CYIL vol. 12 (2021)

CYIL 12 (2021) THE NUREMBERG PRINCIPLES AS THE BASIS OF INTERNATIONAL CRIMINAL Law The experience of ad hoc tribunals influenced the drafters of the Rome Statute and the delegates at the Rome Conference adopted a compromise between absolute and conditional responsibility. 71 Under the Rome Statute, it is not possible to relieve a person of criminal responsibility for committing crimes within the jurisdiction of the Court unless two conditions are cumulatively met. 72 These conditions require: first, an objective existence of a legal obligation to execute an order of the relevant person about which the prosecuted person did not know to be illegal (subjectification of the conditions under examination) and, second, the order itself was not manifestly unlawful. Moreover, the objectification of the latter condition is emphasized by para. 2 of art. 33 of the Rome Statute, according to which orders to commit crimes against humanity and genocide are manifestly unlawful. Under the fourth principle, it cannot be said that the development of international criminal law has been made more specific. On the contrary, the wording of the Rome Statute is not a development of this Nuremberg principle, but a departure from it. However, an important aspect is that both the Charter and the Judgment of the Nuremberg Tribunal actively examined the superior order defence which become a part of the Nuremberg Principles. Different material content of this concept in 1948 and later in 1998 was influenced mainly by the fact that Nuremberg was home to a military tribunal that prosecuted the top offenders for crimes that had already occurred, which had a major influence on the establishment and functioning of this Tribunal under rather ideal conditions. 73 It is difficult to compare these conditions with the conditions in the Hague where is currently the home to a criminal court with jurisdiction pro futuro and over offenders en bloc of the most serious crimes under international law. 74 Like current national legal orders, 75 its establishing Rome Statute allows superior order plea under strict conditions. 3.5 Right to a Fair Trial (Rights of the Accused) Any person charged with a crime under international law has the right to a fair trial on the facts and law. The Nuremberg trials were built upon two pillars: 76 first, accountability of perpetrators of the most serious crimes under international law, and second, fair trial of processing that accountability. Although there were other proposals on how to deal with Nazi perpetrators, the opinion that it was necessary to apply the rule of law overruled them. 77 Art. 16 of the London Charter therefore provided for the rule of a fair trial for defendants that was affirmed by the ILC under principle V. This short provision specifies requirements of a fair trial as a procedure that had to be followed. First, information of detailed charges had to be provided in a language understood by the defendant at a reasonable time before the trial that itself had to be conducted or translated into a language that is understood by the defendant. 71 VAN SLIEDREGT, 2012, p. 292, see supra note 19. 72 CRYER, FRIMAN, ROBINSON, WILMSHURST, 2010, p. 417, see supra note 11. 73 KING, H. T., Without Nuremberg – What?, in Washington University Global Studies Law Review , 2007, issue 3, vol. 6, p. 655. 74 Ibid . 75 VAN SLIEDREGT, 2012, p. 299 et seq., see supra note 19. 76 KIRSCH, 2007, p. 502, see supra note 1. 77 Relevant statement of Main US Prosecutor Jackson: “We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow.” Opening Statement, see supra note 67.

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