War Criminals and the Jurisdiction of the Nuremberg International Military Tribunal

In our article analysing the evolution of International Criminal Tribunals, we mentioned that the Nazi regime that ruled Germany during the Second World War committed crimes of genocide and violations of humanitarian law. In this article, we will examine the jurisdiction of the International Military Tribunal established in Nuremberg for the post-war trial of Nazi leaders. (1) 

Different terms are used for crimes under international criminal law. Depending on the area of law in which the violation is committed, we encounter terms such as genocide crimes, war crimes, crimes under the law of armed conflict, crimes against humanity. As a general term that covers all these types of crimes as a whole, we also see that the term Violations/Crimes of International Humanitarian Law is used. (2)

Prosecution of War Criminals

As the end of the Second World War approached, the Allies issued various declarations (3) on the apprehension and prosecution of war criminals. It is noteworthy that at the end of the war, in the treaties signed with Romania and Finland in September 1944, with Bulgaria in October 1944 and with Hungary in January 1945, the defeated states included provisions stating that they would cooperate in this regard. In the Declaration of Surrender signed by Germany at the end of the war (4), the German authorities agreed to hand over to the Allies important Nazi leaders who had committed war crimes or similar violent offences. (5) 

On this basis, the victorious powers, the USA, the USSR, Great Britain and France, decided to establish an International Military Tribunal in Nuremberg by a treaty signed in London (6). The other Tribunal, which will be the subject of the following article and which was established on 19 January 1946 by a special order of Douglas Mac Arthur, Supreme Commander of the Allied Powers, to try Japanese war criminals, is the International Military Tribunal for the Far East. 

Since there were no historical precedents in international law on what constitutes the crime of genocide, war crimes or crimes against humanity and how they should be tried by the international community, the duties and powers of the International Military Tribunal, namely its Statute, were regulated in detail in the annex of the Treaty of London. As we will emphasise in the following, the important consequences of this historical development include the establishment of an international criminal tribunal for the first time and the acceptance of the individual responsibility of individuals who commit violations of humanitarian law, in addition to the responsibility of the state in the international arena.

The fact that these acts were defined as crimes, the elements of the crimes were determined and judges were appointed after the events had taken place, caused these ad hoc Tribunals to be criticised within the framework of universal criminal norms. It is also observed that they have been subjected to accusations that they exist only for "Victors' Justice". It should be emphasised that the Nuremberg and Tokyo trials could not fully satisfy the world jurists and public opinion with their Statute, establishment, trial process and judgements. (7) This situation strengthened the desire for the establishment of a permanent international criminal court.

Nuremberg International Military Tribunal

The Second World War was one of the most destructive wars in history. Countries were burnt and destroyed and millions of people died. There were genocides (Holocaust) and massacres on a scale never seen before in any war, and hopefully never to be seen again.

Declarations on the prosecution of war criminals, issued during the war and incorporated into treaties, began to be realised at the end of the war. At the end of the war, on 02 May 1945, the day Berlin surrendered to the Allies, US President Truman held a press conference and announced that he had appointed Judge Robert H. Jackson to prepare and prosecute war criminals. Thus, the first step was taken and work was initiated. 

In Article 2 of the Declaration of Surrender signed by Germany after its defeat, the German authorities agreed to hand over to the Allies important Nazi leaders who had committed war crimes or similar violent offences. Following the preparatory work and on the basis of the Surrender Declaration, the USA, the USSR, the UK and France, with Article 1 of the Treaty of London signed on 08.08.1945, agreed to "the establishment of an international Military Tribunal to try war criminals whose acts cannot be geographically linked to a single place, and the international trial of such persons". (8) However, Law No. 10, on which the Supervisory Council of the four Allied Powers was based, provided that war criminals outside the jurisdiction of the Nuremberg International Military Tribunal should be tried by national military tribunals in Germany. (9) 

Offence Definitions

According to Article 6 of the Statute of the Nuremberg International Military Tribunal, crimes are classified and defined under three main groups (10): crimes against peace, war crimes and crimes against humanity. Accordingly

Crimes against peace (Art. 6/a);

"Participating in a plan or a conspiracy for the preparation, initiation, management or conduct of a war of aggression or a war in violation of international treaties and guarantees, or for the commission of any of the preceding acts". 

War Crimes (Art.6/b);

"Violation of the laws and customs of war" and defined as "wilful killing, ill-treatment or deportation of the civilian population or of the civilian population under occupation, slavery or labour for other purposes, ill-treatment of prisoners of war or persons at sea, killing of hostages, "the looting of public or private property, the unnecessary destruction of cities, towns and villages, or the destruction of cities, towns and villages without military necessity, including, but not limited to, violations of the laws of war or of the rules of conduct".

Crimes against Humanity (Art.6/c);

"The wilful killing of civilians before or during war, genocide, slavery, deportations and other inhumane acts, or persecutory acts committed for political, racial or religious reasons in connection with a crime against peace or a war crime, which may or may not be considered a violation of law under the domestic law of the country in which they are committed". 

The Allies referred Nazi war criminals and six Nazi organisations to the Nuremberg International Military Tribunal for trial.

These organisations and groups were;

1) The Nazi Leadership Group, 

2) Reich Cabinet, 

3) German General Staff and High Command,

4) SA (Sturmabteilung),

5) SS (Schutzstaffel/Nazi Party Political Fighting Group-SD Sicherheitsdienst/Security Corps),

6) The Gestapo (Geheime Staatspolizei) consisted of the secret police.

