On this date, 20 November 1945, the Nuremberg Trials began at the Palace of Justice in Nuremberg, Germany. To remember this historical date, I will post the Nuremberg principles from Wikipedia.
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TWELVE
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The
Nuremberg principles were a set of guidelines for determining what
constitutes a war crime. The document was created by the International Law
Commission of the United Nations to codify the legal principles underlying the Nuremberg Trials of Nazi party members
following World War II.
The
principles
Principle
I
Principle
I states, "Any person who commits an act which constitutes a crime under
international law is responsible therefore and liable to
punishment."
Principle
II
Principle
II states, "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
Principle
III states, "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
Main article:
Superior
Orders
Principle
IV states: "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".
This
principle could be paraphrased as follows: "It is not an acceptable excuse
to say 'I was just following my superior's orders'".
Previous
to the time of the Nuremberg Trials, this excuse was known in common parlance
as "Superior Orders". After the prominent, high profile event of the
Nuremberg Trials, that excuse is now referred to by many as "Nuremberg
Defense". In recent times, a third term, "lawful orders" has
become common parlance for some people. All three terms are in use today, and
they all have slightly different nuances of meaning, depending on the context
in which they are used.
Nuremberg
Principle IV is legally supported by the jurisprudence found in certain articles
in the Universal Declaration of Human Rights which deal indirectly with
conscientious objection. It is also supported by the principles found in
paragraph 171 of the Handbook on Procedures and Criteria for Determining
Refugee Status which was issued by the Office of the United Nations High
Commissioner for Refugees (UNHCR). Those principles deal with the conditions
under which conscientious objectors can apply for refugee status in another
country if they face persecution in their own country for refusing to
participate in an illegal war.
Principle
V
Principle
V states, "Any person charged with a crime under international law has the
right to a fair trial on the facts and law."
Principle
VI
Principle
VI states,
"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 to slave labor or for any other purpose of 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.
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
Principle
VII states, "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."
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Nuremberg Trials.
Defendants in the dock. The main target of the prosecution was Hermann
Göring (at the left edge on the first row of benches), considered to be the
most important surviving official in the Third Reich after Hitler's
death.
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The
Principles' power or lack of power
See
also: Sources of international law and International legal theory
In
the period just prior to the June 26, 1945 signing of the Charter of the United
Nations, the governments participating in its drafting were opposed to
conferring on the United Nations legislative power to enact binding rules of international
law. As a corollary, they also rejected proposals to confer on the General
Assembly the power to impose certain general conventions on states by some form
of majority vote. There was, however, strong support for conferring on the
General Assembly the more limited powers of study and recommendation, which led
to the adoption of Article 13 in Chapter IV of the Charter. It obliges the United
Nations General Assembly to initiate studies and to make recommendations that
encourage the progressive development of international law and its codification.
The Nuremberg Principles were developed by UN organs under that limited mandate.
Unlike
treaty law, customary international law is not written. To prove that a certain
rule is customary one has to show that it is reflected in state practice and
that there exists a conviction in the international community that such
practice is required as a matter of law. (For example, the Nuremberg Trials
were a "practice" of the "international law" of the
Nuremberg Principles; and that "practice" was supported by the
international community.) In this context, "practice" relates to
official state practice and therefore includes formal statements by states. A
contrary practice by some states is possible. If this contrary practice is
condemned by other states then the rule is confirmed. (See also: Sources of
international law)
In
1947, 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 above 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).
Examples
of the principles supported and not supported
For
examples relating to Principle VI, see List of war crimes.
For
examples relating to Principle IV (from before, during, and after the Nuremberg
Trials), see Superior Orders.
The
1998 Rome Statute of the International Criminal Court
Concerning
Nuremberg Principle IV, and its reference to an individual’s responsibility, it
could be argued that a version of the Superior Orders defense can be found as a
defense to international crimes in the Rome Statute of the International
Criminal Court. (The Rome Statute was agreed upon in 1998 as the foundational
document of the International Criminal Court, established to try those
individuals accused of serious international crimes.) Article 33, titled
"Superior Orders and prescription of law," states:
1.
The fact that a crime within the jurisdiction of the Court has been committed
by a person pursuant to an order of a Government or of a superior, whether
military or civilian, shall not relieve that person of criminal responsibility
unless:
- (a) The person was under a legal obligation to obey orders of the Government or the superior in question;
- (b) The person did not know that the order was unlawful; and
- (c) The order was not manifestly unlawful.
2.
For the purposes of this article, orders to commit genocide or crimes against
humanity are manifestly unlawful.
There
are two interpretations of this Article:
- This formulation, especially (1)(a), whilst effectively prohibiting the use of the Nuremberg Defense in relation to charges of genocide and crimes against humanity, does however, appear to allow the Nuremberg Defense to be used as a protection against charges of war crimes, provided the relevant criteria are met.
- Nevertheless, this interpretation of ICC Article 33 is open to debate: For example Article 33 (1)(c) protects the defendant only if "the order was not manifestly unlawful." The "order" could be considered "unlawful" if we consider Nuremberg Principle IV to be the applicable "law" in this case. If so, then the defendant is not protected. Discussion as to whether or not Nuremberg Prinicple IV is the applicable law in this case is found in a discussion of the Nuremberg Principles' power or lack of power.
Canada
Nuremberg
Principle IV, and its reference to an individual’s responsibility, was also at
issue in Canada in the case of Hinzman v. Canada. Jeremy
Hinzman was a U.S. Army deserter who claimed refugee status in Canada as a conscientious
objector, one of many Iraq War resisters. Hinzman's lawyer, Jeffry House, had
previously raised the issue of the legality of the Iraq War as having a bearing
on their case. The Federal Court ruling was released on March 31, 2006, and
denied the refugee status claim. In the decision, Justice Anne L. Mactavish
addressed the issue of personal responsibility:
“An individual must be involved at the policy-making level to be culpable for a crime against peace ... the ordinary foot soldier is not expected to make his or her own personal assessment as to the legality of a conflict. Similarly, such an individual cannot be held criminally responsible for fighting in support of an illegal war, assuming that his or her personal war-time conduct is otherwise proper.”
On
Nov 15, 2007, a Coram of the Supreme Court of Canada consisting of Justices Michel
Bastarache, Rosalie Abella, and Louise Charron refused an application to have
the Court hear the case on appeal, without giving reasons.
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