The Nuremberg Trials - Essay Example

The Nuremberg Trials Introduction It is now safe to assume, after more than sixty years of retrospection, that the International Military Tribunal (IMT) in the Nuremberg Trials was a historical episode of global magnitude. In numerous instances, IMT embodies a radical transformation in international law. And the term ‘Nuremberg’ has been associated with the greatest principles and hopes of the world, and with the foundation of all later humanitarian endeavours.1 In examining the most memorable historical episodes, Nuremberg breaks new ground for a form of international verdict—objective, but not unavoidably detached; fair and just, but not devoid of decent, honourable, and moral direction; struggling in its pursuit of veracity, whilst considering the legal restrictions that accompany the undertaking in an opposition trial. However, Nuremberg was flawed, to a certain extent, and it is sensible to assume that its imperfections could be the most integral features of it deserving of attention at present. Still, many would believe that there are other features, as well, and that a number of these address undying desires for the triumph of fairness and justice.2 This essay examines the appropriateness of the indictments, the issue of jurisdiction, and general questions of legality with reference to the ‘fair trial principle’ in the Nuremberg main trial. Appropriateness of the Indictments The function of the IMT at Nuremberg was to formally question the ‘main’ German war criminals. IMT had two members from each of the four participating nations, namely, the United States, Great Britain, France, and the Soviet Union. These members would shape various paradigms of criminal law and process.3 The IMT mission was instigated in 1945, as soon as the Committee of Chief Counsels of the four parties to the London Agreement—a declaration that specify the guidelines and law through which the Nuremberg trials were to be carried out-- approved and passed an indictment laying down the criminal acts arraigned against the ‘main’ war criminals.4 The indictment convicted them with four violations: ‘(1) common plan or conspiracy, (2) crimes against peace, (3) war crimes, and (4) crimes against humanity.’5 Common plan or conspiracy The scholars of the Nuremberg Trials claimed that it is crucial to impugn the guiltiest offenders for conniving to pursue the Nazi persecution of the Jews and other acts of violence. Nevertheless, it was not a war misdeed for the nation to perpetrate acts of violence against its own people.6 For that reason, “[t]he American motives for spinning the dense web of conspiracy to inculpate the Nazi brass is no secret in that the stratagem was essentially intended to procure legal grounds for holding the instigators of the Nazi movement accountable for the record of ‘domestic’ bestialities against assorted segments of their own population, including the Jewish minority.”7 In view of that, a conspiracy conviction was seen crucial so as to impugn individuals for planning or pursuing a common plan to perpetrate crimes against civilians. The Tribunal took into account the indictment of common plan or conspiracy on the basis of two rationales: first is the blameworthiness of organisations, and second is whether the war criminals had connived to pursue genocide and persecution. The latter rationale was settled under the accusation of ‘crimes against peace’.8 The Tribunal, as regards to the accusation of ‘conspiracy’, simply deemed: In the opinion of the Tribunal, the evidence establishes the common planning to prepare and wage war by certain of the defendants. It is immaterial to consider whether a single conspiracy... has been conclusively proved.9 Moreover, the Tribunal resolutely strived to lessen the possible perils to minor collaborators or innocent members which could have stemmed from its judgment to charge four organisations of war crimes.10 As claimed by Professor Schwarzenberger, “[i]n the face of bestiality organised on so colossal a scale, the care taken by the Nuremburg Tribunal in trying to make sure that, over and above the safeguards laid down in the Nuremburg Charter, those most guilty should be separated from the less guilty members of these criminal organisations was a remarkable achievement.”11 However, the IMT adjudicators were evidently more interested in indicting the accused for their participation in a conspiracy as a substantive offence than using conspiracy as another ground of individual culpability for another substantive offence.12 As a result, the adjudicators interpreted the charge of ‘common plan or conspiracy’ rigidly. This first indictment may only be valid to involvement in the Nazi scheme to pursue atrocities --viewed by the Tribunal to be the severest of the indictments filed—and may not be valid to involvement in a plot to wage crimes against humanity and/or war crimes.13 Crimes against Peace The Tribunal, in its effort to rigidly impose the conspiracy conviction, did not cease to restrict the relevance of the indictment to the classification of ‘crimes against peace.’ The second count accused the war criminals with perpetrating certain crimes against peace by ‘planning, preparing, initiating, and waging’ acts of atrocities.’14 IMT believed that it was not really essential to take into account whether and, if that is the case, to what degree violent war was an offence prior to the implementation of the London Agreement. IMT could have made a decision to discard the disputes aimed at the validity of this accusation because the Allied countries had made a decision to add the second count in the Charter; however, taking into consideration the major relevance of the arguments of law concerned, IMT made a decision otherwise and attended to all the disputes from the Defence and the Prosecution.15 IMT hence meant that any deliberation of this matter was ‘said in passing’.16 Nevertheless, the Tribunal did not delineate ‘war of aggression’ or ‘aggression’. Oddly, this portion of the Judgment mentioned ‘other war crimes,’ whilst the Charter had clearly differentiated ‘war crimes’ from ‘crimes against peace’. Declaring that ‘acts of aggression’ is different from ‘other war crimes’ merely in its more severe form seems incorrect if ‘war crimes’ can be perpetrated without perpetrating ‘crimes against peace’ and in reverse.17 The judgment of the Tribunal would have been far more understandable and decisive if such aspects had been noted. The allegation ‘crimes against peace’ was viewed by several individuals as an outdated ruling. Apparently a ‘war of aggression’ was unlawful according to the Kellogg-Briand Pact— a treaty signed by Italy, the United Kingdom, France, and the United States on the 27th of August 1928—yet there was no mention of anything in the Kellog-Briand Pact to suggest that ‘aggression’ was an offence, or that the agreement assigned responsibilities to individuals.18 Nevertheless, several rejected agreements and decisions of the League of Nations since the 1920s, which may be considered as proof of traditional law, did proclaim clearly that aggression was an offence. It must be remembered that responsibility for crimes against peace is only charged to state leaders, and not on the combatants who participate in an aggressive war.19 Within this view crimes against peace is different from ‘crimes against humanity’ and ‘war crimes’. War Crimes and Crimes against Humanity In several aspects, ‘crimes against humanity’ are broader than ‘war crimes’; both can be perpetrated prior to and during a war, and both can be aimed at any citizens, as well as the own people of the misbehaving nation.20 IMT clearly avowed that ‘war crimes’ were offences subject to international law by declaring that the laws specified in the Convention were accepted by every dignified and moral nations, and were viewed as being descriptive of the rules and traditions of war which are discussed in the Charter’s Article 6(b) (see Appendix A).21 Contrary to its precise confirmation concerning ‘war crimes,’ ‘crimes against humanity’ were unclearly interpreted to comprise offences within international law by IMT. The ruling merely declared that the Charter “is the expression of international law at the time of its creation,”22 which also touches the idea of ‘crimes against humanity’. Article 6(c) (see Appendix) was exercised narrowly and the extent of ‘crimes against humanity’ was narrowed more due to the provision that the offence would have had to be perpetrated “in execution of or in connection with any crime within the jurisdiction of the Tribunal.”23 The Tribunal believed that it had not been adequately established that the plan of aggression, oppression, and killing of nationals in Germany prior to the 1939 war were carried out in performance of, or with reference to, any such offence. Thus, IMT sensed that it cannot give a broad proclamation that the actions prior to 1939 were ‘crimes against humanity’ under the premise of the Charter.24 Issues of Jurisdiction Besides jurisdictional problems, fundamental legal codes of fairness were in question. The major dilemmas confronted were the accusation of retroactive ruling as regards to ‘crimes against peace’, and the downfall of the stronghold of high-ranking authorities. Endeavours after the First World War to discourage nations from resorting to armed resistance and defence in their international relations were numerous.25 When allegations of ‘crimes against peace’ were initially developed, nevertheless, a fierce debate over whether there was actually such an offence subject to international law raged. To some extent, as argued by Taylor, the allegation satisfied the widespread hope for justice.26 A scholar advised that the international crime of war of aggression, and the individual crime of