Routledge Handbook of International Criminal Law

William A. Schabas, Nadia Bernaz

• Publisher: Routledge
• Year: 2010
• ISBN:
  9781136866678
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

International criminal law has developed extraordinarily quickly over the last decade, with the creation of ad hoc tribunals in the former Yugoslavia and Rwanda, and the establishment of a permanent International Criminal Court. This book provides a timely and comprehensive survey of emerging and existing areas of international criminal law.

The Handbook features new, specially commissioned papers by a range of international and leading experts in the field. It contains reflections on the theoretical aspects and contemporary debates in international criminal law.

The book is split into four parts for ease of reference:

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• The Historical and Institutional Framework – Sets international criminal law firmly in context with individual chapters on the important developments and key institutions which have been established.

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• The Crimes – Identifies and analyses international crimes, including a chapter on aggression.

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• The Practice of International Tribunals – Focuses on topics relating to the practice and procedure of international criminal law.

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• Key Issues in International Criminal Law – Goes on to explore issues of importance such as universal jurisdiction, amnesties and international criminal law and human rights.

Providing easy access to up-to-date and authoritative articles covering all key aspects of international criminal law, this book is an essential reference work for students, scholars and practitioners working in the field.

PART I Historical and institutional framework

1 Trial at Nuremberg

Guénaël Mettraux

DOI: 10.4324/9780203836897-1

The road to Nuremberg, in short

The Second World War witnessed the commission of crimes of unprecedented brutality and scale. The magnitude and cruelty of these events presented a challenge to the Allied leaders charged with determining the fate of those thought to be responsible for these crimes. Given their nature, it was agreed that they could not go unpunished. However, the choice of means and methods of punishment was far from self-evident. As one author pointed out, ‘[t]he “law” of an armistice or a treaty is, in the final analysis, the will of the victor’. Hence, the Allied Powers considered a whole range of political and executive responses that did not involve any legal or judicial elements.¹ However, neither retaliation nor brutal reprisal were capable of bringing a sense of justice to victims whilst at the same time helping to restore peace to the continent.² The view that eventually prevailed was that those suspected of committing these crimes should be subject to a judicial process that would investigate and pass judgment on their individual responsibility. Henry Stimson understood too well the symbolic value of giving the defendants rights and privileges associated with a genuine judicial process that they had denied so systematically to those who had opposed them: ‘We gave to the Nazis what they had denied their own opponents—the protection of the Law’.³ In that sense, what would become the Nuremberg Tribunal was not intended to be an instrument of vengeance, ‘but the reverse’.⁴

The fact that the decision to subject the accused to a judicial process might have been motivated as much by laudable ideals of justice as by the lack of appeal of the alternatives⁵ should not detract from the extraordinary advance that this decision represented:

It is the virtue of the Nuremberg trial that it was conceived in hatred of war, and was nurtured by those starved of peace. To realize how grateful we should be for this birth, consider the alternative.⁶

In some ways, the decision to punish these crimes after a criminal trial was born of the failure to do so after the First World War, a bitter lesson not lost on the Allied Powers.⁷ And so, the idea that the Nazi leaders should be put on trial grew ever more popular over the course of the war.⁸ Already, on 25 October 1941, Churchill had announced that ‘[r]etribution for these crimes must henceforward take its place among the major purposes of the war’.⁹ A few months later, representatives of nine occupied countries adopted the Declaration of St James Palace, which placed among the Allied’s ‘principal war aims’ the following:

the punishment, through the channel of organized justice, of those guilty and responsible for these crimes, whether they have ordered them, perpetrated them or in any way participated in them, [and to] determine in a spirit of international solidarity to see to it that (a) those guilty and responsible, whatever their nationality, are sought for, handed over to justice and judged, (b) that the sentences pronounced are carried out.

President Roosevelt of the United States echoed this Declaration, saying that those responsible for these crimes ‘shall have to stand in courts of law … and answer for their acts’.¹⁰ Shortly thereafter, on 7 October 1942, the United Nations War Crimes Commission was created to gather and collect information regarding the commission of and responsibility for these international crimes.¹¹ The push towards a judicial response to these atrocities continued to gain momentum and, on 30 October 1943, the leaders of the United States, the United Kingdom, and the USSR adopted a Statement on Atrocities, which formed part of the Moscow Declaration and provided as follows:

At the time of granting any armistice to any government which may be set up in Germany, those German officers and men and members of the Nazi Party who have been responsible for or have taken a consenting part in the above atrocities, massacres and executions will be sent back to the countries in which their abominable deeds were done in order that they be judged and punished according to the laws of these liberated countries of free governments which will be erected therein. … The above declaration is without prejudice to the case of German criminals whose offenses have no particular geographical localization and who will be punished by joint decision of the government of the Allies.¹²

As the war was nearing its end, representatives of the same three great powers, plus France, sat down to negotiate the terms of what would eventually become the Charter of an international criminal tribunal based in Nuremberg, Germany. These negotiations were not without their problems, as differences of views as to the purpose of the trial and the procedures to be applied led to lengthy and sometimes quite acrimonious exchanges between the four sets of negotiators.¹³ What the delegates faced, Justice Robert H. Jackson is recorded as saying, was ‘the legal equivalent of drafting the Ten Commandments’.¹⁴ But on 8 August 1945, the governments of the four negotiating powers eventually signed the London Agreement, which provided for the creation of an International Military Tribunal for the trial of war criminals ‘whose offences have no particular geographical location whether they may be accused individually or in their capacity as members of organizations or groups or in both capacities’.¹⁵ With this agreement, the four Signatories had given life to an ad hoc, military, and international criminal tribunal, which was to apply a mostly new set of rules and principles to exceptional events.¹⁶ The constitution, jurisdiction, and functions of the Tribunal were set out in the Charter of the Tribunal, which was annexed to the Agreement.¹⁷

