The Nuremberg Military Tribunals and Contemporary International Criminal Law

This is a terrific book which ploughs much virgin territory. The dust jacket blurb describes it accurately as providing the “first comprehensive legal analysis of the twelve war crimes trials held in the American zone of occupation between 1946 and 1949, collectively known as the Nuremberg Military tribunals (NMTs).” It is not the only material on the topic but it is the most illuminating. There is much to be gleaned from Telford Taylor’s Final Report to the Secretary of the Amy (1949) and his derivative study, “The Nuremberg Trials,” 27 Int’l Conciliation (also 1949) and, of course, Taylor’s 1992 memoir, The Anatomy of the Nuremberg Trials. (Taylor was my Constitutional Law Professor at Columbia). I also learned a lot about the NMTs in the relevant parts of Peter Maguire’s historian’s account in Law and War: An American Story (2001), although the organization there, a chronological account across the trials, was very frustrating. So, we are all indebted to Kevin for what is a tour de force examination of an enormous amount of material.

Often the greatest value of an historical study is to illuminate contemporary issues. Accordingly, I thought I’d talk about Nuremberg and Crimes against Peace, trying to link some of the significant points that Kevin draws from the NMT material to the 2010 Kampala Amendments to the Rome Statute of the ICC. Those amendments move us in the direction of empowering the Court to “exercise” its jurisdiction over the crime of aggression. Most of what follows is about mistakes of law and then I offer some thoughts on the “leadership” feature of the crime of aggression. (Continue…)

The Mental Element of the Crime of Aggression and Mistake of Law

One of the striking features of the Rome Statute is its criminal law “general part”, by far the most comprehensive of its kind ever found in a treaty. This includes, in Article 30, a default rule as to the “mental element” applicable to the “material elements” of the crimes within the jurisdiction of the Court. “Unless otherwise provided” (and the Statute is, itself, thin on “otherwise providing”), there must be “intent and knowledge” in respect of the material elements. Article 32 adds that a mistake of fact shall be a ground for excluding responsibility only if it negates the mental element required for the crime. A mistake of law as to whether a particular type of conduct is a crime within the jurisdiction of the Court is not a ground for excluding criminal responsibility. (Ignorance of the law is no defense. The accused cannot be heard to say: “Goodness gracious, aggression is a crime – I didn’t know that!”) On the other hand, the article adds that a mistake of law may be a ground for excluding criminal responsibility if it negatives the mental element required by such a crime. Some mistakes of law, it seems, will “work”. Mistakes, in general, go to negativing the relevant mental element. The debate on the inclusion of Article 32 in the Statute was in many ways a reprise of the debate that took place in the American Law Institute over the necessity for the similar mistake provision contained therein, Section 2.04. Is mistake conceptually a “defense” of some sort, or simply a denial of the prosecution’s prima facie case – and thus not necessary to state explicitly as a distinct element? In both cases, the provision ultimately found its way in, on the basis that it was helpful, or at least not unhelpful.

The Nuremberg Tribunals had no such legislative framework as Article 30 and 32 to rely upon. Nevertheless, they were faced with general part problems that sent them out to general principles. As Kevin points out in his discussion of mens rea (at 194-98), the NMTs, following the lead of the IMT, “adopted knowledge as the mens rea of crimes against peace, with one minor exception.” (The exception was the requirement of one tribunal that, in the case of rearmament, the actor must not only have known of but must also have intended the aggressive use of the material.) He points to language of the High Command Tribunal that “there first must be actual knowledge that an aggressive war is intended and that if launched it will be an aggressive war.”

I underscore first the “actual” knowledge part of the equation. The instinct of all the panels was that negligence was not enough; recklessness was not enough; “willful blindness” was not enough (although it might constitute an evidentiary aid). There was no strict liability. Actual, subjective, knowledge had to be proved. Similar questions about the appropriate level of culpability for all the crimes in the jurisdiction of the ICC pervaded the negotiations leading to the Rome Statute. By and large, the “knowledge” minimum contained in Article 30 held, with a few exceptions such as the command responsibility obligations (negligence in the case of military commanders, recklessness in the case of civilian leaders). (Command responsibility for aggression, incidentally, is an issue that the Kampala negotiators ultimately left to the judges. As I understand Kevin’s discussion there were no examples in Nuremberg where a serious effort was made to punish a crime against peace on the basis of command responsibility.) Kevin does not devote much attention to the question of how “actual knowledge” is to be proved, but I doubt that he would disagree with the proposition stated in Paragraph 3 to the General Introduction to the Elements of Crimes, adopted by the ICC’s Assembly of States Parties in 2002: “Existence of intent and knowledge can be inferred from relevant facts and circumstances.” That was consistent with the work of the NMTs.

