6.2 "The Nuremberg Principles"

As to the history of the formulation and development of “the Principles of Customary International Law recognised by the Charter and in the Judgement of the International Military Tribunal held at Nuremberg” see Background Document RLM 001. It is sufficient to set out herein below the terms of Principles I & III:

“Principle I

Any person who commits an act which constitutes a crime under international law is responsible therefor and liable to punishment.

...

Principle III

The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government Official does not relieve him from responsibility under international law”.

6.3 Judgement of the Tribunal on 'Individual Responsibility'.

“ It was submitted that international law is concerned with the actions of sovereign States, and provides no punishment for individuals; and further, that where the act in question is an act of State, those who carry it out are not personally responsible, but are protected by the doctrine of the sovereignty of the State. In the opinion of the Tribunal, both these submissions must be rejected.

That international law imposes duties and liabilities upon individuals as well as upon States has long been recognized. In the recent case of Ex Parte Quirin (1942 317 US 1), before the Supreme Court of the United States, persons were charged during the war with landing in the United States for purposes of spying and sabotage. The late Chief Justice Stone, speaking for the Court, said:

"From the very beginning of its history this Court has applied the law of war as including that part of the law of nations which prescribes for the conduct of war, the status, rights, and duties of enemy nations as well as enemy individuals."

He went on to give a list of cases tried by the Courts, where individual offenders were charged with offenses against the laws of nations, and particularly the laws of war. Many other authorities could be cited, but enough has been said to show that individuals can be punished for violations of international law. Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.

[Page 42] The provisions of Article 228 of the Treaty of Versailles already referred to illustrate and enforce this view of individual responsibility.

The principle of international law, which under certain circumstances, protects the representatives of a state, cannot be applied to acts which are condemned as criminal by international law. The authors of these acts cannot shelter themselves behind their official position in order to be freed from punishment in appropriate proceedings. Article 7 of the Charter expressly declares:

"The official position of Defendants, whether as heads of State, or responsible officials in Government departments, shall not be considered as freeing them from responsibility, or mitigating punishment."

On the other hand the very essence of the Charter is that individuals have international duties which transcend the national obligations of obedience imposed by the individual state. He who violates the laws of war cannot obtain immunity while acting in pursuance of the authority of the state if the state in authorising action moves outside its competence under international law.“

The Trial of German Major War Criminals (HMSO)

Judgment (Lawrence L.J.): 30th September, 1946 - 1st October, 1946 pp. 41-42

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