INTERNATIONAL TRADE LAW

PSDA

Research Paper

The Nuremberg Trials

Submitted to:
Mrs. Ila Joshi

Submitted by:
Vinayek Mehra
Shagun Chopra
Simran Gambhir

Enrollment No.:
37810303815
18710303815
20810303815
 THE NUREMBERG TRIAL

The trial of the major German war criminals by the International Military
Tribunal is universally recognized as a pivotal juncture in the development of
international criminal law. Seventy years on, what can be learnt from that
experience? This essay examines the Nuremberg Principles and their legacy in
national and international law in the seven decades since they took place. It first
examines the Nuremberg trials themselves along with the important role played by
Robert H. Jackson, chief prosecutor for the United States, before turning to the
impact of the trials on the development of international law, national case law of
individual states and the establishment of the ad hoc international criminal
tribunals. It then examines two modern challenges to the Nuremberg legacy: firstly,
the unfinished business of codifying and enforcing the Nuremberg principles
themselves, including the need for a new global convention on crimes against
humanity and universal ratification of the ICC Statute: and. secondly the
challenges posed by the noncompliance of states with the Nuremberg Principles,
particularly with respect to the unlawful use of force and the commission of war
crimes and crimes against humanity. Finally, the essay concludes that: (1)
international justice does not need to be perfect to work; (2) international criminal
trials are not the only way to ensure accountability; and (3) both the Nuremberg
trials themselves and the subsequent establishment of the International Criminal
Court have had long-lasting and extraordinary effects on the modern world.
THE NUREMBERG TRIAL

The difficulties that Jackson faced in 1945 remain with us, to some extent
today. Indeed, rereading the biographies from that period,2 We are struck by how
many of the same problems have been present at the ad hoc tribunals and the
International Criminal Court. Plus ça change, plus cela reste pareil. Jackson, of course,
was keenly aware of the deficiencies, both legal and practical, that faced the
prosecution team at Nuremberg. A country lawyer without formal legal training, he
had risen to the highest judicial office in the United States as a result of his keen
mind and extraordinary rhetorical skill.3 He knew that the case was a novel one,
that the precedent for indicting and trying the accused was virtually non-existent,
and that there were legitimacy questions raised by the specter of having German
accused tried to a bench of Allied jurists by a team of allied prosecutors. Rather than
hide from the weaknesses of his case, he met them head on.
As he observed in his Opening Statement, the case was complex, involving
“the developments of a decade, covering a whole continent, and involving a score of
nations, countless individuals, and innumerable events.”4 Eight months earlier, the
courtroom was an enemy fortress and the accused and the documents were in enemy
hands. There was no codification of the relevant law, no procedures had been
1WILLIAM I. HULL, THE TWO HAGUE CONFERENCES AND THEIR CONTRIBUTIONS TO INTERNATIONAL LAW 1 (1908)
(describing the first quarter century of the nineteenth century).

2See, e.g., WHITNEY R. HARRIS, TYRANNY ON TRIAL (2d ed., 1999); FRANÇOIS DE MENTHON, LE PROCÈS DE
NUREMBERG: SON IMPORTANCE JURIDIQUE ET POLITIQUE (1946); HARTLEY SHAWCROSS, LIFE SENTENCE: THE
MEMOIRS OF HARTLEY SHAWCROSS (1995); TELFORD TAYLOR, THE ANATOMY OF THE NUREMBERG TRIALS: A
PERSONAL MEMOIR (1st ed., 1992).

3 GAIL JARROW, ROBERT H. JACKSON 42, 57-58 (2008).

4 Trial of the Major War Criminals before the International Military Tribunal, Volume II, Opening Statement for the United
States of America by Robert H. Jackson, Chief of Counsel for the United States, 100 (Nov. 21, 1945) [hereinafter Jackson Opening
Statement], available at www.loc.gov/rr/frd/Military_Law/pdf/NT_Vol-II.pdf.

1
established, no tribunal was in existence, no prosecuting staff had been assembled,
nearly all the accused were at large and the four prosecuting powers had not yet joined
in common cause to try them. What he did not reveal publicly was that the four
prosecutorial teams did not work well together. It was an arduous and difficult
diplomatic, as well as legal, process that involved wrangling over the differences
between common law and civil law procedure, and the negotiators and prosecutors
struggled with questions of substantive law and of procedure: With the Anglo-
American concept of conspiracy; with the impossibility of getting documents
translated in time for all the judges and defense counsel to receive copies; of the
particularity requirement of the indictment. Jackson had trouble with his staff, many
of whom departed either due to conflict with him or for personal reasons, and
Telford Taylor described the staff as being plagued by tensions and petty jealousies,
living in an expatriate bubble, with little interaction between occupiers and occupied.5
The Russians were not permitted to fraternize with the other teams, 6 and although
François de Menthon opened the French case with a stirring and oft-quoted
statement, he returned to France shortly thereafter, leaving Champetier de Ribes in
charge for the remainder of the trial.7 Finally, many of Jackson’s American
compatriots were scornful about the utility and enforceability of international law,
arguing that the trials would either make matters worse or, at best, be a useless act.
The international political environment was challenging for the Tribunal as
well. Just two days prior to the signing of the London Agreement and Charter, the
Enola Gay was winging its way through the sky en route to dropping an atomic bomb
on Hiroshima and one day after the Charter was signed a second bomb was dropped
on Nagasaki,8 killing tens of thousands of civilians. Because the four Allied powers
had a vested interest in not pursuing charges that would show them in a bad light,
they had not included any charges relating to aerial bombardment,9 and the Russians
insisted on accusing the Germans of the Katyn Forest massacre (which had actually
been perpetrated by Russian forces).10 The press covered the trials, but found the
documentary evidence boring;11 Jackson bemoaned the fact that no real arrangements
5 TAYLOR, supra note 2, at 232.

