During the course of World War II, several declarations were issued in respect to the punishment of war criminals. On 7 October 1942, it was announced that a UN War Crimes Commission would be established for the
126 Leon Friedman The Law of War A Documentary History Volume I (New York Randon House 1972) 780. 127 Leon Friedman The Law of War A Documentary History Volume I (New York Randon House 1972) 780. 128 Leon Friedman The Law of War A Documentary History Volume I (New York Randon House 1972) 780. 129
Leon Friedman The Law of War A Documentary History Volume I (New York Randon House 1972) 780.
130
Jackson Nyamuya Maogoto State Sovereignty and International Criminal Law Versailles to Rome (Brill Academic Publication 2003) 72.
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purpose of the investigation of war crimes.131 Eventually, a declaration was issued in Moscow in 1943 by the Allies, the UK, the USA and USSR, which guaranteed punishment for Axis war criminals (the German and the Japanese).132 According to the declaration, the Allies would ensure that the Axis war criminals were judged and punished in states where the offences were committed. Ultimately, the Allies following the influence of the USA and then USSR decided that it was essential to prosecute such persons as a matter of urgency.133 Consequently, France, the UK, USA and the USSR drafted the charter of an international tribunal that was prepared in London. It was this London Charter that formed the foundation for the Nuremberg IMT. On 8 August 1945, the four major powers entered into an agreement,134 which provided for the establishment of an ad hoc International Military tribunal at Nuremberg for purposes of conducting trials of war criminals.135
1.2. 4 Nature and Mandate of the Nuremberg IMT
The tribunal was formed for the purposes of conducting trials and punishment of major war criminals of Europe, following the end of World War II.136 The Nuremberg trial was conducted by the rules and procedures as set out in the
131
Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis and Charter of the International Military Tribunal London 8 August 1945
http://www.icrc.org/ihl.nsf/INTRO/350?OpenDocument (accessed on 30th June 2013).
132 Robert Cryer, Hakan Friman, Darryl Robinson and Elizabeth Wilmshurst International Criminal Law and
Procedure (Cambridge University Press 2007) 92.
133 Arieh J Kochavi Prelude to Nuremberg Allied War Crimes Policy and the Question of Punishment (University of
North Carolina Press 2005).
134 ‘Agreement by the Government of the United States of America, the Provisional Government of the French
Republic, the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of The Union of Soviet Socialist Republics for the Prosecution and Punishment of the Major War Criminals of the
European Axis’ (1945) 13 U.S. Dept. of State Bull.222 Trial of War Criminals (Department of State Publication 2420 Washington 1945) 13.
135
London Agreement for the IMT Article I Charter of the International Military Tribunal 1945.
136
The Charter of the International Military Tribunal Articles I, VI, Ruti Teitel ‘Transitional Jurisprudence the Role
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Charter of the International Military Tribunal.137 The adoption of the Charter suggested the impression that no man was above international law.138 Nuremberg tribunal was vested with jurisdiction over crimes against peace, war crimes and crimes against humanity.139 The major powers in conducting the criminal proceedings were seeking to achieve several objectives, however the primary objects were as follows:140 (1) to punish civilian and military leaders for waging aggressive war; (2) to punish persons responsible for committing war crimes; (3) to clarify certain laws of humanity as a result deterring the repetition of genocide, the oppressions of other minority groups and foreign nationals. 141
The trials commenced on 14 November 1945, and lasted for nine months. A wide range of persons including military leaders, states men, administrators, bankers, industrialists, propagandists and educators were tried for offences including crimes against humanity, crimes against peace, war crimes and conspiracy to commit such crimes.142 A total of twenty-four defendants were prosecuted before the tribunal.143 The charges against the defendants were mainly those that fall under article 6 of the IMT’s Charter that provides for the offences of conspiracy, war crime, crimes against peace and humanity.
137 The Charter of the International Military Tribunal, Ruti Teitel ‘Transitional Jurisprudence the Role of Law in
Political Transformation’ (1997) 106 (7) Yale Law Journal 2039.
138 John A Appleman Military Tribunals and International Crimes (Bobbs – Merrill Indianapolis 1954) VIII. 139 The Charter of the International Military Tribunal Articles VI.
140 John A Appleman Military Tribunals and International Crimes (Bobbs – Merrill Indianapolis 1954) V. 141
John A Appleman Military Tribunals and International Crimes (Bobbs – Merrill Indianapolis 1954) V.
