From Nuremberg to Now: The Historical Roots of International Criminal Justice

When we talk about holding individuals accountable for mass atrocities – genocide, war crimes, crimes against humanity – we’re talking about a system of international criminal justice that didn’t exist even a century ago. States once operated with near-total impunity in how they treated their own populations and enemy combatants during war. The shift from that reality to a world with a permanent International Criminal Court didn’t happen overnight. It was the result of a slow, painful, and often imperfect historical process – one that began in the aftermath of two world wars.

The first seeds: World War I and the Treaty of Versailles 🔗

The idea of putting war leaders on trial for international crimes is older than most people assume. After World War I, the victorious Allied powers were determined that the architects of the war’s destruction would face some form of accountability. This ambition was written directly into the Treaty of Versailles (1919), specifically Articles 227 to 230.

Article 227 was the most dramatic: it called for a special international tribunal to try Kaiser Wilhelm II of Germany for what it described as a “supreme offence against international morality and the sanctity of treaties.” The tribunal would be composed of judges from five Allied powers – Britain, France, the United States, Italy, and Japan. Article 228 went further, requiring Germany to hand over individuals accused of violating the laws and customs of war for trial before Allied military tribunals.

In practice, almost none of this happened. Kaiser Wilhelm had fled to the Netherlands, and the Dutch government refused to extradite him. The Allies, facing internal disagreements and political fatigue, agreed to let Germany conduct its own trials instead. The result was the Leipzig Trials (1921) – widely regarded as a failure. Out of hundreds of names submitted by the Allies, only a handful were actually prosecuted, and the sentences handed down were seen as embarrassingly lenient even within Germany. One key assessment noted that the Allies’ experiment in post-WWI retributive justice was a “dismal failure,” hampered by a lack of political unity, weak treaty drafting, and delayed proceedings.

Nevertheless, the Versailles framework mattered. It formally introduced – for the first time in a major peace treaty – the idea that individuals, including heads of state, could be held criminally responsible under international law. This principle would lie dormant for two decades before being revived with far greater force after World War II.

The birth of modern international criminal law: the Nuremberg Trials 🔗

By the end of World War II, the scale of Nazi atrocities – systematic genocide, forced labour, mass extermination – made the question of accountability impossible to avoid. The Allied powers (the United States, the United Kingdom, France, and the Soviet Union) had to decide: summary executions, or trials? The U.S. and UK had been leaning toward the latter, and it was Justice Robert H. Jackson of the United States who led the push for a formal judicial process, arguing that applying law to these crimes was more powerful than any revenge.

The result was the London Charter, signed on August 8, 1945, which established the International Military Tribunal (IMT) at Nuremberg. The Charter defined three categories of crimes over which the Tribunal would have jurisdiction:

• Crimes against peace – planning, initiating, or waging a war of aggression
• War crimes – violations of the laws and customs of war
• Crimes against humanity – murder, extermination, enslavement, or persecution of civilians

These were not abstract terms. As the U.S. Department of State’s historical records note, the Nuremberg Charter’s use and definition of these three categories represented the first time they were formally adopted in an international legal instrument. Between November 20, 1945 and October 1, 1946, 22 senior Nazi leaders stood trial before the IMT. The proceedings heard over 1,300 witnesses and admitted more than 30,000 documents into evidence. Twelve were sentenced to death; others received prison terms ranging from ten years to life. Three were acquitted.

What made Nuremberg legally revolutionary 🔗

The Nuremberg Tribunal’s most significant legal innovation was the rejection of two long-standing defences: that only states, not individuals, could be responsible under international law; and that following orders provided complete immunity. The IMT declared plainly that crimes against international law are committed by individuals, not abstract entities, and only by punishing those individuals can international law be enforced.

