There still seem to be some who believe the IMT was a court of law.
As pointed out by Lucius Felix Silla, CCL No.10 was ex post facto law. Scott Smith’s posts are very good as well. But, here is my one cent worth.
I am again quoting from a book by Dr. August von Knieriem: “The Nuremberg Trials”. v. Knieriem (v.K), a Lawyer, was, as member of the board of IG Farben, co-defendant at Nürnberg, i.e., he was there.
In the first part of his rather voluminous work, 560 pages (no pictures), he deals with:
A. Problems of Substantial Law ( 1.CCL No.10. 2. Punishability according to international law,3. Punishability according to national law,4. Attempts at a practical solution)
B. Problems of Judicial Organization (1.The legal nature of the Nürnberg Tribunals.2. The Nürnberg Tribunals as Tribunals of the Victor)
C. Problems of Procedural Law (1.General conditions for regulating the procedures.2.The Statutory foundations of the procedural law applied in Nürnberg [a. Background, b. Anglo-American and Continental criminal procedure, c. Ordinance No.7] 3. The procedure in action [a. Supplementation of the Statutory Provisions by the Tribunals. b. The general attitude of the Tribunals. c. The attitude of the Prosecution. d. Prosecution and Defence.] 4. Conclusions
D. General Conclusions
Under A., 1, CCL No.10, he writes: “.....The point of view that CCL No.10 only codified a legal situation which existed before would be correct, if even without this statute the same punishment could have been inflicted on the basis of the criminal law valid and applicable at the time the acts were committed. Why, then, was CCL No.10 issued in the first place and why was punishment not inflicted on the basis of the international criminal law in force before, in order to avoid the somewhat embarrassing question of whether ex post facto law was being applied?......”
Here are his ‘General Conclusions‘:
“ OUR EXAMINATION of questions of substantive law, judicial organization,
and procedural law have led to the following results:
1. CCL No10 ought not to have been applied; it’s application violated the principle
that punishment cannot be based on an ex post facto statute.
2. The application of CCL No.10 cannot be justified by the assertion that this statute
does not contain new law. At the time of the acts there was no international criminal law on the basis of which individuals could have been punished for violating international law.
3. Punishment, therefore, could only be based on national law. The criminal responsibility of the accused might have been determined by
a) German criminal law; or
b) By the legal system or systems determined by the principles of the law of conflict of criminal laws; i.e., the principles of personality, territoriality, and protection, and by the criminal laws of war. .
c) Occupational law established by the occupants in accordance with international law.
4. The following points of view would have had to be taken into account:
a) In examining Punishability on the basis of foreign criminal law, no matter whether it was general criminal law or criminal law of war, one would. have had to take into account
whether or not the act was punishable under the law of the place and the time when it was committed. This would have been German law for all acts involved, and no act should have been punished under any foreign law unless it was also punishable under the German law of the time of its commission.
b) A special criminal law of occupation could have been applied retroactively only if the
act in question had also been punishable according to the German law of the time when it was
5. In judging the acts submitted to them, the Nuremberg Tribunals
might have applied any criminal law which they were instructed
to apply. Without such instruction they could only apply American
law of war if they were American military tribunals; but if
they were occupation courts they could only apply German and
6. Practically speaking, the Nuremberg Tribunals, if they wished to
judge in an unobjectionable manner without being suffocated
by the problems of the law of conflict of criminal laws, could
only have applied German law.
7. The Nuremberg Tribunals were not international Tribunals but
American Tribunals of occupation. As such they were obliged
to take into consideration certain principles of international law
on the procedure to be applied in punishing foreigners; as
American tribunals they were furthermore bound by the Constitution
of the United States and had to observe the constitutional
guaranties of fair criminal procedure.
8. The procedural law actually applied rested upon Anglo-American
principles of criminal procedure. As far as continental
institutions of procedure were accepted, they were either misunderstood
9. The application of the Anglo-American law of criminal procedure
presupposes equality of weapons between prosecution
and defence. Otherwise, fairness of procedure could not be guaranteed.
10.In fact, there was no equality of weapons but an overwhelming
preponderance of the prosecution. As this inequality of weapons between prosecution and
defence was inevitable, the Anglo-American law of criminal procedure ought not to have been
11. It would have been both useful and psychologically effective to
base the procedure on a revised German code of criminal procedure.
12. Next to the application of German law, it would have been
desirable to add to the tribunals German and neutral judges in
order to take away the odious character of being tribunals of the
13. The application of denazified German substantive law; the appointment
to the tribunals of judges from the victorious, the
defeated, and neutral countries; and a mode of procedure according
to the principles of German law not only would have been
practically advantageous but would also have offered a great
number of legal, moral, political, and psychological advantages.
14. If these points of view had been considered, fewer sentences
would probably have been passed, but ,acts of a truly criminal character would hardly have escaped punishment.
No one is free, until we are all free.