Nuremberg Principles
Encyclopedia
The Nuremberg principles were a set of guidelines for determining what constitutes a war crime
. The document was created by the International Law Commission
of the United Nations
to codify the legal principles underlying the Nuremberg Trials
of Nazi
party members following World War II
.
is responsible therefor and liable to punishment."
or responsible government official does not relieve him from responsibility under international law."
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 the Nuremberg 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 "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 the jurisprudence
found in certain articles in the Universal Declaration of Human Rights which deal indirectly with conscientious objection. It is also supported by the principles found in paragraph 171 of the Handbook on Procedures and Criteria for Determining Refugee Status which was issued by the Office of the United Nations High Commissioner for Refugees
(UNHCR). Those principles deal with the conditions under which conscientious objector
s can apply for refugee status in another country if they face persecution in their own country for refusing to participate in an illegal war.
"The crimes hereinafter set out are punishable as crimes under international law:
Crimes against peace:
War crimes:
Crimes against humanity:
legislative power to enact binding rules
of international law
. As a corollary, they also rejected proposals to confer on the General Assembly
the 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 in Chapter IV of the Charter. It obliges the United Nations General Assembly
to initiate studies and to make recommendations that encourage the progressive development of international law
and its codification. The Nuremberg Principles were developed by UN organs under that limited mandate.
Unlike treaty law, customary international law
is 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 the international community
that such practice is required as a matter of law
. (For example, the Nuremberg Trials
were 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 1950, under UN General Assembly Resolution 177 (II), paragraph (a), the International Law Commission
was directed to "formulate the principles of international law recognized in the Charter of the Nuremberg Tribunal and 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 Intemational Law Commission, 1950, Vol. II, pp. 374–378).
defense can be found as a defense to international crimes in the Rome Statute of the International 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:
There are two interpretations of this Article:
in the case of Hinzman v. Canada. Jeremy Hinzman
was a U.S. Army deserter who claimed refugee
status in Canada as a conscientious objector
, one of many Iraq War resisters. Hinzman's lawyer, Jeffry House
, had previously raised the issue of the legality of the Iraq War
as having a bearing on their case. The Federal Court
ruling was released on March 31, 2006, and denied the refugee status claim. In the decision, Justice Anne L. Mactavish
addressed the issue of personal responsibility:
On Nov 15, 2007, a Coram of the Supreme Court of Canada
consisting of Justices Michel Bastarache
, Rosalie Abella
, and Louise Charron
refused an application to have the Court hear the case on appeal, without giving reasons.
War crime
War crimes are serious violations of the laws applicable in armed conflict giving rise to individual criminal responsibility...
. The document was created by the International Law Commission
International Law Commission
The International Law Commission was established by the United Nations General Assembly in 1948 for the "promotion of the progressive development of international law and its codification."It holds an annual session at the United Nations Office at Geneva....
of the United Nations
United Nations
The United Nations is an international organization whose stated aims are facilitating cooperation in international law, international security, economic development, social progress, human rights, and achievement of world peace...
to codify the legal principles underlying the Nuremberg Trials
Nuremberg Trials
The Nuremberg Trials were a series of military tribunals, held by the victorious Allied forces of World War II, most notable for the prosecution of prominent members of the political, military, and economic leadership of the defeated Nazi Germany....
of Nazi
Nazism
Nazism, the common short form name of National Socialism was the ideology and practice of the Nazi Party and of Nazi Germany...
party members following World War II
World War II
World War II, or the Second World War , was a global conflict lasting from 1939 to 1945, involving most of the world's nations—including all of the great powers—eventually forming two opposing military alliances: the Allies and the Axis...
.
Principle I
Principle I states, "Any person who commits an act which constitutes a crime under international lawInternational criminal law
International criminal law is a body of international law designed to prohibit certain categories of conduct commonly viewed as serious atrocities and to make perpetrators of such conduct criminally accountable for their perpetration. Principally, it deals with genocide, war crimes, crimes against...
is responsible therefor and liable to punishment."
Principle II
Principle II states, "The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law."Principle III
Principle III states, "The fact that a person who committed an act which constitutes a crime under international law acted as Head of StateHead of State
A head of state is the individual that serves as the chief public representative of a monarchy, republic, federation, commonwealth or other kind of state. His or her role generally includes legitimizing the state and exercising the political powers, functions, and duties granted to the head of...
or responsible government official does not relieve him from responsibility under international law."
Principle IV
Principle IV states: "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 the Nuremberg Trials
Nuremberg Trials
The Nuremberg Trials were a series of military tribunals, held by the victorious Allied forces of World War II, most notable for the prosecution of prominent members of the political, military, and economic leadership of the defeated Nazi Germany....
, this excuse was known in common parlance as "Superior Orders
Superior Orders
Superior orders is a plea in a court of law that a soldier not be held guilty for actions which were ordered by a superior office...
". After the prominent, high profile event of the Nuremberg Trials
Nuremberg Trials
The Nuremberg Trials were a series of military tribunals, held by the victorious Allied forces of World War II, most notable for the prosecution of prominent members of the political, military, and economic leadership of the defeated Nazi Germany....
