Nullum Crimen, Nulla Poena Sine Lege in War Crimes Trials
In defense of the way International Criminal Tribunals fleshed out International
Criminal Law from the roots of law (Crime of Agression and Crimes against Humanity in Göring and
some references to Tadić, Galić and Brđanin)1
Abstract: Today most scholars put forward that one of the features of the 'first' war crimes trial at
Nuremberg comprised a violation of the nullum crimen nulla poena sine lege principle. The idea took hold
that not only the crime of aggression but also crimes against humanity were ex post facto. This does not
accurately describe that 'first' episode. A careful analysis of the International Military Court judgment and
a renewed scrutiny of the sources of international law in existence at the time of the facts reveal a different
scenario.
Identical criticism is leveled against the modern ad-hoc tribunals. A not so different picture
unveils. The sources of international law and methods of interpretation used in Nuremberg continue to be
legitimately used with similar results. Criticism is also largely unfounded.
The conclusion is that, on the grounds of customary and other non-written law, international
crimes were, by and large, legitimately identified.
1
Paper delivered at the Lancashire Law School, Workshop on International and Comparative Aspects of
Responding to War Crimes, 24 August 2015. The author would like to thank Michael Salter for the invitation to
participate in the workshop.
1.TheCrimeofAggressionatNuremberg
The most widespread, sometimes aggressive, criticism aimed at Nuremberg relates to the
ex post facto character of crimes against peace2. The arguments normally put forward are the
following: to initiate and to wage a war was not forbidden after the decay of the classical just war
doctrine3; the Pact of the League of Nations in 1919 did not illegalize war4; the Pact of Paris in
1928 did not criminalize war but merely made it an ‘illegal thing’5 and, hence, the International
Military Tribunal (IMT) conflated illegality with criminality6. The assumption is that it only
became a crime with the Nuremberg Charter7.
1.1.TheCommission’sReportandtheTreatyofVersailles
2
DINSTEIN, YORAM, War, Aggression and Self-Defence, p. 128; JESCHECK, HANS-HEINRICH, “The development of
international criminal law after Nuremberg”, Perspectives on the Nuremberg Trial, Guénaël Mettraux (ed.), Oxford
University Press, 2008, p. 413; LIPPMAN, MATTHEW, “Nuremberg: forty five years later”, Perspectives on the
Nuremberg Trial, Guénaël Mettraux (ed.), Oxford University Press, 2008, p. 528; TWIST, SUSAN, Retrospectivity at
Nuremberg: the nature and limits of a Schmittian analysis. Doctoral thesis, University of Central Lancashire, 2012,
p. 122-162 (http://clok.uclan.ac.uk/6779/1/Twist%20Susan%20Final%20e-Thesis%20Vol%201%20(Master%20Copy).pdf).
3
ICJ, Advisory Opinion, Legality of the Threat or Use of Nuclear Weapons, 1996, Dissenting Opinion of Judge
Weeramantry, p. 445; SELLARS, KIRSTEN, “Delegitimizing Aggression, First Steps and False Starts after the First
World War”, Journal of International Criminal Justice 10, 2012, p. 19.
4
The pact did prohibit the war per se. CRAWFORD, JAMES, Brownlie's Principles of Public International Law, 8th
edition, 2012, p. 13, 14 and 744. See also WERLE, GERHARD/JEßBERGER, FLORIAN, Principles of International
Criminal Law, 3rd Edition, OUP Oxford, 2014, p. 530 and 531, marg. 1435.
5
JESCHECK, HANS-HEINRICH, “The development of international criminal law after Nuremberg”, p. 413; LIPPMAN,
MATTHEW, “Nuremberg: forty five years later”, p. 528; DINSTEIN, YORAM, War, Aggression and Self-Defence, p.
128; BOISTER, NEIL/ CRYER, ROBERT, Documents on the Tokyo International Military Tribunal: Charter, Indictment
and Judgments, Oxford University Press, 2008, p. lxxx; AMBOS, KAI, Treatise on International Criminal Law:
Foundations and General Part, vol. I, Oxford University Press, 2013, p. 89.
6
MERKEL, REINHARD, “The law of the Nuremberg Trial”, p. 569.
7
Surprisingly, some authors up until recently still doubted that it would be a crime. METTRAUX, GUÉNAËL, “Judicial
Inheritance: The Value and Significance of the Nuremberg Trial to Contemporary War Crimes Trials”, Perspectives
on the Nuremberg Trial, Guénaël Mettraux (ed.), Oxford University Press, 2008, p. 600; BASSIOUNI, M. CHERIF,
“The 'Nuremberg legacy”, Perspectives on the Nuremberg Trial, Guénaël Mettraux (ed.), Oxford University Press,
2008, p. 588. See also GALLANT, KENNETH, The Principle of Legality in International and Comparative Criminal
Law, Cambridge Studies in International and Comparative Law, 2010, p. 406.
It does not seem subject to serious contention that, before the First World War,
aggression was not a crime8. Instead it was viewed as a ‘glorious enterprise’, a ‘natural extension
of diplomacy’9. There were no restraints to war and states were free to resort to it for whatever
reason10. However, in its’ immediate aftermath several important developments took place that
quickly changed the legal landscape.
A commission was tasked by the Paris Peace Conference for the purpose of inquiring into
the responsibilities relating to the war
11
. The Commission Report recommended the
establishment of a tribunal to try ‘crimes relating to the war’ 12 . One class of culpable acts
foreseen therein were ‘acts which provoked the world war and accompanied its inception’13.
Following in the footsteps of the Commission Report, the Treaty of Versailles arraigned
the German emperor for a supreme offense against international morality and the sanctity of
treaties. Article 227 of the Treaty provided for the constitution of a special tribunal; in its’
decision this tribunal would be guided by the highest motives of international policy:
‘The Allied and Associated Powers publicly arraign William II of Hohenzollern, formerly German
Emperor, for a supreme offence against international morality and the sanctity of treaties.
A special tribunal will be constituted to try the accused, thereby assuring him the guarantees
essential to the right of defence. It will be composed of five judges, one appointed by each of the following
Powers: namely, the United States of America, Great Britain, France, Italy and Japan.
8
SELLARS, KIRSTEN, “Delegitimizing Aggression, First Steps and False Starts after the First World War”, p. 19.
Nuclear Weapons, Dissenting Opinion of Judge Weeramantry, p. 445.
10
JACKSON, ROBERT, “The challenge of international lawlessness”, Perspectives on the Nuremberg Trial, Guénaël
Mettraux (ed.), Oxford University Press, 2008, p. 355.
11
COMMISSION ON THE RESPONSIBILITY OF THE AUTHORS OF THE WAR AND ON ENFORCEMENT OF PENALITIES, The
American Journal of International Law, vol. 14, n.º 1/2, 1920 (Commission Report), p. 95.
12
Commission Report, p. 117
13
Commission Report, p. 118.
9
In its decision the tribunal will be guided by the highest motives of international policy, with a
view to vindicating the solemn obligations of international undertakings and the validity of international
morality. It will be its duty to fix the punishment which it considers should be imposed.
The Allied and Associated Powers will address a request to the Government of the Netherlands for
the surrender to them of the ex- Emperor in order that he may be put on trial’14.
Normally, the focus is put on the words “morality”, “sanctity” and “highest motives”.
Thus, easily, the conclusion is drawn that he would be put in court for a moral offense15 and that
the trial would be of a political nature.
Several points related to the treaty and its’ wording should be highlighted. Typically a
treaty is made up of legal provisions not moral ones. In addition, the fact was that it was not the
clergy but a tribunal that was going to deal with the issue; the tribunal would be composed by
judges. Third, this tribunal was going to be set up to try a person that would be accused. The
tribunal would assure him the guarantees essential to the right of defence. Finally, and most
importantly, article 227 is included in a Section of the Treaty under the heading “Penalties” and
the duty of the tribunal would be to fix the punishment which it considered should be imposed.
The French original is particularly interesting as it uses the word “peine” which is normally used
in a criminal law context.
Perhaps some would risk saying that the objective of the trial would be to moralize the
emperor, that he would have to put forward a moral defence and that the penalties would be
moral ones not criminal ones. This does not seem the best interpretation of what was already
going on. Unless one argues that the judges of the trial would have been able to forsake their role
14
Emphasis added.
