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ii
1:
Introduction
Nuremberg tribunal was premised on the need that those responsible for
such acts were brought to book.
Its imperative to note that the judgments of Nuremberg
tribunal birthed the following principles which over times have
been recognized by various international instruments, in fact
UN directed the international law commission to formulate `the
said principles which later adopted by the UN resolution 177,
the principles are given below;
1
Principle I,
Any person who commits an act which constitutes a crime under
international law is responsible therefore liable for punishment. The
punishment hereinafter setout is punishable as crimes under
international law, these crimes were; crime against peace, war crimes
and crime against a humanity2.
Principle ii
The fact that international law does not impose a penalty for an act
which constitutes a crime under international law does not relieve a
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 as a head of state or any other state
responsible official does not relieve him or her from responsibility under
international law.
3
2 Set forth under article 1 and 2 of the charter of international military tribunal of
agreement.
3 Emanated from article 7 and 3 of charter of international military tribunal
annexed to the London agreement of 1945
Principle iv, 4The fact that a person who committed an act acted
pursuant to orders of the government does not relieve him or her from
criminal responsibility under international law.
Principle v. Any person who is charged with the crime under
international law has a right to fair trial or hearing.
It is notable that all the aforesaid principles that were enunciated by the
tribunal were creature of the charter of the international military
tribunal annexed to the agreement of 8th august of 1945
1.2: International law is a body of rules established by customs or
treaties and recognized by nations as binding , it has two sets for
example private and public international law,
Private international law has been defined as a branch of
jurisprudence arising from the adverse laws of various nations
that applies when private citizens of different countries interact
or transact business with one another
2
Whereas,
2.1: Defined crimes against humanity for the first time and for
future reference.
Nuremberg trials delineated the fact that any conduct seriously violating
international cherished value is a crime under international law , and it
should not be left to the exclusive jurisdiction of the country on whose
territory it was committed or by whose nationals it was perpetrated
against, the international community must have a prior right to try and
punish such acts, it should be recalled that crime against humanity
was given a precise definition as it included massive murdering,
extermination , enslavement , deportation and other inhumane
acts of the same genus done against civilian population based
on
political,
racial ,ethnic, religious grounds, or such
persecution carried on in connection with any crime against
peace or any war crimes. so Genocide was included as crime against
humanity as its magnitude shocked the conscience of mankind , it is
upon this elaborate definition laid down in Nuremberg trials that the
UN resolution 961 was drawn up on the 11 th 1946 stating that genocide
is a crime under international law contrary to the spirit of UN and
vehemently condemned by civilized world, again deriving from the
Nuremberg trials the concept of crime against humanity as effectuated
by the Nazi developed, in fact all these were later embodied in the
convention on the prevention and punishment of genocide, the said
convention criminalized genocide and related activities in
international sphere, article v7 enjoins state parties to regulate
their legal system and accordingly criminalize such acts in the
domestic sphere
and those found guilty of
the crime of
genocide should be tried in the
3
courts of the country where the acts allegedly to have been
committed
,
8
practically genocide as defined in article 11 covers all those measures
taken by the Nazi during
persecution and brutal extermination of
7 Convention on prevention and punishment of crime of genocide of 1949
8 ibid
ICESCR ,ICCPR
among others
5
for an act which at time of its commission does not amounts to an
offence. However more recent development in this field sets a contrary
position to Nuremberg exposition of ex post facto principle for example
article 2215 recognize nullum crimen sine lege it states that a person
shall not be
criminally responsible unless the conduct in
question constitutes, at the time it takes place a crime, also
retrospectivity is outlawed by article 24 which provides that no person
shall be criminally liable for conduct prior to the entry into force of the
statute, it can be said that those articles serves as a modification to the
Nuremberg principle of ex post facto nevertheless the trials remains
relevant as to the circumstances of the time justice needed to be done.
also reflected in the Rome statute wherein the court is empowered to try
the sitting president for commission of international crimes 18, among
others the indictment of president of north Sudan OMAR ALI BASHIR
by the ICC former prosecutor Moreno ocampo , from the above
therefore it is acknowledgeable fact that the impact of Nuremberg on
international law is so tremendous as it set forth new precept as
discussed above.
2.6: Nuremberg had a profound effect on the emergence of
international ad hoc tribunal and permanent international
criminal court.