The adoption of the London Agreement was itself quite a feat of politics and diplomacy as it would prove to be one of the last significant international agreements of that era between a group of countries that would soon become opponents in the Cold War. From a legal perspective, too, the adoption of the Agreement and the Charter was a commendable achievement.¹⁸ That achievement was the creation of a genuinely international body of criminal law capable of universal application that brought together several different legal traditions. ‘The significance of the international character of the Nuremberg and Tokyo tribunals’, Nuremberg Prosecutor Telford Taylor noted, ‘was a recognition of the inadequacy of single-nation courts for authoritative interpretations of international law, and the necessity of establishing an international jurisdiction and working acceptable international procedures if international penal law was to develop at all satisfactorily’.¹⁹ However, as he himself noted, the international character of that process was also one of its main weaknesses, as it amplified the legal ‘exceptionalism’ of the Nuremberg Tribunal and its successors:

The shortcoming of the tribunals was that, although international, they were unilateral; they were constituted by the victor nations and had jurisdiction only over the vanquished, and this circumstance has remained a negative factor in subsequent evaluation of the trials.²⁰

Some, indeed, decried what they saw as victor’s justice—political vengeance under the cloak of justice.²¹ Victory, however, in its military form, was a condition of justice.²² What could be criticized is not the manner in which justice was delivered at Nuremberg, which most agree was fair, but the fact that the mandate of the judicial institution that was tasked to deliver justice was so openly selective and one-sided.

The Nuremberg Charter and Nuremberg Tribunal

Whilst some claimed that the Charter of the Nuremberg Tribunal merely codified existing principles, others were more forthcoming in acknowledging that, in fact, a great deal of it was new law. Before the Charter had even been adopted, Glueck had acknowledged the need for the law to grow to meet the demands of the day:

In a relatively undeveloped and plastic field of law it is but following an historical process to blend ‘political’ with legal concepts in stimulating the growth of standards and principles. Much of the law of nations has its roots in custom. Custom must have a beginning; and customary usages of States in the matter of national and personal liability for resort to prohibited methods of warfare and to wholesale criminalism have not been petrified for all time. ‘International Law was not crystallized in the seventeenth century, but is a living and expanding code’.²³

The defeat of Germany, the destruction of Europe, the anger of the world, and the irrelevance to which international law had been reduced by the war all provided fuel for a decisive and ‘rare legislative moment’.²⁴ If there was no law to punish these crimes, it was the general view that law should be made. And so it was.

The Charter, a short document of 30 articles, does not abandon altogether the principle of nullum crimen sine lege, but rejects its literal application, maintaining this principle only in ‘the spirit or the idea conveyed by it’.²⁵ Thus, despite protestations that crimes listed in the Charter were existing criminal prohibitions prior to that time, this document created new categories of international crimes: namely, ‘crimes against humanity’ and ‘crimes against peace’, in addition to existing ones (‘war crimes’).²⁶ The Charter also put to rest defenses which, until then, had arguably formed part of the accepted standards of international law, such as the defense of ‘superior orders’ and official immunity for ‘acts of state’.²⁷ The Charter may thus be said to have adopted as law what, for a while, had been in a state of hesitancy. The Charter of the Tribunal was at once a codification of and a contribution to international law.

The Charter did not just add or remove pieces from existing international law. It also marked a paradigm shift in the international legal—and, arguably, political—universe. First, the Charter pierced through the concept of state sovereignty and inflicted much damage to the idea of absolute sovereignty under the law. As already noted, the Charter literally retired vibrant legal symbols of the idea of state sovereignty—namely, the doctrine of ‘acts of state’—and caused official immunities to shrink, including those granted to heads of state.²⁸ By criminalizing breaches of law committed against a state’s own citizens under the label of ‘crimes against humanity’ and setting penal limits to the permissible use of military force through ‘crimes against peace’, the Charter reached deep into the sovereign territory of states.

Second, and no less significantly, the Charter recognized individuals as subjects of international law, with consequent rights and obligations. Article 6 of the Charter expressly provided that ‘[l]eaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of [the crimes listed in the Charter] are responsible for all acts performed by any persons in execution of such plan’. Liability was, therefore, individual and penal in character and arose directly from international law. As for rights of individuals, they were perhaps more insidiously implanted into the Charter. In The Subjects of the Law of Nations, Professor Lauterpacht noted the following about the new concept of ‘crimes against humanity’:

Thus upon analysis, the enactment of crimes against humanity in an international instrument signifies the acknowledgement of fundamental rights of the individual recognised by international law. It is possible that this result did not occur to th...

Table of contents

• Cover Page
• Half Title Page
• Title Page
• Copyright Page
• Contents
• Acknowledgements
• Contributors
• Introduction—William A. Schabas and Nadia Bernaz
• PART I Historical and institutional framework
• PART II The crimes
• PART III The practice of international tribunals
• PART IV Key issues in international criminal law
• Conclusions—William A. Schabas and Nadia Bernaz
• Index