CASSESE, ANTONIO/GAETA, PAOLA, Cassese's International Criminal Law, 3rd Edition, 2013, p. 242; MERON,
THEODOR, The Making of International Criminal Justice. A View from the Bench, Oxford University Press, 2011, p.
81.
15
as judges and, specially, that death or imprisonment were not available penalties, then his trial
would have much of what a criminal trial normally has. At a minimum one could say that a kind
of criminal culpability was implicit here. The Netherlands did not extradite the emperor, the trial
never took place and it will never be known how it would have been and what legal outcomes
would have flown from such an endeavor.
1.2.Aprocesswasputinmotion(compareTadićandGalić)
But what is acknowledged is that World War I led to an acute consciousness of the cost
of war, which was reflected, not only in the international public outrage that followed, but also in
political parlor and legal discourse16. A process soon set off to try to legally mend the “logical
impossibility”17, the “egregious anomaly” 18 of an international system based on state sovereignty
but which does not prevent a sovereign state from destroying the sovereignty of the other “coexisting independent communities”19.
The first step was the already mentioned Pact of the League of Nations in 1919. But soon more
‘subtle’ but ‘aggressive’ steps were on the move. In 1923 a draft treaty of mutual assistance was sponsored
by the League of Nations that for the first time declared “that aggressive war is an international crime” and
that the parties would “undertake that no one of them will be guilty of its commission”; the draft treaty was
submitted to twenty-nine States, about half of whom were in favor of accepting the text20. If the IMT is
right and the principal objection to the treaty was in the difficulty of defining the acts which would
16
MAOGOTO, JACKSON, Aggression: Supreme International Offence, Abstract.
BRIERLY, J. L., The Outlook for International Law, Clarendon Press, 1944, p. 21.
18
DINSTEIN, YORAM, War, Aggression and Self-Defence, p. 78.
19
DINSTEIN, YORAM, War, Aggression and Self-Defence, p. 78. See also Affaire du “Lotus”, Arrêt de la Cour
Permanente de Justice, Le 7 septembre 1927, in Récueil des Arrêts, Série A – N.º 70, Publications de la Cour
Permanente de Justice Internationale (Lotus), p. 18 and 19.
20
IMT, Judgment, USA et al. v. Göring, The Trial of German Major War Criminals, Proceedings of the International
Military Tribunal sitting at Nuremberg, Germany, 1 October 1946 (Göring), p. 445
17
constitute aggression, rather than any doubt as to the criminality of aggressive war, this would, at the least,
constitute a strong hint that vast state practice and opinio iuris did indeed exist at the time in relation to the
legal nature of aggression. The preamble to the League of Nations 1924 Protocol for the Pacific Settlement
of International Disputes declared that “a war of aggression constitutes a violation of [international]
solidarity and is an international crime”. The Protocol was recommended to the members of the League of
Nations by a unanimous resolution in the Assembly of the forty-eight members of the League and although
never ratified, it was signed by the leading statesmen of the world, representing the vast majority of states
and people in the world21. The Assembly of the League of Nations on 24 September, 1927 declared by a
unanimous resolution with all the delegations then present that it was convinced that a “war of aggression
can never serve as a means of settling international disputes, and is in consequence an international crime”.
Finally, a unanimous resolution of 18th February in 1928, of twenty-one American republics, declared that
a war of aggression constitutes an international crime against the human species.
All these states’ statements22 about the legal nature of the act of aggression constitute
state practice that clearly reveals a well formed conviction or belief in relation to a law question.
No state seems to have protested against such statements or to have somewhat officially
suggested that aggression was not a crime. This widespread, repeated, non-objected and
consistent statement by states during the third decade of the 20th century led to the creation of a
custom. Although there was no written definition, no written modes of responsibility and no
written penalties23, a customary criminal prohibition of aggressive wars crystalized24. Surely the
core of this concept of aggression would have comprised at least some of the wars initiated and
21
Göring, p. 445 and 446.
In the face of all these statements the idea that before Nuremberg there was no suggestion that a violation of the
jus ad bellum was criminal (CRYER, ROBERT, “Prosecutor v. Galić and the War Crime of Terror Bombing”, 2 IDF
Law Review 75, 2005-2006, p. 94) is surreal.
23
See also VABRES, HENRI, “Le procès de Nuremberg devant les principes modernes du droit pénal international”,
Recueil des cours, 1947, vol. II, p. 574.
24
See also GLUECK, SHELDON, “The Nurernberg Trial and aggressive war”, Perspectives on the Nuremberg Trial,
Guénaël Mettraux (ed.), Oxford University Press, 2008, p. 408 a 412; GLASER, STEFAN, “The Nuremberg Charter”,
p. 68; POLTORAK, A. I., “The Nuremberg Trials and the Question of Responsibility for Aggression”, Perspectives on
the Nuremberg Trial, Guénaël Mettraux (ed.), Oxford University Press, 2008, passim.
22
waged by the Nazis25. Indeed, as it was stated at the time, “[i]f, after reading [the Nuremberg
process, someone does] not think there was in fact aggressive war, in its most naked form, then I
shall be constrained to believe that they do not think any such thing exists or can exist”26.
Fast forward to Galić. Here the court recognized that “acts or threats of terror” is a war crime27.
While taking the same stance – and somewhat replicating the Nuremberg idea that no written definition
does not mean that there is no crime – Judge Shahabuddeen indicated he’s understanding that the Appeals
Chamber ‘is not suggesting that a comprehensive definition of terror is known to customary international
law; [it] is really speaking of a core concept’28. The fact that there was no comprehensive definition of
terror did not mean there was no ‘core or predominant meaning of “terror”’29.
Observing that the tribunal is required to adhere strictly to the principle of nullum crimen sine lege
praevia, Judge Schomburg stated there was no such a crime30. He criticized the stance of the majority as
difficult to understand especially because it could have attained the same result by convicting Galić ‘for the
same underlying criminal conduct”, but for the crime of “attacks on civilians’, ‘this offence being without
any doubt part of customary international law’31. What about the intent to terrorize? According to the judge
it would be ‘an aggravating circumstance in sentencing, which would also necessitate the adjusted
sentence as handed down by the Appeals Chamber’32. Of course it is difficult to imagine that “acts or
threats of violence” with the intent to spread terror that cause serious consequences for the victims is
25
See also Dissenting Opinion of the Member from the Netherlands (Justice Röling) in Tokyo, par. 50 (the text of
the Tokyo judgment and separate and dissenting opinions in BOISTER, NEIL/ CRYER, ROBERT, Documents);
WECHSLER, HERBERT, “The issues of the Nuremberg Trial”, Perspectives on the Nuremberg Trial, Guénaël
Mettraux (ed.), Oxford University Press, 2008, p. 313
26
STIMSON, HENRY, “The Nuremberg Trial: landmark in law”, Perspectives on the Nuremberg Trial, Guénaël
Mettraux (ed.), Oxford University Press, 2008, p. 623.
27
ICTY, Judgment, Prosecutor v. Galić, 30 November 2006, par. 86.
28
ICTY, Judgment, Separate Opinion of Judge Shahabuddeen, Prosecutor v. Galić, 30 November 2006, 30
November 2006, par. 3.
29
ICTY, Judgment, Separate Opinion of Judge Shahabuddeen, par. 4
30
Judge Schomburg position is viewed favorably by commentators. DARCY, SHANE, Judges, Law and War, The
Judicial Development of International Humanitarian Law, Cambridge Studies in International and Comparative
Law, 2014, p. 289; RATNER, STEVEN/ABRAMS, JASON /BISCHOFF, JAMES, Accountability for Human Rights
Atrocities in International Law: Beyond the Nuremberg Legacy, 3rd Edition, Oxford University Press, 2009, p. 134;
WERLE, GERHARD/JEßBERGER, FLORIAN, Principles, p. 406, fn. 115.
31
ICTY, Judgment, Separate and Partially Dissenting Opinion of Judge Schomburg, Prosecutor v. Galić, 30
November 2006, par. 22.