aggression, were to be discerned in that a nation was blameworthy should it permit atrocities to be committed from its jurisdiction. This would eliminate the component of intent or purpose from the offence, although it would be important to take into account the purpose of a defendant by investigating the value and scope of his power over the exercise of force.27 A different opposition depended on the Kellog-Briand Pact. The Pact’s conditions had not been locally implemented by any nation by 1939. Another viewpoint was that inter-state treaties before the Second World War not holding the position of customary law cannot be counted on.28 After a great deal of deliberation, the extent of the allegation was limited by the Charter’s Article 1, which stated “for the just and prompt trial and punishment of the major war criminals of the European Axis.”29 This was afterwards reiterated in Article 6’s preliminary statement, which place the crime of war of aggression on a similar position of universality with the rest of the identified offences. Thus, ‘crimes against peace’ acquired a restricted approval as international wrongdoings. Nuremberg contributed to the institutionalisation of the generality of war crimes jurisdiction, which was afterwards included in the Geneva Conventions of 1949.30 Nevertheless, although government officials and military leaders customarily build a defence against general accountability for war crimes, the opposite has possibly become the reality today, in the sense that individual responsibility could discourage revelation of the source of a war crime at a greater extent.31 General Questions of Legality with Reference to the Fair Trial Principle The IMT integrated components derived from the legal structures of various nations. This is a necessary process in forming an international tribunal that can be approved by a number of nations. Within the framework of establishing the Nuremberg Tribunal, it has been argued that “members of the legal profession acquire a rather emotional attachment to forms and customs to which they are accustomed and frequently entertain a passionate conviction that no unfamiliar procedure can be morally right.”32 Hardly anybody investigating the affairs at the Nuremburg trials could forget to argue that the accused had been given a certain extent of justice and fairness far better than the situations called for. The fact that some of the accused were exonerated in the Major Trial and in the Medical Trial showed the fairness exercised in the judicial process. It invalidated the criticisms that the champions mostly attempted retribution and every judgment was prearranged.33 The Tribunal restated its dedication to the plausibility of the innocence of the accused in its final resolution with the below statement: Under the Anglo-Saxon system of jurisprudence every defendant in a criminal case is presumed to be innocent of an offense charged until the prosecution, by competent, credible proof, has shown his guilt to the exclusion of every reasonable doubt.34 In spite of a great deal of implicating proofs, the Tribunal decided that the culpability of the accused was not evident and did acquit.35 The exonerations were clear proof of the fairness of the judicial process at Nuremberg and seemed to affirm the impartiality of the decisions transferred to those who were convicted. Conclusions Discussions of the Nuremberg Trials usually focused on three major themes: (1) appropriateness of the indictments, (2) issues of jurisdiction, and (3) general questions of legality and the fair trial principle. The magnitude and range of reactions to these three facets of Nuremberg trials emerged because these three themes are closely associated with numerous of the essential issues that humankind has raised throughout history. Works Cited Annas, G. & Michael Grodin. The Nazi doctors and the Nuremberg Code: human rights in human experimentation. Oxford: Oxford University Press, 1995. Print. Bantekas, I. Principles of direct and superior responsibility in international humanitarian law. Michigan: Juris Publication, 2002. Print. Boot, M. Genocide, crimes against humanity, war crimes. Intersentia nv, 2002. Print. Burchard, C. “The Nuremberg and its Impact on Germany” Journal of International Criminal Justice 4.4 (2006): 800-829. Ginsbergs, G. & V.N. Kudrianstev. The Nuremburg Trials in International Law. Boston: Martinus Nijhoff, 1990. Print. Martin, F.F. International Human Rights and Humanitarian Law: Treaties, Cases, and Analysis. London: Cambridge University Press, 2006. Print. Mattaux, Guenael. Perspectives on the Nuremburg Trial. Oxford: Oxford University Press, 2008. Print. Rice, E. The Nuremburg Trials. Lucent Books, 1996. Print. Schwarzenberger, G. International Law: The law of armed conflict. Stevens, 1957. Print. Taylor, T. The Anatomy of the Nuremburg Trial: A Personal Memoir. London: Bloomsbury, 