6 Id. at 209.

7 Id. at 212, 283, 294-95.

8 Luc Reydams & Jan Wouters, The Politics of Establishing International Criminal Tribunals, in INTERNATIONAL PROSECUTORS

6, 13 (Luc Reydams et al eds., 2012); Id. at 74.

9 TAYLOR, supra note 2, at 325-26.

10 HARRIS, supra note 2, at 31-32, 252; Id. at 117.

11 TAYLOR, supra note 2, at 197.

2
had been made so Germans could attend and learn about the trial.12 On March 5,
1946, as the Russians were presenting their evidence at Nuremberg, Winston
Churchill was in Fulton, Missouri giving his famous Iron Curtain Speech ushering in
the cold war era.13
Jackson understood these difficult political realities but he defended the trials,
writing later that “what we should have done with these men is a question always
evaded by those who find fault with what we did do.”14 He and Roosevelt shared the
view that the thirst for vengeance, which been amply demonstrated in the French
purge of thousands of former collaborators, could, if applied to the Germans, lead to
doubt about and denial of the crimes and a myth of martyrdom. Instead, they argued,
there must be public proof of Nazi crimes and the accused must be given the chance
to defend themselves.15
After ten months of proceedings, the trial was over and the judges retired to
deliberate. The judgment they rendered on October 1, 1946 was impressive.16 Indeed,
many of its pronouncements form part of the modern canon of international law:
That crimes are committed by “men,” not abstract entities;17 that the law of the
Charter was both “an expression of international law existing at the time of its
creation, and to that extent is itself a contribution to international law;” 18 that the
establishment of the International Military Tribunal by the Allied powers was lawful
because they had only “done together what any one of them might have done singly;
for it is not to be doubted that any nation has the right thus to set up special courts to
administer law.”19
In terms of substantive law, the International Military Tribunal articulated its
understanding of the law it was asked to apply, famously holding:

12 Id. at 235.

13 Id. at 316-17.

14 Robert H. Jackson, Forward, in HARRIS, supra note 2, at xxxi.

15 Id. at xxxiv (discussing Roosevelt’s support of a “speedy but fair trial”); TAYLOR, supra note 2, at 44-45 (discussing

Justice Jackson’s opposition to show trials).

16 Trial of the Major

17 Id. at 223.

18 Id. at 218.

19 Id.

3
 War is essentially an evil thing. Its consequences are not confined to the
belligerent states alone, but affect the whole world. To initiate a war of
aggression, therefore, is not only an international crime; it is the supreme
international crime, differing only from other war crimes in that it contains
within itself the accumulated evil of the whole.20
Although this statement arguably conflates war crimes and crimes against peace, its
essence – a juridical condemnation of the evils of war – is undeniably powerful. In
other respects, the judgment was perhaps less progressive, particularly regarding the
crimes against humanity counts, which were limited to acts committed against civilians
after the onset of the war, in spite of language to the contrary in the Charter.21
Yet even with these arguable deficiencies, seventy years later we still study,
discuss, and even revere the Nuremberg trial.22 For separated from its all too human
flaws, the decision to hold a trial, and the accomplishment of the task to a high
level of professionalism and distinction, represented an extraordinary achievement.
It may have been an American “show”23 in terms of the material support and size of
the various participating prosecutorial teams; but it built upon decades of European
thought which, following the failed experience of World War I, endeavored to
fortify the emerging structure of international criminal law.24
Building upon this legacy, Nuremberg taught us to re-conceptualize the notion
of war and its worst consequences, as well as to reframe our response to it. But the
question remained whether Nuremberg would simply be a “one off” historic event, or
whether it would have enduring salience in the post-war era. It is to this question
we now turn.
I. THE NUREMBERG LEGACY IN INTERNATIONAL AND MUNICIPAL LAW
The decision to hold war crimes trials was taken contemporaneously with the
San Francisco Conference establishing the United Nations. The principles of
Nuremberg are thus deeply intertwined “with the organization of the United Nations

20 Id. at 186.

21 Leila
Nadya Sadat, The Interpretation of the Nuremberg Principles by the French Court of Cassation: From Touvier to Barbie and
Back Again, 32 COLUM. J. TRANSNAT’L L. 289, 308-09 (1994) (formerly Wexler).

22 A search of the major legal databases reveals that well over two hundred journal and law review articles have discussed

the topic in the past three years alone.

23 ELIZABETH BORGWARDT, A NEW DEAL FOR THE WORLD: AMERICA’S VISION FOR HUMAN RIGHTS 233 (2005).

24 Leila Nadya Sadat, The Nuremberg Paradox, 58 AM. J. COMP. L. 151 (2010).

4
as the twin foundations of an international society ordered by law.” 25 We see this in
Article 2(4) of the UN Charter prohibiting the use of force against the territorial
integrity and political independence of Member States,26 and in the limited exceptions
to that prohibition enshrined in Article 51 (on self-defense) and the powers of the
Security Council under Chapter VII.27
Likewise, the Charter incorporates provisions – albeit limited ones – on the
importance of human rights.28 Indeed, modern human rights law – like modern
international criminal law – rests upon the Nuremberg foundation. The corollary of
the notion that individuals have duties under international law is that they may also
acquire rights thereunder.
The Nuremberg Principles were prepared by the International Law
Commission and presented to the General Assembly after the war,29 and at least some
of the “law” enshrined in the Charter and judgment found its way into new
international instruments on apartheid, genocide, the laws of war, and torture, 30
although aggression and crimes against humanity were never the subject of specialized
conventions. Understood broadly, the “Nuremberg principles” eschew collective
responsibility in favor of individual criminal responsibility; provide that no human
being (even a head of state or other responsible government official) is above the law
with respect to the most serious crimes of concern to humanity as a whole: war
crimes, crimes against humanity, and the crime of aggressive war; and that reliance