This was genuinely new ground. The IMT served as the foundational model for what would eventually become the International Criminal Court. In December 1946, the UN General Assembly unanimously affirmed the legal principles underlying the Nuremberg Charter and judgment – what became known as the Nuremberg Principles. These principles were later codified by the UN International Law Commission and given universal applicability, meaning they were no longer limited to prosecuting Nazi crimes but applied to any individual, anywhere, who committed crimes against international law.

The trials were also groundbreaking procedurally. They used simultaneous interpretation across four languages – English, French, Russian, and German – for the first time in any judicial proceeding. The IMT’s legacy was immediately felt in the drafting of the Genocide Convention (1948) and the Universal Declaration of Human Rights (1948) – both adopted directly in the Nuremberg trials’ aftermath.

Criticism: was it simply victor’s justice? 🔗

From the beginning, the Nuremberg Trials faced a serious challenge to their legitimacy – the accusation that they amounted to victor’s justice. The judges and prosecutors all came from the four winning powers. Legal scholars have noted the contradictions embedded in the process – a Soviet judge with experience running Stalinist show trials participated, and Allied conduct like strategic bombing of civilian populations was never examined. No Nazi was charged with terror bombardment, a practice the British and U.S. had themselves engaged in extensively. These were real inconsistencies, and they fuelled genuine debate about whether international criminal law was simply a tool of the powerful.

Yet, as legal historian Kevin Jon Heller and others have argued, what the trials achieved – building the institutional foundations and legal vocabulary of international criminal accountability – far outweighed their procedural flaws. The alternative – summary executions, which Churchill and Stalin had both favoured at various points – would have established far worse precedents.

The Tokyo Trials: extending the Nuremberg framework to the Pacific 🔗

Even as the Nuremberg proceedings were ongoing, plans were being made to try Japanese war leaders for their conduct in the Asia-Pacific theatre. On January 19, 1946, General Douglas MacArthur, as Supreme Commander of the Allied Powers in occupied Japan, issued a proclamation establishing the International Military Tribunal for the Far East (IMTFE), commonly called the Tokyo Tribunal. Its charter closely followed the Nuremberg model, covering the same three categories of crimes: crimes against peace, conventional war crimes, and crimes against humanity.

Unlike the Nuremberg IMT, the IMTFE was not established through a multilateral international agreement – it came from a unilateral proclamation by MacArthur. But it drew participation from eleven countries, including Australia, China, France, India, the Netherlands, the Philippines, the Soviet Union, and the United Kingdom. Notably, Justice Radhabinod Pal of British India sat on the bench – and became the only judge to dissent entirely, arguing that the tribunal lacked proper legal basis and that the charges of crimes against peace were retroactive in nature. His dissent remains a significant part of the Tokyo Trials’ contested legacy, and is particularly remembered in India and Japan.

The IMTFE ran from April 29, 1946 to November 12, 1948 – more than twice as long as the Nuremberg proceedings – hearing testimony from 419 witnesses and admitting 4,336 pieces of evidence. Of the 28 defendants, 25 were found guilty. Seven were sentenced to death by hanging, including former Prime Minister Hideki Tojo. Sixteen received life imprisonment sentences.

The Tokyo Trials and individual criminal responsibility 🔗

The Tokyo Tribunal reinforced and expanded what Nuremberg had begun. Both courts established – decisively – two foundational principles: individual criminal responsibility for international crimes, and the supremacy of international law over domestic law. No national court or government order could override these principles.

The IMTFE also developed important doctrine around command responsibility – the idea that military and civilian leaders can be held liable for atrocities committed by forces under their command if they knew, or should have known, about those crimes and failed to prevent them. This doctrine was later directly applied by the International Criminal Tribunal for Rwanda in the 1990s, citing the Tokyo precedent explicitly.

