Essay

Nuremberg and Tokyo Military Tribunals - Should an International Criminal Court have been adopted instead?

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Module
International Criminal Law

Institution
The University Of Nottingham (UON)

A formative essay written during an International Criminal Law module. Marked as a 2:1 answer

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Uploaded on March 3, 2016
Number of pages 9
Written in 2015/2016
Type Essay
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Grade 2:1

tokyo
nuremberg
international criminal court
international criminal law

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Jordan Cox – 4229996 – Seminar Group 2

With hindsight from an era of rapidly developing International Criminal Law, it is easy

perhaps to suggest that the Allies should have established a permanent International

Criminal Court at Nuremberg. Such a claim not only suggests that there were

fundamental flaws with this particular International Military Tribunal, but it also suggests

that these problems would have been avoided had the alternative method been adopted.

It will therefore be necessary in considering Matthew Lippman’s claim, to examine the

issues surrounding Nuremberg and compare them to the current day International

Criminal Court to see if they are rectified. It will also be necessary to examine the

historical and political context of post-World-War-2 society, to determine whether an

international criminal court would have been as effective then had it been implemented,

as the modern day International Criminal Court.

Issues with the Nuremberg International Military Tribunal:

To argue (as Matthew Lippman did) that it is unfortunate that the Allies did not establish

a permanent international criminal court, would suggest also that the Nuremberg

International Military Tribunal was flawed in some way. It therefore would seem prudent

to examine the disadvantages that this form of tribunal created, in order to be able to

fully assess this claim.

Perhaps the biggest criticism facing the Nuremberg International Military Tribunal

regarded allegations of so-called ‘Victor’s Justice’. This is the suggestion that the

occurring proceedings are conducted in such a way that they are detrimental to the

defeated sides in the conflict. In effect, it is the concept that only the crimes of these

states alone will fall under the jurisdiction of the court as a result.

Applying this concept to Nuremberg, it is easy to see why such a claim would have good

standing. Even the very composition of the tribunal could be said to show evidence of

, Jordan Cox – 4229996 – Seminar Group 2

‘Victor’s Justice’. The 1945 London Charter, which adopted the makeup of Nuremberg,

called for an 8 judge bench during proceedings. These 4 principle judges and 4 alternates

were drawn from France, the Soviet Union, the United Kingdom and the United States; all

countries that were allied together against Nazi Germany.

Furthermore, the creation of the Nuremberg International Military Tribunal also required

the creation of a base of law to which the accused could be subject to. The London

Charter formed this legal basis of the trials. However, it can be argued to be inherently

bias because it was created by the victorious nations of the conflict, with the sole

intention of prosecuting the offences of Germany during the war 1. This would appear to

contradict the principle of nullum crimen singe lege, meaning crimes should only be

punishable when they have been pre-prescribed as being wrong. This is because the

offences trialled were only formally created following the end of the war, and therefore

the London Charter was retrospective in punishment.

Finally, ‘Victor’s Justice’ can also be seen in Nuremberg through the principle of tu

quoque. This is the concept that acts punishable against one state should also be

punishable against another. Nuremberg has often been criticised for this, as the allies

were prepared to prosecute Germany for offences that they themselves had also

committed2. One such example of this was raised in the case of Karl Donitz3 (A German

Admiral) by German Naval Judge Otto Kransbuhler. Because the defence of tu quoque

could not be raised in relation to Allied crimes, he instead argued it as an issue of law

that submarine warfare was permitted as part of customary international law. Charles

Nimitz (US Chief of the Pacific Navy) later admitted that US practice of submarine

1 M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law, 2nd edn (The Hague, 1999) pg 9-
10

2 Cryer, Friman, Robinson and Wilmshurst, An Introduction to International Criminal Law and Procedure, 3rd edn
(Cambridge University Press 2014) page 119

3 M. De Vabres, The Avalon Project – Documents in Law, History and Diplomacy, (Yale Law School) Judgement:
Doenitz

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