25 TAYLOR, supra note 2, at 42.

26 U.N. Charter art. 2, para. 4.

27 Id. art. 51.

28 Id., arts. 55 & 56. See also MARY ANN GLENDON, A WORLD MADE NEW: ELEANOR ROOSEVELT AND THE UNIVERSAL

DECLARATION OF HUMAN RIGHTS (2001).

29 Int’l
Law Comm’n, Report of the International Law Commission Covering Its First Session, 12 April – 9 June 1949,
U.N. GAOR, 4th Sess., Supp. No. 10, U.N. Doc. A/925 (1949).

30 InternationalConvention on the Suppression and Punishment of the Crime of Apartheid, Nov. 30, 1973, 1015
U.N.T.S. 243; Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 U.N.T.S. 277;
Convention for the Amelioration of the Condition of the Wounded in Armies in the Field, Aug. 22, 1864; Hague
Convention (II) With Respect to the Laws and Customs of War on Land, July 29, 1899; Hague Convention (IV)
Respecting the Laws and Customs of War on Land, Oct. 18, 1907; Geneva Convention (I) for the Amelioration of the
Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 75 U.N.T.S. 31; Geneva Convention
(II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug.
12, 1949, 75 U.N.T.S. 85; Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 75
U.N.T.S. 135; Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 75
U.N.T.S. 287; Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment, Dec.
10, 1984, 1465 U.N.T.S. 85.
5
upon internal law is no defense to crime for which an individual may have
responsibility under international law.31
Thus at the international level, the Nuremberg principles became an essential
part of the new world order. But their implementation soon ran aground on the
shoals of state politics. The Permanent Members of the Security Council were often
divided, which meant that the International Law Commission’s work preparing a draft
code of crimes and a statute for an international criminal court were largely
unsuccessful.32 The Nuremberg principles were also often honored in the breach. The
United States invaded Vietnam; The Soviet Union invaded Afghanistan. Neither
state’s government appeared to understand – or perhaps to care – that the Nuremberg
principles applied to these wars.33
It was only in the 1990s, as war broke out in the former Yugoslavia and the
Rwandan genocide sickened and shocked the world that the international community,
freed from cold war politics, reached for the Nuremberg precedent, and established,
for the first time since 1945, new international criminal tribunals. The Yugoslavia and
Rwanda Tribunals had similar, but not identical jurisdictions to their forebearer,
although neither Tribunal included crimes against peace in its Statute.34 Although
both Tribunals suffered the same human difficulties experienced at Nuremberg, both
were ultimately able to establish themselves as credible and successful international
institutions, trying scores of defendants and creating important precedents which have
added depth to our conceptual and practical understanding of international criminal
justice and the substantive law of war crimes, crimes against humanity and genocide as
well as international criminal procedure.35 Building upon this foundation, in 1998 a
31 Leila Nadya Sadat, Shattering the Nuremberg Consensus: U.S. Rendition Policy and International Law, 3 YALE J. INT’L AFF. 65,

66 (2008).

Nadya Sadat, The Proposed Permanent International Criminal Court: An Appraisal, 29 CORNELL INT’L L.J. 665, 667
32 Leila

(1996) (formerly Wexler).

33 See TAYLOR, supra note 2, at 636 (outlining the U.S. position on both invasions and their relation to the Nuremberg

principles); Jean Allain, The Continued Evolution of International Adjudication, in LOOKING AHEAD: INTERNATIONAL LAW IN
THE 21ST CENTURY 50, 55 (Can. Council of Int’l Law ed., 2012) (discussing popular opposition to the conflicts in
Vietnam and Afghanistan based on the Nuremberg Principles); Benjamin B. Ferencz, The Nuremberg Principles and the Gulf
War, 66 ST. JOHN’S L. REV. 711, 719-20 (1992) (discussing the willingness of heads of state to ignore the Nuremberg
Principles).

34 Statute
of the International Criminal Tribunal for the Former Yugoslavia, S.C. Res. 827, Annex, U.N. Doc.
S/RES/827 (May 25, 1993); Statute of the International Criminal Tribunal for Rwanda, S.C. Res. 955, Annex, U.N. Doc.
S/RES/955 (Nov. 6, 1994).