Nuremberg tribunal was the first tribunal were violators of international
law were held responsible for such gravest breaches of international
law , it thereby birthed further tribunals established for similar purpose
and such subsequent tribunal to Nuremberg tribunal have been following
its principles , it is therefore notable that Nuremberg trials had
precedential value for the creation of the following international ad hoc
tribunal ; for example the ICTY19 which handed down its first verdict
in 1994 September wherein it tried and
convicted DRAZEN
20
EDOMOVIC , ICTR
was established with mandate to prosecute for
crimes against humanity, the crime of genocide, war crimes
regardless of whether the conflict is international or a civil
strife thus the tribunal brought to justice those who perpetrated
the
1994
Rwanda
genocide
for
example
PAUL
AKAYESU,KAYISHEMA,RUZINDANA, RUZZIO, in summary the ICTR had
finished 50 trials and convicted 29 criminals, and for the same
purpose extra ordinary chamber were created as result of
agreement between the UN and the government of Cambodia
in February 2012 the said chamber tried and
7
Sentenced KAING
imprisonment,
GWEK EAV
On the same account the special tribunal for sierra Leone headed
then by the Ugandan jurist Julius sebutinde as well as in Lebanon
were established.
Furthermore the Nuremberg trials laid
foundation for
establishment of the permanent international criminal court set
forth under article 121 and its jurisdiction is limited to serious crimes
against humanity , war crimes , crimes of genocide crime of aggression,
the ICC serves the object and purpose in the context of intrinsic
interpretation that similar to Nuremberg tribunal, it is conceivable that
the conviction and punishment of criminal by Nuremberg tribunal was
one of the mechanism through which such terrific incidents could not
happen again , the ICC statute to effectuate the said motive established
the principle of complementality, this principle empowers the
state parties to domesticate the statute into its municipal penal
law to try its own citizens who are alleged to have committed
international crimes, this is indeed
unprecedented international
criminal reform .the ICC has since its conception in 2002 indicted
several people for example UHURU KENYATA, WILLIAM RUTO for crimes
against humanity committed during the post election violence of 2007 ,
lord resistance army leader JOSEPH KONY for alleged crimes against crimes
against humanity perpetrated against people of
northern Uganda,
Congo and Central Africa Republic, THOMAS LUBANGA the leader of militia
in DRC convicted by the court for war crimes related to conscripting of
the children into the army and sentenced for 14years of imprisonment,
among others. It is therefore, follows from the above, that an inference
can be drawn from Nuremberg trials that it had a precedential value for
the creation of various international ad hoc tribunals and eventually the
permanent international criminal court as the judicial response to such
horrendous international crimes therefore Nuremberg tribunal is indeed
a skeletal structure for the current international criminal tribunal
charged with bringing perpetrators of international crimes to justice.
2.7:
this branch of international law regulates laws and customs of war which
serve to protect non combatants ,prisoners of wars and even the
combatants, the Nuremberg trial fundamentally established the
traditional tripartite that is to say war crimes, crimes against
21 Rome statute came into force in 2002
remarkable transformation,
international law, criticism
been leveled drawing a
relevance ,hence discussed
9
3.1 The principle of individual criminal responsibility and lifting
of state protection to state officials as remnants of Nuremberg
trials have affected the international customary law norms that
confer immunity from prosecution to the head of states.
International customary law reserves immunity of state officials from
being prosecuted for crimes whatsoever nature, this is what is termed as
functional immunity and this is deeply rooted in the non derogable norm
of state sovereignty26, in Pinochet case and sierra Leon international
tribunal, in both the court reasoned that heads of states as a
matter of international customary law must be accorded
immunity from criminal prosecution during their tenure of
office. Though defendants in both tribunals had ceased to be head of
states thus were not entitled to such immunity but under the Rome
statute official capacity is rendered irrelevant, the international criminal
court is endowed with jurisdiction to try even the sitting presidents 27 and
pursuant to the said, president OMAR ALI BASHIR OF SUDAN and GADDAFI THE
THEN PRESIDENT OF LIBYA ,both were indicted by the ICC prosecutor the
then MORENO OCAMPO, this new treaty law position has been challenged
on the ground that it impeaches the principle of sovereignty ,in fact
26 Van Dervort T , International law and organization, sage (1986) at 766
27 Op cit article 27
10
hence I disagree with their propositions, nonetheless these challenges
that ICC facing now can be chronologically traced from Nuremberg
tribunal as it recognized these principles which are under contest hence
it has been viewed as having sowed the seed of controversy in
international law.
