Journal of International Criminal Justice Advance Access originally published online on October 18, 2006
Journal of International Criminal Justice 2006 4(4):830-844; doi:10.1093/jicj/mql051
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The Legacy of Nuremberg
* Professor of Public Law, International Law and European Law, Humboldt University, Berlin; member of the Institut de Droit international; former member of the UN Human Rights Committee; former member and Chairman of the UN International Law Commission. [ chris.tomuschat{at}gmx.de]
The Nuremberg trial, later followed by the Tokyo trial, is a milestone in the development of international law. For the first time in modern history, the leaders of a defeated country were indicted for committing serious crimes jeopardizing the bases of peaceful coexistence among individual human beings and peoples: crimes against peace, war crimes and crimes against humanity. German objections criticizing crimes against peace as having no legal basis and, therefore, contradicting the principle nullum crimen sine lege, were justified. To date, the legal position has not changed, since the international community has consistently refrained from including aggression in the lists of offences prosecutable under the statutes of the currently existing international criminal courts. However, no well-founded objections could be raised against the indictment for war crimes and crimes against humanity. Concerning offences of such abhorrent nature, no offender can invoke nullum crimen that protects only legitimate confidence. To hold to account political leaders, directly under international law, for criminal actions organized and ordered by them is a necessity in a world where the basic axioms of the international system have changed: state sovereignty has lost its absolute character and is counterbalanced by the requirements of human rights protection. The emergence of international criminal justice embodies the concept of international community in the most palpable manner. Fortunately, some of the defects of the Nuremberg trial have been remedied today: no arbitrary picking and choosing of the accused by the prosecution is possible before the International Criminal Court; prosecutors as well as the judges of all existing judicial bodies are carefully selected by the international community with a view to avoiding any illegitimate bias.