Principles of International Law recognized in the Charter of the Nrnberg Tribunal and in the Judgment of the Tribunal, with commentaries

1950

Copyright United Nations 2005

Text adopted by the International Law Commission at its second session, in 1950, and submitted to the General Assembly as a part of the Commissions report covering the work of that session (at para. 97). The report, which also contains commentaries on the principles, appears in Yearbook of the International Law Commission, 1950, vol. II.

374 Yearbook of the International Law Commission, Vol. II

94. The Commission recommends that the GeneralAssembly give consideration to the desirability of aninternational convention concerning the general exchangeof official publications relating to international law andinternational relations.

Part III. FORMULATION OF THE NURNBERGPRINCIPLES 8

95. Under General Assembly resolution 177 (II),paragraph (a), the International Law Commissionwas directed to " formulate the principles of internationallaw recognized in the Charter of the Nrnberg Tribunaland in the judgment of the Tribunal ".

96. In pursuance of this resolution of the GeneralAssembly, the Commission undertook a preliminaryconsideration of the subject at its first session. In thecourse of this consideration the question arose as towhether or not the Commission should ascertain towhat extent the principles contained in the Charterand judgment constituted principles of international lawThe conclusion was that since the Nrnberg principleshad been affirmed by the General Assembly, the taskentrusted to the Commission by paragraph (a) ofresolution 177 (II) was not to express any apprecia-tion of these principles as principles of internationallaw but merely to formulate them. This conclusionwas set forth in paragraph 26 of the report of theCommission on its first session, which report wasapproved by the General Assembly in 1949. Mr. JeanSpiropoulos was appointed special rapporteur to continue

3 Mr. Ricardo J. Alfaro declared that he voted in favourof part III of the report with a reservation as to paragraph96, because he believed that the reference therein containedregarding the task of formulating the Nrnberg principlesshould have been inserted in the report together with a quota-tion of the passage in the judgment of the Nrnberg Tribunalin which the Tribunal asserted that the Charter " is the expressionof international law existing at the time of its creation, and tothat extent is itself a contribution to international law ".

In abstaining from the vote on this part of the report, Mr.Manley O. Hudson stated that some uncertainty had existedas to the precise nature of the task entrusted to the Commis-sion. In the report of the Commission covering its first session,which was approved by the General Assembly, the view wasput forward that " the task of the Commission was not to expressany appreciation of these principles [namely the Nrnbergprinciples] as principles of international law but merely toformulate them ". In his opinion, however, the Commissionhad not altogether adhered to that view in its later work, withthe result that doubt subsisted as to the juridical characterof the formulation adopted. Moreover, the formulation had notsufficiently taken into account the special character of theCharter and judgment of the International Military Tribunal andthe ad hoc purpose which they served.

Mr. Georges Scelle said that he regretted that he could notaccept the view taken by the Commission of its task in thispart of the report, for the same reasons as those which he hadstated the previous year. The report did not enunciate thegeneral principles of law on which the provisions of the Char-ter and the decisions of the Tribunal were based, but merelysummarized some of them, whereas the Tribunal itself hadstated that the principles it had adopted were already a partof positive international law at the time when it was established.Moreover, he considered that the final text of the report didnot seem to reflect accurately the conclusions reached by theCommission during its preliminary discussions, and restrictedtheir scope.

the work of the Commission on the subject and topresent a report at its second session.

97. At the session under review, Mr. Spiropoulospresented his report (A/CN.4/22) which the Commis-sion considered at its 44th to 49th and 54th meetings.On the basis of this report, the Commission adopted aformulation of the principles of international law whichwere recognized in the Charter of the Nrnberg Tribunaland in the judgment of the Tribunal. The formulationby the Commission, together with comments thereon,is set out below.

