Prosecuting Tony Blair and others

BACKGROUND DOCUMENT - RLM 001

HISTORY OF THE FORMULATION OF THE NUREMBERG PRINCIPLES

A Brief History of the formulation of the Principles of Customary International Law recognised
by the Charter and in the Judgement of the International Military Tribunal held at Nuremberg.

On 30th October, 1943, just three short months after the tide of the war in Europe had been finally turned on the battlefield at Kursk, in the Hall of Columns in the Kremlin in Moscow, Marshal Premier Joseph Stalin for the Union of Soviet Socialist Republics, President Franklin D. Roosevelt for the United States of America, and Prime Minister Winston S. Churchill for the Government of the United Kingdom signed an agreement on the punishment of war crimes atrocities, committed by the Nazis in Europe. They reserved their right to agree in future on the means for the punishment of the major German war criminals whose crimes “have no particular geographical localisation”.

On the 8th of August 1945, just over one month after the creation of the United Nations at San Francisco, a treaty was concluded at Limehouse in London between the then four victorious Allied Powers in the War in the European Theatre (including by then for the provisional Government in being for the French Republic) , called the 4-Powers Agreement. Attached to this Agreement was the Charter and Statutes for the establishment of an international military tribunal for the prosecution and punishment of the major German war criminals of the European Axis.

On 20 November 1945, at the historic Palace of Justice Courthouse at Nuremberg in central Bavaria, in which city the annual rally of the National Socialist German Worker’s Party (The ‘Nazi’ Party) had previously been held, the trial of the 24 leading major German War Criminals commenced. It concluded some nine months later on 31 August 1946 during which time the Tribunal held 403 open sessions, heard 33 prosecution witnesses, 61 independent witnesses and 19 of the defendants in addition to which 143 witnesses gave evidence for the defence by means of written interrogatories, and it dealt with approx. 200,000 written documents in evidence.

The President of the Tribunal was Lord Justice Geoffrey Lawrence (later Baron Trevethin and Oaksey), the Chief Prosecutor on behalf of the Crown was the Attorney-General Sir Hatley Shawcross QC MP (later Lord Shawcross), and the Chief Prosecutor for the Government of the United States of America was Supreme Court Justice Robert H. Jackson,

On 30 September and 1 October 1946 the President of the Tribunal, Lawrence L.J., rendered its Judgement against the 22 surviving defendants on the four counts as set out in the indictment, the three Art.6 charges (see below) plus a charge of conspiracy.

Four defendants were found guilty on all four counts and subsequently executed by hanging. Six were found guilty on only three or less counts and also subsequently executed. Three were found guilty of three or less counts and sentenced to life imprisonment. Two were found guilty on only two or less counts are were sentenced to twenty years imprisonment. Two others were sentenced to fifteen and ten years imprisonment respectively. Three defendants were found not guilty on all counts and were fully acquitted.

Reichsmarshall Herman Goering having been convicted on all four counts committed suicide before he could be executed, and Nazi Party Secretary Martin Bormann was sentenced to execution in absentia, although forensic evidence finally obtained in 1998 now strongly suggests he probably in fact died in Berlin in May of 1945 before he was even indicted.

At the opening meeting of the first session of the General Assembly of the United Nations held in New York on 23 October 1946, just three weeks later, President Truman of the United States, addressing the Assembly, referred to the Charter of the Tribunal as pointing to

“... the path along which agreement may be sought, with hope of success among the peace loving peoples of all countries, upon principles of law and justice”.

He further reminded the General Assembly that by that time a further 23 states, Members of the Organisation, had each declared themselves under its provisions bound to the principles of international law as set out in that Charter.

On 15 November 1946 the United States representative proposed by Resolution before the General Assembly that it direct

“the Assembly Committee on the Codification of International Law to treat as a matter of primary importance the formulation of the Principles of the Charter of the Nuremberg Tribunal and of the Tribunal’s Judgement in the context of a general codification of offences against the peace and security of mankind.”

The proposal was by agreement referred to the Sixth (Legal) Committee of the General Assembly who rapidly submitted a Report containing a Draft Resolution for the General Assembly at its 55th Plenary Meeting.

On 11 December 1946, this meeting was held and Resolution 95 of the First Assembly stated inter alia that the General Assembly

“... Therefore, affirms the principles of international law recognised by the Charter of the Nuremberg Tribunal and in the judgement of the Tribunal”.

It also called for the formulation of those principles to be treated as a matter of primary importance by the Sixth Committee. The Resolution was passed unanimously, and without dissention, by all Members present.

Sadly, the fulfilment of that latter edict took a good deal longer than might have been hoped for, and by Resolution 177 of the Second Session, dated 21 November 1947, the General Assembly decided that, in order to promote matters more propitiously, the formulation of the ‘Nuremberg Principles of International Law’ be dealt with by the newly proposed International Law Commission of the United Nations, and as an urgent separate matter, to the formulation of a Draft Code on Offences Against the Peace and Security of Mankind with which they would also be charged.

The International Law Commission finally completed its formulation of “The Principles of International Law recognised in the Charter of the Nuremberg Tribunal and in the Judgement of the Tribunal” (known forever thereafter as simply the ‘Nuremberg Principles') and presented them to the General Assembly at its Fifth Session, together with its Report covering its own second session work. On 2nd August 1950, the ILC Report together with the “Nuremberg Principles” were adopted by Resolution 488 of the Fifth General Assembly, again unanimously and without dissention.

Accordingly, and given the unique prominence and authority that this eminent history has afforded to the evolution and formulation of these principles of international law, it is respectfully submitted that it is today trite to say that the ‘Nuremberg Principles’ are universally recognised and acknowledged as comprising an undoubted and fundamental part of the customary international criminal law of nations.

A copy of the Principles are now set out below.

Principles of International Law Recognised in the Charter of the Nürnberg Tribunal
and in the Judgement of the Tribunal

Principle I

Any person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment.

Principle II

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

The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law.

Principle IV

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.

Principle V

Any person charged with a crime under international law has the right to a fair trial on the facts and law.

Principle VI

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

(a) Crimes against peace:

(i) Planning, preparation, initiation or waging of a war of aggression or a war in violation of international treaties, agreements or assurances;
(ii) Participation in a common plan or conspiracy for the accomplishment of any of the acts mentioned under (i).

(b) War crimes:

Violations of the laws or customs of war which include, but are not limited to, murder, ill-treatment or deportation to slave-labour or for any other purpose of civilian population of or in occupied territory; murder or ill-treatment of prisoners of war, of 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:

Murder, extermination, enslavement, deportation and other inhuman 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

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.

* Text adopted by the Commission at its second session, in 1950, and submitted to the General Assembly as a part of the Commission's report covering the work of that session. The report, which also contains commentaries on the principles, appears in Yearbook of the International Law Commission, 1950, vol. II. pp. 374-378.

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