32
ICTY, Judgment, Separate and Partially Dissenting Opinion of Judge Schomburg, par. 22 (emphasis added).
something other than a crime. In order to reach this conclusion the court did not have to ground its’
decision in the long-running expression “crimen grave non potest non essere punibile”. In fact, as the court,
perhaps overzealously, showed there was plenty of evidence around33. That is why judge Schomburg would
have convicted Galić for the same underlying conduct. Taken this into account it is puzzling the judge’s
statement that the ‘conduct in question was not without any doubt penalized at the time when it took
place’34. Judge Schomburg was more worried with the principle of separation of powers and the appearance
that the tribunal was ‘inventing crimes’ and ‘highly politicizing its function’35. One must stress that the
nullum crimen at the international level is a human right of the defendant36 not a guarantee of any kind of
separation of powers reproducing in the international stage the division existing at the national level. As a
last remark, it should also be mentioned that the judge’s stance of adjusting the penalty up – while at the
same time invoking the principle of legality – sits uncomfortably with the idea of protection of a person
that is the essence of the latter.
A strong case can be made as well that some wars of aggression were criminalised
directly from the Martens Clause37, interpreted in the sense that the principles enshrined therein
evolve. Here to the fore come the ‘dictates of public conscience’ as expressed by an
overwhelming majority of states that repeatedly and consistently declared in strong language that
aggression was a crime. From another perspective, the dictates of public conscience would serve
as an interpretative aide that would help to back the argument that aggression was indeed a crime.
Or, more correctly, in the view of this author, it results from the sources in toto that aggression is
a crime38.
33
See ICTY, Judgment, Prosecutor v. Galić, for example, par. 88, 89, 92, 93, 96.
ICTY, Judgment, Separate and Partially Dissenting Opinion of Judge Schomburg, par. 21.
35
ICTY, Judgment, Separate and Partially Dissenting Opinion of Judge Schomburg, par. 21.
36
See also GLASER, STEFAN, “La Méthode d’Interpretation en Droit International Pénal”, 9 Revista Italiana di
Diritto e Procedura Penale, 1966, p. 761.
37
On the Martens Clause see infra 2.1.
38
WRIGHT, QUINCY, “The law of the Nuremberg Trial”, p. 340.
34
States are not saying aggression should be a crime or that it is a bad and immoral thing;
they are saying it is a crime. It seems that if almost all the states in the world declared in strong
language it is a crime, it is difficult to argue that it was not39. It is adequate to remember here that
“[r]eluctance to encroach upon the province of the legislature is a proper, manifestation of
judicial caution. If exaggerated, it may amount to unwillingness to fulfil a task which is within
the orbit of the functions of the Court”40.
All in all, the horror of the First World War led to an outrage (dictates of the public
conscience) that was instantiated, amongst others, by the above declarations and to a process of
criminalizing aggression. This process had its’ birth with the accusation against the German
emperor for the ‘supreme offense’41 and a norm of international law came into existence during
the 1920s.
Back to the ICTY and its’ most famous case, Tadić. Here the court used, in the same vein as the
IMT, unanimous resolutions of the United Nations to back the argument that war rules apply to internal
conflicts as well42. Pointing to the difficulty of ascertaining the actual behavior of the troops in the field it
stated that, in appraising the formation of customary rules or general principles ‘reliance must primarily be
placed on such elements as official pronouncements of States, military manuals and judicial decisions’43.
On the other hand, albeit implicitly, and again pretty much as the IMT did44, it made resort to the Martens
Clause: ‘elementary considerations of humanity and common sense make it preposterous that the use by
39
In fact, “a firm statement by the State of what it considers to be the rule is far better evidence of its position that
what can be pieced together from the actions of that country at different times and in a variety of context”. BAXTER,
RICHARD, “Multilateral Treaties as Evidence of Customary International Law”, 41 British Yearbook of International
Law 275, 1965–l966, p. 300. But see PARKS, W. HAYS, “Asymmetries and the Identification of Legitimate Military
Objectives”, International Humanitarian Law Facing New Challenges Symposium in Honour of Knut Ipsen,
Professor Dr. Wolff Heintschel von Heinegg, Professor Dr. Volker Epping (eds.), Springer, 2007, p. 92.
40
ICJ, Advisory Opinion, Separate Opinion Of Sir Hersch Lauterpacht, Admissibility of Hearings by the Committee
on South West Africa, 1 June 1956, Part VI.
41
See also SCHABAS, WILLIAM, Unimaginable Atrocities, p. 30.
42
ICTY, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Prosecutor v. Tadić, 2 de
Outubro 1995 (Tadić Jurisdiction Appeal), par. 110-112.
43
Tadić Jurisdiction Appeal, par. 99 (emphasis added).
44
See infra 2.2.
States of weapons prohibited in armed conflicts between themselves be allowed when States try to put
down rebellion by their own nationals on their own territory. What is inhumane, and consequently
proscribed, in international wars, cannot but be inhumane and inadmissible in civil strife’45.
But perhaps the most persuasive backing that Tadić had at its’ disposal was Common article 3 to
the four Geneva Conventions of 1949.
‘In the case of armed conflict not of an international character occurring in the territory of one of
the High Contracting Parties, […] Persons taking no active part in the hostilities, shall in all circumstances be
treated humanely […] To this end, the following acts are and shall remain prohibited (a) violence to life and
person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c)
outrages upon personal dignity, in particular humiliating and degrading treatment […]’
Nowhere is there a mention of criminal liability. And Tadić said: “It is true that common Article 3
of the Geneva Conventions […] contains no explicit reference to criminal liability for violation of its
provisions. Faced with similar claims with respect to the various agreements and conventions that formed
the basis of its jurisdiction, the International Military Tribunal at Nuremberg concluded that a finding of
individual criminal responsibility is not barred by the absence of treaty provisions on punishment of
breaches”46. This statement marks the beginning of two decades decision-making at the ICTY that relied
upon, and got their source of inspiration from, Nuremberg47. As in Nuremberg, in all these criminal trials,
more than a reliance in ‘strict customary law’, what actually takes place is a comprehensive analysis of the
different sources of international law to flesh out the international norm that is going to be applied to the
specific case.
Sometimes it is said that the classic view has been that State practice is transformed into
customary law by the addition of opinio juris but recent trends reverse the process, as following
45
Tadić Jurisdiction Appeal, par. 119 (emphasis added).
Tadić Jurisdiction Appeal, par. 128 (emphasis added).
47
See also, SCHABAS, WILLIAM, “Victor's Justice: Selecting ‘Situations’ at the International Criminal Court”, The
John Marshall Law Review 43, 2010, p. 535; SCHAACK, BETH, “Crimen Sine Lege: Judicial Lawmaking at the
Intersection of Law and Morals”, 97 The Georgetown Law Journal 119, 2008, p. 133.
46
the expression of an opinio juris, practice is invoked to confirm it48. But this and other related
trends, especially the one that puts more reliance in verbal acts rather than in physical ones, can
be traced back to Nuremberg, Nicaragua 49, Lotus and probably much further back50. So the
“new” debate about modern versus traditional custom is a phenomenon that does not share the
same characteristic.
What seems to have happened is that the conclusion of nearly universal treaties, and a
first emergence of quasi-universal international bodies, in which states put forward their (legal)
opinions – and the consequences of these phenomena – were not early and properly appreciated.
The veritable boost to these phenomena in the post-Second War era, and the modern judicial
decisions by the new international criminal courts, uncovered something that was already a fact
for a long time: state practice includes not only pure physical acts, but also ‘verbal’ ones. In fact
there is no convincing obstacle to consider statements as a form of state practice that sometimes,
especially if clear and not equivocal, may have a heavy weight in determining the formation of a
custom51.
Lastly one must wonder: where does the penalty for aggression come from? Was it a
crime with no penalty attached? If the answer is in the affirmative, there would be a violation of
the nulla poena sine lege principle. In general, the idea that the law of nations provides for the
48
ABI-SAAB, GEORGES, Reflexions on the Contemporary, p. 13 apud MERON, THEODOR, The Humanization of
International Law, Martinus Nijhoff Publishers, 2006, p. 366.
49
MERON, THEODOR, The Humanization of International Law, 2006, p. 367.
50
Paquette Habana, 175 U.S, 1900, p. 677. See also, ARAJÄRVI, NOORA, The Changing Nature of Customary
International Law: Methods of Interpreting the Concept of Custom in International Criminal Tribunals, Routledge
Research in International Law, 2014, p. 12 and 13.