1993. Print. Thurman, S., E. Phillips, E. Cheatham, & American Bar Association. Cases and materials on the legal profession. Foundation Press, 1970. Print. Tomaschat, C. “The Legacy of Nuremburg” Journal of International Criminal Justice 4.4 (2006): 830-844. Appendix *taken from Yale Law School 2008, http://avalon.law.yale.edu/imt/imtconst.asp#art6 I. CONSTITUTION OF THE INTERNATIONAL MILITARY TRIBUNAL Article 1. In pursuance of the Agreement signed on the 8th day of August 1945 by the Government of the United States of America, the Provisional Government of the French Republic, the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Union of Soviet Socialist Republics, there shall be established an International Military Tribunal (hereinafter called "the Tribunal'') for the just and prompt trial and punishment of the major war criminals of the European Axis. Article 2. The Tribunal shall consist of four members, each with an alternate. One member and one alternate shall be appointed by each of the Signatories. The alternates shall, so far as they are able, be present at all sessions of the Tribunal. In case of illness of any member of the Tribunal or his incapacity for some other reason to fulfill his functions, his alternate shall take his place. Article 3. Neither the Tribunal, its members nor their alternates can be challenged by the prosecution, or by the Defendants or their Counsel. Each Signatory may replace its members of the Tribunal or his alternate for reasons of health or for other good reasons, except that no replacement may take place during a Trial, other than by an alternate. Article 4 (a) The presence of all four members of the Tribunal or the alternate for any absent member shall be necessary to constitute the quorum. (b) The members of the Tribunal shall, before any trial begins, agree among themselves upon the selection from their number of a President, and the President shall hold office during the trial, or as may otherwise be agreed by a vote of not less than three members. The principle of rotation of presidency for successive trials is agreed. If, however, a session of the Tribunal takes place on the territory of one of the four Signatories, the representative of that Signatory on the Tribunal shall preside. (c) Save as aforesaid the Tribunal shall take decisions by a majority vote and in case the votes are evenly divided, the vote of the President shall be decisive: provided always that convictions and sentences shall only be imposed by affirmative votes of at least three members of the Tribunal. Article 5. In case of need and depending on the number of the matters to be tried, other Tribunals may be set up; and the establishment, functions, and procedure of each Tribunal shall be identical, and shall be governed by this Charter. II. JURISDICTION AND GENERAL PRINCIPLES Article 6. The Tribunal established by the Agreement referred to m Article 1 hereof for the trial and punishment of the major war criminals of the European Axis countries shall have the power to try and punish persons who, acting in the interests of the European Axis countries, whether as individuals or as members of organizations, committed any of the following crimes. The following acts, or any of them, are crimes coming within the jurisdiction of the Tribunal for which there shall be individual responsibility: (a) CRIMES AGAINST PEACE: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing; (b) WAR CRIMES: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity; (c)CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated. 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. Article 7. The official position of defendants, whether as Heads of State or responsible officials in Government Departments, shall not be considered as freeing them from responsibility or mitigating punishment. Article 8. The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires. Article 9. At the trial of any individual member of any group or organization the Tribunal may declare (in connection with any act of which the individual may be convicted) that the group or organization of which the individual was a member was a criminal organization. After the receipt of the Indictment the Tribunal shall give such notice as it thinks fit that the prosecution intends to ask the Tribunal to make such declaration and any member of the organization will be entitled to apply to the Tribunal for leave to be heard by the Tribunal upon the question of the criminal character of the organization. The Tribunal shall have power to allow or reject the application. If the application is allowed, the Tribunal may direct in what manner the applicants shall be represented and heard. Article 10. In cases where a group or organization is declared criminal by the Tribunal, the competent national authority of any Signatory shall have the right to bring individual to trial for membership therein before national, military