Distilling the Nuremberg Legacy: Nemo Est Supra Leges

Almost 75 years ago, twenty-four high-ranking Nazi leaders were brought to trial under a new system of law in a courthouse in Nuremberg. In that courtroom, the world bore witness to the old Latin maxim – nemo est supra leges – that “no one is above the law.” But since then, the notion of international law that arose from Nuremberg has not been supported by some leaders who label it as a breach of state sovereignty. It is worth distilling the legacy of the Nuremberg judgment, asking ourselves how far we have come in delivering on its promise.

Background – International Law Before Nuremberg 

The origins of international law can be traced far back in the annals of history. In ancient Rome, legal scholars devised the principle jus gentium (law among nations) in order to resolve disputes with foreign states by appealing to rules that were just and fair for all. A millenium later during the Thirty Years’ War, a Dutch statesman named Hugo Grotius, widely considered to be the founder of modern international law, wrote “De iure belli ac pacis” (On the Law of War and Peace) which sought to establish certain conditions for engaging in conflict and rules for war, including the requirement that a state be facing imminent danger and that the use of force be necessary and proportionate. Grotius died three years before the conflict ended and the European monarchs signed the Treaty of Westphalia, which introduced the concept of state sovereignty. The next significant attempt at international justice came following World War One when the German Reichsgericht (Supreme Court) was given the responsibility of trying German war criminals, but no senior government or military official was sentenced to prison time. [1]

The Nuremberg Precedent

The Nuremberg Trial was a watershed moment in international law. In August 1945, the four major Allied powers and 17 other nations agreed upon the judicial procedures of Nuremberg and the indictments, which were crimes against peace, war crimes, crimes against humanity, and conspiracy to commit any of these first three counts. The Allied leaders did not, however, include the crime of genocide as a charge at Nuremberg. It was codified in international law three years later. [2]

For the first time, high-ranking political and military leaders were held legally accountable for crimes against humanity under international law, hence reaffirming the principle of nemo est supra leges. Rather than select a jury or a single judge, the Allies appointed a bench with one judge from each of the four main Allied powers and four alternates, with three of the four judges needed for a guilty verdict. Notably, the defendants had additional rights not afforded to most defendants under Anglo-American law, including the right to call joint meetings and to address the judges before the end of the trial.[3] The proceedings were filmed and the courtroom opened its doors to over 700 visitors and correspondents every day. Interestingly, the prosecution team at Nuremberg, led by U.S. Supreme Court Justice Robert H. Jackson, chose not to use eyewitness testimony. [4] Instead, they based their argument on 3000 tons of Nazi records.

After 216 court sessions spanning 10 months, the judges returned their verdicts; twelve defendants were sentenced to death, seven were sentenced to prison terms, and three were acquitted. [5] One defendant committed suicide before the verdict was handed down and another was deemed medically unfit to face trial.

 The Nuremberg Legacy

After its completion, Nuremberg helped build a structure of international jurisprudence for future international trials. The tribunal for Japanese war criminals, the international criminal tribunals for the former Yugoslavia and Rwanda, and numerous special courts all drew from the processes devised at Nuremberg. Despite continued challenges from powerful leaders, Nuremberg laid the groundwork for permanent international courts, as well as international covenants recognizing the rights of all people and the responsibilities of all governments.

While the world has not yet delivered on its promise, Nuremberg brought us closer, existing as useful precedent in international law. This happened because principles, not politics, prevailed at Nuremberg – a decision that Justice Robert H. Jackson describes in his closing statement: “Of one thing we may be sure. The future will never have to ask, with misgiving, what could the Nazis have said in their favor. History will know that whatever could be said, they were allowed to say. They have been given the kind of a trial which they, in the days of their pomp and power, never gave to any man.” [6]

References:

[1] Rikhof, Joseph. “Historical Origins of International Criminal Law: Volume 1.” The Istanbul and Leipzig Trials: Myth or Reality?,” December 12, 2014. https://doi.org/https://www.legal-tools.org/doc/b75e70/pdf/.

[2]  Drumbl, Mark A. “Genocide: The Choppy Journey to Codification.” Philosophical Foundations of International Criminal Law: Correlating Thinkers, 2018. https://doi.org/https://www.legal-tools.org/doc/63f10e/pdf/.

[3] Ferencz, Benjamin B. “NÜRNBERG TRIAL PROCEDURE AND THE RIGHTS OF THE ACCUSED.” Journal of Criminal Law and Criminology. Northwestern University Law Review, 1948. https://scholarlycommons.law.northwestern.edu/cgi/viewcontent.cgi?article=3566&context=jclc.

[4] Gee, Denise. “70th Anniversary of 'Greatest Trials in History'.” SMU News, October 24, 2016. https://www.smu.edu/news/2016/nuremberg-trials-anniversary-24oct2016.

[5] n.a. “The Nuremberg Trials: Brief Overview of Defendants & Verdicts.” Brief Overview of Defendants & Verdicts at Nuremberg Trials, 0AD. https://www.jewishvirtuallibrary.org/brief-overview-of-defendants-and-verdicts-at-nuremberg-trials.

[6] Jackson, Robert H. “CLOSING ARGUMENTS FOR CONVICTION OF NAZI WAR CRIMINALS.” Robert H. Jackson Center, July 26, 1946. https://www.roberthjackson.org/wp-content/uploads/2015/01/Closing_Argument_for_Conviction_of_Nazi_War_Criminals.pdf.