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
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
