Name – Shaghil Nasid

Enrollment No. – 2021/342/099

Course – BA. LLB
Subject – International Law- II
Section – B
Dept. – Hamdard Institute of Legal Science and Research

Topic- The Evolution of International Criminal

Law: From Nuremberg to the ICC
 Acknowledgement

I would like to express my special thanks to my professor Mr.

Tabish Iqbal sir, who gave me the golden opportunity to do this
project titled “The Evolution of International Criminal Law:
From Nuremberg to the ICC”.

This project gave me an insight into the development of

International Laws and the establishment of International
Criminal Court .

Thank you,

Regards,
Shaghil Nasid
6th Semester
Violence in any form is a pathological force, which obstructs or destroys life
sustaining and life enhancing processes. The history of human civilization is
replete with the instances of violence against fellow humans. The present age
described as the age of science and technology, globalization and liberalization has
equally brought in its wake new forms of commission of grave and heinous crimes
at the international level. It poses a challenge to the reinforcement of the rules of
international law for making the globe a better, happy and peaceful place to live in.
From the comparative study of the history of the world regarding criminal
activities that have occurred in the past centuries, it may be deduced that
international criminal activities are growing at a very fast pace. This is posing an
alarming threat to the peace and security of the world due to unprecedented
increase in international criminal activities. During the course of twentieth century,
it has been estimated that conflicts of a non-international character, internal
conflicts and tyrannical regime victimization had resulted in over one seventy
million deaths. Apart from the problem of war, various new technologies have
been invented and employed for destruction. New methods have been evolved to
create fear and terror in the minds of people. All these offences are against human
rights, humanitarian law and thus against international law also. Therefore, it may
be inferred that the security of international community and whole world is at stake
and steps have to be taken to curb this menace. In the light of the arguments put
above, the obvious question is how to curb crimes against human rights and
humanitarian law and broadly against the international law. The logical answer is
“by punishing the offenders one can curb these crimes”. This curbing of
international crimes by punishing the offenders was done by setting up tribunals to
punish the perpetrators of the crime During and immediately after Second World
War the decision was made that the atrocities committed during that war would not
go unpunished. In 1942 the Allied Powers signed an agreement at the Palace of St.
James establishing the United Nations War Crimes Commission (UNWCC). The
Declaration of St. James was the first step leading to establishment of two
independent tribunals, namely the International Military Tribunal of Nuremberg
and the International Military Tribunal for Far East. Both the Tribunals were
established in response to the overwhelming horrors of the Nazi genocide in
Europe and the Japanese crimes perpetrated during the wartime occupation of
many South Asian Countries.
Meaning of Tribunal

Any conflict between two or more States not only involves the military apparatus
of that State but also the political leadership of the State. It is the military
leadership which has the legitimate ability to command the military. For a State to
go into a state of war involves concerted political and military efforts. The question
about how to make a person liable for aggression can only be answered when the
elements of aggression are determined. It is important to note here that the road to
actualization of international criminal tribunal for the liability of aggression was
long and twisted one. For doing this tribunals were established. An important
question which arises here is how we define a tribunal. The meaning of term
“Tribunal” is a seat or court of justice or the bench on which a judge or other
presiding officer sits in court or a committee or board appointed to adjudicate in a
particular matter or it also means something that has the power to determine or
judge. The basic purpose of establishing of these tribunals was to establish “a
system of accountability and the maintenance of international peace and security”.
The purpose of the tribunal is “to put an end to [international atrocities] and to take
effective measures to bring to justice the persons who are responsible for them.
The basic reason for the establishment as rightly put forth was “the pursuit of
justice and accountability fulfills fundamental human needs and expresses key
values necessary for the prevention and deterrence of future conflicts.”