35 TheInternational Criminal Tribunal for the Former Yugoslavia has indicted 161 persons of whom 81 have been
convicted (with an additional eight cases currently on appeal): Key Figures of the Cases, INTERNATIONAL CRIMINAL
TRIBUNAL FOR THE FORMER YUGOSLAVIA, http://www.icty.org/sid/24 (last updated May 23, 2016). The International
Criminal Tribunal for Rwanda has indicted 93 individuals with 59 convictions: Key Figures of the Cases, MECHANISM FOR
INTERNATIONAL CRIMINAL TRIBUNALS, http://unictr.unmict.org/en/cases/key-figures-cases (last visited May 26,
6
Statute for a permanent International Criminal Court was adopted after years of
difficult negotiations. The International Criminal Court now has 124 States Parties,
and the substantive law of the Court is widely cited by national and international
courts and tribunals, even including, interestingly, the courts of non-state parties, like
the United States.36
Returning to the question of Nuremberg’s impact on national jurisdictions,
prior to the establishment of the International Criminal Court in 1998, the
Nuremberg principles were, to paraphrase the great French jurist Claude Lombois,
like a “volcano” – dormant, but not extinct.37 And indeed, after the post-war trials –
of which there were thousands all over the world – in France, Germany, Holland,
Hungary, Poland, and the Soviet Union – Nuremberg and its teachings seemed to be
forgotten as nations recovered from the pain and suffering of the war. That changed
in 1961 when Israel abducted Adolf Eichmann from Argentina, and charged him with
crimes under Israeli law, including crimes against humanity. His trial was widely
covered by the press, and many credit the Eichmann trial with forcing Germany to
confront its Nazi past as it did in the Frankfurt Auschwitz trials, held from 1963-
1965.38 Likewise, in the 1970s and 1980s, France began the process of bringing
French and German World War II defendants to trial using the Nuremberg Charter as
incorporated into French law in the cases brought against Klaus Barbie and Paul
Touvier. Although Barbie, like Eichmann, was a case in which a State was more
comfortable proceeding because the accused was not of the same nationality as the
victim, the Touvier case, begun in 1973 and ultimately decided in the 1990s, involved a
French WWII collaborator who was indicted and convicted of crimes against humanity

2016). See also Leila Nadya Sadat, The Contribution of the ICTR to the Rule of Law, in PROMOTING ACCOUNTABILITY UNDER
INTERNATIONAL LAW FOR GROSS HUMAN RIGHTS VIOLATIONS IN AFRICA 118 (Charles Chernor Jalloh & Alhagi B. M.
Marong eds., 2015); Yaël Ronen, The Impact of the ICTY on Atrocity-Related Prosecutions in the Courts of Bosnia and Herzegovina,
3 PENN ST. J. L. & INT’L AFF. 113 (2014) (discussing the importance of ICTY jurisprudence in the national courts of
Bosnia and Herzegovina).

36 See, e.g., Prosecutor v. Kaing, Case No. 001/18-07-2007/ECCC/TC, Judgement, (July 26, 2010), (drawing repeatedly

on the ICC Statute and Elements of the Crimes in finding Duch guilty of crimes against humanity); Prosecutor v. Taylor,
Case No. SCSL-03-01-T, Judgement (May 18, 2012) (also relying on the ICC statute and Elements of the Crimes in its
conviction of Taylor); Sexual Minorities Uganda v. Lively, 960 F.Supp. 2d 304 (D. Mass. 2013) (holding that a
Massachusetts minister, by aiding and abetting the persecution of LGBTI individuals in Uganda, had committed a crime
against humanity).

37 Sadat, supra note 21, at 313 n.93.

38 Lecture, Henrike Claussen, International Humanitarian Law Dialogs, Chautauqua, Aug. 31, 2015 (author’s notes).

7
for acts carried out against French victims.39 The Priebke case brought by Italy in
199740 and the Finta case brought by Canada in 199441 were also related to the war.
In Latin America, many prosecutions and truth commissions have been
undertaken in Argentina, Brazil, Chile, Mexico, Peru, and Uruguay, relating to crimes
committed not during World War II but by former officials of those countries,
especially during the “Dirty War” in the 1970s. The Pinochet case is perhaps the most
famous example arising out of the Latin American experience and involved not only
the exercise of universal jurisdiction over the crime of torture in European states in
which the cases were brought, but ultimately prosecutions in the Chilean courts
themselves.42 More recently Guatemala’s attorney general brought a case against
President Rios Montt for genocide against the Mayan people.43
The Nuremberg principles have also found their way into international human
rights law. Both the European and Inter-American Courts of Human Rights (and the
Inter-American Commission) have developed a broad jurisprudence on many
international crimes, both in terms of elements, modalities, and potential amnesties
for such crimes. This case law has become so extensive that my colleague Alexandra
Huneeus refers to them as “quasi-criminal jurisdictions” that are in fact enforcing
international criminal law.44
In Africa, the Hissène Habré trial which followed Belgium vs. Senegal, and the
International Court of Justice’s decision that Senegal had an obligation to either try or
extradite Habré under the Torture Convention has set an important precedent. 45
Likewise, the establishment of the Special Court for Sierra Leone as a mixed
39 Sadat, supra note 21, at 316-17, 330, 333.

40 Rome Military Tribunal, Hass and Priebke, Judgment of Jul. 22, 1997.

41 R. v. Finta, [1994] 1 S.C.R. 701.

42 R. v. Bartle and the Comm'r of Police for the Metropolis and Others, Ex Parte Pinochet, [2000] 1 A.C. 147 (H.L.)

(appeal taken from Eng.); The Pinochet Prosecution, HUMAN RIGHTS WATCH,
https://www.hrw.org/legacy/campaigns/chile98/dispatches.html (last accessed May 27, 2016).

43 Efraín Ríos Montt & Mauricio Rodriguez Sanchez, INTERNATIONAL JUSTICE MONITOR, http://www.ijmonitor.org/efrain-
rios-montt-and-mauricio-rodriguez-sanchez-background/ (last accessed May 27, 2016). The Open Society Foundation
has English translations of portions of Montt’s conviction by the First Criminal Court of First Instance for Criminal
Justice, Drug Trafficking and Environmental Crimes and its subsequent reversal by the Guatemalan Constitutional
Court available online, available at https://www.opensocietyfoundations.org/sites/default/files/rios-montt-judgment-
full-version-11072013_2.pdf and https://www.opensocietyfoundations.org/sites/default/files/rios-montt-consitutional-
court-judgment-plus-dissents-11072013.pdf respectively. A new trial began in January of 2015.

