Nuremberg principles

For the denaturalization of German Jews, seeNuremberg Laws.For the set of research ethics principles for human experimentation, seeNuremberg Code.

TheNuremberg principlesare a set of guidelines for determining what constitutes awar crime.The document was created by theInternational Law Commissionof theUnited Nationstocodifythe legal principles underlying theNuremberg TrialsofNaziparty members followingWorld War II.

Group of defendants at the Nuremberg trials, from which the Nuremberg principals were established

The principles

Principle I

Any person who commits an act which constitutes acrime under international lawis responsible therefor and liable to punishment.

Principle II

The fact thatinternal lawdoes not impose a penalty for an act which constitutes a crime underinternational lawdoes not relieve the person who committed the act from responsibility under international law.

Principle III

The fact that a person who committed an act which constitutes a crime under international law, acted asHead of Stateorresponsible governmentofficial,does not relieve him from responsibility under international law.

Principle IV

Main article:Superior orders

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 theNuremberg 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 the "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 thejurisprudencefound incertain articles in the Universal Declaration of Human Rights which deal indirectly with conscientious objection.It is also supported bythe principles found in paragraph 171 of the Handbook on Procedures and Criteria for Determining Refugee Statuswhich was issued by the Office of theUnited Nations High Commissioner for Refugees(UNHCR). Those principles deal with the conditions under whichconscientious objectorscan 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

Any person charged with a crime under international law has theright to a fair trialon the facts and law.

Principle VI

The crimes hereinafter set out are punishable as crimes under international law:

(a)Crimes against peace:

(i) Planning, preparation, initiation or waging of awar of aggressionor 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 thelaws or customs of warwhich include, but are not limited to,murder,ill-treatment ordeportationtoslave laboror for any other purpose ofcivilianpopulationof or inoccupied territory;murder or ill-treatment ofprisoners of warorpersons on the Seas,killing ofhostages,plunderofpublicorprivate property,wanton destruction ofcities,towns,orvillages,or devastation not justified bymilitary necessity.

(c)Crimes against humanity:

Murder, extermination, enslavement,deportationand other inhumane acts done against any civilian population, orpersecutionson 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.

Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.

Principle VII

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.

The principles' power or lack of power

See also:Sources of international lawandInternational legal theory

In the period just prior to the June 26, 1945 signing of theCharter of the United Nations,thegovernmentsparticipating in its drafting were opposed to conferring on theUnited Nationslegislative powerto enact bindingrulesofinternational law.As a corollary, they also rejected proposals to confer on theGeneral Assemblythe 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 inChapter IV of the Charter.It obliges theUnited Nations General Assemblyto initiate studies and to make recommendations that encourage the progressive development of international law and itscodification.The Nuremberg Principles were developed by UN organs under that limited mandate.

Unlike treaty law,customary international lawis 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 theinternational communitythat such practice is required as a matter of law. (For example, theNuremberg Trialswere 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, underUN General AssemblyResolution 177 (II), paragraph (a), theInternational Law Commissionwas directed to "formulate the principles of international law recognized in the Charter of theNuremberg Tribunaland 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 International Law Commission, 1950, Vol. II, pp. 374–378).

Examples of the principles supported and not supported

For examples relating to Principle VI, seeList of war crimes.

For examples relating to Principle IV (from before, during, and after the Nuremberg Trials), seeSuperior 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 theSuperior Ordersdefense can be found as a defense to international crimes in theRome Statuteof theInternational 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 considerNuremberg Principle IVto be the applicable "law" in this case. If so, then the defendant is not protected. Discussion as to whether or not Nuremberg Principle IV is the applicable law in this case is found ina discussion of the Nuremberg Principles' power or lack of power.

See also:States Parties to the Rome Statute of the International Criminal Court

Canada

Main article:Jeremy Hinzman

Nuremberg Principle IV, and its reference to an individual's responsibility, was also at issue inCanadain the case ofHinzman v. Canada.Jeremy Hinzmanwas aU.S. Armydeserterwho claimedrefugeestatus in Canada as aconscientious objector,one ofmany Iraq War resisters.Hinzman's lawyer,Jeffry House,had previously raised the issue of thelegality of the Iraq Waras having a bearing on their case. TheFederal Courtruling was released on March 31, 2006, and denied the refugee status claim.In the decision, JusticeAnne L. Mactavishaddressed 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 quorum of theSupreme Court of Canadaconsisting of JusticesMichel Bastarache,Rosalie Abella,andLouise Charronrefused an application to have the Court hear the case on appeal, without giving reasons.

See also

• Command responsibility
• Geneva Conventions
• International Criminal Court
• International legal theory
• Laws of war
• London Charter of the International Military Tribunal
• Nuremberg Code
• Nuremberg Trials
• Rule of Law in Armed Conflicts Project
• Rule of law
• Rule According to Higher Law
• Sources of international law

References

• Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal, 1950.Archived2012-09-12 at theWayback Machineon the website of theInternational Committee of the Red Cross(ICRC)
• Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal, 1950.Archived2018-02-19 at theWayback Machineon the website of theUnited Nations(UN)

Further reading

• Introductory note by Antonio CasseseArchived2014-04-10 at theWayback Machinefor General Assembly resolution 95(I) of 11 December 1946 (Affirmation of the Principles of International Law recognized by the Charter of the Nürnberg Tribunal) on the website of theUN Audiovisual Library of International LawArchived2013-09-11 at theWayback Machine
• Nuremberg Trial Proceedings Vol. 1 Charter of the International Military TribunalArchived2014-02-14 at theWayback Machinecontained in theAvalon Projectarchive atYale Law School
• Judgment: The Law Relating to War Crimes and Crimes Against HumanityArchived2011-07-20 at theWayback Machinecontained in theAvalon Projectarchive atYale Law School

External links

• István Deák, Retribution against Heads of State and Prime Ministers