The Legacy of Nuremberg

The Nuremberg trial, later followed by the Tokyo trial, is amilestone in the development of international law. For the firsttime in modern history, the leaders of a defeated country wereindicted for committing serious crimes jeopardizing the basesof peaceful coexistence among individual human beings and peoples:crimes against peace, war crimes and crimes against humanity.German objections criticizing crimes against peace as havingno legal basis and, therefore, contradicting the principle nullumcrimen sine lege, were justified. To date, the legal positionhas not changed, since the international community has consistentlyrefrained from including aggression in the lists of offencesprosecutable under the statutes of the currently existing internationalcriminal courts. However, no well-founded objections could beraised against the indictment for war crimes and crimes againsthumanity. Concerning offences of such abhorrent nature, no offendercan invoke nullum crimen that protects only legitimate confidence.To hold to account political leaders, directly under internationallaw, for criminal actions organized and ordered by them is anecessity in a world where the basic axioms of the internationalsystem have changed: state sovereignty has lost its absolutecharacter and is counterbalanced by the requirements of humanrights protection. The emergence of international criminal justiceembodies the concept of international community in the mostpalpable manner. Fortunately, some of the defects of the Nurembergtrial have been remedied today: no arbitrary picking and choosingof the accused by the prosecution is possible before the InternationalCriminal Court; prosecutors as well as the judges of all existingjudicial bodies are carefully selected by the internationalcommunity with a view to avoiding any illegitimate bias.     

自然法复兴与纽伦堡审判

拉德布鲁赫终身信守其法律概念并无改变,只不过不同时期其所强调法律价值的着重点不同而已,并无所谓从古典实证分析法学到古典自然法的转向。同样,新自然法不过是对19世纪以来过于强调实证法而忽略法的内在价值的一种矫正,是传统实证分析法学和古典自然法学的一个折衷。历史表明纽伦堡审判受到了自然法复兴的影响,其审判过程可以看做是对新自然法精神的最好注解:自然法不再是一个法律体系中具体的高出实在法的存在。它指的是一种方法,一种判断实在法的标准。     

The Nuremberg Trial and its Impact on Germany

The impact of the Nuremberg trial on Germany has changed overtime. It is not only a question of evolving legal debate, butalso a correlation of historical, political and moral developments.The author considers the reception of the International MilitaryTribunal (IMT) trial during the Cold War. West Germany rejectedNuremberg's historic precedent, principally on the grounds thatthe Allies had enforced victors’ justice, and that theTribunal had applied ex post facto law by violating the nullumcrimen principle. Meanwhile, East Germany seemingly took upthe cause of Nuremberg by prosecuting minor Nazi perpetrators.However, this affirmation was politically motivated, and itled to inhumane abuses of power, exemplified by the Waldheimtrials. The reunification of Germany marked the beginning ofa positive approach to the Nuremberg legacy: the new generationof judges, politicians and academics was increasingly sympatheticto international criminal justice, and adopted the Nurembergprecedent by dealing judicially with crimes committed in theEast during the Cold War. The study goes on to deal with therelevance of West German legal critique for modern internationalcriminal law. The author suggests that a distinction shouldbe made between true victims of international crimes and thosewho wish to revise history by portraying themselves as such,as many West Germans did after World War II. Moreover, the ‘victors’justice’ argument must not be used to conceal the factthat justice has indeed been administered. However, the criticismof the IMT's violation of the nullum crimen principle is firmlygrounded in the German, as opposed to Anglo-American, legaltradition.     

Psychologists abandon the Nuremberg ethic: Concerns for detainee interrogations

In the aftermath of 9-11, the American Psychological Association, one of the largest U.S. health professions, changed its ethics code so that it now runs counter to the Nuremberg Ethic. This historic post-9-11 change allows psychologists to set aside their ethical responsibilities whenever they are in irreconcilable conflict with military orders, governmental regulations, national and local laws, and other forms of governing legal authority. This article discusses the history, wording, rationale, and implications of the ethical standard that U.S. psychologists adopted 7 years ago, particularly in light of concerns over health care professionals' involvement in detainee interrogations and the controversy over psychologists' prominent involvement in settings like the Guantánamo Bay Detainment Camp and the Abu Ghraib prison. It discusses possible approaches to the complex dilemmas arising when ethical responsibilities conflict with laws, regulations, or other governing legal authority.     