PRINCIPLES OF INTERNATIONAL LAW RECOGNIZED IN THECHARTER OF THE NRNBERG TRIBUNAL AND IN THEJUDGMENT OF THE TRIBUNAL

PRINCIPLE IAny person who commits an act which constitutes a

crime under international law is responsible therejorand liable to punishment.98. This principle is based on the first paragraph of

article 6 of the Charter of the Nrnberg Tribunal whichestablished the competence of the Tribunal to try andpunish persons who, acting in the interests of theEuropean Axis countries, whether as individuals or asmembers of organizations, committed any of the crimesdefined in sub-paragraphs (a), (b) and (c) of article 6.The text of the Charter declared punishable only persons" acting in the interests of the European Axis countries "but, as a matter of course, Principle I is now formulatedin general terms.

99. The general rule underlying Principle I is thatinternational law may impose duties on individualsdirectly without any interposition of internal law. Thefindings of the Tribunal were very definite on the ques-tion whether rules of international law may apply toindividuals. " That international law imposes duties andliabilities upon individuals as well as upon States ",said the judgment of the Tribunal, " has long beenrecognized ".4 It added: " Crimes against internationallaw are committed by men, not by abstract entities,and only by punishing individuals who commit suchcrimes can the provision of international law be en-forced." 5

PRINCIPLE II

The fact that internal law does not impose a penalty foran act which constitutes a crime under internationallaw does not relieve the person who committed theact from responsibility under international law.100. This principle is a corollary to Principle I. Once

it is admitted that individuals are responsible for crimesunder international law, it is obvious that they are notrelieved from their international responsibility by thefact that their acts are not held to be crimes under thelaw of any particular country.

'Trial of the Major War Criminals before the InternationalMilitary Tribunal, vol. I, Nrnberg 1947, page 223.

'Ibid.

Report of the International Law Commission to the General Assembly 375

101. The Charter of the Nrnberg Tribunal referred,in express terms, to this relation between internationaland national responsibility only with respect to crimesagainst humanity. Sub-paragraph (c) of article 6 ofthe Charter defined as crimes against humanity certainacts " whether or not [committed] in violation of thedomestic law of the country where perpetrated ". TheCommission has formulated Principle II in general terms.

102. The principle that a person who has committedan international crime is responsible therefor and liableto punishment under international law, independentlyof the provisions of internal law, implies what is commonlycalled the " supremacy " of international law over nationallaw. The Tribunal considered that international lawcan bind individuals even if national law does not directthem to observe the rules of international law, as shownby the following statement of the judgment: "... thevery essence of the Charter is that individuals haveinternational duties which transcend the national obliga-tions of obedience imposed by the individual State ".6

PRINCIPLE m

The fact that a person who committed an act whichconstitutes a crime under international law acted asHead of State or responsible Government official doesnot relieve Mm from responsibility under internationallaw.103. This principle is based on article 7 of the Charter

of the Nrnberg Tribunal. According to the Charterand the judgment, the fact that an individual acted asHead of State or responsible government official didnot relieve him from international responsibility. " Theprinciple of international law which, under certaincircumstances, protects the representatives of a State ",said the Tribunal, " cannot be applied to acts whichare condemned as criminal by international law. Theauthors of these acts cannot shelter themselves behindtheir official position in order to be freed from punish-ment . . . . " 7 The same idea was also expressed in thefollowing passage of the findings: " He who violates thelaws of war cannot obtain immunity while acting inpursuance of the authority of the State if the State inauthorizing action moves outside its competence underinternational law." 8

104. The last phrase of article 7 of the Charter, " ormitigating punishment ", has not been retained in theformulation of Principle III. The Commission considersthat the question of mitigating punishment is a matterfor the competent Court to decide.

PRINCIPLE IV

The fact that a person acted pursuant to order of hisGovernment or of a superior does not relieve him

"Trial of the Major War Criminals before the InternationalMilitary Tribunal, vol. I, Nrnberg 1947, page 223.

7 Ibid.8 Ibid.

from responsibility under international law, provideda moral choice was in fact possible to him.