or occupation courts. In any such case the criminal nature of the group or organization is considered proved and shall not be questioned. Article 11. Any person convicted by the Tribunal may be charged before a national, military or occupation court, referred to in Article 10 of this Charter, with a crime other than of membership in a criminal group or organization and such court may, after convicting him, impose upon him punishment independent of and additional to the punishment imposed by the Tribunal for participation in the criminal activities of such group or organization. Article 12. The Tribunal shall have the right to take proceedings against a person charged with crimes set out in Article 6 of this Charter in his absence, if he has not been found or if the Tribunal, for any reason, finds it necessary, in the interests of justice, to conduct the hearing in his absence. Article 13. The Tribunal shall draw up rules for its procedure. These rules shall not be inconsistent with the provisions of this Charter. III. COMMITTEE FOR THE INVESTIGATION AND PROSECUTION OF MAJOR WAR CRIMINALS Article 14. Each Signatory shall appoint a Chief Prosecutor for the investigation of the charges against and the prosecution of major war criminals. The Chief Prosecutors shall act as a committee for the following purposes: (a) to agree upon a plan of the individual work of each of the Chief Prosecutors and his staff, (b) to settle the final designation of major war criminals to be tried by the Tribunal, (c) to approve the Indictment and the documents to be submitted therewith, (d) to lodge the Indictment and the accompany documents with the Tribunal, (e) to draw up and recommend to the Tribunal for its approval draft rules of procedure, contemplated by Article 13 of this Charter. The Tribunal shall have the power to accept, with or without amendments, or to reject, the rules so recommended. The Committee shall act in all the above matters by a majority vote and shall appoint a Chairman as may be convenient and in accordance with the principle of rotation: provided that if there is an equal division of vote concerning the designation of a Defendant to be tried by the Tribunal, or the crimes with which he shall be charged, that proposal will be adopted which was made by the party which proposed that the particular Defendant be tried, or the particular charges be preferred against him. Article 15. The Chief Prosecutors shall individually, and acting in collaboration with one another, also undertake the following duties: (a) investigation, collection and production before or at the Trial of all necessary evidence, (b) the preparation of the Indictment for approval by the Committee in accordance with paragraph (c) of Article 14 hereof, (c) the preliminary examination of all necessary witnesses and of all Defendants, (d) to act as prosecutor at the Trial, (e) to appoint representatives to carry out such duties as may be assigned them, (f) to undertake such other matters as may appear necessary to them for the purposes of the preparation for and conduct of the Trial. It is understood that no witness or Defendant detained by the Signatory shall be taken out of the possession of that Signatory without its assent. IV. FAIR TRIAL FOR DEFENDANTS Article 16. In order to ensure fair trial for the Defendants, the following procedure shall be followed: (a) The Indictment shall include full particulars specifying in detail the charges against the Defendants. A copy of the Indictment and of all the documents lodged with the Indictment, translated into a language which he understands, shall be furnished to the Defendant at reasonable time before the Trial. (b) During any preliminary examination or trial of a Defendant he will have the right to give any explanation relevant to the charges made against him. (c) A preliminary examination of a Defendant and his Trial shall be conducted in, or translated into, a language which the Defendant understands. (d) A Defendant shall have the right to conduct his own defense before the Tribunal or to have the assistance of Counsel. (e) A Defendant shall have the right through himself or through his Counsel to present evidence at the Trial in support of his defense, and to cross-examine any witness called by the Prosecution. V. POWERS OF THE TRIBUNAL AND CONDUCT OF THE TRIAL Article 17. The Tribunal shall have the power (a) to summon witnesses to the Trial and to require their attendance and testimony and to put questions to them (b) to interrogate any Defendant, (c) to require the production of documents and other evidentiary material, (d) to administer oaths to witnesses, (e) to appoint officers for the carrying out of any task designated by the Tribunal including the power to have evidence taken on commission. Article 18. The Tribunal shall (a) confine the Trial strictly to an expeditious hearing of the cases raised by the