He does, however, note a crucial point that is ultimately relevant to the application of Article 30 and 32 of the Rome Statute to the crime of aggression, namely whether “knowledge” sometimes requires proof of a legal evaluation. He points out that the Ministries tribunal, probably speaking also for the others, said that the knowledge requirement involved a legal evaluation of the war or invasion in question. “It was not enough for the defendant to know that the Nazis intended to use armed force against another country; he also had to subjectively recognize that the intended attack would violate international law.” (P. 195.) Kevin contrasts this with the position taken by the tribunals that it was not necessary to show that those charged with crimes against humanity or war crimes knew that the acts in question were criminal. He does not examine this further and I suspect that the explanation in Ministries is merely the fiat of the tribunal. It was nonetheless an important point.

Article 32 of the Rome Statute provides a framework for examining the mistake of law problem and, I think potentially leads to a somewhat different analysis from that apparently used in the Ministries case. It perhaps makes life a little easier on the prosecution. It is no defense for the accused to claim that he did not know that aggression, war crimes, genocide and crimes against humanity are forbidden (or that they are within the jurisdiction of the Court). This is an easy application of Article 32. On the other hand, a particular manifestation of any of the relevant crimes might be excluded from criminal responsibility by a mistake of law as to one of its elements. How to apply this abstract proposition to particular crimes prompted much angst during the drafting of the Elements of the war crimes in particular. (Article 9 of the Statute requires the drafting of Elements of Crimes to “assist” the Court.)

There are some crimes in the finished product that appear to permit a “defense” based on a mistake or ignorance of law (or at least of mixed fact and law). Take, for example, the war crime of improper use of a flag, insignia or uniform of the United Nations. One of the elements is that “The perpetrator knew of the prohibited nature of such use” and a footnote refers to the “interplay between article 30 and article 32.” It must be the case that someone who gets his legal analysis honestly wrong does not have the necessary knowledge – he does not “know”.
In a second set of instances, the Elements (in a move that is arguably ultra vires the Statute) incorporate a negligence test. Take, for example, the war crime of improper use of a flag of truce. Here the test is whether the perpetrator “knew or should have known of the prohibited nature of such use.” Whether the particular use is prohibited may involve quite complex and arcane issues of law. Indeed, there is another footnote here mentioning the “interplay between article 30 and article 32.” This time the footnote adds that “[t]he term ‘prohibited nature’ denotes illegality.” The ultimate issue is what a reasonable person would have known about that illegality. A non-negligent mistake of law may excuse.

There is another set of arguably “legal mistake” issues that receive yet a third kind of treatment in the Elements. Take the “contextual” circumstance element for war crimes, the requirement of a “war”, or in the language of Article 8, an “armed conflict” (whether it is international or non-international makes no difference to the analysis). That has to be an issue with legal aspects. Here, the Elements work a finesse. The legal material gets re-packaged as factual. The relevant element becomes: “The perpetrator was aware of factual circumstances that established the existence of an armed conflict.” It is this third, re-characterizing, approach that found favor with the drafters of the Elements of the Crime of Aggression, as adopted in Kampala.

The “Introduction” to the aggression Elements makes two relevant statements. Paragraph 2 notes that “[t]here is no requirement to prove that the perpetrator has made a legal evaluation as to whether the use of armed force was inconsistent with the Charter of the United Nations.” Paragraph 4 adds that “[t]here is no requirement to prove that the perpetrator has made a legal evaluation as to the ‘manifest’ nature of the violation of the Charter of the United Nations.” In the Elements themselves, Element 4 asserts that the prosecution must prove that: “The perpetrator was aware of the factual circumstances that established that such a use of force was inconsistent with the Charter of the United Nations,” and that : “The perpetrator was aware of the factual circumstances that established such a manifest violation of the Charter of the United Nations.” The drafters believed that this approach would encourage leaders not to rely on “disingenuous” legal advice (or worse). This seems like a sensible interpretation of Article 32 but is no doubt open to the argument that it strays too far from the text and is thus ultra vires. At all events, in approaching the Kampala text, it is useful to have Kevin’s reminder that the problem of legal mistakes was on the floor at Nuremberg and, as we learned from the UK Attorney-General’s comings and goings before the Second Gulf War, is still a live issue. (There is, by the way, much in Kevin’s discussion of the Justice case at several points in his narrative that could have been instructive to legal advisers in the US, the UK, and I suspect Australia, about their professional responsibilities had they pondered on it.)

Leadership

A few years ago, in a persuasive piece in the European Journal of International Law, Kevin weighed in on the definition of the “leadership” aspect of the definition of the crime of aggression. The Kampala Amendments settled for requiring that the actor must be “a person in a position effectively to exercise control over or to direct the political or military action of a State.” Kevin thought that the test adopted by most of the NMTs, namely that the actor needed to be in a position to “shape or influence policy,” provided a better framework for dealing with the case where industrialists close to the Government were charged with the crime. The drafters of Kampala did not deny that industrialists might be caught, even by their text (see the 2007 Report of the Special Working Group on the Crime of Aggression). Kevin returns to the discussion in his book with some very helpful analysis of the cases. He notes that, “although no industrialist was ever convicted of crimes against peace, the tribunals consistently emphasized that industrialists could satisfy the leadership requirement.” (P. 187.)

There is, in short, much food for thought about contemporary issues in Kevin’s discussion of the crime against peace, as in his discussion of the other Nuremberg crimes. Our understanding is enriched by his labors.