51
FINAL REPORT OF THE COMMITTEE, STATEMENT OF PRINCIPLES APPLICABLE TO THE FORMATION OF GENERAL
CUSTOMARY INTERNATIONAL LAW, International Law Association, London Conference, 2000, p. 40-42. See also
CUSTOMARY INTERNATIONAL HUMANITARIAN LAW, Vol. I: Rules, Jean-Marie Henckaerts and Louise DoswaldBeck (eds.), Cambridge University Press, p. xxxviii; D’AMATO, ANTHONY, “Custom and Treaty: A Response to
Professor Weisburd”, 21 Vanderbilt Journal of Transnational Law, 1988, p. 466-468; SCHARF, MICHAEL,
Customary International Law in Times of Fundamental Change Recognizing Grotian Moments, Cambridge, 2013, p.
42-44; HERIK, LARISSA, “Using Custom to Reconceptualize Crimes Against Humanity”, Judicial Creativity at the
International Criminal Tribunals, Shane Darcy and Joseph Powderly (eds.), Oxford University Press, 2010, p. 103.
death penalty in the event of its violation by individuals is sound52. There is old precedent for the
notion that international law has recognized the death penalty as the maximum punishment in the
case of war crimes 53 . The death penalty was the typical form of punishment in medieval
ordinances54 and it certainly can be said that, as there was a custom to punish war crimes, there
was a custom to punish them with a series of penalties ranging from reprimand letters to death55.
The IMT did not say but most probably ‘thought’: as war crimes are punishable with any
penalty up to death, so is aggression56. To argue that there were serious penalties, the gravest of
penalties for the gravest of crimes under international law, is not difficult. Indeed it is “little
harder than to say that death was prescribed for common law felonies in early modern
England”57. It does not seem plausible to argue that the penalties handed over in Nuremberg and
Tokyo came from somewhere other than international law. In fact, ‘even if the law is not written
down, this does not mean it did not begin at some point in time’ and no ‘abstract and eternal
morality’ is needed to ‘explain evolving values, norms and their attendant prohibitions’58. Surely,
the same can be said of penalties for violation of those values and concomitant prohibitions.
The Nuremberg application of the death penalty and life sentences for crimes against international
law was recognized as appropriate by the international community as whole by the affirmation of the
52
GROTIUS, HUGO, The Law of War and Peace, Book III, Chapter XI, Section XVI. See also GLASER, STEFAN, “The
Nuremberg Charter and New Principles of International Law”, Perspectives on the Nuremberg Trial, Guénaël
Mettraux (ed.), Oxford University Press, 2008, p. 57. GLUECK, SHELDON, “The Nurernberg Trial and aggressive war”
, p. 59.
53
SCHABAS, WILLIAM, “Perverse Effect of the nulla poena principle: national practice and the ad hoc Tribunals”,
European Journal of International Law, vol. 11, n.º 3, 2000, p. 523.
54
MERON, THEODOR, Henry’s Wars and Shakespeare’s Laws, Oxford University Press, 1993, p. 144.
55
PAUST, JORDAN, “Nullum Crimen and Related Claims”, 25 Denver Journal of International Law & Policy 321,
1996-1997, p. 323; GALLANT, KENNETH, The Principle of Legality, p. 128.
56
See also VABRES, HENRI, “Le procès de Nuremberg ”, p. 497 (GALLANT, KENNETH, The Principle of Legality, p.
128, interpreting Vabres’s opinion) ; WERLE, GERHARD/JEßBERGER, FLORIAN, Principles, p. 10, marg. 27.
57
GALLANT, KENNETH, The Principle of Legality, p. 382, speaking of war crimes.
58
SCHABAS, WILLIAM, Unimaginable Atrocities, Justice, Politics, and Rights at the War Crimes Tribunals, Oxford,
2012, p. 44.
Nuremberg principles59 and in article 15 (2) of the ICCPR60 and article 7 (2) of the ECHR61. Therefore, it is
not due to the fact that Former-Yugoslavia or Rwanda punished serious war crimes with penalties up to
death that the imposition of the life sentence in the modern ad-hoc tribunals is legitimate62. Rather, it is
because international law establishes death and imprisonment as penalties for those crimes.
1.3.ThePactofParisandviolationsofthelaw.Desuetude?
Taking all of the above in consideration, one does not have to dig into the Pact of Paris to
answer the question of whether aggression is a crime because, before this treaty was concluded,
aggression was already a crime under international law. One consideration should be kept at this
juncture: to evaluate when the customary rule crystalized one should not let later developments
pervade the conclusion of what the answer would be at a certain point in time. In short: in
February 1928 (the date of the last resolution mentioned) there was “no Pact of Paris”, there
were “no wars that would be initiated only after”, there was “no later appeasement”.
If it is accepted that there was already a norm criminalizing aggressive war, it would be
mindboggling to argue that a downgrade from criminality to illegality took place with the Pact. If
this was the case, the Pact – which is normally seen as a breakthrough (for the first time war was
59
General Assembly resolution 95 (I) was adopted on 11 December 1946. In it the General Assembly affirmed the
principles of international law recognized by the Charter of the Nuremberg Tribunal and the judgment of the
Tribunal. See also principles 1 and 2 of the PRINCIPLES OF INTERNATIONAL LAW RECOGNIZED IN THE CHARTER OF
THE NÜRNBERG TRIBUNAL AND IN THE JUDGMENT OF THE TRIBUNAL (1950). Text adopted by the International Law
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.
60
On this article see MERON, THEODOR, The Humanization of International Law, 2006, p. 103. See also BOSSUYT,
MARC, Guide to the “Travaux Preparatoires” of the International Covenant on Civil and Political Rights, Martinus
Nijhoff Publishers, 1987, p. 331 and 332.
61
On this article see MARINIELLO, TRIESTINO, “The ‘Nuremberg Clause’ and Beyond: Legality Principle and
Sources of International Criminal Law in the European Court’s Jurisprudence”, Nordic Journal of International Law
82, 2013.
62
But see D’ASCOLI, SILVIA, Sentencing in International Criminal Law, The UN ad hoc Tribunals and Future
Perspectives for the ICC, Hart Publishing, 2011, p. 115 to 123 and 141 to 143. See also ICTY, Sentencing Judgment,
Prosecutor v. Tadić, 14 July 1997, par. 9; CASSESE, ANTONIO, Affirmation of the Principles of International Law
recognized by the Charter of the Nürnberg Tribunal General Assembly resolution 95 (I) (available at
http://legal.un.org/avl/pdf/ha/ga_95-I/ga_95-I_e.pdf).
declared illegal) – would actually be a step back. Throughout the 1920s states consistently said it
was a crime but by the end of the decade the Pact would make it clear that actually there is no
criminality here, but only unlawful stuff. This does not seem to stand to reason.
From a different angle, the conflation between criminality and illegality made by the IMT
in relation to the Pact of Paris is backed by the resolutions previously mentioned 63 . The
resolution of 1927 declared that aggression was a crime and it then stated that wars of aggression
are and will always be forbidden. The resolution of 1928 stated in the preamble that a war of
aggression constitutes an international crime against the human species and declared that all
aggression is illegal and therefore declared to be forbidden64.
In the end, the argument that there was no crime of aggression because the Pact did not
criminalize aggression comes to rely upon whether there was a treaty signed and ratified saying
in written form aggression is a crime. The idea seems to be: no treaty, no customary law crime.
Albeit not completely accurate, possibly it could be argued that the IMT grounded itself mainly in
treaties to conclude for the criminality of aggressive war65. Nevertheless, the IMT stated that ‘[t]he Charter
defines as a crime the planning or waging of war that is a war of aggression or a war in violation of
international treaties’. Thus, according to the IMT, the Charter was made up of two different crimes66.
Hence it stated that ‘[t]he Tribunal has decided that certain of the defendants planned and waged aggressive
wars […] This makes it unnecessary to discuss the subject in further detail, or even to consider at any
63
But see JESCHECK, HANS-HEINRICH, “The General Principles of International Criminal Law Set Out in Nuremberg,
as Mirrored in the ICC Statute”, Journal of International Criminal Justice 2, 2004, p. 41 and 42.
64
Taking this into account it might make sense to back LAUTERPACHT, HERSCH, ‘The Limits of the Operation of the
Law of War”, 30 British Yearbook of International Law 206, 1953, p. 209: “The manner in which some writers have
denied that the undoubted illegality of aggressive war also implies its criminality on the part both of the State as
such and the individuals responsible for its conduct has revealed the sterility of an approach which renders
impossible the adaptation of specific rules and principles to major changes in the law expressly enacted’.
65
GALLANT, KENNETH, The Principle of Legality, p. 115.
