CYIL vol. 12 (2021)

CYIL 12 (2021) THE NUREMBERG PRINCIPLES AS THE BASIS OF INTERNATIONAL CRIMINAL Law apperception of the absolute position of States and their officials and thus the functioning of an international community because of reconsidered principles of humanity. This transformation was accompanied by the preparation and adoption of the London Agreement with an annex containing the Charter (hereinafter the Charter) that established International Military Tribunal (hereinafter the Tribunal) to hold top German officials responsible for crimes against peace, war crimes, and crimes against humanity. 9 When theNuremberg tribunal completed theirmandate, the International LawCommission (hereinafter the ILC), a body of distinguished legal experts, was directed under General Assembly resolution 177 (II) to formulate the principles of international law recognized in the Charter and in the Judgment of the Nuremberg Tribunal. Since the Nuremberg principles had already been affirmed by the General Assembly and previously by the Tribunal itself, the Commission was not required to express any appreciation of these principles as principles of international law but merely to formulate them. This formulation was not only meant to sum up what had been achieved by the Nuremberg trials. They were a bridge to a desired international criminal court. 10 Although they are sometimes labelled as victor’s justice, 11 they have no doubt laid the foundation of a new area of public international law that generally used to focus solely on the position of the State. This new sphere, namely international criminal law, broke through the inviolability of some features of the concept of the sovereignty of a State and strengthened the rule of law. 12 3. The Presence of the Nuremberg Principles in the Rome Statute If there was a requirement to formulate only one principle derived from Nuremberg, that basis would be the first Nuremberg principle as the foundational principle from which other principles originate. The decision to place individual criminal responsibility on the international level changed the essence of international public law originally aimed exclusively at States. When the responsibility of an individual for a crime under international law is discussed, national law cannot be decisive (the second principle is thus the corollary of the first principle). Moreover, when the first principle establishes the responsibility of every individual for the commission of a crime under international law, it also includes top officials who cannot rely on their position, which is often associated with their immunity from prosecution (the third principle), as well as those who “only” fulfil the orders of their superiors (paraphrase of the fourth principle), or those who “only” helped commit this crime (paraphrase of the seventh principle). Furthermore, when analysing the responsibility of an individual for committing crimes under international law, one has to define what a crime under international law is (see the sixth principle). At the same time, it must be taken into consideration that the responsibility of prosecuting an individual for committing a crime 9 Charter of the International Military Tribunal, 8 August 1945, available at http://www.legal-tools.org/ doc/64ffdd/, last accessed at 22 April 2021. 10 That aspiration was affirmed in the Convention on the Prevention and Punishment of Genocide that was adopted in the same era of adopting principal international legal documents and that expressly foreseen establishment of an international criminal court by referring to it in art. VI. 11 CRYER, R., FRIMAN, H., ROBINSON, D., WILMSHURST, E., An Introduction to International Criminal Law and Procedure , 2nd ed., Cambridge University Press, 2010, p. 113. 12 KING, H.T., “Without Nuremberg – what?” in Washington University Global Studies Law Review , 2007, issue 3, vol. 6, p. 653 et seq.

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