105. This text is based on the principle containedin article 8 of the Charter of the Nrnberg Tribunalas interpreted in the judgment. The idea expressed inPrinciple IV is that superior orders are not a defenceprovided a moral choice was possible to the accused. Inconformity with this conception, the Tribunal rejectedthe argument of the defence that there could not be anyresponsibility since most of the defendants acted underthe orders of Hitler. The Tribunal declared: "Theprovisions of this article [article 8] are in conformitywith the law of all nations. That a soldier was orderedto kill or torture in violation of the international law ofwar has never been recognized as a defence to such actsof brutality, though, as the Charter here provides, theorder may be urged in mitigation of the punishment.The true test, which is found in varying degrees in thecriminal law of most nations, is not the existence ofthe order, but whether moral choice was in factpossible." 9

106. The last phrase of article 8 of the Charter " butmay be considered in mitigation of punishment, if theTribunal determines that justice so requires ", has notbeen retained for the reason stated under Principle III,in paragraph 104 above.

PRINCIPLE v

Any person charged with a crime under internationallaw has the right to a fair trial on the facts and law.107. The principle that a defendant charged with a

crime under international law must have the right toa fair trial was expressly recognized and carefullydeveloped by the Charter of the Nrnberg Tribunal.The Charter contained a chapter entitled: " Fair Trialfor Defendants ", which for the purpose of ensuring suchfair trial provided the following procedure:

"a. The indictment shall include full particularsspecifying in detail the charges against the defen-dants. A copy of the indictment and of all the docu-ments lodged with the indictment, translated into alanguage which he understands, shall be furnishedto the defendant at a reasonable time before the trial.

" b. During any preliminary examination or trialof a defendant he shall have the right to give anyexplanation relevant to the charges made against him.

" c. A preliminary examination of a defendant andhis trial shall be conducted in, or translated into, alanguage which the defendant understands.

" d. A defendant shall have the right to conducthis own defence before the Tribunal or to have theassistance of counsel.

" e. A defendant shall have the right throughhimself or through his counsel to present evidence atthe trial in support of his defence, and to cross-examineany witness called by the prosecution."

'Ibid., page 224.

376 Yearbook of the International Law Commission, Yol.

108. The right to a fair trial was also referred to inthe judgment itself. The Tribunal said in this respect:" With regard to the constitution of the Court all thatthe defendants are entitled to ask is to receive a fairtrial on the facts and law." 10

109. In the view of the Commission, the expression" fair trial " should be understood in the light of theabove-quoted provisions of the Charter of the NrnbergTribunal.

PRINCIPLE VI

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

a. Crimes against peace:(i) Planning, preparation, initiation or waging of a

war of aggression or a war in violation of inter-national treaties, agreements or assurances;

(ii) Participation in a common plan or conspiracy forthe accomplishment of any of the acts mentionedunder (i).

110. Both categories of crimes are characterized bythe fact that they are connected with " war of aggressionor war in violation of international treaties, agreementsor assurances ".

111. The Tribunal made a general statement to theeffect that its Charter was " the expression of inter-national law existing at the time of its creation".11 It,in particular, refuted the argument of the defence thataggressive war was not an international crime. Forthis refutation the Tribunal relied primarily on theGeneral Treaty for the Renunciation of War of27 August 1928 (Kellogg-Briand Pact) which in 1939was in force between sixty-three States. " The nationswho signed the Pact or adhered to it unconditionally ",said the Tribunal, " condemned recourse to war for thefuture as an instrument of policy, and expressly renouncedit. After the signing of the Pact, any nation resortingto war as an instrument of national policy breaks thePact. In the opinion of the Tribunal, the solemnrenunciation of war as an instrument of national policynecessarily involves the proposition that such a waris illegal in international law; and that those whoplanned and waged such a war, with its inevitable andterrible consequences, are committing a crime in sodoing. War for the solution of international controversiesundertaken as an instrument of national policy certainlyincludes a war of aggression, and such a war is thereforeoutlawed by the Pact ".12