44 Alexandra Huneeus, International Criminal Law by Other Means: The Quasi-Criminal Jurisdiction of the Human Rights Bodies,

107 AM. J. INT’L L. 1 (2013).

45 Questions Relating to the Obligation to Prosecute or Extradite (Belg. v. Sen.), Judgment, 2012 I.C.J. 422 (July 20).

8
jurisdiction has “domesticated” the Nuremberg principles,46 as has been the
widespread ratification of the ICC Statute on the continent and, to a lesser extent,
incorporation of ICC crimes into national legislation.47 We have also witnessed the
development of mechanisms to bring perpetrators to justice such as the Gacaca trials
in Rwanda,48 mobile courts in the Democratic Republic of Congo49 and special war
crimes chambers in Uganda.50 Indeed, to the extent that Nuremberg was as much
about accountability as prosecution, and about creating a record so victims can know the
truth and perpetrators cannot engage in denial, all these different modalities are part
of the Nuremberg legacy as well.
In Asia, although ICC ratification rates are relatively low, a new volume by
Kirsten Sellars, entitled Trials for International Crimes in Asia, observes that although
Asian states may be more likely to view international trials with skepticism, they have
often conducted national trials. She points to the in absentia trial of Pol Pot in
Cambodia as one example, suggesting that if it was “the unsound sequel to the
Eichmann trial, it was also the overlooked prequel to the ECCC.”51 The book includes
chapters on the influence of the Tokyo trials in modern international criminal law, the
Bangladesh experience, Indian and Indonesian proceedings, and the Special Panels for
East Timor.

II. CHALLENGES TO THE NUREMBERG LEGACY

46 Statute of the Special Court for Sierra Leone, see S.C. Res. 1315, U.N. Doc. S/RES/1315 (Aug. 14, 2000).

47 Canada, for example, adopted the Crimes Against Humanity and War Crimes Act, S.C. 2000, c. 24, to implement the

ICC Statute, and France amended its legislation dealing with crimes against humanity (Loi 64-1326 du 26 décembre 1964
tendant à constater l'imprescriptibilité des crimes contre l'humanité [Law 64-1326 of December 26, 1964 on Crimes
Against Humanity], JOURNAL OFFICIEL DE LA RÉPUBLIQUE FRANÇAISE [J.O.] [OFFICIAL GAZETTE OF FRANCE], Dec.
29, 1964, p. 11788, originally passed based on the Nuremberg Principles) after ratification of the Rome Statute.

48 See William A. Schabas, Genocide Trials and the Gacaca Courts, 3 J. INT’L CRIM. JUST. 879, 891-94 (2005) (discussing the

history and importance of the Gacaca trials).

49 Compare William E. Davis & Helga Turku, Access to Justice and Alternative Dispute Resolution, 2011 J. DISP. RESOL. 47, 57-

58 (discussing the effectiveness of the mobile courts) with Jacob N. Foster, A Situational Approach to Prosecutorial Strategy at
the International Criminal Court, 47 Geo. J. Int’l L. 439, 470-471 (2016) (discussing the practical deficiencies of the mobile
courts).

50 See HUMAN R IGHTS W ATCH, JUSTICE FOR SERIOUS CRIMES BEFORE NATIONAL COURTS: UGANDA’S INTERNATIONAL

CRIMES DIVISION (2012) (giving an overview of the International Crimes Division and providing recommendations for
improvement).
51 Kirsten Sellars, Introduction, in TRIALS FOR INTERNATIONAL CRIMES IN ASIA 1, 18 (Kirsten Sellars ed., 2015).

9
regard. The first is the “unfinished” business of Nuremberg itself; the second is
challenges to the legacy by states.
A. The Unfinished Work of Nuremberg
In spite of the considerable achievements listed above, which are just a sample
of the Nuremberg Charter’s influence upon our modern world, there is work
remaining to be done. The first task is to truly universalize the legacy and the message
of Nuremberg, so it is no longer an “American” nor a “Western” show. This
conference is a wonderful example of that.52
The second task is to complete the normative framework of the Charter and
enhance the effectiveness of the Institutions charged with its application. This means,
continuing to press for universal ratification of the Rome Statute of the International
Criminal Court. Three permanent members of the UN Security Council still have not
ratified the Statute – China, Russia and the United States, and dozens of small and
large states still remain outside the Rome Statute system. This undermines the
legitimacy of the Court’s work, and makes it more difficult to achieve its objectives.
In terms of the substantive law of the Charter, the laws of war are widely
codified, but there remain gaps, and there is a continuing need for vigilance. Many
states are developing restrictive definitions of proportionality to justify attacks that kill
large numbers of civilians or target civilian objects, broadening the notion of
“combatants” to expand the range of permitted lethal targeting and developing
dangerous new weapons systems. Nuclear weapons, in particular, remain a constant
threat not only to our safety but to humanity’s survival. The rules relating to non-
international armed conflict are less well developed than the rules on international
armed conflict, and the so-called “global war on terror” has undermined the
consistent meaning and application of international humanitarian law, a point to
which we will return presently.
Regarding the crime of aggression, progress has been made but many questions
remain. There are not yet sufficient ratifications by states of the Kampala
amendments to activate the ICC’s jurisdiction over the crime of aggression, but it
seems likely that there will be by 2017, meaning that the Assembly of States Parties
may vote upon the amendments’ entry into force. Hopefully states already party to
the Rome Statute will not try to opt out of the aggression amendments at that time en
masse. It is troubling that when the Kampala amendments were adopted,
“understandings” were attached that were regressive, providing, among other things,

52 Workshops and panels at this conference include Promotion of Human Rights and International Criminal Law by International
and Regional Courts and Complementarity and Cooperation, as well as sessions examining the universality of the Nuremberg
Principles from both an Islamic and African perspective.

