International Criminal Law
330
IMT found that plans to wage aggressive war had been revealed as early as 5
November 1937, if not earlier, but this involved many separate plans rather than a
single conspiracy embracing them all. The Tribunal was of the opinion that a crime
against peace required not mere participation in the Nazi conspiracy, but also an
intention to commit aggressive war. Thus, Schacht was acquitted of this charge,
because he terminated his financial and armament building activity in 1937, after
discovering Hitler’s intention to invade other nations.
19
The IMT held that, even
though the plan or conspiracy may have been conceived by only one person, its
status as a conspiracy remains unaltered where other persons participate in its
execution. Indeed, as the Tribunal pointed out since Hitler could not have waged
aggressive war on his own, it was evident that those executing the plan did not
avoid responsibility ‘by showing that they acted under the directions of the man
who conceived it’.
20
The unsatisfactory, from a legal point of view, formulation of
the crime against peace in Art 6(a) of the IMT Charter did not readily evolve as a
principle of either treaty or customary law in the post-Nuremberg era. It was not
until the 1998 ICC Statute that it was included, albeit without any force until an
appropriate definition is agreed upon by participating States.
However, the IMT was more vague when it came to justifying the existence of crimes
against humanity. It had been common knowledge that atrocities against German
Jews and minority groups had been carried out by the Nazi regime, as well as similar
offences against other civilians of other countries occupied by Germany. Whilst the
brutality against civilians of other countries during the course of fighting or occupation
might have been covered by ‘established’ international law on war crimes and
aggression, atrocities against a State’s own citizens were not.Article 6(c) of the Charter,
concerning crimes against humanity, was drafted so as to encompass these acts, which
had occurred on such a massive scale that they could not be ignored. Article 6(c) of the
Charter covered acts against ‘any’ civilian population.
21
However, the IMT sidestepped
any discussion of precedents for crimes against humanity in international law. Instead,
it took the approach of delineating its own jurisdiction over such offences:
The tribunal is of the opinion that revolting and horrible as many of these crimes
were, it has not been satisfactorily proved that they were done in execution of, or in
connection with, any such crime.
22
Although it had found that the Jewish minority in Germany, as well as other minority
groups, had been subjected to acute discrimination and extermination policies long
before the outbreak of the Second World War, in order to describe these pre-war acts
as crimes against humanity it had to establish that they were committed in ‘execution
of, or in connection with, any crime within the jurisdiction of the tribunal’. Evidently,
the Tribunal was not prepared to go that far, possibly because of the evidentiary
difficulties this exercise would entail, taking account of the limited resources and
time it was allocated in carrying out its task.Alternatively, it could be said that because
there was more than ample evidence of large scale atrocities perpetrated against
19
Q Wright, ‘The Law of the Nuremberg Trial’, 41
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