Essay plan tips - international criminal lawWatch
What, if anything, did the london charter ‘declare’ that was new in international law?
London or Nuremberg charter was decreed to set out the laws and procedures that guided the Nuremberg IMT
It was an agreement to try the European Axis made by France, the UK, the USA and the Soviet union.
Declaring is not simply the constituent elements of the Charter, but also the implications of such elements.
What the London charter declared was not all new. Whilst it is acknowledged there were some new elements such as individual responsibility, and formally defined (rather than customary) international crimes. Many of the concepts in the charter had been used or discussed previously, often in a domestic setting. However, it was new in the manner in which all of these concepts were used collaboratively used to orchestrate the trial that made the declarations of the charter new.
What were the objectives of the charter, these were central to driving what the charter included.
To define the applicable crimes
To provide in a public forum the criminality of Germans
Avoid making martyrs through summary executions
To shape public opinion and create a historical record
Symbolically put on trial the Nazi regime
What did the charter say and was this new to ICL?
It declared the creation an international military tribunal - Article 1
Whilst there have been trials following wars before they have seldom been successful
This was the first trial, of its kind, that involved such a collaborative effort between international forces. Previous examples have been heavily domestic.
For example, the 1474 trial of the Governor of the Upper Rhine, for his regime of arbitrariness and terror
Treaty of versaille - to publicly arraign the Kaiser - though this was not to really be a trial but guided by notions of international morality. In practice it did not occur because he was granted Sanctuary in the netherlands.
It declared who could be prosecuted
Arguably new in the way that it enacted individual responsibility in a way that had not been seen before.
Prior to 1945 it was thought that only a state could be responsible under international law
King - In doing this it brought justice to those who have not had justice brought before- whether in low or high places.
It declared what the types of crimes there were to be prosecuted under - Article 6 of Charter
The defence argued that these crimes were ‘new’ in the sense that they had not been enacted/ratified international prior to the charter.
This was demonstrated by the fact that the defense argued that it was retroactive punishment and a violation of nullum crimen sine lege
By the charter permitting retroactive punishment it acts to declare a substantive justice theory
Not new as a theory but new in its application
that retrospective punishment is justified when an act inflicts great scale social harm and is abhorred by society but has not been expressly criminalised.
Crimes against peace
It was not clear that waging war was a crime in (or prior to) 1939.
Though it did violate a number of German non-aggression treaties.
This part of the treaty was primarily based upon the Kellogg- Briand Pact 1939
Whilst the court when applying this section cited a number of instruments that condemned a war of aggressions. Subsequent reluctance to incorporate crimes of aggression into other international criminal court charters indicates that it might have been so new, that it was unacceptably (or wrongly) so due to the applicability of nullem crimen.
The tribunal itself argued that war crimes were already acknowledged under international law
Crimes against humanity
Crimes against civilization and humanity was used to describe the Armenian massacres in Turkey
Though it had not been (widely) accepted that there are limitations on how a state could treat its citizens.
Authorisation by domestic law is no defence.
It declared the defences could be invoked ?
notably superior orders was not an available defence (provided a moral choice was available)
This was not entirely new but was a confirmation of the direction in which international law had been taking.
The tribunal noted that this was in conformity with the law of ALL nations.
Llandovery Castle Case at the Leipzig trials- the defence of superior orders is valid, but not when the act was manifestly illegal.
It could be argued that the Nazi regime was so manifestly illegal that there was no rational reason to include a defence of superior orders within the charter.
This was, however, criticised for not being included as a defence
Some argued that it is unrealistic - it either requires every soldier to be a lawyer or risk punishment under national or international law.
It declared the style of the trial, whether it was to be civil or common law in its procedure.
In practice it was more closely aligned to civil law with a large allowance for hearsay evidence.
It was not bound by any technical rules of evidence
It declared its applicability despite Germany not being party to the IMT charter
Two key arguments as to how this occurred:
Unconditional surrender - created a sovereign legislative power by the occupiers
Not entirely novel, but there are two reasons why, in this case, if this is the reasons it is a new idea.
Problematic as surrender did not discuss the individual liability that IMT creates
Hague Rules of Land Warfare- occupiers must respect, unless prevented, laws of the land
Jennings argues that German sovereignty was in abeyance and allies enjoyed complete and supreme authority
This occupation rationale may have more subtly shaped the trial as it provided a number number of advantages. Having defendants in custody, complete access to records and witnesses in a way modern ICL trials do not.
IMT was an international court and thus had the power to impose the charter in this way - this was new as it would be the first of its kind.
Instituted by a group of nations with the consent of the international community.
Though, resolution 95(1) states that the UN never adopted or rejected the principles of the Nuremberg charter.
All previous war trials had been conducted on a national not international basis.
The most central - new - declaration by the Charter is that of individual responsibility before an international platform. It may have also declared an international court, though this status is not universally held.
The majority of what else is declared by the charter, is not wholly new, but is either reformed, or use in a context not previously seen.
The newness developed by the charter is indicative of ICLs malleability to react to the circumstances of an event, whilst still staying true to the founding principles of (international) criminal law.