The
Nuremberg Trials (The Pro and Contra in the Aspect of International Law)
By: Andi Ibrahim Ali
Background
The Nuremberg Trials
were a series of military tribunals that took place in Nuremberg from
1945-1949. This tribunals were about to prosecute the prominent figures from
defeated Nazi regime. The initiators were the United States of America, United
Kingdom, France and the Soviet Union. In 1943 the idea to bring the Germany to
the International Military Tribunal to prosecute in charges of the war crime,
crime against peace, conspiracy, and crime against humanity. The key defendants
included Hermann Goering, Martin Bornmann, Rudolph Hess, and Joachim von
Ribbentrop were there and of course they ascertained to get the punishment as
the charges.
Even the Nuremberg
trial was already passed; the pro and the contra still make this tribunal a hot
debate. The unclear law basis, the idealistic and the realistic describe about
the tribunal should be ran or not.
In the first trial,
22 of the most senior Nazi leaders face prosecution. Twelve of them were
sentenced to death, seven others received long prison sentences and another
three were acquitted. This trial was followed by twelve further trials of 177
people altogether, of whom 24 were sentenced to death.
The writers here are
gonna help the readers to open mind about the Nuremberg Trial. The writers will
show how the paths before the trial was held in Nuremberg, from years to years
until the trial officially started. About the debate between the pro and the
contra in arguing the trial, and which theories are actually becoming the basis
of the debate.
Timeline
Jan, 13. 1943 : International Trial to prosecute the
criminal under Nazi.
Oct, 30. 1943 : Moscow Declaration (2 types of
Criminals)
a. Commit Crime in one sole location
b. Commit crime in several different locations
Nov 28- Dec 2 1943 :
Conference in Tehran (Iran). It was attended by President Roosevelt, Prime
Minister Churchill and USSR leader Stalin. The results of the conference were:
a. Roosevelt :
Executions after the trials
b. Stalin :
Mass executions for the German Officers
c. Churchill :
Rejected the mass executions but adherent to the idea of summary
Feb, 4-11 1945 :
Yalta Conference (Concerning the punishment of war criminals) President Truman
rejected Churchill’s proposal (Summary executions)
May, 2 1945 :
Robert Jackson was nominated as the chief prosecutor by President Truman, and
officially he prepared the trial.
June, 5 1945 :
Declaration of Defeat
a. Assumption of complete authority by allied power to
bring criminal without any delay.
b. The Tribunal approaches had not agreed.
June, 20 1945 :
American delegates negotiated with the British and the alliances (French and
Soviet Union) about the number of trial and content of the bill of indictment. The
American delegation preferred a trial centred on the “Nazi conspiracy”, meaning
that the accent would be on the crime of aggression with a limited number of
defendants and with limited, but decisive proof, as well as on the indictment
of certain organizations. The British wanted a quick trial to be concluded in
less than two weeks.
Negotiations
with the French and Soviet delegations proved to be more complicated. The USSR
immediately expressed its disagreement over the procedure and the nature of the
crimes. The French, just like the Soviets, wished to put the accent on war
crimes and the suffering endured by the people, and not on the “crime against
peace” as put forward by the Americans.
Aug, 2 1945 :
American proposition accepted by Stalin in Potsdam Conference. The indictment
was about the aggression of Nazi.
Aug, 8 1945 :
All the alliances parties United States of America, British, France and Soviet
Union signed London Agreement (Nuremberg Charter) as the charter of
international military tribunal.
Oct, 18 1945 :
The trials were held in Nuremberg as the refusal of USA to hold the trial in
the city of ex occupied by Soviet Union. [1]
The Pro and the Contra
Many debates came
from this trials because even the international law scholars. They thought
about the Nazi punishment supposed to be not there and another said vice versa.
The writers will elaborate more about the contra first. What was the argument
about the contradictive thought.
The Contra
The contra about the
IMT Nuremberg was based on the Legal
Positivism theory. Legal positivists make some distinctive
claims about what constitutes legal validity. It is difficult to improve on the
following introduction offered by Leslie Green: "Whether a society has a
legal system depends on the presence of certain structures of governance, not
on the extent to which it satisfies ideals of justice, democracy, or the rule
of law. What laws are in force in that system depends on what social standards
its officials recognize as authoritative; for example, legislative enactments,
judicial decisions, or social customs. The fact that a policy would be just,
wise, efficient, or prudent is never sufficient reason for thinking that it is
actually the law, and the fact that it is unjust, unwise, inefficient or
imprudent is never sufficient reason for doubting it. According to positivism,
law is a matter of what has been posited (ordered, decided, practiced,
tolerated, etc); as
we might say in a more modern idiom, positivism is the view that law is a
social construction.[2]
Based on John Austin
on legal positivism that he claims
the existence of law depends on its
sources and not on its merits. It merely states that the existence of law may
not depend on morality.[3] It is clear the legal positivism disagree with the IMT Nuremberg.
