood trial before the IMT.96 The Tribunal sitting at Nuremberg, Germany commenced trial on November 20, 1945, and completed on October 1, 1946.97 Twelve of the war criminals were convicted and sentence to death by hanging,98 three were sentenced to life imprisonment,99 four were sentenced to serve between ten to twenty years in prison,100 and the other three were acquitted.101 However, there freedom
FIELD MANUAL 27-10: THE LAW OF LAND WARFARE (1956). For a historical evolution of the question, see Leslie C. Green, Superior Orders and Command Responsibility, 27 CAN. Y.B. INT’L L. 167 (1989); Major William H. Parks, Command Responsibility for War Crimes, 62 MIL. L. REV. 1 (1973).
95 Leila Sadat Wexler, supra note 42, at 306.
96 Two of the defendants who were not brought to trial are Robert Ley (who committed suicide on October
25, 1945, before the trial began) and Gustav Krupp von Bohlen un Halbach (who was unable to stand trial because of mental illness). See the International Military Tribunal Judgment and Sentence, October 1, 1946, 41 Am. J. Int’l L. 172, 252 (1947) [hereinafter IMT Judgment].
97 Id.
98 Those sentenced to death and hung on October 16, 1946 include: Hans Frank, Governor-general of Nazi-
occupied Poland, called the “Jew butcher of Cracow” was hanged wearing a beatificsmile, Alfred Jodl, Chief of Operations for the German High Command, Ernest Kaltenbrunner, Chief of RSHA (an
organization which includes offices of the Gestapo, the SD, and the Criminal Police) and Chief of Security Police, Wilhelm Keitel, Chief of Staff of the German High Command, Wilhelm Frick, Minister of the Interior, Joachim von Ribbentrop, Foreign Minister, Alfred Rosenberg, Chief Nazi Philosopher and Reich- minister for the Eastern Occupied Territories, Fritz Sauckel, Chief of Slave Labor Recruitment, Arthur Seyss-Inquart, Austrian Chancellor, then Reich, Commissioner for the Netherlands, Julius Streicher, Anti- Semitic Editor of Der Sturmer, Martin Bormann, and Hermann Goering, Richsmarschall and Luftwaffe (Air Force) Chief; President of Reichstag; Director of “Four Year Plan” who committed suicide on the day before his scheduled hanging by taking a cyanide pill that was smuggled into his cell. Goering wrote in his suicide note, “I would have no objection to getting shot,” but he thought hanging was inappropriate for a man of his position. IMT Judgment, supra note 84. Also see available at:
http://www.law.umkc.edu/faculty/projects/ftrials/nuremberg/meetthedefendants.html, (visited on February
4, 2005).
99Id. The three individuals sentenced to life imprisonment are Walther Funk, Minister of Economic, (he was
released in 1957 because of poor health and died in 1959), Rudolf Hess, Deputy to the Fuhrer and Nazi Party Leader (he remained lost in his own mental fog in Spandau prison for many years as its only prisoner until he committed suicide in 1987 at age 93), and Erich Raeder, Commander in Chief of the German Navy (he served nine years before his release in 1955 and he died in 1960 at age 84).
100Id. The war criminals sentenced to various prison sentences are Karl Doenitz, German admiral
(sentenced to 10 years, and died 1981), Konstantin von Neurath, Minister of Foreign Affairs until 1938, then Reich Protector for Bohemia and Moravia Neurath (sentenced to 10 years in prison, was released because of poor health in 1954, and died two years later) Baldur von Schirach, Hitler Youth Leader
was short-lived as each of them were subsequently tried and convicted to various prison terms by the German court.102
The IMT judgment was not subject to appeals and at trial some defendants were frequently denied the right to confront and cross-examine witnesses that were relied upon by the prosecution.103 Also, IMT has been criticized for its failure to indict or prosecute non German war criminals, especially Allied Military personnel, an omission which has dogged the IMT proceedings as a “victor’s justice.”104 Notwithstanding these deficiencies, “that four great nations flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason”.105
(sentenced to 20 years in prison, was released from Spandau Prison in 1966 and died in 1974 at age 67), and Albert Speer, Reichminister of Armaments and Munitions (sentenced and served his 20-year sentence, he wrote two books about his life and died in 1981 at age 76).
101Id. Those acquitted by the IMT are Franz von Papen, Ambassador to Turkey was acquitted, Hjalmar
Schacht, Reich bank President and Minister of Economics before the War (was found not guilty by the IMT was later convicted by a German court and sentenced to eight years, freed in 1950 and died in 1970 at age 93) and, Hans Fritzsche, Head of the Radio Division, (was acquitted by the IMT and was later tried and convicted by a German court, then freed in 1950 and died in 1953).
102
Howard S. Levie, TERRORISM IN WAR: THE LAW OF WAR CRIMES 56-57 (1993).
103There was no appeal, a right now guaranteed in the 1966 International Covenant on Civil and Political
Rights. Even Justice Jackson noted these mistakes in his report to the President, wherein he admits to mistakes in the “proceedings of this novelty.” Id. at 440. Since World War II, however, the impact of international and regional human rights norms and standards have significantly affected criminal procedures in most countries of the world. See, e.g., M. Cherif Bassiouni, THE PROTECTION OF HUMAN RIGHTS IN THE ADMINISTRATION OF CRIMINAL JUSTICE: A COMPENDIUM OF UNITED NATIONS NORMS AND STANDARDS (1994); M. Cherif Bassiouni, Human Rights in the Context of Criminal Justice: Identifying International Procedural Protections and Equivalent Protections in National Constitutions, 3 DUKE J. COMP. & INT’L L. 235 (1993).
104 For a critical perspective of the IMT, see, August Von Knierem, THE NUREMBERG TRIALS (1959);
Hans Ehard, The Nuremberg Trial against the Major War Criminals and International Law, 43 AM. J. INT’L L. 223 (1949); A. Frederick Mignone, After Nuremberg, Tokyo, 25 TEX. L. REV. 475 (1947); Gordon Ireland, Ex Post Facto from Rome to Tokyo, 21 TEMPLE L.Q. 27 (1947); Georg
Schwarzenberger, The Judgment of Nuremberg, 21 TUL. L. REV. 329 (1947); Hans Kelsen, Will the Judgment in the Nuremberg Trial Constitute a Precedent in International Law, 1 INT’L L.Q. 153 (1947); Gordon W. Forbes, Some Legal Aspects of the Nuremberg Trial, 24 CAN. B. REV. 584 (1946).
105
Justice Robert H. Jackson, Prosecutor’s Address of Nov. 21, 1945 to the International Military Tribunal, in 2 Trial of the Major War Criminals 99 (1947).
35
2.4.2. Trials of World War II criminals by the International Military Tribunal For