142 John A Appleman Military Tribunals and International Crimes (Bobbs – Merrill Indianapolis 1954) VIII. 143 Hermann Go¨ ring, Rudolf Hess, Joachim von Ribbentrop, Wilhelm Keitel, Ernst Kaltenbrunner, Alfred
Rosenberg, Hans Frank, Wilhelm Frick, Julius Streicher, Walter Funk, Hjalmar Schacht, Karl Do¨ nitz,Willem Raeder, Baldur von Schirach, Fritz Saukel, Alfred Jodl, Franz von Papen, Arthur Seyss-Inquart, Albert Speer, Konstantin von Neurath and Hans Fritzsche. Martin Bormann was tried in absentia, Gustav Krupp was declared mentally incapable of standing trial, Robert Ley committed suicide in custody, prior to the trial.
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The prosecution team was represented by the major powers, whilst the defence team was mainly composed of German lawyers, either selected by the defendants or assigned by the tribunal.144 During the trial, the prosecution team had a total number of thirty-three witnesses and several documents, which were used as evidence against the individuals. On the other hand, the defence team had a total of sixty-one witnesses in addition to voluminous documentation.145
At the opening session, the USA Chief Prosecutor, Justice Robert Jackson delivered an inspiring speech, which addressed a number of issues that remain relevant to ICJ today. Jackson referred to the Tribunal as ‘the greatest tribute ever paid by power to reason.’146 Jackson further sought to justify the Nuremberg trials by arguing that while this piece of legislation was being subjected against the German aggressors, the law would only serve a useful purpose by condemning aggression by any other nations, including the allied states that had created the Nuremberg IMT.147 This further clarifies the need for every individual to be prosecuted and punished for offences committed regardless of status or nationality.
In terms of the judgement and sentencing, the tribunal’s verdict was to be regarded as final and not subjected to review, implying that there were no provisions for appeals against decisions of the tribunal.148 Upon conviction,
144 John A Appleman Military Tribunals and International Crimes (Bobbs – Merrill Indianapolis 1954) VIII. 145 John A Appleman Military Tribunals and International Crimes (Bobbs – Merrill Indianapolis 1954) VIII. 146
Matthew Lipmann ‘Nuremberg Forty – Five Years Later’ (1991) 7 Connecticut Journal of International Law 39.
147
Matthew Lipmann ‘Nuremberg Forty – Five Years Later’ (1991) 7 Connecticut Journal of International Law 39.
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the tribunal had the right to impose death or any other punishment.149 By the end of the trial, three of the defendants namely Hjalmar Schacht, Hans Fritzsche, Franz von Papen and three of the accused who were members of organisations such as Security Services (SD), the Stormtroopers (SA), the Secret State Police (Gestapo), and the Elite Guard (SS) were acquitted. 150 Twelve defendants were sentenced to death and seven to imprisonment ranging from ten years to life.151
The trials indicated the prominence of establishing individual accountability. The Charter clarified that the tribunal was intended to prosecute individuals or individuals that were members of organisations suspected of committing offences punishable under the Charter.152 The following defendants, Martin
149
The Charter of the International Military Tribunal Articles XXVII.
150 The SA High Command and Reich Cabinet, John A Appleman Military Tribunals and International Crimes
(Bobbs – Merrill Indianapolis 1954) VIII, R K Woetzel The Nuremberg Trials in International Law with a Postlude on the Eichmann Case 2 (London Stevens and Sons Limited 1962), other such organisations included The
Leadership Corps of the Nazi Party, The Reich Cabinet and the General Staff and High Command of the German Armed Forces.
151 Those sentenced to death include Goering former Commander in Chief of Luftwaffe, Hess former deputy to
Hitler was sentenced to life imprisonment, Von Ribbentrop (foreign minister of Nazi) was sentenced to death, Keitel (Chief of the High Command of German Armed Forces) was sentenced to death, Kaltenbrunner (Chief of the Security Head Office) was sentenced to death, Rosenberg (Reich Minister for Occupied Eastern Territories) was sentenced to death, Frank (Governor –General of Poland under Nazi regime) was sentenced to death, Frick (Supreme Reich authority in Bohemia & Moravia) was sentenced to death, Streicher (publisher of Der Sturmer, an anti-Semitic Newspaper) he was sentenced to death, Funk (participated in Nazi programme of economic
discrimination against Jews president of the Reichsbank was sentenced to life imprisonment, Raeder (Commander in-Chief of the German Navy from 1935 to 1943) was sentenced to life imprisonment, Sauckel (held position of Plenipotentiary-General for the Utilisation of Labour) was sentenced to death, Jodl (Chief of the Operations Staff of the High Command of the German Armed Forces) was sentenced to death, Seyss-Inquart (Reich Commissioner of the Netherlands) was sentenced to death, Bormann (served as Head of the Nazi party Chancellery & Secretary to Hitler was sentenced to death in absentia, Von Schirach (served as Gauleiter of Vienna) was sentenced to twenty years imprisonment, Speer (served as Reich Minister for Armaments & Munitions & Plenipotentiary General for Armaments under the four year plan) was sentenced to twenty years imprisonment, Von Neurath (served as Reich minister without portfolio, President of the Secret Cabinet Council & a member of the Reich Defence Council) was sentenced to fifteen years’ imprisonment, Doenitz (served as commander in chief of the German Navy under the Nazi regime & head of state succeeding Hitler) was sentenced to ten years imprisonment, International Military Tribunal Volume XXII 527 -587 see also http://www.loc.gov/rr/frd/Military_Law/pdf/NT_Vol-XXII.pdf (accessed 30 June 2013).