66
WERLE, GERHARD/JEßBERGER, FLORIAN, Principles, p. 538 and 539, margs. 1451 and 1452.
length the extent to which these aggressive wars were also wars in violation of international treaties,
agreements, or assurances’67.
The behavior of later violators that started aggressive wars should also not be seen as
leading to a desuetude but, more simply, as violations of the norm. Practice needs not be fully
consistent with the rule and small differences or inconsistent actions by some states do not
prevent its continued vitality 68 . The somewhat passive international reaction to the first
assertions of territorial expansion is not an especially persuasive argument. That passivity seems
to be more a result of appeasement than of any sense that those who did engage in wars of
aggression had the right to do so. On the other hand, one has to take into account the protests
against such behavior 69 and the fact that most states did not devote themselves to wars of
aggression during that time. Thus, despite contrary state practice violating the norm, the criminal
rule at stake has not changed. In fact, it usually does not change for this reason, ex injuria jus non
oritur70.
1.4.Summaryexecution,toputtheaggressorsonthestandandlexmitior
67
Göring, p. 442. It is in this context that it should be interpreted the following statement by the IMT: “it must be
remembered that International Law is not the product of an international legislature, and that such international
agreements as the Pact of Paris have to deal with general principles of law, and not with administrative matters of
procedure. The law of war is to be found not only in treaties, but in the customs and practices of States, which
gradually obtained universal recognition, and from the general principles of justice applied by jurists and practiced
by military courts. This law is not static, but by continual adaptation follows the needs of a changing world. Indeed,
in many cases treaties do no more than express and define for more accurate reference the principles of law already
existing” (emphasis added).
68
ICJ, Judgment, Nicaragua Merits (Nicaragua v. United States of America), Merits, Judgment of 27 June 1986, par.
185; MERON, THEODOR, The Humanization of International Law, 2006, p. 371.
69
Concurring Opinion of the Member from the Philippines (Justice Jaranilla) in Tokyo, par. 19. CRAWFORD, JAMES,
Brownlie's, p. 745 and 746. On the “Stimson Doctrine” WERLE, GERHARD/JEßBERGER, FLORIAN, Principles, p. 532,
n. 28 and 533, fn. 29.
70
See also DINSTEIN, YORAM, War, Aggression and Self-Defence, p. 96-98, speaking of violations of the UN charter.
Finally the notion that the nullum crimen sine lege was violated at Nuremberg in this
context would not pass a final inquiry. Even in case aggression was a new crime that did not
exist at the time of the facts, it would not automatically flow from its’ ex post facto nature that a
violation of the nullum crimen nulla poena principle took place. The principle of legality does
not prevent new laws being applied retroactively in case the new laws are more lenient to the
defendant than the law previously in force.
The idea to put forward here is that seemingly there was no source of international law
which barred to put on stand those responsible for an illegal war. And let us not forget that those
who argue that aggression was not criminal normally accept it was illegal. In that same vein,
there was no rule of the law of nations which prohibited the forced exile (Napoleon) the
arraignment (Kaiser) and, more significantly, the summary execution of vanquished foes (it was
not frowned upon as illegal and the long list of precedents is not in dispute71). In other words, it
was not forbidden to punish them or at least to take measures that would directly affect their
well-being, including the infliction of death72.
Thus, to put on trial in a court of law (which was free to acquit defendants or to mete
them out with the death penalty) one of those responsible for an illegal aggressive war that was
not a crime at the time of the facts would be more lenient than the other option which was
available at the time of the facts73: the summary execution of a leader or high ranking official of
an aggressive state which was culpable of having started an illegal war74.
71
TAYLOR, TELFORD, “The Nuremberg Trials”, Perspectives on the Nuremberg Trial, Guénaël Mettraux (ed.),
Oxford University Press, 2008, p. 396.
72
GLASER, STEFAN, “The Nuremberg Charter”, p. 57. See also GALLANT, KENNETH, The Principle of Legality, p.
147.
73
In a similar way Justice Röling argued that the choice of the judicial path was a novelty that could not be
considered as a violation of international law in that it provided more guarantees than mere political action. See
Dissenting Opinion of the Member from the Netherlands (Justice Röling) in Tokyo, par. 47.
74
But see LEMOS, MIGUEL, Nullum crimen nulla poena sine lege e o direito internacional, Em defesa de como os
tribunais de guerra deram vida ao direito penal internacional, Tese de Doutoramento em Direito, Ramo de Ciências
Arguably, the fact that the right to punish which is implicit in the right of humanitarian
intervention was only clearly recognized against the villain75 would also be of some help here76.
2.CrimesagainstHumanity
2.1.TheMartensClause
‘Until a more complete code of the laws of war is issued, the High Contracting Parties think it
right to declare that in cases not included in the Regulations adopted by them, populations and belligerents
remain under the protection and empire of the principles of international law, as they result from the
usages established between civilized nations, from the laws of humanity, and the requirements of the public
conscience’77.
Although it was adopted more than one century ago, the debate on the true nature of the
Martens Clause is one that it is pretty much alive. Several ways of looking at the provision have
been put forward during the more than one hundred years of its’ existence78: it simply states that
customary law does indeed exist79; it prevents a contrario interpretations80; it is a judicial aide to
Jurídico-Criminais, Faculdade de Direito da Universidade de Coimbra, Agosto de 2015, p. 149. See also WECHSLER,
HERBERT, “The issues of the Nuremberg Trial”, p. 319.
75
See MERON, THEODOR, “Common Rights of Mankind in Gentili, Grotius and Suarez”, The American Journal of
International Law, vol. 85, n.º 1, 1991, passim.
76
See LEMOS, MIGUEL, Nullum crimen nulla poena sine lege, p. 151 and 152.
77
This is the English version of the French original in 1899. The English translation in 1907 was modified but the
French original was not. With, and about, the English translations see HIGGINS, A. PEARCE, The Hague Peace
Conferences, and other International Conferences Concerning the Laws and Usages of War, Cambridge University
Press, 2014 (original of 1909), p. v-vii and 207-211.
78
See SALTER, MICHAEL, “Reinterpreting Competing Interpretations of the Scope and Potential of the Martens
Clause”, Journal of Conflict and Security Law, n.º 17 (3), 2012, passim.
79
This seems to have been the position taken by the US and the UK in Nuclear Weapons. CASSESE, ANTONIO, “The
Martens Clause: Half a Loaf or Simply Pie in the Sky?”, European Journal of International Law, Vol. 11, n.º 1,
2000, p. 211.
80
SCHWARZENBERGER, GEORG, The Legality of Nuclear Weapons, Stevens, 1958, p. 10 and 11.
interpretation 81 ; it enshrines principles of international law, as it embodies not simply three
sources of law but also principles of international law resulting from any of these three sources
or their combined significance82; it has an impact on the traditional sources of law83; it gives rise
to two different sources of law in the specific field of international humanitarian law or, perhaps
even more radically, it creates two different sources of law of international law84. Or merely
acknowledges them85.
Resort to preparatory work of the Hague conference of 1899 is inconclusive.
Nevertheless, a reading of the interventions of the Belgian delegate – which ‘unexpected and
long speech’ gave birth to all the controversy86 – might be helpful in dispelling arguments that
nothing more was given to the lesser powers than a ‘string of high minded words’87. In its speech
the delegate kept mentioning the tacit and common law that resulted from the principles of the
law of the nations88. After the approval of the clause the delegate continued his high rhetoric,
appealing to the laws of the universal conscience89. This, the ‘shaky positivist’ that is assigned to
81
MERON, THEODOR, “The Martens Clause, Principles of Humanity and Dictates of Public Conscience”, The
American Journal of International Law, Vol. 94, n.º 1, 2000, p. 87 and 88.
82
STREBEL, HELMUT, “Martens Clause”, R. Bernhardt (ed.), Encyclopedia of Public International Law, vol. 3, 1997,
p. 327.
83
CASSESE, ANTONIO, “The Martens Clause: Half a Loaf or Simply Pie in the Sky?”, p. 213 and 214.
84
SPERDUTI, GIUSEPPE, Lezioni di diritto, p. 68 to 74, mentioned in CASSESE, ANTONIO, “The Martens Clause”, p.
214, n. 77.
85
Possibly echoing this perspective, WRIGHT, LORD, “Foreword”, Law Reports Of Trials Of War Criminals, vol. XV,
1949, p. xiii.
