Volume 4 No 1 - Journal for the Study of Antisemitism

2012] INTERNATIONAL LAW AND ANTISEMITISM 39
The IMT was responsible for several precedents and innovations. It
made the first formal use of “crimes against humanity” in legally binding
documents and decisions. At the time and since then, there was much ado
that the term had never been part of international criminal law; that fact
exposed the IMT to allegations that its proceedings were ex post facto justice,
violated the ancient principle of nullam crimen nulla poena sine lege,
and were therefore illegal. But IMT’s charter cites treaties and customary
international law that were binding on Germany at the time the crimes were
committed, thus disposing of the issue, and in this the IMT has been followed
by all comparable courts since. 16 The IMT also set the example—
confirmed by the Tokyo war crimes trials—that crimes against humanity
and genocide were so heinous that trial and punishment of perpetrators
ceased being the sole prerogative of the country where they were committed
and became the duty of an international body representing the humanity
against whom crimes had been committed; the principle was confirmed and
extended by the UN Convention on the Prevention and Punishment of the
Crime of Genocide of 1948 and other UN documents as well as later trials.
The IMT also established the precedent by which the plea of perpetrators
that they were not responsible for crimes they committed in obedience to
superior orders (“Ich habe kein Schuld.”) was inadmissible, that superiors
and subordinates alike are liable. Some precedents set by the IMT have
disappeared from international jurisprudence, although only after long
debate and not beyond revival. One was the criminalization of whole organizations
like the Nazi party, the Gestapo, and SS, making members automatically
guilty or subject to trial. Another that has been abandoned in later
trials was IMT’s trial, conviction, and sentencing of an accused (Martin
Bormann) in absentia. Also gone is the conception of conspiracy to commit
aggressive war (the IMT itself had discarded conspiracy as a necessary element
of indictments for war crimes or crimes against humanity). In 1946,
the famed American columnist Walter Lippmann expressed high hopes that
have not been fully realized but are certainly, as this article bears out, not
beyond fulfillment: “For my own part, I do not think it rash to prophesy that
the principles of this trial will come to be regarded as ranking with the
Magna Charta, the habeas corpus and the Bill of Rights as landmarks in the
development of law. The Nuremberg principle goes deeper into the problem
of peace, and its effect may prove to be more far-reaching than anything
16. In 2010, reviewing the reconstructed film of 1948, Nuremberg: Its Lessons
for Today, Ian Buruma repeated the old chestnut about “victors judging the vanquished
according to laws that did not exist when the crimes were committed,” The
New York Review of Books, November 21, 2010, p. 42.