Another explanation came from Prof. Dr. Muladi S.H that wrote in Peradilan Hak Asasi Manusia Dalam Konteks
Nasional dan Internasional because of the crime already committed before
the Nuremberg Charter being compiled, and then it made a big debate as based on
the “ex post facto criminalization.” The
ex post facto law also called rectroactive law, in the writers language that
means the law that could change the law consequences, because the law was made
based on the issues that happened before. In the other words and in the
linkages with the legal positivism, the ex post facto law could “violate” the
criminal law. Moreover it raised a comment from one of the defendants Joachim
von Ribbentrop that said “you’ll see. A few years from now the lawyers of the
world will condemn this trial. You cannot have a trial without the law.”
(Gilbert, 1995 p.36). U.S. federal judge, Charles E. Wyzanski,
Jr. in “Nuremberg: A Fair Trial?,” argues against the trials based on a concept
of justice predicated upon an assertion that, despite the immoral acts
committed by the defendants, the trials did not cohere with established legal
principles, such as ex post facto principles. The debate in the contradictive perspective of the
trial was because it supposed no based law on the Nuremberg Trials. The legal
positivism empirically sees it like this.
The Pro
In “Opening Address for the U.S., Nuremberg Trials,”
Robert H. Jackson, chief prosecutor for the United States at the Nuremberg
Trials, argued for
the validity of the trials based on a concept of justice predicated upon an
assertion of an absolute right and wrong. Jackson argued against the claims that the charges
against the defendants were illegitimate ex post facto laws. He also argued Germany participated in international
conventions which “prescribed certain restraints as to the treatment of
belligerents” and “certain immunities for civilian populations” occupied by a
foreign army. It was not true that the Charter was new law, not authoritatively declared at
the time; the
acts were committed and unknown to the defendants. The Charter created for the trials was
based on such international conventions.[4]
From the explanations
above from the Chief of prosecutor at the trials, we can see the based theory
was the Natural Law. Natural law
(God’s Law) is a law or body of laws that derives from nature
and is believed to be binding upon human actions apart from or in conjunction
with laws established by human authority.[5] Natural law links to the moral, the intrinsic
morality of law. Many scholars
such Aquinas speak of law requiring adherence to morality. Laws which
are contrary to morality are illegitimate. Immoral actions require punishment
under the law. An immoral action protected by law is not justice. Morality is
law. Law is necessarily moral and justice is adherence to morality.
Another debate that
agreed with the trials was come from the Hague convention and 1928
Kellog-Briand Pact in the based on crimes against peace. Besides that, it was
said that if the prohibition of criminal in retroactive way based on justness,
then it would be more unjust when the Nazi’s criminals were not being punished.
Conclusion
The pro and contra in
the Nuremberg trial was just like a drama in the global political game. The
alliances got the victory against the Nazi. Even many scholars still think that
it was victor’s justice[6]
but imagine if the Nuremberg trial was not initiated. The condition of the
world nowadays would be change through the different history also.
The point is; the pro
and the contra came up with their own law theory. The contra was with the legal
positivist and the pro side with the natural law theory. Jackson
argued the Nuremberg trials would best serve justice based on a conception of
justice involving the natural law theory. Wyzanski argued not having the trials
would best serve justice based on a conception of justice involving legal
positivism. Under natural law theory, ex post facto principles could be
violated, leading to infringement on liberty. However, while legal positivism
preserves ex post facto principles, it could allow harmful acts to go
unpunished or allow for an unacceptable alternate system of justice. It seems
either option could lead to an injustice.
It should be admitted
that whatever the argumentations about the Nuremberg Trial, it had created the
precedents which could penetrate the principle of legality which is very useful
for the next era in the applying the international criminal law (Kittichaisarre,
2001).
Work Cite
http://www.roberthjackson.org/the-man/speeches-articles/speeches/speeches-by-robert-h-jackson/opening-statement-before-the-international-military-tribunal/
http://www.thefreedictionary.com/natural+law
Austin, John. “Legal Positivism.” Adams, David M. Philosophical
Problems in the Law. Boston: Wadsworth Cengage Learning, 2012.
Jackson, Robert H. “Opening Address for the U.S.,
Nuremberg Trials.” Adams, David M. Philosophical Problems in the Law.
Boston: Wadsworth Cengage Learning, 2012.
Kittichaisaree, Kriangsak, International Criminal Law,
Oxford University Press, 2001
Muladi, Demokratisasi,
HAM, dan Reformasi Hukum di Indonesia, The Habibie
Center,2002
Wyzanski, Jr.,
Charles E. “Nuremberg: A Fair Trial?” Adams, David M. Philosophical Problems
in the Law. Boston: Wadsworth Cengage Learning, 2012.
[1]
http://www.trial-ch.org/en/resources/tribunals/international-military-tribunals/tribunal-militaire-international-de-nuremberg/creation.html
[2] http://plato.stanford.edu/entries/legal-positivism/
[3] http://www.lawteacher.net/jurisprudence/essays/legal-positivism-of-law.php
[4] http://www.roberthjackson.org/the-man/speeches-articles/speeches/speeches-by-robert-h-jackson/opening-statement-before-the-international-military-tribunal/
[5] http://www.thefreedictionary.com/natural+law
[6] Victor’s justice: justice by the own
basis of applying different rules to judge the wrong and right for their own
forces and for their former enemy.
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