Journal of International Criminal Justice Advance Access originally published online on October 10, 2006
Journal of International Criminal Justice 2006 4(4):800-829; doi:10.1093/jicj/mql052
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The Nuremberg Trial and its Impact on Germany
* LLM (NYU); doctoral candidate; research assistant at the Max Planck Institute for Foreign and International Criminal Law, Freiburg, Germany. For constructive criticism and assistance I am greatly indebted to Albin Eser, former Judge ad litem at the ICTY and Director emeritus of the Max Planck Institute for Foreign and International Criminal Law, Freiburg, Germany, who drew on a preliminary version of this article for his speech on ‘Das Internationale Militärtribunal von Nürnberg aus deutscher Perspektive’ at the Conference ‘Judging Nuremberg: the Laws, the Rallies, the Trials’, 17 July 2005, Nuremberg, and encouraged me to publish this article. [ Christoph.Burchard{at}web.de]
The impact of the Nuremberg trial on Germany has changed over time. It is not only a question of evolving legal debate, but also a correlation of historical, political and moral developments. The author considers the reception of the International Military Tribunal (IMT) trial during the Cold War. West Germany rejected Nuremberg's historic precedent, principally on the grounds that the Allies had enforced victors’ justice, and that the Tribunal had applied ex post facto law by violating the nullum crimen principle. Meanwhile, East Germany seemingly took up the cause of Nuremberg by prosecuting minor Nazi perpetrators. However, this affirmation was politically motivated, and it led to inhumane abuses of power, exemplified by the Waldheim trials. The reunification of Germany marked the beginning of a positive approach to the Nuremberg legacy: the new generation of judges, politicians and academics was increasingly sympathetic to international criminal justice, and adopted the Nuremberg precedent by dealing judicially with crimes committed in the East during the Cold War. The study goes on to deal with the relevance of West German legal critique for modern international criminal law. The author suggests that a distinction should be made between true victims of international crimes and those who wish to revise history by portraying themselves as such, as many West Germans did after World War II. Moreover, the ‘victors’ justice’ argument must not be used to conceal the fact that justice has indeed been administered. However, the criticism of the IMT's violation of the nullum crimen principle is firmly grounded in the German, as opposed to Anglo-American, legal tradition.