10
that there is no duty or right of states to exercise their domestic jurisdiction with
respect to acts of aggression committed by other states. 53 Although the
understandings are presumably non-binding as a formal matter of international law,
their clear intent is to ensure that aggression, unlike other jus cogens crimes, will not be
governed by the same regime that governs other universal jurisdiction crimes, so as to
avoid the possibility of there one day being a “Pinochet moment” for the crime of
aggression.
Finally, with respect to crimes against humanity, it is stunning that in a world
with more than 300 international criminal law conventions covering everything from
the cutting of submarine cables to terrorist bombings and genocide, one of the three
“core” crimes of the Nuremberg trials does not yet have its own treaty.54 Belgium v.
Senegal and the Pinochet case clearly demonstrated how important a treaty basis for
jurisdiction can be in international law.55 Likewise, the absence of a crimes against
humanity convention created difficulties for the International Court of Justice in
Bosnia v. Serbia.56 It is thus very good news that the International Law Commission
has taken up the Initiative of the Whitney R. Harris World Law Institute57 and begun
the drafting of a new international convention on crimes against humanity, under the
able leadership of Special Rapporteur Sean Murphy, who has been elected by the
Commission to lead this project.58
B. The Noncompliance of States
As Antonio Cassese wrote more than a decade ago, international terrorism is
disrupting some important legal categories.59 Recall that when the ICC project was
reintroduced to the General Assembly’s agenda in 1989, it was by Trinidad and

53 Review Conference of the Rome Statute, Res RC/RES.6, Annex III (June 11, 2010).

54 M. Cherif Bassiouni, Crimes Against Humanity: The Need for a Special Convention, 31 COLUM. J. TRANSNAT’L L. 457 (1994).

55 See Questions Relating to the Obligation to Prosecute or Extradite (Belg. v. Sen.), Judgment, 2012 I.C.J. ¶¶ 42-63 (July

20); R. v. Bartle and the Comm'r of Police for the Metropolis and Others, Ex Parte Pinochet, [2000] 1 A.C. 147 at 189
(H.L.) (appeal taken from Eng.).

56 Application of the
Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb.
& Montenegro), Judgment, 2007 I.C.J. Rep. 43, ¶ 277 (Feb. 26).

57 FORGING A CONVENTION FOR CRIMES AGAINST HUMANITY (Leila Nadya Sadat ed., 2011).

Special Rapporteur on Crimes Against Humanity, First Rep. on Crimes Against Humanity, Int’l Law Comm’n, U.N.
58 See

Doc. A/CN.4/680 (Feb. 17, 2015) (by Sean D. Murphy); Special Rapporteur on Crimes Against Humanity, Second Rep. on
Crimes Against Humanity, Int’l Law Comm’n, U.N. Doc. A/CN.4/690 (Jan. 21, 2016) (by Sean D. Murphy).

59 Antonio Cassese, Terrorism is also Disrupting some Crucial Legal Categories of International Law, 12 EUR. J. INT’L L. 993

(2001).

11
Tobago, leading a group of Caribbean states, which argued that the future
international criminal court should address the crimes of terrorism and narcotics
trafficking.60 Terrorism was the subject of an international court convention in 1937
that never entered into force.61 Terrorism not only harms victims of terrorist acts, but
provokes states to launch terrible wars in response to terrorist violence. It is
increasingly difficult to understand how terrorism is not one of “the most serious
crimes of concern to the international community as a whole” like other ICC crimes.
When the Rome Statute was adopted without the crime of terrorism included, a
Resolution was appended to the Conference’s Final Act promising to take up the issue
in the future.62 Each year at the annual meeting of the ICC’s Assembly of States
Parties, some states have tried to convince ICC States Parties to take terrorism
seriously.63 It is, it seems, the scourge of our time, as the recent tragedies of Paris,
Beirut, Baghdad, Istanbul, and Brussels demonstrate. Perhaps those states arguing for
the inclusion of this crime in the ICC Statute – or for the creation of other
international mechanisms to try terrorists – are correct. Certainly, the gaps in the
current legal regime are unsatisfactory.
Particularly since the attacks of September 11, 2001, the Nuremberg principles
have been undermined by the policies of the very nations that gave them birth,
including my own country. Recall Jackson’s exultation in his opening address: “that
four great nations, flushed with victory and stung with injury stay the hand of
vengeance and voluntarily submit their captive enemies to the judgment of the law is
one of the most significant tributes that Power has ever paid to Reason.”64
When the United States was stung by the terrible attacks of September 11,
2001, reason was jettisoned as vengeance and even cruelty took its place. Lawyers in
the U.S. Department of Justice argued that the United States should abandon the
provisions of the Geneva Conventions of 1949 in favor of a new legal regime for the
detention, treatment and trial of enemy prisoners, whether captured in the United

60 Sadat, supra note 32, at 683 n.112.

61 The draft Convention for the Creation of an International Criminal Court is reproduced at U.N. Secretary-General,

Historical Survey of the Question of International Criminal Jurisdiction (Memorandum Submitted by the Secretary-
General), Int’l Law Comm’n, U.N. Doc. A/CN.4/7Rev.1, Appendix 8, (1949).