, that excuse is now referred to by many as "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 the jurisprudence
Jurisprudence
Jurisprudence is the theory and philosophy of law. Scholars of jurisprudence, or legal theorists , hope to obtain a deeper understanding of the nature of law, of legal reasoning, legal systems and of legal institutions...
found in certain articles in the Universal Declaration of Human Rights which deal indirectly with conscientious objection. It is also supported by the principles found in paragraph 171 of the Handbook on Procedures and Criteria for Determining Refugee Status which was issued by the Office of the United Nations High Commissioner for Refugees
United Nations High Commissioner for Refugees
The Office of the United Nations High Commissioner for Refugees , also known as The UN Refugee Agency is a United Nations agency mandated to protect and support refugees at the request of a government or the UN itself and assists in their voluntary repatriation, local integration or resettlement to...
(UNHCR). Those principles deal with the conditions under which conscientious objector
Conscientious objector
A conscientious objector is an "individual who has claimed the right to refuse to perform military service" on the grounds of freedom of thought, conscience, and/or religion....
s can 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
Principle V states, "Any person charged with a crime under international law has the right to a fair trial on the facts and law."Principle VI
Principle VI states,"The crimes hereinafter set out are punishable as crimes under international law:
Crimes against peace:
-
- (i) Planning, preparation, initiation or waging of a war of aggressionWar of aggressionA war of aggression, sometimes also war of conquest, is a military conflict waged without the justification of self-defense usually for territorial gain and subjugation. The phrase is distinctly modern and diametrically opposed to the prior legal international standard of "might makes right", under...
or a war in violation of international treaties, agreements or assurances;
- (i) Planning, preparation, initiation or waging of a war of aggression
-
- (ii) Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i).
War crimes:
- Violations of the laws or customs of war which include, but are not limited to, murder, ill-treatment or deportation of slave labor or for any other purpose of the 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.
Crimes against humanity:
- Murder, extermination, enslavement, deportation and other inhumane acts done against any civilian population, or persecutions on 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."
Principle VII
Principle VII states, "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
In the period just prior to the June 26, 1945 signing of the Charter of the United Nations, the governments participating in its drafting were opposed to conferring on the United NationsUnited Nations
The United Nations is an international organization whose stated aims are facilitating cooperation in international law, international security, economic development, social progress, human rights, and achievement of world peace...
legislative power to enact binding rules
Procedural law
Procedural law or adjective law comprises the rules by which a court hears and determines what happens in civil lawsuit, criminal or administrative proceedings. The rules are designed to ensure a fair and consistent application of due process or fundamental justice to all cases that come before...
of international law
International law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
. As a corollary, they also rejected proposals to confer on the General Assembly
United Nations General Assembly
For two articles dealing with membership in the General Assembly, see:* General Assembly members* General Assembly observersThe United Nations General Assembly is one of the five principal organs of the United Nations and the only one in which all member nations have equal representation...
the 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
United Nations General Assembly
For two articles dealing with membership in the General Assembly, see:* General Assembly members* General Assembly observersThe United Nations General Assembly is one of the five principal organs of the United Nations and the only one in which all member nations have equal representation...
the more limited powers of study and recommendation, which led to the adoption of Article 13 in Chapter IV of the Charter. It obliges the United Nations General Assembly
United Nations General Assembly
For two articles dealing with membership in the General Assembly, see:* General Assembly members* General Assembly observersThe United Nations General Assembly is one of the five principal organs of the United Nations and the only one in which all member nations have equal representation...
to initiate studies and to make recommendations that encourage the progressive development of international law
International law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
and its codification. The Nuremberg Principles were developed by UN organs under that limited mandate.
Unlike treaty law, customary international law
Customary international law
Customary international law are those aspects of international law that derive from custom. Along with general principles of law and treaties, custom is considered by the International Court of Justice, jurists, the United Nations, and its member states to be among the primary sources of...
is 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 the international community
International community
The international community is a term used in international relations to refer to all peoples, cultures and governments of the world or to a group of them. The term is used to imply the existence of common duties and obligations between them...
that such practice is required as a matter of law
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
. (For example, the Nuremberg Trials
Nuremberg Trials
The Nuremberg Trials were a series of military tribunals, held by the victorious Allied forces of World War II, most notable for the prosecution of prominent members of the political, military, and economic leadership of the defeated Nazi Germany....
were 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
Sources of international law
Sources of international law are the materials and processes out of which the rules and principles regulating the international community are developed. They have been influenced by a range of political and legal theories...
)
In 1950, under UN General Assembly Resolution 177 (II), paragraph (a), the International Law Commission
International Law Commission
The International Law Commission was established by the United Nations General Assembly in 1948 for the "promotion of the progressive development of international law and its codification."It holds an annual session at the United Nations Office at Geneva....
was directed to "formulate the principles of international law recognized in the Charter of the Nuremberg Tribunal and 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
International law
Public international law concerns the structure and conduct of sovereign states; analogous entities, such as the Holy See; and intergovernmental organizations. To a lesser degree, international law also may affect multinational corporations and individuals, an impact increasingly evolving beyond...
