Nuremberg Precedent

The global dimension of the Nuremberg war crime trials is reflected in the so-called Nuremberg effect, which has since played a seminal political role in the transitional justice literature and become a political reference point for how regimes ought to cope with past human rights atrocities. The legal edifice of the trials played a central role in the development of international law and in the global challenge to the inviolability of nation-state sovereignty.

The term Nuremberg trials is shorthand referring to the war crime tribunals against the leaders of Nazi Germany. Starting in the aftermath of World War II in 1945 and lasting through 1949, the trials are named after the German city in which they were held. The trials targeted high-ranking Nazis from the political, military, and economic sphere as well as professional groups who took part in state-sanctioned human rights atrocities. The first trial of the major war criminals before the International Military Tribunal (IMT) established the Nuremberg principles, setting universal guidelines on what constitutes war crimes.

The Nuremberg trials introduced a set of new legal categories addressing unprecedented violations of human rights. Legal arguments generally draw their persuasive power from the fact that they are grounded in precedent, which is why contemporary emphasis on these trials—the Nuremberg effect—is so important. The “London Agreement” in 1945 articulated the charter of the International Military Tribunal. It listed a number of crimes that were previously not part of international law, posing new challenges to then prevailing assumptions regarding state sovereignty. For one, Article 7 of the Agreement codified the notion that “the official position of defendants, whether as Heads of State or responsible officials in Government departments, shall not be considered as freeing them of responsibility or mitigating punishment” (IMT I:7). International law thus assumed the authority to hold individuals acting in their official capacity responsible for certain violations. The controversial centerpiece of the Nuremberg trials, however, was Article 6c of the London Agreement and the emerging legal category of “crimes against humanity,” which included

Article 6c constitutes the main legacy of Nuremberg, suggesting a radical departure from existing international law by recognizing individual responsibility not just in wartime but extending protection to one's own civilian population, granting supremacy to international law over [Page 1256]domestic law, and internationalizing the persecution of minorities.

Ultimately, the Nuremberg trials are remembered for establishing the notion of crimes against humanity, thus providing a legal category that has structured public and legal debate about genocide ever since. However, it was not until the end of the Cold War and the Balkan wars during the 1990s that the Nuremberg effect would become a routinized part of a globally available repertoire. In February 1993, the Security Council demanded the establishment of an International Tribunal to Prosecute Persons Responsible for Humanitarian Law Violations in Former Yugoslavia (ICTY). Nuremberg was the undisputed legal and moral model for the ICTY. As in Nuremberg, the trial's task was not to write history, but to establish juridical responsibility. Yet, as in Nuremberg, the history of the massacre in Srebrenica and other war-related events was in fact written in this trial due to its extensive global media attention. A similar effect was also apparent in the United Nations war crimes tribunal for Rwanda. The prosecution, for instance, referred to Nuremberg explicitly when the tribunal accused three men of inciting Hutus to murder Tutsis, comparing them with Julius Streicher, the Nazi publisher of the anti-Semitic weekly Der Stürmer. Prosecutors drew comparisons to Streicher's venomous hate tirades against Jews and the systematic incitement of certain Rwandan media outlets before and during the slaughter of 800,000 Tutsi.

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