CYIL vol. 12 (2021)

Katarína ŠmigovÁ CYIL 12 (2021) tribunals 3 and the Court, sometimes including mixed courts 4 as well. Nevertheless, these developmental milestones are not of equal weight. The question might be asked whether there has been any such milestone like Nuremberg, especially in relation to its principles formulated a posteriori by the International Law Commission (hereinafter also the Nuremberg Principles). 5 Is the development of international criminal law, having led to the establishment of the ICC, in fact the development of the Nuremberg Principles, either by their further interpretation or by their application in new situations? Of course, institutionally, the situation has changed a lot. First, the factual and political background was different and therefore the Rome Statute had to be adopted in the form of an international treaty open to all States. Second, the ICC’s original intent was to be a permanent institution acting pro futuro . Third, the cooperation of States and the enforcement power within the Nuremberg system was completely unique relating to the post-war situation. Nevertheless, as for substantive law, it is submitted that the Nuremberg Principles have been the basis that has formed the spine of the principles included into the Rome Statute despite all the differences between the backgrounds of Nuremberg and the Rome Statute. It is true that these historical differences could not be overcome. But overcoming Nuremberg as such was not the goal, it had to be quite the opposite since it was necessary to learn from that past lesson, from both its weaknesses and strengths. Moreover, the purpose of both systems has been the same, namely the fair and effective prosecution of persons for the most serious crimes of international concern. 6 The aim of the proposed Article is to analyse the role that the Nuremberg Principles played in the development of the legal framework in the 1990s and to compare them to the relevant principles included in the Rome Statute. The Nuremberg Principles will be examined firstly in common as one set and later one by one, especially in relation to their presence and formulation in the Rome Statute. The extent of the analysis is proportional due to the word limit and importance of particular principles for the development of international criminal law. The Article will thus focus on the question of whether the ICC and its founding Statute has held or even improved the legacy of the Nuremberg Trial and Judgment and their Principles. 2. The Nuremberg Principles The atrocities of WWII shocked the conscience of humanity 7 and resulted in a situation when apperception of the classical international law and its actors had to admit that despite previous traditions the most serious crimes of concern to the international community as a whole simply must not go unpunished. 8 This very specific material source of law changed 3 See establishing documents, namely the Statute of the International Tribunal for the former Yugoslavia, adopted 25 May 1993 by Security Council resolution 827 (hereinafter also ICTY Statute) and the Statute of the International Tribunal for Rwanda, adopted 8 November 1994 by Security Council resolution 955 (hereinafter also ICTR Statute). 4 Such as e. g. Special Court for Sierra Leone, Extraordinary Chambers in the Courts of Cambodia, Special Tribunal for Lebanon. 5 Principles of International Law recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal, International Law Commission, Yearbook of the International Law Commission, 1950, vol. II.

6 See art. 1 of the London Charter and art. 1 of the Rome Statute. 7 Compare the preamble of the London Charter and the Rome Statute. 8 Ibid .


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