Background of Nuremberg
Earlier the world which existed was in which nation States ruled supreme. It was a
world filled with armed conflicts between sovereign nations which brought about
death and destruction. It was a world in which international law, such as it was,
imposed no effective restraints on nation- States and their leaders in starting and
carrying out aggressive wars. Individuals in the pre- Nuremberg world had no
obligations to conduct themselves in such a way as not to injure the citizens of
other nations. The enormous human rights violations and the acts of aggression
that took place in the Second World War made a profound change in the
international criminal legal regime. International community was cajoled to come
up with some concrete agenda on international criminal law as a result of which
International Military Tribunals at Nuremberg and Tokyo were established. For the
first time in the history of human civilization, individual criminal responsibility
was recognized at the international level for the crimes committed. These
International criminal tribunals, along with their constitutive instruments, evoked a
number of justifications for why they punish perpetrators of extraordinary
international crimes which included aggression. These justifications include
retribution, deterrence, and, on a subaltern level, rehabilitation, reintegration,
reconciliation and incapacitation. The emerging system of international criminal
law, with its foundations in the Nuremberg and Tokyo Tribunals judgment,
confirmed the fact that steps have to be taken to bring acts of aggression under the
list of crimes under international law. As the main component of aggression was
the use of force so the States and the individuals should be prohibited to the use of
force which would be contrary to jus contra bellum. International criminal law
stands out amongst other branches of international law because of the creation of
the International Military Tribunals (IMT). An IMT is typically created by the
same treaty that put into force a given set of laws. Historically, these tribunals were
ad hoc in nature and were created to adjudicate a specific situation and were
limited either in territory or time. For example, the Nuremberg IMT was created by
the London Charter of the International Military Tribunal. It was created in the
wake of Second World War with the specific purpose of trying crimes against
stemming from that war. The city of Nuremberg (also known as Nurnberg) in the
German state of Bavaria was selected as the location for the trials because its
Palace of Justice was relatively undamaged by the war and included a large prison
area. Additionally, Nuremberg had been the site of annual Nazi propaganda rallies;
holding the postwar trials there marked the symbolic end of Hitler’s government,
the Third Reich. Modern international criminal law originates from the period
following the Second World War, with the creation of International Military
Tribunal to prosecute and punish the major war criminals.

The Nuremberg Tribunal

Since civilization began some 5,000 years ago, the Law of Force had been the
order of the day. We should never forget that the Law of Force is barbaric, fleeting,
and creates tremendous uncertainty on the part of the populous. It means that
highly cultured, peace- loving people could be and have been destroyed by foreign
and domestic predators that recognize no limits to their behavior. Albert Speer, a
prime defendant at Nuremberg, recognized the dilemma created by acceptance of
the Laws of Force. In his closing statement at Nuremberg he graphically expressed
his concern over a future in which some nations devoted their efforts to producing
greater weapons of destruction while others focused on cultural growth and peace-
loving pursuits. He hoped that Nuremberg would ensure that the growth of
international law has kept pace with increases in the technology of destruction.
Nuremberg was designed to change the anarchic context in which the Nations and
people of the world related to each other. Nuremberg was the fountainhead from
which initiatives for the protection of human rights emanated. The European
Convention on Human Rights, the Genocide Convention, the Universal
Declaration of Human Rights, and other similar initiatives were all outgrowths of
Nuremberg. Nuremberg was the first post- mortem analysis of a totalitarian State.
It gave the world an appreciation of the levers of power in a dictatorship and of the
defenses which have to be in place to prevent dictatorships and their destructive
effects. Nuremberg is not just a city in Germany. It is a symbol, a symbol of
renaissance, rebirth, and revival of Natural Law from dormancy.
The Nuremberg Trials make us know the power of Natural Law and the power of
Justice. It marked a beginning or a new era in which principles were laid down
where individuals and nation States would be guided by a set of enforceable rules
in their behavior towards one another. In a real sense it marked the coming of
international law as a force to be reckoned with on our planet for maintaining
peace.

