Episode 28 12 August 2021
The Nuremberg Trials and international criminal law
Principal lawyer, Geraldine Grace | Host, New Earth lawyer podcast
I talk about the Nuremberg Trials that occurred in the aftermath of World War II, because I'm hearing a lot of mention of Nuremberg these days.
I explain what they were and the consequences of Nuremberg on the development of international criminal law, especially the first trial which tried the Nazi leaders before an international military tribunal. I also answer the question of whether we might see another Nuremberg style trial today and why I don't think we have conditions that make this realistic right now.
I am an experienced corporate lawyer, using the law to build purposeful, human-centred, Earth-friendly legal enterprises & ecosystems, for happier humans and a better planet.
I am also the founder and host of the New Earth lawyer podcast.
I am based in Melbourne, Australia, and an expert in enterprise governance, purpose, business & human rights and modern slavery. I established my own law practice Geraldine Grace in 2020, focussing on enterprises seeking purpose, and actors in the impact economy.
I am a legal advisor to not-for-profits with a national reach in impact and purpose. I work with Boards to optimise performance and help enterprises embed purpose and integrate human rights into their business.
I have over 20 years' experience practising law in Australia, the UK, Hong Kong and mainland China. I have worked for large global and Australian law firms and was a partner of a top-tier Australian law firm for several years.
I sit on the peak governing body of Australia's largest university.
[0:32] The Nuremberg Trials were held in the aftermath of World War II in Nuremberg, Germany and they were held to seek justice against those who had perpetrated the worst atrocities during the total war that ravaged Europe.
[1:29] The most important Nuremberg Trial was the first one where the Nazi leadership was brought to account before an International Military Tribunal presided over by the four victorious Allied forces: the United States, Britain, Soviet Union, and France. Twelve other trials followed which included the Doctors' trial (for Nazi physicians) and the Judges' trial (for judges and lawyers who advanced the racial purity program).
[3:33] The legal framework for the Nuremberg trials came out of the instrument of surrender that Germany had signed, and from the law of war.
[5:02] The Nuremberg Charter created three categories of crimes, crimes against peace, war crimes, and crimes against humanity. Many defendants in Nuremberg were also charged with the crime of conspiracy to those things.
[7:18] One consequence of the first Nuremberg Trial is that it led to the development of international criminal law. This is the intersection of international law - which regulates nation-States' conduct - and criminal law - which seeks to make accountable the individuals and organisations responsible for criminal actions.
[8:26] Secondly, the Nuremberg Trial led to an understanding that individual rights need protection from government actions, which led to the Universal Declaration of Human Rights.
[9:12] Thirdly, crimes against humanity such as genocide can be conducted during war time or peace time.
[9:43] Fourthly, with Nuremberg, we developed an understanding of when international criminal law is appropriate to punish crimes - these are usually large scale, atrocious crimes where we can apply the broad brush of international criminal law and still achieve justice.
[11:34] Fifthly, important principles from Nuremberg included that acting in an official position is no defence, that an action may not be a crime under a national legal system but can be illegal under international law and that obeying superior orders if not always a defence.
[12:59] Would we see another Nuremberg style trial today? With these tribunals, there's always a prior, almost universal agreement that something really terrible has happened. There is no public consensus today that a large-scale evil has occurred so I don't see this happening.
[15:33] With a Nuremberg style trial, the international community must agree on an authority to carry out the proceedings, such as the Nuremberg's victorious Allied forces, a UN Security Council resolution or an international treaty.
[17:21] Finally a Nuremberg style trial cannot happen in secret if we want a proper appreciation of whatever evil has occurred that deserves such a trial. Moreover, justice cannot be served if delivered in secret.
The History channel article on the Nuremberg Trials.
The Geneva Conventions and commentaries, which regulate armed conflict, from the International Red Cross.
The UN Office on Genocide Prevention and the Responsibility to Protect page on Crimes against humanity,
The website of the International Criminal Tribunal for Rwanda.
The website of the International Criminal Tribunal for the former Yugoslavia.
The International Criminal Court in The Hague.
Hi, everyone, and welcome to the New Earth lawyer podcast. My name is Geraldine Johns-Putra. I'm your host, I'm speaking to you from Melbourne, Australia. And this is Boonwurrung country so I would like to pay my respects to their Elders past, present and emerging.
Today I'd like to talk to you about something that I'm hearing a lot about. And you may be too and wondering what exactly, they're about. And these are the Nuremberg Trials. These were trials, as most of us know, that were held in the aftermath of World War II in Nuremberg, Germany and they were held to seek justice against those who had perpetrated the worst atrocities, the mass killings, the violence, the experimentation, the imprisonment and dislocation of civilian populations, and who caused so much pain and suffering during the total war that ravaged Europe. There were 13 trials, and they were held in the Palace of Justice in Nuremberg, in Germany, from 1945 to about 1949.