86
PUSTOGAROV, VLADIMIR, “The Martens Clause in International Law”, Journal of the History of International Law,
Vol. 1, 1999, p. 126.
87
But see CASSESE, ANTONIO, “The Martens Clause: Half a Loaf or Simply Pie in the Sky?”, p. 198, who states that
‘[c]leverly acting on behalf of [the] Great Powers, Martens, through his clause, ultimately promised to lesser
countries pie in the sky. To put it better, he went through the pretence of giving them half a loaf, while in actual fact
he handed to them merely a string of polished and high-minded words’.
88
“A mon avis, il y a certains points, qui ne peuvent faire l’objet d’une convention et qu’il vaudrait mieux laisser
comme aujourd’hui, sous l’empire de cette loi tacite et commune qui résulte des principes du droit des gens”.
CONFERENCE INTERNATIONALE DE LA PAIX, La Haye 18 Mai–29 Juillet 1899, Troisième Partie, 1899
(https://archive.org/details/laconfrenceint00inteuoft), p. 89 (underlined added).“Je pense donc qu’à tous les points
de vue, il y a là des situations qu’il vaut mieux abandonner au domaine du droit des gens, si vague qu’il soit.
CONFERENCE INTERNATIONALE DE LA PAIX, p. 89 (underlined added).
89
Mais ce sont là des règles et nul ne les a mieux tracées qu’un autre de Martens, qui a été, lui aussi, l’honneur de
son pays. Demain comme aujourd’hui les droits du vainqueur, loin d’être illimités, seront restreints par les lois de
Fyodor Martens90 and the rhetoric of the clause itself may serve to back the idea that something
more profound and appealing was implicit in all the verbose.
Maybe an earlier precursor of the clause might be of help here. ‘Matters, that are clear by the light
and law of nature, are presupposed; things unnecessary are passed over in silence; and other things may
be judged by the common customs and constitutions of war; or may upon new emergents, be expressed
afterward’91.
It seems possible to see here the different sources of law enshrined later in the clause: the laws of
humanity (matters that are clear by the light and law of nature); customary law (things judged by the
common customs and constitutions of war); perhaps the dictates of public conscience (things that may upon
new emergents be expressed afterward); and, more intriguingly, possibly the obvious or, more simply, the
common sense (things unnecessary are passed over in silence) or maybe – and definitely more suitable to
criminal matters – the “extremely obvious”.
First question that should be addressed is: what was the clause’s status, under
international law, by the time of the Second World War? It is true that in 1899 only 27
countries92, 19 of them European93, stated that there was such things as principles of law that
derive from those usages established between civilized nations, those laws of humanity, and
those requirements of the public conscience. But in 1907, virtually all countries in the world
signed the treaty in which preamble the Martens Clause was inserted. So, virtually all countries
la conscience universelle et pas un pays, pas un général n’oserait les enfreindre, puisque ce serait se mettre au ban
des nations civilisées”. CONFÉRENCE INTERNATIONALE DE LA PAIX, p. 121 (underlined added).
90
CASSESE, ANTONIO, “The Martens Clause”, p. 198-202.
91
On this ordinance, see MERON, THEODOR, “On Custom and the Antecedents of the Martens Clause in Medieval
and Renaissance Ordinances of War”, Recht zwischen Umbruch und Bewahrung: Völkerrecht, Europarecht,
Staatsrecht: Festschrift für Rudolf Bernhardt, Ulrich Beyerlin et al. (eds.), 1995, pp. 173–177. The author states that
the surprising appearance of this rule as far back as the 17th century might provide interesting contributions to the
theory of sources of general international law.
92
PARKS, W. HAYS, “Asymmetries and the Identification of Legitimate Military Objectives”, p. 69.
93
SARKIN, JEREMY, “The Historical Origins, Convergence and Interrelationship of International Human Rights Law,
International Humanitarian Law, International Criminal Law and Public International Law and Their Application
from at Least the Nineteenth Century”, Human Rights and International Legal Discourse, vol. 1, 2007, p. 127.
in the world said that those principles coming from those places (usages, laws and requirements)
did indeed exist. They are not saying that those principles should exist or that they are moral
principles. They are saying they exist and that they are legal principles. Again, it seems that if the
international community as a whole says that those principles exist, it is the duty of the
interpreter of the law to assume that they do and that, in fact, they already did exist at the time94.
Second question: taking into account that the clause was inserted in a treaty related to war
one understands the temptation of arguing that those principles are only applicable in war. But of
course the next question would be: really? The usages between nations, the laws of humanity and
the dictates of public conscience only exist in war? This question leads to a third one.
Third question: when did those principles emerged? When did they start to exist? It is difficult to
answer this one as the debate would soon fall into the trap of the esoteric questions about the nature of law
in general, when it came about and the positivism versus naturalism never-ending debate. This trap should
be avoided. A more natural and legitimate course is to take a close look at the wording of the clause95.
There, it is stated that populations and belligerents remain under those principles. Earlier in the preamble
the parties considered that, ‘while seeking means to preserve peace and prevent armed conflicts […], it is
likewise necessary to have regard to cases where an appeal to arms may be caused by events which their
solicitude could not avert’ and that they were ‘animated by the desire to serve, even in this extreme
hypothesis, the interests of humanity and the ever increasing requirements of civilization’96.
94
That is why the Commission Report, p. 153 and 154 proposed in Article I of the Annex IV (Provisions for
Insertion in Treaties with Enemy Governments), that ‘The Enemy Government admits that even after the conclusion
of peace, every Allied and Associated State may exercise, in respect of any enemy or former enemy, the right which
it would have had during the war to try and punish any enemy who fell within its power and who had been guilty of
a violation of the principles of the law of nations as these result from the usages established among civilized peoples,
from the laws of humanity and from the dictates of public conscience’ (emphasis added).
95
See SALTER, MICHAEL, “Reinterpreting Competing”, p. 14.
96
Emphasis added.
It seems plausible to argue that those usages, laws and requirements existed before97 the
Hague convention and that the parties wanted to state that those principles apply even in the
extreme case of war.
The paragraph immediately before the clause stated that “[i]t could not be intended by the High
Contracting Parties that the cases not provided for should, for want of a written provision, be left to the
arbitrary judgment of the military commanders”. The discretion of the military commander was to be
substituted98 in war by principles that already existed in time of peace but that should also apply in time of
war. Or, at least, the clause is meant to make clear that those principles exist and that they did apply in war
as well99.
Fourth question: what are these principles? In the context of crimes against humanity
seems natural course to focus on the laws of humanity: as the clause says that populations are
protected under the laws of humanity, at least two prohibitions seem to flow directly from the
clause: the prohibition to kill humanity and the prohibition to kill a part of humanity with intent
to kill that part of humanity. Surely, the legal consequence for a violation of those prohibitions
would be death or imprisonment, not compensation or fines or anything of the kind.
Therefore, a “very reasonable” interpretation of the clause would back the notion that acts
that infringe upon these prohibitions are criminal under international law. The Martens Clause
97
SARKIN, JEREMY, “The Historical Origins”, p. 172.
MERON, THEODOR, Henry’s Wars and Shakespeare’s Laws, p. 153.
99
SARKIN, JEREMY, “The Historical Origins”, p. 151. See also SALTER, MICHAEL, “Reinterpreting Competing”, p.
14.
98
does not allow ‘one build castles of sand’ but in ‘extreme cases’ 100 , when the solution is
“extremely obvious”, it can serve as a source of direct criminalisation101.
2.2.TheCharter,theCourt,thestrangesurrogatesoftheclause,Streicherandvon
Schirach(compareTadićandBrđanin)
Hence, some of the conduct that was tried under the Charter with the label “crimes
against humanity” was already criminalized under the clause. Although it did not make a specific
reference to the clause, the IMT did not fail to ground its’ decision on general principles of law
and, arguably, in some interesting surrogates for the clause: the ‘conscience of the world’ and the
‘elementary dictates of humanity’.
‘The prohibition of aggressive war demanded by the conscience of the world finds its expression
in the series of pacts and treaties to which the Tribunal has just referred’102.
‘Prisoners of war were ill-treated and tortured and murdered, not only in defiance of the wellestablished rules of International Law, but in complete disregard of the elementary dictates of humanity.
Civilian populations in occupied territories suffered the same fate’103.
