War Crimes

The Nuremberg Charter

Such customary law found codification in the Hague conventions of 1899 and 1907, which established the “general rules of conduct for belligerents in their relations with each other and with populations.” The Hague conventions, in turn, supplied the template for the definition of war crimes used by the International Military Tribunal (IMT) in the trial of the major Nazi functionaries in Nuremberg in 1945 and 1946. These “violations of the laws or customs of war” were understood to include, “murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or illtreatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity” (Charter of the International Military Tribunal 1947: 11).

Although the IMT's definition of war crimes tracked Hague language, Nuremberg nevertheless represented a radical innovation in the law's response to crimes of war. The trial marked the first time that jurists formally recognized that waging a war of aggression and committing crimes against humanity—the other two substantive crimes named in the [Page 1570]charter—were incriminating in international law. Of equal significance, Nuremberg revolutionized the international community's treatment of the question of responsibility. Despite its somber adumbration of offenses, the Hague convention remained silent on the matter of sanctions. Nuremberg, by contrast, assigned “individual responsibility” for the violations of international law under its purview.

Two key provisions of the IMT's charter implemented the principle of individual responsibility. Article 7 held that “the official position of defendants… shall not be considered as freeing them from responsibility,” thus puncturing the immunity that previously had shielded heads of state and ministers from answering for their conduct in foreign or international courts. Article 8, in turn, held that “the fact that the defendant acted pursuant to [an] order of… a superior shall not free him from responsibility.” Together, these two provisions transformed war crimes jurisprudence into a potentially potent tool for imposing penal sanctions on individuals found guilty of violating international law.

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