Negotiating Nolle Prosequi at Nuremberg: The Case of Captain Zimmer

It is well known that plea bargaining as such was not providedfor by the Nuremberg Charter, nor is there any instance of pleabargaining in the trials conducted by the occupation tribunalsunder Control Council Law no. 10. However, as shown in thispaper, in connection with war crimes committed in the SecondWorld War, there were negotiations between the Allies and personswho could have potentially been charged with war crimes. Thecase of Captain Guido Zimmer is exemplary in this respect. Hecould have been accused of war crimes and tried by a competenttribunal: instead, since he cooperated with the Allies (in particularwith US intelligence), the decision not to prosecute him wastaken.     

Prosecuting and Defending Diplomats as War Criminals: Ribbentrop at the Nuremberg Trials

This article considers the question of holding foreign ministers responsible for war crimes. A recent decision by the International Court of Justice, the Arrest Warrant case, Congo v Belgium, appears to have diluted the developing international customary rule that suspends immunity when a grave international crime has been committed. This article suggests that the Nuremberg International Military Tribunal decision in the Ribbentrop Case constitutes a precedent for how international criminal law should interpret the nature and scope of the immunity for foreign ministers. As a successful prosecution of Hitler’s former foreign minister, it is remarkable how little attention has been paid to this aspect of the Ribbentrop Case given that it was a path-breaking decision. For that reason, the present article is a case study of this example where prosecutors at an international criminal tribunal were able to successfully prosecute a foreign minister in a manner that may, therefore, still prove instructive given the existing legal position following the Arrest Warrant Case. The article considers in detail how Ribbentrop’s defence lawyers constructed a series of arguments that the prosecution were, however, largely able to demolish through resort to a variety of strategies. Dr Michael Salter is Professor of Law at the Lancashire Law School, University of Central Lancashire, United Kingdom; Dr Lorie Charlesworth is Senior Lecturer at the Law School, Liverpool John Moores University, United Kingdom.     

Constructing a Common Language: The Function of Nuremberg in the Problematization of Postapartheid Justice

This paper analyzes the function acquired by the historical Nuremberg trial in the constitution of a specific discourse about transitional South Africa and about what should be done about the brutality of the past. This function is best described as mythical: emptied of content, Nuremberg was a blank slate on which all parties to the debate could write their conflicting representations of the situation and their respective proposed solutions. The organization of fundamentally incompatible representations of reality around unifying myths such as Nuremberg was key to the production of visible consensus on the proper evaluation of the sociopolitical situation and the basic characteristics of the right course of action, and thus the appearance of effective state administration in a reconciled nation.     

纽伦堡审判在当代国际人权保护中的作用

纽伦堡审判犹如当代国际人权法发展历程上的里程碑，它将自然法思想引入到以法律实证主义为基础的实在法中，突破了国家主权在国际人权保护中形成的障碍，明确了个人应承担的国际法责任与义务，使个人成为国际法的不法主体，进而使法律的“应然”与“实然”结合在一起。联合国发扬光大了纽伦堡审判的精神和实质，使国际人权法成为国际法中的一个重要分支，从纽伦堡审判到《国际刑事法院规约》的生效，后者目前所遇到的问题与60年前的情况相似，它是否能如设计者所希望的那样还需大国在其中发挥更大的作用。     

Evidence of Atrocities or Atrocious Use of Evidence: The Controversial Use of Atrocity Film at Nuremberg

This article focuses upon the utilisation of film evidence in criminal proceedings. It describes and evaluates the historical deployment of this type of material at War Crimes Trials, with particular emphasis upon the International Military Tribunal established at Nuremberg, in 1945, in the wake of the Second World War. During this Trial, the prosecution placed reliance upon the film, Nazi Concentration Camps, depicting with graphic realism the horrific barbarism of the Nazi regime. However, this was only made possible by the implementation of innovatory evidential procedures, effectively circumventing the hearsay rule. A comparison is drawn between this, and the current position in England and Wales, following the recent relaxation of the traditional embargo upon hearsay evidence. However, film evidence of the type adduced at Nuremberg may be more prejudicial than probative and should such circumstances arise, the interests of justice may not truly be served. Susan Twist is Senior Lecturer in Law at the Lancashire Law School, University of Central Lancashire. smtwist@uclan.ac.uk. The author was assisted in research for this article by the dissertation of Kellie Goggins.