62 United Nations Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, It.,

June 15-July 17, 1998, Official Records, U.N. Doc. A/CONF.183/13 (Vol. I), Annex 1, Resolution E (Aug. 2002).

63 See, e.g., Assembly of States Parties to the Rome Statute of the International Criminal Court: Eighth Session, The

Hague, November 18-26, 2009, U.N. Doc. ICC-ASP/8/20, Appendix III at 65-6 (2009) (formal proposal of the
Netherlands to include terrorism within the ICC’s jurisdiction at the Kampala Review Conference).

64 Jackson Opening Statement, supra note 4, at 99.

12
States or abroad.65 Then Counsel to the President, Alberto Gonzales, famously
opined that portions of the Conventions were “quaint” and obsolete,”66 ultimately
persuading the President to deny the applicability of Geneva law to either al-Qaeda or
Taliban detainees in U.S. custody. A diplomatic and legal furor ensued, particularly
after the transfer of prisoners from Afghanistan to Guantanamo Bay, Cuba, where
they were kept in deplorable conditions.67
The Afghanistan war was at least, if not authorized by the Security Council,
buttressed by it, and important Resolutions were adopted, including 1373, 68 that
reinforce the Nuremberg paradigm by emphasizing the duty of states to try or
extradite suspected international criminals. But it was followed by the 2003 invasion
of Iraq in which two of the five Permanent members of the Security Council appeared
to contravene the prohibition of Article 2(4).69 Moreover, the Iraq invasion and war
in Afghanistan were accompanied by high levels of civilian casualties 70 and, as
reported by the press and in Congressional hearings, the apparent adoption of torture
and cruel treatment as official policy, in violation of international conventional and
customary law.71 More recently, the United States has engaged in targeted killing by

65 Memorandum from John Yoo & Robert J. Delahunty, Office of Legal Counsel, Department of Justice, to William R.

Haynes II, General Counsel of the Department of Defense (Jan. 9, 2002), available at
http://nsarchive.gwu.edu/torturingdemocracy/documents/20020109.pdf (arguing that the Geneva Conventions do not
apply to the detention and trial by military commission of al-Qaeda and Taliban prisoners); Memorandum from Jay
Bybee, Assistant Attorney General, Office of Legal Counsel, to Alberto R. Gonzales, Counsel to the President &
William R. Haynes II, General Counsel of the Department of Defense (Jan. 22, 2002), available at
https://www.justice.gov/sites/default/files/olc/legacy/2009/08/24/memo-laws-taliban-detainees.pdf (signing off on
Yoo’s memo of January 9th and sending it on to the Pentagon). These memos, along with others, are colloquially referred
to as ‘the Torture Memos’.

66 Memorandum from Alberto R. Gonzales. Counsel to the President, to President George W. Bush (Jan. 25, 2002),
available at http://nsarchive.gwu.edu/NSAEBB/NSAEBB127/02.01.25.pdf.

67 In a 2005 report, for example, Amnesty International declared that Guantanamo Bay “has become the gulag of our

times”, Irene Khan, Foreword to Amnesty International Report 2005 i, i (2005). See also Leila Nadya Sadat, Ghost Prisoners
and Black Sites: Extraordinary Rendition under International Law, 37 CASE W RES. J. INT’L. L. 309, 311-12 (2006); Sadat, supra
note 31, at 67.

68 S.C. Res. 1373, U.N. Doc. S/RES/1373 (Sept. 28, 2001).

69 See Sean D. Murphy, Assessing the Legality of Invading Iraq, 92 GEO L.J. 173 (2004); Ewan MacAskill & Julian Borger, Iraq

War was Illegal and Breached UN Charter, Says Annan, GUARDIAN (Washington), Sept. 15, 2004,
http://www.theguardian.com/world/2004/sep/16/iraq.iraq.

70 The Iraq Body Count estimates that more than 6,000 civilians died in the first phase of the U.S.-led invasion of Iraq

alone, and that more than 150,000 civilian deaths have been documented following the 2003 invasion of Iraq. See
https://www.iraqbodycount.org/; see also JOHN HAGAN ET AL., IRAQ AND THE CRIMES OF AGGRESSIVE WAR 1 (2015).

71 SENATE SELECT COMMITTEE ON INTELLIGENCE, COMMITTEE STUDY OF THE CENTRAL INTELLIGENCE AGENCY’S
DETENTION AND INTERROGATION PROGRAM, S. Rep. No. 113-288 (2014), available at
http://www.intelligence.senate.gov/sites/default/files/documents/CRPT-113srpt288.pdf.

13
remotely piloted unmanned vehicles in Afghanistan, Pakistan, Yemen, Libya, Iraq and
Somalia, a campaign which often involves high civilian casualties, mistakes, terrorizes
civilians in the areas in which the drones are operating, and traumatizes the individuals
doing the targeting and killing.72
The United States is not the only member of the P5 that is using its power to
avoid being contained by the international legal system. Moreover, we are not
suggesting that these actions are of the same magnitude as the crimes committed
during World War II. However, they are shocking precisely because they have been
undertaken by the United States, a country that endeavors to distinguish itself by its high
moral standards, sees itself as a champion of the rule of law and leant its considerable
strength to ensure the success of the Nuremberg trials and build the post-war system
of international peace and security. The United Kingdom joined the 2003 invasion of
Iraq; and Russia and China have vetoed important resolutions on Syria that would
have come closer to imposing real consequences for the violence as well as referring
the situation to the International Criminal Court.73 There is a movement to impose a
“responsibility not to veto” on the five permanent members of the Security Council;74
but it is not clear whether that initiative will bear fruit anytime soon. Meanwhile, more
than 250,000 Syrians have lost their lives, millions are displaced and Russia has
apparently annexed parts of Ukraine. The attacks in Paris in November 2015 have
been discussed at the Security Council,75 but there has not been a concerted effort to
make a legal as opposed to a policy argument for bombing Syria in response.
Given this record of noncompliance and disrespect for the Nuremberg
principles by the great powers, it is perhaps unsurprising that we find other states
following suit. The African Union proposal last year to create a new African Court of
Justice and Human Rights that would provide heads of state with immunity from

