CYIL vol. 12 (2021)

CYIL 12 (2021) THE NUREMBERG PRINCIPLES AS THE BASIS OF INTERNATIONAL CRIMINAL Law The Nuremberg Charter expressly stated that even if the act was in accordance with domestic legal orders, it did not prevent its prosecution on the international level. 40 Although it was stated only in relation to crimes against humanity, principles formulated by the Commission have included this approach towards all crimes under international law. 41 This principle is thus a corollary of the first principle because, if individual criminal responsibility under international law for crimes under international law is once agreed upon, suspected individuals cannot be relieved from this responsibility by having no responsibility for these crimes under national law. 42 As the Tribunal stated, “individuals have duties which transcend the national obligations of obedience imposed by the individual State.” 43 Moreover, the Commission has explained that this principle implies the so-called supremacy of international law over national law. 44 This principle deals only with crimes under international law, i.e. first, it entails individual responsibility since criminal guilt is personal and mass punishments should be avoided. 45 Second, it must be punishable under international law regardless of whether it is criminalized under national law. 46 Third, the norm has to be a part of international law. 47 Crimes under international law as of today are crime of aggression, war crimes, crimes against humanity, and genocide. 48 These are also crimes under ICC jurisdiction ratione materiae and although it does not entail this principle expressly, since it has already been broadly accepted, the Rome Statute as an international treaty is also covered by the Vienna Convention on the Law of Treaties according to which a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty. 49 Furthermore, even though there is no legal duty to implement international obligations into domestic legal orders, 50 a factual obligation might be pointed out. 51 Especially in relation to the application of the principle of complementarity, states are supposed to criminalize offences that are crimes within the ICC jurisdiction. Finally, art. 22 para. 3 of the Rome Statute presumes that it shall not affect the characterization of any conduct as criminal under international law independently of the Statute, therefore it admits that there might be other crimes under international law although not within its jurisdiction. Although the second Nuremberg principle, so innovative after WWII, is, as such, not expressly included in the Rome Statute, its spirit is de facto present there since otherwise it would not be operative in its essence as an international judicial body. 40 Nuremberg Charter, see supra note 9, art. 6c. 41 Nuremberg principle II formulated by the ILC. 42 Nuremberg Principles, para. 100, see supra note 5. 43 Nuremberg Judgment, para. 446, see supra note 2. 44 Nuremberg Principles, para. 102, see supra note 5. 45 Nuremberg Judgment, para. 469, see supra note 2. 46 ŠTURMA, P., Mezinárodní trestní soud a stíhaní zločinů podle mezinárodního práva [International Criminal Court and prosecution of crimes under international law], Karolinum, 2002, p. 17. 47 WERLE, JESSBERGER, 2014, p. 32, see supra note 31. 48 BROOMHALL, B., International Justice and the International Criminal Court , Oxford University Press, 2003, p. 10. 49 Art. 27 of the Vienna Convention on the Law of Treaties 23 May 1969. Done at Vienna on 23 May 1969. Entered into force on 27 January 1980. United Nations, Treaty Series, vol. 1155, p. 331. 50 WERLE, JESSBERGER, 2014, p. 29, see supra note 31. 51 Compare SCHABAS, W. A., The International Criminal Court , A Commentary on the Rome Statute , Oxford University Press, 2010, p. 47.

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