From Nuremberg and Tokyo to a permanent court 🔗

The post-WWII tribunals were followed by decades of Cold War paralysis. International criminal law essentially stalled – the permanent international criminal court that had been discussed as far back as 1953 went nowhere as superpower rivalries made consensus impossible. It was not until the 1990s, when atrocities in the former Yugoslavia and Rwanda shocked the international community back into action, that the Nuremberg-Tokyo legacy was revived. The International Criminal Tribunal for the Former Yugoslavia (ICTY) was established by the UN Security Council in 1993, followed by the International Criminal Tribunal for Rwanda (ICTR) in 1994 – both explicitly modelled on the Nuremberg framework.

These ad hoc tribunals, while significant, had clear limitations: they were geographically restricted, retroactive in nature, and expensive. The need for a permanent, standing court became obvious. The Rome Statute, adopted in 1998, established the International Criminal Court (ICC), which began functioning in 2002. The Rome Statute incorporated crimes that trace directly to the Nuremberg Charter – crimes against peace (now called the crime of aggression), war crimes, and crimes against humanity – while expanding the list to include genocide and specific sexual violence crimes that had not been fully addressed at Nuremberg or Tokyo.

The Nuremberg Principles were never intended to be a historical footnote. As Benjamin Ferencz – who prosecuted the Einsatzgruppen case at Nuremberg – later reflected, Nuremberg was only a beginning; the ICC represented its logical continuation. Every institutional development in international criminal justice since 1945 has its roots, conceptually and legally, in Courtroom 600 of the Nuremberg Palace of Justice.

Why this history matters for understanding international criminal law today 🔗

Understanding the historical context of international criminal law is not merely an academic exercise. For law students in India and elsewhere, this history explains why international criminal law is structured the way it is – why individual responsibility is central, why command responsibility matters, why “following orders” is not a defence, and why there is now a permanent court with jurisdiction over the gravest crimes. India has had its own complex relationship with international criminal justice – including Justice Pal’s famous dissent at Tokyo, and ongoing debates over whether India should ratify the Rome Statute (it has not done so as of now). These are not abstract questions; they grow directly from the precedents set at Nuremberg and Tokyo.

The road from the failed Leipzig Trials of 1921 to the ICC’s functioning jurisdiction is long, uneven, and still contested. But the direction of travel – toward individual accountability for mass atrocities, regardless of official position – was set in motion by the decisions made in the rubble of World War II.

What do you think? Given that the Nuremberg and Tokyo Trials were conducted exclusively by the victorious Allied powers, do they genuinely represent a neutral application of international law, or is the “victor’s justice” critique too significant to dismiss? And considering that India has not ratified the Rome Statute, what might Justice Radhabinod Pal’s legacy tell us about India’s historically cautious stance toward international criminal jurisdiction?

References

1. https://www.icc-cpi.int/about
2. https://encyclopedia.ushmm.org/content/en/article/treaty-of-versailles
3. https://net.lib.byu.edu/~rdh7/wwi/versa/versa6.html
4. https://en.wikipedia.org/wiki/Leipzig_war_crimes_trials
5. https://www.nationalww2museum.org/war/topics/nuremberg-trials
6. https://history.state.gov/milestones/1945-1952/nuremberg
7. https://museums.nuernberg.de/memorium-nuremberg-trials/the-legacy-of-nuremberg/birth-of-international-criminal-law
8. https://sites.law.duq.edu/juris/2023/11/06/the-nuremberg-trials-and-how-they-influenced-international-criminal-law/
9. https://www.ox.ac.uk/news/arts-blog/nuremberg-war-crimes-trials-70-years-complex-legacy
10. https://www.nationalww2museum.org/war/articles/nuremberg-and-tokyo-war-crimes-trials
11. https://en.wikipedia.org/wiki/International_Military_Tribunal_for_the_Far_East
12. https://www.encyclopedia.com/international/encyclopedias-almanacs-transcripts-and-maps/tokyo-trial
13. https://www.ushmm.org/genocide-prevention/simon-skjodt-center/work/ferencz-international-justice-initiative/transitional-justice/international-criminal-justice-since-nuremberg