And the most important of these was actually the first one, because the first one was the one where the major war criminals, the Nazi leadership, were brought to account. And that was actually an International Military Tribunal. That was presided over by judges from the four Allied forces that were victorious: the United States, Britain, Soviet Union, and France. The 12 other ones that came after now those were conducted by a US military tribunal. And there were some major ones that we know about from those 12, including the Doctors' trial, which I'm not going to talk about here. But out of the Doctors' trial came a set of medical ethics. And the Judges' trial. And the Judges' trial was about judges and lawyers who had really advanced the programme of racial purity that the Nazis were trying to implement in Europe.
Now, there was no precedent at the time for an international trial for war criminals. There had been previous trials out of World War I that had been conducted according to the laws of a single nation, rather than, as with Nuremberg, a group of four powers coming together with different legal traditions and legal practices. Questions like what law would govern? On what legal basis were the defendants to be tried? These questions arose. Now, these defendants were citizens of Germany. And not all of them were military men. So they hadn't signed up to military law or to be tried before a military tribunal.
The whole legal framework for the Nuremberg trials, particularly the first one, which involved as I said, the International Military Tribunal, that came out of the instrument of surrender that Germany had signed and originated from what is known as the law of war. The Allied Control Council had taken charge of Germany, after the Germans surrendered and under the terms of surrender, they had the power, the Council had the power to punish violations of international law, and violations of the laws of war by Germans. So this was the legal basis on which the trials, particularly the first trial, were held. Then there were a series of meetings between the four Allied forces. And out of those meetings arose the London Charter of the International Military Tribunal and the principles that were created under the London Charter, which is also known as the Nuremberg Charter. They were not the creature of any one single legal system. They created three categories of crimes, crimes against peace, war crimes, and crimes against humanity.
Crimes against peace. So that means planning, staging, preparing, or actually waging wars of aggression, which are wars that go against International Conventions. The second category, war crimes, that's crimes that really break the so-called laws of war. So that might mean executing prisoners of war, which you're not allowed to do under International Conventions. Today, those are called the Geneva Conventions. And if you break the laws of war, then you're engaging in war crimes. Now a third category, we call crimes against humanity. And that's important. This includes the murder, the enslavement, the torturing, the deportation of citizens, or persecuting citizens on political or religious or racial grounds. And many of the defendants in the first Nuremberg Trial also were charged with the crime of conspiracy or common plan to do any of those other things. Because not all of them were actually pulling the trigger, or sending people to gas chambers. They were the masterminds. So they had to be brought in under the charge of conspiracy.
So the IMT, International Military Tribunal, was set up, and on the 6th of October 1945, indictments were presented against the defendants. And a year later, the 1st of October 1946, the verdicts were handed down. And the IMT said they imposed the death sentence on 12 defendants, and that included Herman Goering, Hitler's deputy. Three were sentenced to life imprisonment, and that included Rudolf Hess, the deputy leader of the Nazi Party. Four of them had prison terms that ranged from 10 to 20 years, and another three were acquitted.
Now I want to talk about some of the consequences of that first Nuremberg Trial. The first consequence is that that Nuremberg Trial really led to the development of what we now call international criminal law. It was with Nuremberg that we began to realise that international law might regulate the actions of nation states, vis-a-vis each other, but it's those actions, when they are committed against civilians, that are committed by individuals or organisations. So while international law regulates nation-States' conduct, criminal law seeks to make accountable the individuals and organisations responsible for them. So that intersection of international law and criminal law is what international criminal law is all about.
Secondly, by showing how the policies of the Nazi state and the propaganda that allowed them to get away with so much against civilian populations, by showing how they were enacted, there arose a better understanding of the importance of human rights against nation-States and against governments. So Nuremberg furthered the idea that we need to protect our individual rights against governments, and it led eventually to the Universal Declaration of Human Rights.
Third thing, the third category that I spoke about, crimes against humanity, those are important. And really, it was Nuremberg that established them. One of the most well known crimes against humanity is genocide. and crimes against humanity can occur, whether during wartime or peacetime.