112. In support of its interpretation of the Kellogg-Briand Pact, the Tribunal cited some other internationalinstruments which condemned war of aggression as aninternational crime. The draft of a Treaty of MutualAssistance sponsored by the League of Nations in1923 declared, in its article 1, "that aggressive war is

an international crime ". The Preamble to the Leagueof Nations Protocol for the Pacific Settlement of Inter-national disputes (Geneva Protocol), of 1924, " recognizingthe solidarity of the members of the InternationalCommunity ", stated that " a war of aggression constitutesa violation of this solidarity, and is an internationalcrime ", and that the contracting parties were " desirousof facilitating the complete application of the systemprovided in the Covenant of the League of Nationsfor the pacific settlement of disputes between the Statesand of ensuring the repression of international crimes ".The declaration concerning wars of aggression adoptedon 24 September 1927 by the Assembly of the Leagueof Nations declared, in its preamble, that war was an" international crime ". The resolution unanimouslyadopted on 18 February 1928 by twenty-one AmericanRepublics at the Sixth (Havana) International Conferenceof American States, provided that " war of aggressionconstitutes an international crime against the humanspecies ".13

113. The Charter of the Nrnberg Tribunal did notcontain any definition of " war of aggression ", nor wasthere any such definition in the judgment of the Tri-bunal. It was by reviewing the historical events beforeand during the war that it found that certain of thedefendants planned and waged aggressive wars againsttwelve nations and were therefore guilty of a series ofcrimes.

114. According to the Tribunal, this made it un-necessary to discuss the subject in further detail, orto consider at any length the extent to which theseaggressive wars were also " wars in violation of inter-national treaties, agreements, or assurances ".14

115. The term "assurances" is understood by theCommission as including any pledge or guarantee ofpeace given by a State, even unilaterally.

116. The terms "planning" and "preparation" of awar of aggression were considered by the Tribunal ascomprising all the stages in the bringing about of a warof aggression from the planning to the actual initiationof the war. In view of that, the Tribunal did not makeany clear distinction between planning and preparation.As stated in the judgment, " planning and preparationare essential to the making of war ".15

117. The meaning of the expression "waging of awar of aggression " was discussed in the Commissionduring the consideration of the definition of " crimesagainst peace ". Some members of the Commission fearedthat everyone in uniform who fought in a war of aggres-sion might be charged with the " waging " of such a war.The Commission understands the expression to refer onlyto high-ranking military personnel and high Statp officials,and believes that this was also the view of the Tribunal.

118. A legal notion of the Charter to which thedefence objected was the one concerning " conspiracy ".

10Trial of the Major War Criminals before the InternationalMilitary Tribunal, vol. I, Nrnberg 1947.

11 Ibid."Ibid., page 220.

"Ibid., pages 221-222."Ibid., page 216.KIbid., page 224.

Report of the International Law Commission to the General Assembly 377

The Tribunal recognized that " conspiracy is not definedin the Charter ".16 However, it stated the meaning ofthe term, though only in a restricted way. "But in theopinion of the Tribunal ", it was said in the judgment," the conspiracy must be clearly outlined in its criminalpurpose. It must not be too far removed from the timeof decision and of action. The planning, to be criminal,must not rest merely on the declarations of a partyprogramme such as are found in the twenty-five pointsof the Nazi Party, announced in 1920, or the politicalaffirmations expressed in Mein Kampj in later years.The Tribunal must examine whether a concrete planto wage war existed, and determine the participants inthat concrete plan ".17

b. War crimes:Violations of the laws or customs of war whichinclude, but are not limited to, murder, ill-treatmentor deportation to slave-labour or for any other pur-pose of civilian population of or in occupied terri-tory, murder or ill-treatment of prisoners of war,of persons on the seas, killing of hostages, plunderof public or private property, wanton destructionof cities, towns, or villages, or devastation not justi-fied by military necessity.

119. The Tribunal emphasized that before the lastwar the crimes defined by article 6 (b) of its CharterM'ere already recognized as crimes under internationallaw. The Tribunal stated that such crimes were coveredby specific provisions of the Regulations annexed toThe Hague Convention of 1907 respecting the Lawsand Customs of War on Land and of the Geneva Conven-tion of 1929 on the Treatment of Prisoners of War.After enumerating the said provisions, the Tribunalstated: "That violation of these provisions constitutedcrimes for which the guilty individuals were punishableis too well settled to admit or argument." 18< 19

c. Crimes against humanity:Murder, extermination, enslavement, deportationand other inhuman acts done against any civilianpopulation, or persecutions on political, racial orreligious grounds, when such acts are done or suchpersecutions are carried on in execution of or inconnexion with any crime against peace or any warcrime.