72 See generally Leila Nadya Sadat, America’s Drone Wars, 45 CASE W. RES. J. INT’L L. 215 (2012).

73 LeilaNadya Sadat, Genocide in Syria: International Legal Options, International Legal Limits, and the Serious Problem of Political
Will, 5 IMPUNITY WATCH L.J. 1, 9 (2015), available at http://impunitywatch.com/wp-content/uploads/2015/04/Sadat-
IW-FINAL.pdf.

74 Seee.g., Permanent Rep. of Liechtenstein To the U.N., Letter dated Dec. 14, 2015 from the Permanent Rep. of
Liechtenstein to the United Nations addressed to the President of the Secretary-General, U.N. Doc. A/70/621 (Dec. 14,
2015).

75 See Press Release, Security Council, Security Council Press Statement on Terrorist Attacks in Paris, U.N. Press Release

SC/12121 (Nov. 13, 2015); S.C. Res. 2249 (Nov. 20, 2015).

14
prosecution is just one example.76 Other countries are retreating from the exercise of
universal jurisdiction, even in Pinochet-type cases.77 These are worrisome trends.
III. CONCLUSION
Let me conclude by restating the obvious: The record of compliance with the
Nuremberg principles is mixed. At the same time, the Nuremberg legacy itself is
extraordinary, and its importance is hard to overstate. At the opening of today’s
important meeting, and on the 70th anniversary of the trials, we want to conclude on
an optimistic note. We come to meetings like this neither to unthinkingly engage in
self- adulation nor to wallow in destructive self-criticism. Rather, our job is to help
make international criminal justice, stronger, fairer, more effective and more
respected. This brings me to three final points.
First, Nuremberg and the international community’s experience with the ad
hoc tribunals demonstrate that international justice doesn’t have to be perfect to be
good. Holding up Nuremberg to an impossible, imagined standard is neither fair nor
productive. The same is true for the International Criminal Court. Jackson himself
argued that he was not asking the Tribunal to make the commission of war
impossible; but to put international law and its precepts squarely on the side of
peace.78
Second, as aforementioned, international criminal trials are not the only way to
ensure accountability for the commission of international crimes – they are not the
only game in town. There are many ways to enforce international humanitarian law
and the Nuremberg principles. These include human rights courts, national courts,
truth commissions, the International Criminal Court, the International Court of
Justice, fact finding commissions of inquiry, UN human rights bodies, national civil
law suits, and ad hoc and mixed model international criminal tribunals. We’re sure
there are others we have not mentioned, or which don’t exist yet. To enhance the
effectiveness of the Nuremberg principles, we need to broaden our thinking, get
creative, and draw from the rich talent present all over the globe to improve the
international criminal justice system. And we will, daresay, do even better than they

76 Executive Council of the African Union, The Report, The Draft Legal Instruments and Recommendations of the

Specialized Technical Committee on Justice and Legal Affairs, ¶¶ 24-27, Doc. EX.CL/846(XXV) (June 2014).

77 See LUC REYDAMS, EUROPEAN PARLIAMENT, THE APPLICATION OF UNIVERSAL JURISDICTION IN THE FIGHT
AGAINST IMPUNITY (Trans European Policy Studies Ass’n ed., 2016), available at
http://www.europarl.europa.eu/RegData/etudes/IDAN/2016/578000/EXPO_IDA(2016)578000_EN.pdf (examining
the reasons behind this retreat and highlighting overreaches of the principle in several European countries).

78 Jackson Opening Statement, supra note 4, at 155.

15
did in 1945 because we can tap into an additional fifty percent of this international
talent which is female, something they apparently overlooked at Nuremberg.

Finally, we cannot forget that the Nuremberg trials and, fifty years later, the
establishment of the International Criminal Court, were nothing short of miracles,
neither of which was expected or foreseen by many knowledgeable observers at the
time. Today is a day to celebrate those extraordinary events and honor the memories
of the trailblazing individuals who came before us. It seems only proper to remember
our dear friend and colleague, the late Judge Hans Peter-Kaul, who was firmly
committed to the Nuremberg principles and felt that the trials were “an historic
must.” In his lecture to this Academy in 2012, he wrote that he felt that “the dramatic
encounters here in Nuremberg, this shocking look into the mirror of the Nazi crimes
was a necessary catharsis for the German people.”

Likewise, in memory of former Nuremberg Prosecutor Whitney Harris, who

Nuremberg in 1946, and Rome in 1998, stood fast against the pressures of the
precedents of the past. Nuremberg refused to apply executive punishment
against its vanquished enemies, according them the rights of accused persons
under the law. Rome rules that every person is subject to the law.
....
Nuremberg and Rome stand against the resignation of humankind to its self-
debasement and its self-destruction. The achievements of that great trial and
historic conference in elevating justice and law over inhumanity and war give
promise for a better tomorrow.79

79 HARRIS, supra note 2, at 593.

16