Fourthly, out of Nuremberg, came this understanding that sometimes we punish under international criminal law and not the laws of any one State. Why do we do this? There's no fixed principle, but usually it's because the crimes are so shocking. And they have such a scale. And it's so manifestly obvious that they really offend the principles of common humanity that we choose, as an international community, to try defendants and to seek justice under an international banner. It's with these sorts of crimes that the broad principles of international criminal law can apply, not the very specific rules of a national legal system. So every national legal system has its own principles, rules of evidence, procedural principles, whereas international law is more broad brush. And when you're seeking justice, and you want to ensure that justice is done, if you don't follow certain rules, then you aren't actually achieving justice. Because under the rule of law, people must be treated equally. So if you're going to apply international criminal law, you need to really be dealing with crimes that are so manifestly atrocious, so manifestly egregious, that you can use those broad principles rather than apply the more specific protections that might arise under a national legal system.
Fifth, there are a set of principles that applied at Nuremberg, they were in the London Charter. And they now form part of international criminal law. For example, holding an official position, that's no defence, to war crimes. And there are other principles like something that's not a crime under a national law, like the law of Germany, could still be a crime under international criminal law. Obeying superior orders isn't always an adequate defence. This "superior orders" defence with sometimes called Nuremberg defence, can't always be held up. And when is it allowed and when is it not allowed? Well, there's no fixed principles. But generally speaking, you need to look at whether the individual was obliged to follow the order in law, or how obviously unlawful such an order is under international law, whether the individual knew it was unlawful, and whether the individual had any other option as to whether to obey. So those are some of the factors to consider as to whether the superior orders defence can be used.
Sixth, and this is really what I want to get at the question of, would we see another Nuremberg style trial today? Well, if there were an event that justified it on the scale of the Second World War, what would happen? Would we set up another Nuremberg style tribunal? We've done that, for Rwanda, and the former Yugoslavia, there were set up under UN Special Resolution or Resolution of the Security Council. The other possibility is International Criminal Court, which was set up in 2002. First thing to remember is that with these tribunals, there's always a prior, almost universal agreement that something really terrible has happened. There's been an international war crime or crime against peace or crime against humanity. Nuremberg wasn't set up really to prove to the world that Nazi Germany had been evil, it truly exposed to people how evil it had been, but it wasn't set up to prove the broad guilt. It was set up really to do something about the evil that we already knew had happened. So if you think about it, you know, the Allies marched into Europe, and they exposed the concentration camps and the gas chambers before the Nuremberg Trials happened. So if anything would happen to justify a Nuremberg style trial today, well, there has to be an agreement beforehand, that there is an evil that has occurred. So you may hear of people claiming that a Nuremberg Trial is going to happen. Well, I don't see right now that there are people agreeing broadly, that we need a Nuremberg style trial. So even if you think that a Nuremberg Trial should happen now, there's a lot more that's going to have to be out there in the public, if that's what you think is going to happen, before such trial would actually in reality occur.
Next, after the need to agree that there is an evil that needs to be punished, there needs to be an authority that is accepted, that is going to conduct the proceedings. In Nuremberg, it was the four Allied forces and they had the power because Germany had surrendered to them. In the Rwanda and the former Yugoslavia International War Tribunals that happened, as I said, by UN Security Council resolution. The ICC, the International Criminal Court, was set up under a treaty called the Rome Statute. So then there's got to be some authority that the international community agrees has the moral and legal right to hold such a trial. The ICC I'm just going to say one thing is probably, if there was a need for Nuremberg style trial has it's, the ICC has some drawbacks. There are many countries that haven't signed up to the Rome Statute that established it. There are many countries that still oppose the ICC, and that includes China and India. The Vatican hasn't signed up to the Rome Statute. And the ICC, which is in The Hague, doesn't have a police force, so it can't go out and arrest people and bring them to the court. It relies on nation-States to cooperate to send defendants that the ICC wants to try to The Hague.
Another thing I want to point out, is that Nuremberg didn't occur in secret. Nuremberg, was a public trial. What would have happened if Nuremberg had happened in secret? What validity would it have had in the minds of the public, if it was conducted behind closed doors or if we hadn't known about it? Would we have had the appreciation for the horrors of total war and what happened in the concentration camps and the gas chambers if not for the way in which Nuremberg was held? And would we have developed our understanding of crimes against humanity, of genocide, the whole area of international criminal law, if the Allies had, you know, after the fact told us, we tried the German war criminals, and we've had them hanged? Would that have satisfied the public?
So the next time someone says to you, oh, we need a Nuremberg style hearing for this or for that, remember, the international community is nowhere near agreeing that we need a Nuremberg style trial for anything right now. And we need to ask ourselves, who would the international community agree as the authority to carry it out? And finally, if someone says Nuremberg style trials are already happening in secret, what I would say is that justice that is carried out in secret is not justice at all.
So that's what I have to say on the Nuremberg Trials. Thank you very much for watching.