Factual Background of Nuremberg Trial

Shortly after Adolf Hitler came to power as chancellor of Germany in 1933, he

and his Nazi government began implementing policies designed to persecute
German- Jewish people and other perceived enemies of the Nazi state. Over the
next decade, these policies grew increasingly repressive and violent and resulted,
by the end of Second World War (1939- 1945), in the systematic, state-sponsored
murder of some 6 million European Jews (along with an estimated 4 million to 6
million non- Jews). The wrongs that need to condemned and punished under the
Nuremberg Trials have been so calculated, so malignant, and so devastating, that
civilization could not tolerate their being ignored, because it could not survive their
being repeated. This tribunal, while it was novel and experimental, was not the
product of abstract speculations nor was created to vindicate legalistic theories.
This inquest represented the practical effort of four of the mightiest of nations,
with the support of seventeen more, to utilize International Law to meet the
greatest menace of our times aggressive war. The common sense of mankind
demanded that law shall not stop with the punishment of petty crimes by little
people. It must also reach men who possess themselves of great power and make
deliberate and concerted use of it to set in motion evils which leave no home in the
world untouched.
The IMT responsible for trying the major war criminals was the product of long
political and judicial debates. Agreement for the establishment of the Tribunal was
reached in London on 8 August 1945 just two days after the atomic bomb was
dropped on Hiroshima and two days before the bombing of Nagasaki. The IMT
was established at a conference following the conclusion of the war in Europe,
pursuant to an agreement between the four Allied powers that were United States,
the Soviet Union, United Kingdom and France. After the preliminary sessions in
Berlin on 18 October 1945, the trial moved to Palace of Justice, Nuremberg where
the sessions started. The trial of the Nazi criminals started on 20 November 1945
and lasted till 1 October 1946 in the Palace of Justice at Nuremberg and found
nineteen defendants guilty of crimes against humanity, war crimes and crimes
against peace. The trails were a massive undertaking. There were four judges and
four prosecutors, each with a team of his own, all of them drawn from the
victorious powers that were the United States, Great Britain, and the Soviet Union
along with France. The Court met in 403 sessions, heard a total of 166 witnesses,
and worked through literally thousands of written affidavits and hundreds and
thousands of documents. For the first time in the history of humankind, a war of
aggression was considered not as a generic breach of international law involving
the liability of the State qua State, but as an authentic international crime for which
individuals too were held responsible or liable. The Nuremberg Tribunal
considered it necessary to begin by reviewing the factual background of the
aggressive war; it traced the rise of the Nazi Party under Hitler’s leadership to a
position of supreme power, which paved the way for the alleged commission of all
the crimes. The Nuremberg Tribunal noted that the Nazis sought to obtain power
for the purpose of imposing a totalitarian regime that would enable them to pursue
their aggressive policies. The Tribunal considered the origin and aims of the Nazi
Party as well as its seizure and consolidation of the power. The Tribunal further
noted that the Nazis sought to obtain power for the purpose of imposing a
totalitarian regime that would enable them to pursue their aggressive policies. They
consolidated their power by reducing the power of local and regional governments;
securing control of the civil service; controlling the judiciary; persecuting and
murdering their opponents including Jews, making Nazi Party the only legal
political party and making it a crime to maintain or form any other political party;
abolishing independent trade unions; and youth organizations; limiting the
influence of churches; and increasing Nazi’s power over the German population by
controlling education and the media. Shortly after Adolf Hitler came to power as
Chancellor of Germany in 1933, he and his Nazi government began implementing
policies designed to persecute German- Jewish people and other perceived enemies
of the Nazi State. Over the next decade, these policies grew increasingly repressive
and violent and resulted, by the end of Second World War, in the systematic, State
sponsored murder of some 6 million European Jews (along with an estimated 4
million to 6 million non- Jews). Nazi Germany or the Third Reich was the period
in the history of Germany from 1933 to 1945, when it was a dictatorship under the
control of Adolf Hitler and the Nazi Party (NSDAP). Under Hitler’s rule, Germany
was transformed into a fascist totalitarian State which controlled nearly all aspects
of life. Nazi Germany ceased to exist after the Allied Forces defeated Germany in
May 1945, ending Second World War in Europe. Crimes during the Holocaust
included physical crimes. Physical crimes included criminal assault on innocent
and helpless victims and further the victims were beaten, drowned, whipped, shot,
ran over, strangled, gassed, and hung. These crimes included sexual crimes or
crimes that were directed at women’s genitalia. Another popular way the Nazis
murdered people was to have them euthanized. The Nazi crimes also included
genocide. In addition to the physical crimes there were property crimes and crimes
against classes of people that were also committed during this time. Nazis took
away all of a Jew’s possessions and their incomes to make it harder for the Jewish
people to live elsewhere before the strike of the Holocaust. The victims of the
Holocaust were described by the Nazis by saying the victims were “criminals who
endangered public safety”. In Ukraine, an estimated 400,000 Jewish people were
killed in Nazi concentration camps during the Holocaust. On average per day about
1,864 Jewish people died. Most of the people that were murdered during the
Holocaust never had proper burials. Ukraine has over 750 mass graves where
groups of five or more Jewish people were marched into mass pits and shot in the
back. 5,000 Jews marched from Ukraine into these pits. To save bullets children
would be thrown into pits of fire and be burned alive.