3.2: The Nuremberg trials have been deduced as victor justice,
here the argument is that the allied powers established the tribunal by
the London charter which was a mean of expression of vengeance
towards their defeated German enemy, this was manifested even by the
composition of the tribunal where it was composed of only the members
28 African Union summit resolution 88 at Addis Ababa Aug /2013 Ethiopia
29 Amendment of article 27 that grants jurisdiction to the ICC prosecutor to indict
sitting presidents
from the victor powers which had overwhelming interests in the outcome
of the case, a jurist 30 argued that if justice was to be seen done in
Nuremberg trial the court would have been composed of neutral
arbitrators like the Swiss, the Swedish but the prosecuting
countries, again having formed the composition of court was a gloss
manifestation of bias, thereby even the judgments were affected by bias
underscoring the view that its relevance stand discredited thus lowering
its probative force in international arena.
3.3:
The ex post facto character of the trials for example
accepting aggression as crime under international law which was neither
founded in any instrument nor defined before, was applied to the
defendants in the Nuremberg trials , indeed this violated the principle
nullum crimen nulla peona sine lege ,this maxim carries object that an
individual must not be held responsible for conduct which at time they
took place did not amount to a crime, thus the trials have been held to
have suffered from retrospectivity, modern jurists critiquing the trials
argued that it is upon that backdrop that the draftsmen of the Rome
statute realized the misnomer committed by the drafter of the London
charter and totally outlawed the ex post facto principle under article22
and 2431 which together contain the spirit that a person must not
be held criminally responsible for conducts committed at the
time and in place did not constitutes a crime. Hence such criticism
serves to discredit Nuremberg trials.
3.4: It is unfortunate to note that ever since Nuremberg tribunal handed
down its verdicts ,it deterrent purpose has not been effectuated as
genocide and other shocking international crimes have been taking
place in most part of the world , for example such
11
incidents have been seen happening in Uganda ,Bosnia, Cambodia
Kuwait ,turkey , the ethnic cleansing that occurred in Rwanda and
Yugoslavia, these horrible events that have shocked the conscience of
30 Chief justice of united states of 1980-90
31 Rome statute of 2002
4:
In conclusion
12
TABLE OF CONTENT
Table
of
content.i
Abstract.
ii
Acronyms
iii
Introduction
.. 1
1.1
General
understanding
..1
of
Nuremberg
1.2
Definition
of
law.2
RELEVANCE
OF
NUREMBERG
TRIALS
TO
trials
international
INTERNATIONAL
LAW2
against
humanity
for
future
2.2
Inspired
the
formulation
of
UDHR.
.4 2.3Recognition of human right
intervention4
2.4
Retraction
of
ex
post
principle.5
facto
ad
hoc
courts
and
2.7
Development
of
IHL.8
3CRITICISM
OR
IRRELEVANCE
TRIALS.9
OF
3.1
Robbing
immunity
to
officials.10
NUREMBERG
state
3.2
Victor
justice
11
3.3
Undermining
the
principle
facto.11
of
3.4
Failure
to
effectuate
purpose.11
its
ex
post
deterrent
Conclusion
12
i
CRONYMS
International
law..IHL
humanitarian
African
Union
AU
International
criminal
Rwanda...ICTR
tribunal
for
for
former
International
court..ICC
criminal
International
criminal
YugoslaviaICTY
tribunal
Universal
Declaration
of
1948..UDHR
Human
Right
of
United
Nation
..UN
International
Court
JusticeICJ
iii
NKUMBA UNIVERSITY
SCHOOL OF LAW
INDEX NO:
COURSE UNIT:
2011/AUG/LLB/B9436
of
INTAKE:
COURSE LEVEL:
AUG /2011
DEGREE
COURSE FACILITATOR:
MS JUSTINE N. KABUGU
QUESTION:
REFERENCES
1 FUNDAMENTAL PERSPECTIVES ON INTERNATIONAL LAW 4th
EDITION BY WILLIAM R SLOMANSON
2 INTERNATIONAL LAW AND WORLD ORDER PROBLEMS BY
FRANK X NJENGE
3 INTERNATIONAL LAW BY MALCOLM N SHAW
4 BLACKS LAW DICTIONARY
5 DEMOCRATIC GOVERNANCE AND INTERNATIONAL LAW BY
GEOGORY H FOX AND BRAD RUTH
CASE LAW
STATUTES
10 UN CHARTER
11 VIENNA CONVENTION ON TREATIES 1969
12 THE ROME STAUTE