charges, (b) take strict measures to prevent any action which will cause reasonable delay, and rule out irrelevant issues and statements of any kind whatsoever, (c) deal summarily with any contumacy, imposing appropriate punishment, including exclusion of any Defendant or his Counsel from some or all further proceedings, but without prejudice to the determination of the charges. Article 19. The Tribunal shall not be bound by technical rules of evidence. It shall adopt and apply to the greatest possible extent expeditious and nontechnical procedure, and shall admit any evidence which it deems to be of probative value. Article 20. The Tribunal may require to be informed of the nature of any evidence before it is entered so that it may rule upon the relevance thereof. Article 21. The Tribunal shall not require proof of facts of common knowledge but shall take judicial notice thereof. It shall also take judicial notice of official governmental documents and reports of the United Nations, including the acts and documents of the committees set up in the various allied countries for the investigation of war crimes, and of records and findings of military or other Tribunals of any of the United Nations. Article 22. The permanent seat of the Tribunal shall be in Berlin. The first meetings of the members of the Tribunal and of the Chief Prosecutors shall be held at Berlin in a place to be designated by the Control Council for Germany. The first trial shall be held at Nuremberg, and any subsequent trials shall be held at such places as the Tribunal may decide. Article 23. One or more of the Chief Prosecutors may take part in the prosecution at each Trial. The function of any Chief Prosecutor may be discharged by him personally, or by any person or persons authorized by him. The function of Counsel for a Defendant may be discharged at the Defendant's request by any Counsel professionally qualified to conduct cases before the Courts of his own country, or by any other person who may be specially authorized thereto by the Tribunal. Article 24. The proceedings at the Trial shall take the following course: (a) The Indictment shall be read in court. (b) The Tribunal shall ask each Defendant whether he pleads "guilty" or "not guilty.'' (c) The prosecution shall make an opening statement. (d) The Tribunal shall ask the prosecution and the defense what evidence (if any) they wish to submit to the Tribunal, and the Tribunal shall rule upon the admissibility of any such evidence. (e) The witnesses for the Prosecution shall be examined and after that the witnesses for the Defense. Thereafter such rebutting evidence as may be held by the Tribunal to be admissible shall be called by either the Prosecution or the Defense. (f) The Tribunal may put any question to any witness and to any defendant, at any time. (g) The Prosecution and the Defense shall interrogate and may crossexamine any witnesses and any Defendant who gives testimony. (h) The Defense shall address the court. (i) The Prosecution shall address the court. (j) Each Defendant may make a statement to the Tribunal. (k) The Tribunal shall deliver judgment and pronounce sentence. Article 25. All official documents shall be produced, and all court proceedings conducted, in English, French and Russian, and in the language of the Defendant. So much of the record and of the proceedings may also be translated into the language of any country in which the Tribunal is sitting, as the Tribunal is sitting, as the Tribunal considers desirable in the interests of the justice and public opinion. VI. JUDGMENT AND SENTENCE Article 26. The judgment of the Tribunal as to the guilt or the innocence of any Defendant shall give the reasons on which it is based, and shall be final and not subject to review. Article 27. The Tribunal shall have the right to impose upon a Defendant, on conviction, death or such other punishment as shall be determined by it to be just. Article 28. In addition to any punishment imposed by it, the Tribunal shall have the right to deprive the convicted person of any stolen property and order its delivery to the Control Council for Germany. Article 29. In case of guilt, sentences shall be carried out in accordance with the orders of the Control Council for Germany, which may at any time reduce or otherwise alter the sentences, but may not increase the severity thereof. If the Control Council for Germany, after any Defendant has been convicted and sentenced, discovers fresh evidence which, in its opinion, would found a fresh charge against him, the Council shall report accordingly to the Committee established under Article 14 hereof, for such action as they may consider proper, having regard to the interests of justice. VII. EXPENSES Article 30. The expenses of the Tribunal and of the Trials, shall be charged by the Signatories against the funds allotted for maintenance of the Control Council of Germany. Read More