From Nuremberg to the Hague: Establishing the Legitimacy of International Legality

Abstract

The atrocities of World War II catalysed an unprecedented move in international criminal justice: in Nuremberg, the Allied Powers united to establish the International Military Tribunal, ‘the IMT’, an international court where certain members of the Third Reich could be brought to judgement. The actions of the Tribunal have often been criticised as reflecting a victor’s justice, that is, imposition of the victor’s law on the defeated. It has been argued that the IMT retroactively applied novel crimes on the defendants, an action that categorically undermines traditional principles of legality. Nevertheless, the horrors of war prompted an immediate reaction, as the world demanded condemnation of the Nazi crimes. A new form of legal order emerged almost overnight. The trials at Nuremberg may be described as the birth of international criminal justice. With this in mind, it is clear that its jurisprudence is also nascent. Just as the trial itself was a radical change in established legal practice, traditional jurisprudence may require substantial restructuring. Although it has been argued that the Tribunal’s actions were an assault on the sovereignty of the nation state and contrary to principles of legality, it is the aim of this paper to reject such assertions in order to dispel the similar jurisprudential criticisms that are directed at the International Criminal Court, ‘the ICC’.