120. Article 6 (c) of the Charter of the NiirnbergTribunal distinguished two categories of punishableacts, to wit: first, murder, extermination, enslavement,deportation and other inhuman acts committed againstany civilian population, before or during the war, andsecond, persecution on political, racial or religiousgrounds. Acts within these categories, according to

10 Ibid., page 225.11 Trial of the Major War Criminals before the International

Military Tribunal, vol. I, Niirnberg 1947, page 225.mlbid., page 253."During its discussion on the crime of killing hostages, the

Commission took note of the fact that the Geneva Conventionsof 12 August 1949, and more specifically art'cle 34 of theConvention relative to the protection of civilian persons intime of war, prohibit the taking of hostages.

the Charter, constituted international crimes only whencommitted " in execution of or in connexion with anycrimes within the jurisdiction of the Tribunal ". Thecrimes referred to as falling within the jurisdiction ofthe Tribunal were crimes against peace and war crimes.

121. Though it found that "political opponents weremurdered in Germany before the war, and that manyof them were kept in concentration camps in circum-stances of great horror and cruelty ", that " the policyof persecution, repression and murder of civilians inGermany before the war of 1939, who were likely to behostile to the Government, was most ruthlessly carriedout ", and that " the persecution of Jews during thesame period is established beyond all doubt ", the Tri-bunal considered that it had not been satisfactorilyproved that before the outbreak of war these acts hadbeen committed in execution of, or in connexion with,any crime within the jurisdiction of the Tribunal. Forthis reason the Tribunal declared itself unable to " makea general declaration that the acts before 1939 werecrimes against humanity within the meaning of theCharter ".2

122. The Tribunal did not, however, thereby excludethe possibility that crimes against humanity might becommitted also before a war.

123. In its definition of crimes against humanity theCommission has omitted the phrase "before or duringthe war " contained in article 6 (c) of the Charter ofthe Niirnberg Tribunal because this ohrase referred toa particular war, the war of 1939. The omission of thephrase does not mean that the Commission considersthat crimes against humanity can be committed onlyduring a war. On the contrary, the Commission is ofthe opinion that such crimes may take place also beforea war in connexion with crimes against peace.

124. In accordance with article 6 (c) of the Charter,the above formulation characterizes as crimes againsthumanity murder, extermination, enslavpment, etc.,committed against " any " civilian population. Thismeans that these acts mav be crimes against humanityeven if they are committed by the perpetrator against hisown population.

PRINCIPLE vn

Complicity in the commission of a- crime against peace,a war crime, or a crime against humanity as set forthin Principle VI is a crime under international law.125. The only provision in the Charter of the

Niirnberg Tribunal regarding responsibility for complicitywas that of the last paragraph of article 6 which rradsas follows : " Leaders, organizers, instigators andaccomplices participating in the formulation or execu-tion of a common plan or conspiracy to commit any ofthe foregoing crimes are responsible for all acts per-formed by any persons in execution of such a plan."

126. The Tribunal, commenting on this provision in

20 Trial of the Major War Criminals before the InternationalMilitary Tribunal, vol. I, Niirnberg 1947.

378 Yearbook of the International Law Commission, Vol. II

connexion with its discussion of count one of the indict-ment, which charged certain defendants with conspiracyto commit aggressive war, war crimes and crimes againsthumanity, said that, in its opinion, the provision didnot " add a new and separate crime to those alreadylisted ". In the view of the Tribunal, the provisionwas designed to "establish the responsibility of personsparticipating in a common plan "21 to prepare, initiateand wage aggressive war. Interpreted literally, thisstatement would seem to imply that the complicity ruledid not apply to crimes perpetrated by individual action.