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Bormann and Fritz Sauckel were members of the group Leadership Corps regarded to be criminal, thus were deemed to be among those who used the group for criminal purposes.153 The IMT also concluded that the organisations Gestapo and SD were used for criminal purposes, specifically which they were engaged in the prosecution and extermination of the Jews, brutalities and killings in the concentration camps. 154 Among others allegations, the groups were deemed responsible for the mistreatment and murder of prisoners of war.155
On this basis, members of the group, particularly all executives, administrative officials and all local Gestapo officials, were deemed to be criminals. This included the executives and administrative officials serving both abroad, in Germany and members of the Frontier Police.156 The defendant Kaltenbrunner is an example of an individual who according to IMT used the Gestapo and SD for criminal purposes.157 The notion of establishing individual criminal liability on the basis of membership of an
153 International Military Tribunal Volume XXII 505 http://www.loc.gov/rr/frd/Military_Law/pdf/NT_Vol-XXII.pdf
(accessed on 30 June 2013), R K Woetzel The Nuremberg Trials in International Law with a Postlude on the Eichmann Case (London Stevens and Sons Limited 1962) 197.
154 R K Woetzel The Nuremberg Trials in International Law with a Postlude on the Eichmann Case (London
Stevens and Sons Limited 1962) 197.
155 R K Woetzel The Nuremberg Trials in International Law with a Postlude on the Eichmann Case (London
Stevens and Sons Limited 1962) 197.
156 R K Woetzel The Nuremberg Trials in International Law with a Postlude on the Eichmann Case (London
Stevens and Sons Limited 1962) 197.
157 International Military Tribunal Volume XXII 511 http://www.loc.gov/rr/frd/Military_Law/pdf/NT_Vol-XXII.pdf
(accessed 30 June 2013), other groups deemed to have been used for criminal purposes and whose members were regarded as criminals include the SS, R K Woetzel The Nuremberg Trials in International Law with a Postlude on the Eichmann Case (London Stevens and Sons Limited 1962) 199.
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organisation represented a body of international law that was based on the concept of conspiracy.158
More recent, there has been certain groups that have been identified as criminal particularly, Al Qaida or Nigerian Islamist group, Boko Haram, similar to Nuremberg. These individuals affiliated to these organisations can be deemed to be promoting criminal purposes. At Nuremberg IMT, some elements of a criminal organisation included the existence of criminal conspiracy, co-operation for criminal purposes, the need for the group to be bound together and organised for common purpose.159 The tribunal further illuminated that the groups must be formed and used in relation to committing offences denounced by the Charter.160 This is of great importance today, particularly to groups that can be linked to commission of certain offence, such as terrorism. However, this subject is beyond the purpose of this thesis. The substantial issue is that of establishing individual criminal liability. Nuremberg IMT made it clear that men and not entities committed crimes against international law. On that basis, the tribunal would ensure that individuals suspected of committing the most horrendous offences would be held accountable.161
158 R K Woetzel The Nuremberg Trials in International Law with a Postlude on the Eichmann Case (London
Stevens and Sons Limited 1962) 216.
159 International Military Tribunal Volume XXII in R K Woetzel The Nuremberg Trials in International Law with a
Postlude on the Eichmann Case (London Stevens and Sons Limited 1962) 191.
160 International Military Tribunal Volume XXII in R K Woetzel The Nuremberg Trials in International Law with a
Postlude on the Eichmann Case (London Stevens and Sons Limited 1962) 191.
161
International Military Tribunal Volume XXII 565 – 566 http://www.loc.gov/rr/frd/Military_Law/pdf/NT_Vol- XXII.pdf (accessed on 30 June 2013), US v Ohlendorf No 9 Trials of War Criminals Volume IV 460 - 461.
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