The first trials began in November 1945 and lasted until 1 October 1946. The Military Tribunal found twenty-one of the twenty-four senior officials of the Third Reich on trial guilty and sentenced them to death, life imprisonment and imprisonment for a term of imprisonment, while three of them were acquitted.  In addition, the International Military Tribunal convicted the Nazi Leadership Group, the SS (including the SDs), and the Gestapo for collective war crimes. Ongoing proceedings in other matters were completed on 13 April 1949. 

In addition to the Nuremberg Assize Court, the Allies tried more than 1,700 persons for concentration camp crimes and other offences at Dachau and extradited a large number of suspects to Poland and other countries for trial. Similarly, they registered more than 13 million people for membership in criminal organisations. The German Lander (provincial) courts also continued Nazi prosecutions until May 1948. The courts sentenced more than 600,000 people to various penalties. Some 3,600 of them were considered "serious criminals" and sentenced to imprisonment or labour camps.

The International Military Tribunal appears to be a common reflection of Anglo-American and Continental European law. The rights of the defence and the substitution of evidence are similar to those in US courts. 

Significance of the Nuremberg International Military Tribunal

The Nuremberg International Military Tribunal has been subjected to multifaceted criticism in the context of its establishment, the presentation of the allegations, the functioning of the defence, the rights of the accused, the trial process and its decisions. Along with the criticisms that the principle of natural judge and tribunal was violated, the strongest criticism was that the universal criminal law principle of "no crime and punishment without law" was violated and retroactive legislation (retroactive legislation, ex post facto law character) was made.  

This court fulfilled a very important function in historical terms. A judicial authority was established in which the accused was tried regardless of his or her political or military status at the time of the offence and did not benefit from any immunity. It was also the first court to try crimes of aggression, war crimes and crimes under humanitarian law using the modern criminal procedure model. 

The documents are in the archives of the countries that established the court and some documents are not available on the internet. In order to make an evaluation by considering the conditions, possibilities and limitations of the period as a whole, it can be said that national archives, especially in the USA, should be examined by experts on the subject. However, in the light of the available data, there is no doubt that this court is a great step towards the realisation of the ideal of universal human rights. The international criminal law offences defined in the Statute of this court have set a precedent and a starting point for the statutes of all international criminal courts established after it, including the International Criminal Court.

Bibliography

(1) ÇINAR M. Fatih, International Criminal Court, Kazancı Law Publications, Istanbul-2004. For the full text see: www.academia.edu/38981219

(2) For International Humanitarian Law, see: https://www.icrc.org/en/doc/assets/files/other/what_is_ihl.pdf

(3) For the Declaration signed by US President Roosevelt, British Prime Minister Churchill and USSR President Stalin, see: https://avalon.law.yale.edu/wwii/moscow.asp#imtmoscow

(4) For the Treaty of Unconditional Surrender of Germany see: https://catalog.archives.gov/id/1745024

(5) MINEAR, Richard H.: Victors Justice The Tokyo War Crimes Trail, Princeton University Press, New Jersey - 1984, pp. 183-184

(6) For the Statute of the Nuremberg Assize Court see: https://avalon.law.yale.edu/imt/imtchart.asp

(7) MINEAR, Richard H.: a.g.e

(8) For information on the subject, see National Archives Collection of World War II War Crimes Records (Record Group 238), 1933-50 (bulk 1943-50) 2, 220 cu.ft. www.archives.gov/iwg/reports/nazi-war-crimes-interim-report-october-1999. en.wikipedia.org/wiki/German_Instrument_of_Surrender

(9) For details see: en.wikipedia.org/wiki/Allied_Control_Council. avalon.law.yale.edu/subject_menus/imt.asp

(10) According to the Statute of the International Military Tribunal, the offences listed above in three paragraphs consist of the offences listed above. However, since organising with the intention of committing the crimes listed above is regulated as a separate paragraph and category of crime (common plan or conspiracy), it is seen that some defendants are charged with four crimes. For the Statute, see https://avalon.law.yale.edu/imt/imtconst.asp

(11) For an excerpt from a video documentary of the trials, see: https://collections.ushmm.org/search/catalog/irn1001596 ; There are also various films on the Nuremberg trials: https://archive.org/details/movie-judgment-at-nuremberg-1961

(12) For American official documents on the subject, see avalon.law.yale.edu/subject_menus/imt.asp and http://bit.ly/48ODkum. 

(13) For the theoretical discussions on this subject, the decisions and practices of the Nuremberg Military Tribunal, see DÖNMEZER, Sulhi and ERMAN, Sahir: Nazari Tatbiki Ceza Hukuku, Vol. III, p.536 et seq.; PAZARCI, Hüseyin: 4. Kitap, a.g.e., p.338-351; MALANCZUK, Peter: Akehurst's Modern Introduction to International Law, Seventh Revised Edition, Printed by Routledge, London-1997, pp.352-355; WYZANSKI, Judge Charles E.Jr: By The Atlantic Monthly; April, 1946; "Nuremberg-A Fair Trial? Dangerous Precedent"; Volume 177, No. 4 (p.66-70). Copyright -1946, also by The Atlantic Monthly; December, 1946; "Nuremberg in Retrospect"; Volume 178, No. 6 (p.56-59)