. 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 Intemational Law Commission, 1950, Vol. II, pp. 374–378).
Examples of the principles supported and not supported
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 the Superior OrdersSuperior Orders
Superior orders is a plea in a court of law that a soldier not be held guilty for actions which were ordered by a superior office...
defense can be found as a defense to international crimes in the Rome Statute of the International Criminal Court
International Criminal Court
The International Criminal Court is a permanent tribunal to prosecute individuals for genocide, crimes against humanity, war crimes, and the crime of aggression .It came into being on 1 July 2002—the date its founding treaty, the Rome Statute of the...
. (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 consider Nuremberg Principle IV to be the applicable "law" in this case. If so, then the defendant is not protected. Discussion as to whether or not Nuremberg Prinicple IV is the applicable law in this case is found in a discussion of the Nuremberg Principles' power or lack of power.
Canada
Nuremberg Principle IV, and its reference to an individual’s responsibility, was also at issue in CanadaCanada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
in the case of Hinzman v. Canada. Jeremy Hinzman
Jeremy Hinzman
Jeremy Dean Hinzman is the first American Iraq war resister/deserter to seek refugee status in Canada....
was a U.S. Army deserter who claimed refugee
Refugee
A refugee is a person who outside her country of origin or habitual residence because she has suffered persecution on account of race, religion, nationality, political opinion, or because she is a member of a persecuted 'social group'. Such a person may be referred to as an 'asylum seeker' until...
status in Canada as a conscientious objector
Conscientious objector
A conscientious objector is an "individual who has claimed the right to refuse to perform military service" on the grounds of freedom of thought, conscience, and/or religion....
, one of many Iraq War resisters. Hinzman's lawyer, Jeffry House
Jeffry House
Jeffry A. House is a lawyer in Toronto, Ontario, Canada. He is best-known for his efforts on behalf and representation of fugitive American soldiers and Native Canadian protesters.-American soldiers:...
, had previously raised the issue of the legality of the Iraq War
Legality of the Iraq War
The legality of the invasion and occupation of Iraq has been widely debated since the United States, United Kingdom, and a coalition of other countries launched the 2003 invasion of Iraq...
as having a bearing on their case. The Federal Court
Federal Court (Canada)
The Federal Court is a Canadian trial court that hears cases arising under certain areas of federal law. The Federal Court is a superior court with nationwide jurisdiction...
ruling was released on March 31, 2006, and denied the refugee status claim. In the decision, Justice Anne L. Mactavish
Anne Mactavish
Anne L. Mactavish, a Canadian Federal Court trial judge, was born in Montreal, Quebec. Her education was at Bishop's University, University of New Brunswick and University of Ottawa. She was called to the Bar of Ontario in 1982. She became an Associate and Partner at Perley-Robertson, Panet,...
addressed 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 Coram of the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
consisting of Justices Michel Bastarache
Michel Bastarache
J. E. Michel Bastarache is a Canadian lawyer, businessman, and retired puisne justice on the Supreme Court of Canada....
, Rosalie Abella
Rosalie Abella
Rosalie Silberman Abella, is a Canadian jurist. She was appointed in 2004 to the Supreme Court of Canada, becoming the first Jewish woman to sit on the Canadian Supreme Court bench.- Early life :...
, and Louise Charron
Louise Charron
Louise Charron is a Canadian jurist. She was appointed to the Supreme Court of Canada in October, 2004, and is the first native-born Franco-Ontarian Supreme Court judge...
refused an application to have the Court hear the case on appeal, without giving reasons.
Further reading
- Introductory note by Antonio Cassese for 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 the UN Audiovisual Library of International Law
- Nuremberg Trial Proceedings Vol. 1 Charter of the International Military Tribunal contained in the Avalon ProjectAvalon ProjectThe Avalon Project is a digital library of documents relating to law, history and diplomacy. The project is part of the Yale Law School Lillian Goldman Law Library....
archive at Yale Law SchoolYale Law SchoolYale Law School, or YLS, is the law school of Yale University in New Haven, Connecticut, United States. Established in 1824, it offers the J.D., LL.M., J.S.D. and M.S.L. degrees in law. It also hosts visiting scholars, visiting researchers and a number of legal research centers... - Judgment : The Law Relating to War Crimes and Crimes Against Humanity contained in the Avalon ProjectAvalon ProjectThe Avalon Project is a digital library of documents relating to law, history and diplomacy. The project is part of the Yale Law School Lillian Goldman Law Library....
archive at Yale Law SchoolYale Law SchoolYale Law School, or YLS, is the law school of Yale University in New Haven, Connecticut, United States. Established in 1824, it offers the J.D., LL.M., J.S.D. and M.S.L. degrees in law. It also hosts visiting scholars, visiting researchers and a number of legal research centers...