The use of these interesting concepts which are redolent of the clause and the absence in
the IMT decision of any allusion to the Martens Clause itself are nothing but the continuation of
the intriguing “disappearance” of the laws of humanity and requirements of public conscience
100
MERON, THEODOR, “The Martens Clause”, p. 88, arguing that it cannot serve to delegitimize, alone, methods or
weapons of war. But see ICJ, Advisory Opinion, Legality of the Threat or Use of Nuclear Weapons, 1996,
Dissenting Opinion of Judge Shahabuddeen, p. 403.
101
But, for a more liberal stance, see ICTY, Decision on Joint Defence Interlocutory Appeal of Trial Chamber
Decision on Rule 98bis Motions for Acquittal, Partial Dissenting Opinion of Judge Hunt, Prosecutor v.
Hadžihasanović, 11 March 2005, par. 40; ICTY, Judgment, Prosecutor v. Kupreskić, 14 January 2000, par. 427-535.
See also SALTER, MICHAEL, “Reinterpreting Competing”, p. 7 and 14.
102
Göring, p. 446 (emphasis added).
103
Göring, p. 450 (emphasis added).
from the final text of the Charter. In fact, the first American proposal included language that is
identical to the wording of the clause 104 . Subsequent British 105 , French 106 and Russian 107
proposals included nearly-identical language. The author of this paper could not figure out why
exactly the laws of humanity and the dictates of public conscience did not go into the final text of
the Charter. One could perhaps wonder whether the reason why the French proposal was not
adopted was that it was very reminiscent of what the US had rejected in 1919 and that therefore
its’ adoption would seem quite incongruous108.
In the aftermath of the First World War the United States had opposed, during the draft of the
Commission Report the inclusion of violations of laws of humanity in the post-World War trials.
Procedurally, the US’s concern was with the Commission's mandate which only covered violations of the
laws and customs of war and not violations of the laws of humanity109. Substantially, the distress was
grounded in the distinction between legal and moral responsibilities110 and with use of such indeterminate
concepts, especially in criminal proceedings111. The US’s representatives could not accept ‘an existing
body of international law on the “laws of humanity” ’112. Differently, during the drafting of the Charter, the
restlessness was no longer with the concept of crimes against humanity, which was inserted in the Charter
104
INTERNATIONAL CONFERENCE ON MILITARY TRIALS: LONDON, 1945, Report to the President by Mr. Justice
Jackson, 6 June 1945 (http://avalon.law.yale.edu/imt/jack08.asp).
105
INTERNATIONAL CONFERENCE ON MILITARY TRIALS: LONDON, 1945, Amendments Proposed by the United
Kingdom, June 28, 1945 http://avalon.law.yale.edu/imt/jack14.asp. See also, INTERNATIONAL CONFERENCE ON
MILITARY TRIALS: LONDON, 1945, Proposed Revision of Definition of "Crimes" (Article 6), Submitted by British
Delegation, July 20, 1945 (http://avalon.law.yale.edu/imt/jack39.asp).
106
INTERNATIONAL CONFERENCE ON MILITARY TRIALS: LONDON, 1945, Draft Article on Definition of “Crimes”,
Submitted by French Delegation, 19 July 1945 (http://avalon.law.yale.edu/imt/jack35.asp).
107
INTERNATIONAL CONFERENCE ON MILITARY TRIALS: LONDON, 1945, Redraft of Definition of “Crimes”,
Submitted by Soviet Delegation, July 23, 1945 (http://avalon.law.yale.edu/imt/jack43.asp). INTERNATIONAL
CONFERENCE ON MILITARY TRIALS: LONDON, 1945, Redraft of Definition of "Crimes", Submitted by Soviet
Delegation, 25 de Julho 1945 (http://avalon.law.yale.edu/imt/jack48.asp).
108
BASSIOUNI, M. CHERIF Crimes against Humanity, Historical Evolution and Contemporary Application,
Cambridge University Press, 2014, p. 121.
109
See COMMISSION ON THE RESPONSIBILITY (ANNEX II – Memorandum of Reservations), p. 133, 134 and 144.
110
See also SCHAACK, BETH, “The Definition of Crimes Against Humanity, Resolving the Incoherence”, 37
Columbia Journal of Transnational Law 787, 1999, p. 797.
111
COMMISSION ON THE RESPONSIBILITY, p. 134 and 144.
112
MCCORMACK, TIMOTHY, “Selective Reaction to Atrocity: War Crimes and the Development of International
Criminal Law, 60 Albany Law Review, 1996-1997, p. 704.
in a relatively uncontroversial way113, but with its drafting so as not to pinch sovereign prerogatives114.
Perhaps it should be emphasized at this juncture that states do not have in unison to declare international
law for it to exist115; nor its’ correct interpretation. The applicable international law116 would have remained
the same despite the “persistent but not consistent” other interpretation of the US.
Be it as it may, the reference to the clause seems to have originated in the US itself.
Albeit with no solid grounds for this, one could speculate on whether the mysterious controversy
over the semicolon117 has something to do with it118.
On the other hand, the IMT did not assume that crimes against humanity can only be
committed in war or in connection with the war.
It stated that ‘[t]he persecution of Jews [before the war] is established beyond all doubt. To
constitute Crimes Against Humanity, the acts relied on before the outbreak of war must have been in
execution of, or in connection with, any crime within the jurisdiction of the Tribunal. The Tribunal is of the
opinion that revolting and horrible as many of these crimes were, it has not been satisfactorily proved that
they were done in execution of, or in connection with, any such crime. The Tribunal therefore cannot make
a general declaration that the acts before 1939 were Crimes Against Humanity within the meaning of the
Charter’119.
113
SCHAACK, BETH, “The Definition of Crimes Against Humanity”, p. 798.
See Jackson’s remarks on the external policy of the US in INTERNATIONAL CONFERENCE ON MILITARY TRIALS:
LONDON, 1945, Minutes of Conference Session of July 23, 1945 (http://avalon.law.yale.edu/imt/jack44.asp). See also
SALTER, MICHAEL/EASTWOOD, MAGGI, “Post-war Developments of the Martens Clause: The Codification of
‘Crimes Against Humanity’Applicable to Acts of Genocide”, International Humanitarian Legal Studies 2, 2011, p.
254.
115
But see BASSIOUNI, M. CHERIF, Crimes against Humanity, pp. xxx e xxxi
116
See the answer to the “fourth question” in point 2.1.
117
See BASSIOUNI, M. CHERIF, Crimes against Humanity, p. 121-127.
118
The hunch is that it does. See LEMOS, MIGUEL, Nullum crimen nulla poena sine lege, p. 165.
119
Göring, p. 468 (emphasis added).
114
This (un)doubtfully leaves room to argue that crimes against humanity can be committed
in war and in peace and provides further backing for the position who favors the jurisdictional
nature of the Charter120.
The IMT did not distinguish clearly between war crimes and crimes against humanity.
However, it sentenced Streicher and von Schirach only for the latter. Although the tribunal
emphasized in Streicher’s decision his role of propagandist number one of the extermination
policy, he was convicted in connection with war crimes for persecution, on political and racial
grounds through the means of incitement to death and extermination of the Jews, knowing that
the extermination of the Jews was being carried out121. Von Schirach was convicted of use of
forced labor in appalling conditions in Vienna and deportation of Jews, and it would be fair to
say that the IMT came to the conclusion that his activities covered all the elements of crimes
against humanity in the Charter122. In fact, and despite the fact that the court’s decision was brief
and somewhat unclear, it seems that the IMT assumed that he knew of the extermination of the
Jews and that he intentionally contributed to this extermination plan123.
If this interpretation is correct, the convictions of both defendants for crimes against
humanity with direct foundation in Martens Clause would be correct and, hence, no violation of
the nullum crimen principle took place in relation to crimes against humanity.
In relation to Streicher, his conviction for that persecution led to a death penalty being
handed down. As to von Schirach, it does not seem farfetched to argue that the IMT assumed
that the mere knowledge associated to his high position granted conviction for all of the Crimes
120
Analysis in LEMOS, MIGUEL, Nullum crimen nulla poena sine lege, p. 161-168. But see SCHABAS, WILLIAM,
Unimaginable Atrocities, p. 57.