127. On the other hand, the Tribunal convictedseveral of the defendants of war crimes and crimesagainst humanity because they gave orders resulting inatrocious and criminal acts which they did not committhemselves. In practice, therefore, the Tribunal seemsto have applied general principles of criminal law regardingcomplicity. This view is corroborated by expressionsused by the Tribunal in assessing the guilt of particulardefendants.22

Part IV. THE QUESTION OF INTERNATIONALCRIMINAL JURISDICTION

128. The General Assembly, by resolution 260 B(III), invited the International Law Commission "tostudy the desirability and possibility of establishingan international judicial organ for the trial of persons,charged with genocide or other crimes over whichjurisdiction will be conferred upon that organ by inter-national conventions ", and requested it, in carrying outthat task, " to pay attention to the possibility ofestablishing a Criminal Chamber of the InternationalCourt of Justice ".

129. At its first session, the Commission appointedas special rapporteurs to deal with this question Messrs.Ricardo J. Alfaro and A. E. F. Sandstrm who wererequested to submit to the Commission, at its secondsession, one or more working papers on the subject.

130. At the second session, each of the specialrapporteurs presented a report. These reports werediscussed by the Commission during its 41st to 44thmeetings.

131. In presenting his report (A/CN.4/20), Mr.Sandstrm first raised the question whether the judicialorgan mentioned in the resolution was to be createdas an organ of the United Nations and stated that, inthat case, an amendment of the Charter of the UnitedNations would be necessary.

132. Several members of the Commission held theview that an international criminal court could becreated by means of a convention open to signatureby States, Members and non-members of the UnitedNations; that such a court was not necessarily envisagedas an organ of the United Nations; that Article 7 ofthe Charter contained a mere enumeration of the prin-

'/fott, page 226.'Ibid., pages 281, 287, 295, 298, 306, 314, 319, 320, 321, 330.

cipal organs of the United Nations; that the said articledid not preclude the possibility of creating new subsidiaryorgans; and that, therefore, the creation of an inter-national judicial organ as contemplated by the resolu-tion would not require an amendment of the Charter.It was pointed out, furthermore, that the essentialquestion before the Commission was whether it wasdesirable and possible to create an international criminaljurisdiction, and that the problem with which the GeneralAssembly was concerned would be the same, whethera judicial organ were set up within the framework ofthe United Nations or outside the organization.

133. On the question of desirability and possibilityof establishing an international criminal court, Mr.Sandstrm stated that he could only consider theproblem in a concrete manner; and that it was impossibleunder such conditions to consider separately desirabilityand possibility.

134. Mr. Sandstrm expressed the view that an inter-national judicial organ such as envisaged in the resolu-tion of the General Assembly would be desirable onlyif effective. Whether established within or withoutthe framework of the United Nations, such an inter-national judicial organ would have the defects whichhe had pointed out in his report and would be ineffec-tive, especially in respect of grave international crimes.He therefore concluded that its establishment was notdesirable.

135. The Commission next considered the reportpresented by Mr. Alfaro (A/CN.4/1S, A/CN.4/15/Corr.l). With regard to the question of desirability,Mr. Alfaro stated that if " desirable " meant useful andnecessary, the creation of an international criminaljurisdiction vested with power to try and punish personswho disturbed international public order was desirableas an effective contribution to the peace and securityof the world. In the community of States, as in nationalcommunities, there were aggressors and disturbers ofthe peace, and mankind had a right to protect itselfagainst international crimes by means of an adequatesystem of international repression. The rule of lawin the community of States could only be ensured bythe establishment of such a system. Public opinionhad been in favour of an international criminal jurisdic-tion since the end of the First World War, when theTreaty of Versailles provided for the arraignment ofWilliam of Hohenzollern for " a supreme offence againstinternational morality and the sanctity of treaties ".Such public opinion had found expression also in theofficial and unofficial action, plans and views emanatingfrom Governments, international bodies, law associa-tions, statesmen and jurists, as stated in Part II ofMr. Alfaro's report. Mr. Alfaro also expressed his convic-tion that the creation of an international organ of criminaljustice would have a deterring effect on potentialaggressors and that even if its establishment were notfeasible, it would always be desirable.

136. As to the possibility of establishing the judicialorgan envisaged, Mr. Alfaro stated that he could notsee any legal reason which made it impossible forStates to set up by convention a judicial organ for the