Nuremberg principles
The Nuremberg principles are a set of guidelines for determining what constitutes a
The principles
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 lawdoes 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.
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 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.[citation needed] 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 objectors 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
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
villages, or devastation not justified by military necessity.
- Murder, extermination, enslavement,
persecutionson 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.- 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.
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.
The principles' power or lack of power
In the period just prior to the June 26, 1945 signing of the
Unlike treaty law,
In 1947, under
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
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 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
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.[8][9][10]
On Nov 15, 2007, a quorum 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.[11][12]
See also
- Command responsibility
- Geneva Conventions
- International Criminal Court
- International legal theory
- Laws of war
- London Charter of the International Military Tribunal
- Nuremberg Code
- Nuremberg Trials
- Rule of Law in Armed Conflicts Project
- Rule of law
- Rule According to Higher Law
- Sources of international law
Footnotes
- ^ "Charter of the United Nations, Chapter IV: The General Assembly". United Nations. June 26, 1945. Archived from the original on November 28, 2010. Retrieved December 23, 2010.
- ^ "International Law Commission". legal.un.org. Archived from the original on 2021-05-06. Retrieved 2021-05-09.
- ^ International Committee of the Red Cross (ICRC) Customary international humanitarian law Archived 2009-06-28 at the Wayback Machine
- ^ International Committee of the Red Cross (ICRC) References Principles of International Law Recognized in the Charter of the Nüremberg Tribunal and in the Judgment of the Tribunal, 1950: Introduction Archived 2016-03-14 at the Wayback Machine
- ^ Rome Statute of the International Criminal Court (16 January 2002) [10 November 1998]. "Rome Statute of the International Criminal Court; Part 3: General Principles of Criminal Law; Article 33: Superior orders and prescription of law". Rome Statute of the International Criminal Court. Archived from the original on 19 October 2013. Retrieved 21 March 2010.
- ^ Mernagh, M. (2006-05-18). "AWOL GIs Dealt Legal Blow". Toronto's Now Magazine. Archived from the original on 2007-03-24. Retrieved 2008-06-02.
- ^ "Hinzman v. Canada (Minister of Citizenship and Immigration) (F.C.), 2006 FC 420". Office of the Commissioner for Federal Judicial Affairs. pp. (see Held, Para. (1)). Archived from the original on 2009-02-16. Retrieved 2008-06-16.
- ^ Mernagh, M. (2006-05-18). "AWOL GIs Dealt Legal Blow". Toronto's Now Magazine. Archived from the original on 2011-06-05. Retrieved 2008-06-02.
- ^ Hinzman v. Canada Archived 2013-06-28 at the Wayback Machine Federal Court decision. Paras (157) and (158). Accessed 2008-06-18
- ^ Roman Goergen (February 23, 2011). "Sanctuary Denied". In These Times. Archived from the original on 11 March 2011. Retrieved 6 March 2011.
- ^ CBC News (2007-11-15). "Top court refuses to hear cases of U.S. deserters". CBC News. Archived from the original on 2008-06-05. Retrieved 2008-06-02.
- ^ "Supreme Court of Canada – Decisions – Bulletin of November 16, 2007, (See Sections 32111 and 32112)". Archived from the original on July 21, 2011.
References
- Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal, 1950. Archived 2012-09-12 at the Wayback Machine on the website of the International Committee of the Red Cross (ICRC)
- Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal, 1950. Archived 2018-02-19 at the UN)
Further reading
- Introductory note by Antonio Cassese Archived 2014-04-10 at the Wayback Machine 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 Archived 2013-09-11 at the Wayback Machine
- Nuremberg Trial Proceedings Vol. 1 Charter of the International Military Tribunal Archived 2014-02-14 at the Wayback Machine contained in the Avalon Project archive at Yale Law School
- Judgment : The Law Relating to War Crimes and Crimes Against Humanity Archived 2011-07-20 at the Wayback Machine contained in the Avalon Project archive at Yale Law School