121
Göring, p. 501 and 502. While the English and Russian version state that he committed crimes against humanity,
the French version declares that the persecution was a war crime, and also a crime against humanity. ACQUAVIVA,
GUIDO, “At the Origins of Crimes Against Humanity Clues to a Proper Understanding of the Nullum Crimen
Principle in the Nuremberg Judgment”, Journal of International Criminal Justice, 2011, p. 9 and 10.
122
AMBOS, KAI, Treatise on International Criminal Law, p. 6.
123
Cf. Göring, p. 513.
against Humanity described in the Charter without much inquiry into the specifics of his mens
rea.
The use of the concept of Joint Criminal Enterprise (JCE), especially in its third form, in the
modern international criminal tribunals has been widely criticized124. It suffices to note here the relevant
passage in Tadić: ‘With regard to the third category of cases, it is appropriate to apply the notion of
“common purpose” only where the following requirements concerning mens rea are fulfilled: (i) the
intention to take part in a joint criminal enterprise and to further – individually and jointly – the criminal
purposes of that enterprise; and (ii) the foreseeability of the possible commission by other members of the
group of offences that do not constitute the object of the common criminal purpose. Hence, the participants
must have had in mind the intent, for instance, to ill-treat prisoners of war (even if such a plan arose
extemporaneously) and one or some members of the group must have actually killed them. In order for
responsibility for the deaths to be imputable to the others, however, everyone in the group must have been
able to predict this result. It should be noted that more than negligence is required. What is required is a
state of mind in which a person, although he did not intend to bring about a certain result, was aware that
the actions of the group were most likely to lead to that result but nevertheless willingly took that risk. In
other words, the so-called dolus eventualis is required (also called “advertent recklessness” in some
national legal systems)’125. The means rea put forward in Tadić is not particularly weak. One could even
wonder, as suggested in Brđanin, whether some of the language used in Tadić, and in later cases that have
used such language, including expressions that seem to restrict a JCE, at least in its third category, to
crimes physically perpetrated by its participants is not overly narrow126. A more thorough analysis of the
implications of the convictions, for example, of Streicher and von Schirach, together with a reading of
124
For example, DANNER, ALLISON/MARTINEZ, JENNY, “Guilty Associations: Joint Criminal Enterprise, Command
Responsibility, and the Development of International Criminal Law”, 93 California Law Review 75 (2005). See also,
BADAR, MOHAMED, “ ‘Just Convict Everyone!’ – Joint Perpetration: From Tadić to Stakić and Back Again,
Prosecutor v. Milomir Stakić: Judgment of the Appeals Chamber”, International Criminal Law Review 6, 2006;
ROBINSON, DARRYL, “The Identity Crisis of International Criminal Law”, Leiden Journal of International Law 21,
2008, p. 938-943.
125
ICTY, Judgment, Prosecutor v. Tadić, 15 July 1999, par. 220. Emphasis corresponding to ‘more than negligence
is required’, ‘was aware’, ‘most likely’ and ‘willingly took that risk’ were added.
125
ICTY, Judgment, Prosecutor v. Brđanin, 3 de Abril 2007 (Brđanin), par. 431.
126
Brđanin, par. 407.
article 6, last paragraph, of the Charter, Principle VII of the Nuremberg principles, Control Council 10
article II (2) and cases like Einsatzgruppen127 and Eichmann128 might lead to the conclusions that JCE was
deeply rooted in international law already by the time of Nuremberg and that the new ad-hoc tribunals only
followed suit129.
2.3.Humanitarianintervention,therighttopunishandlexmitior
Finally, the right to punish a sovereign that inflicts outrageous suffering on its own
people, which is “implicit” in the possibility of humanitarian intervention recognized by Grotius,
Gentili and the like130 – and that does not seem to have been eradicated by the legal positivism
and exacerbated sovereignty of the XIX century – comforts the conclusion that crimes against
humanity already existed on the international plane before the Charter.
Sometimes it is assumed that the right of humanitarian intervention did not survive the post-1919
era131. Certainly the argument is based on the premise that some type of prohibition on the use of force
solidified during this period.
However, on the one hand, it does not seem that publicists that assumed before that that right
existed132 have suddenly from 1919 failed to recognize the possibility of intervention133, at least in extreme
cases. The fact that no state seems to have argued that it had the right, at will, to kill part of its’ own people,
in order to eliminate that part of humanity, is surely not non-important.
127
Brđanin, par. 422, n. 900.
SCHARF, MICHAEL, Customary International Law, p. 81-83
129
Analysis in LEMOS, MIGUEL, Nullum crimen nulla poena sine lege, p. 282-294.
130
MERON, THEODOR, “Common Rights of Mankind”, p. 112.
131
CRAWFORD, JAMES, Brownlie's, p. 753.
132
OPPENHEIM, LASSA, International law, A Treatise, vol. 1, 1st edition, Longmans, Green, and Co., 1905, p. 347.
See also “Lettre de M. Arntz, in Rolin Jacuemyns, Note Sur la Theorie de Droit d’Intervention”, 8 Revue de Droit
International et Législation Comparée 675, 1876, quoted in SCHAACK, BETH, “The Definition of Crimes Against
Humanity”, p. 848, n. 290.
133
Oppenheim International Law – A Treatise, Hersch Lauterpacht (ed.), 8th Edition, Longmans, Green, and Co.,
1955, p. 312.
128
On the other hand, Grotius famous statement was that “if a tyrant should inflict upon his subjects
such treatment as no one is warranted in inflicting, the exercise of the right vested in human society is not
precluded” 134. This is normally taken as meaning that one single state could intervene in another state to
put an end to such a treatment. But that state could only do that because it would be exercising a right of
human society.
Today the right of humanitarian intervention can be exercised by any single state as well, as long
as the Security Council authorizes the use of force for a specific humanitarian intervention. Thus the
question, even at present, is not the existence of the possibility of humanitarian intervention but only the
procedure by which it can be put into practice (not the existence of the right per se but the existence of the
possibility to give effect in reality to that right). Only an unacceptable narrow conception of what can
constitute a threat to peace could lead to the conclusion that extreme situations of internal atrocities could
never constitute a threat to peace135.
When Grotius made that statement there was no collective security system, therefore the right
vested in the international community could even be exercised individually. This was the best available
option at that time. Once a collective security system was put in place, the right of human society can only
be exercised while respecting the new rules according to which this system functions. Today that
mechanism is the one set up in the UN Charter.
If the right of humanitarian intervention and the right to punish which is implicit in that
right did not disappear136 then it follows that to punish the highest responsible people for massive
atrocities perpetrated in an attempt to exterminate part of its own people under ‘newly created’
crimes against humanity does not violate the nullum crimen principle because it is not
punishment for acts that could not be punished at the time they were carried out and the
punishment for these ‘new crimes’ was not, assuming that the death penalty was available for
134
GROTIUS, HUGO, The Law of War and Peace, Book II, Chapter XXV, Section VIII (emphasis added).
See GREENWOOD, CHRISTOPHER, “Is there a right of humanitarian intervention?”, The World Today, vol. 49, n.º 2,
1993.
136
And even if that right did indeed disappear, this would not necessarily mean that the right to punish also did.
135
those extreme violations, a harsher punishment than the one that would already be possible to
inflict according to international law at the time of the facts.
Another way, perhaps simpler, to look at it is to affirm that those acts were already
criminal on the international plane for a long time as general principles of law common to the
civilized nations but with no agreed label.
Conclusion
Courts have to make sense of the law they apply. The sources of international law and
permissible methods of its’ interpretation are the ones that states choose as legitimate. And those
ones include non-written law and not only the written law.
In Nuremberg, the
“first time”, those sources and those methods were deployed to face ‘unimaginable atrocities’.
The use of non-written law in Nuremberg was legitimate taking into account the Martens Clause
and the sources of international law listed on article 38 of the Statute of the Permanent
International Court of Justice which comprise customary law, general principles of law
recognized by civilized nations and, judicial decisions and the teachings of the most highly
qualified publicists of the various nations, as subsidiary means for the determination of rules of
law.
Those sources and methods were then “legitimized” by the international community as
whole with its’ unanimous affirmation of the Nuremberg principles and worldwide acceptance of
article 15 (2) of the ICCPR and other similar provisions137.
137
See also SCHAACK, BETH, “Crimen Sine Lege”, p. 175.
In short: Nuremberg and the modern international criminal courts applied law based on
these sources and methods and, by and large, their decisions did not violate the nullum crimen
nulla poena sine lege principle.