To Punish Or Not To Punish - The Nuremberg Conundrum

Author: LawSphereX

Category: General Law

Published: 2026-08-23T21:34:31.569Z

Updated: 2026-08-30T07:10:46.907Z

TO PUNISH OR NOT TO PUNISH: THE NUREMBERG

CONUNDRUM

Rashi Chauhan, O.P. Jindal Global University

ABSTRACT

This paper explores the legal complexities of the Nuremberg Trials, focusing on the intersection of three prominent jurisprudential theories: Legal Positivism, Natural Law, and Legal Realism. It studies the tension between the legal legitimacy of Nazi actions under German law and the moral imperative to address atrocities through international legal frameworks. Legal Positivism, with its emphasis on state sovereignty, struggled to reconcile with the universal moral standards upheld by Natural Law, which argued for a higher moral order beyond national law. Meanwhile, Legal Realism contended that the trials were not merely legal proceedings but politically motivated acts of "victor's justice," shaped by the power dynamics of the Allied powers.

The paper further investigates the Nuremberg principles, such as individual responsibility and the doctrine of crimes against humanity, and their lasting impact on contemporary international law, including the establishment of the International Criminal Court. Ultimately, the trials underscored the enduring challenge of balancing law and morality, raising questions that continue to resonate in modern legal and political discourse.

I.

INTRODUCTION

The most destructive war in history, that is, World War II1, resulted in 80 million deaths2. The war left countries devastated in every way possible: mentally, physically, financially, and socially. People faced shortages of clothing, shelter, and food while grappling with illness and trauma. Many did not even have a place to call home as they were expelled from their former nations, and many were unable to return. European Jews who survived the Holocaust found themselves exiled from their historic communities3. As the scale of the atrocities committed during the war became more apparent, the global demand for justice grew louder. In response, war crime trials were conducted worldwide, resulting in numerous executions and imprisonments.

Among these trials, the Nuremberg Trials, held in Nuremberg, Germany, in 1946, sought to hold Nazi leaders accountable for war crimes under the authority of the International Military Tribunal (“IMT”). This paper examines the Nuremberg Trials, focusing on the new legal standards that were introduced and the jurisprudential foundations they rested upon, revealing tensions between Legal Positivism, which emphasized the legality of Nazi actions under German law, and Natural Law Theory, which argued for universal moral standards having supremacy over state laws, and Legal Realism which further complicated the picture by highlighting the role of political and practical considerations in the administration of justice. II.

THE

LEGAL FRAMEWORK

OF THE NUREMBERG TRIALS The IMT was set up by the major Allied powers—France, the Soviet Union, the United Kingdom, and the United States to prosecute and punish the war criminals of the European Axis. The legal basis of this tribunal was the Charter of the International Military Tribunal (or Nuremberg Charter)4. This charter defined the tribunal’s structure, functions, and jurisdiction, granting it the authority to try and punish persons who committed Crimes Against Peace, War

1 INTERNATIONAL MONETARY FUND,

https://www.imf.org/external/np/exr/center/mm/eng/mm_dr_01.htm#:~:text=By%20the%20end%20of%20 World,both%20military%20and%20civilian%20lives. (last visited 1 October 2024).

2 Alan Taylor, World War II

After the War, THE ATLANTIC, (1 October 2024), https://www.theatlantic.com/photo/2011/10/world-war-ii-after-the-war/100180/.

3 THE NATIONAL WWII MUSEUM, https://www.nationalww2museum.org/war/articles/cost-victory (last

visited 3 October 2024). 4 Agreement for the Prosecution and punishment of the major war criminals of the European Axis, 8 August 1945.

Crimes, or Crimes Against Humanity. The charter was not geographically restricted, allowing for the prosecution of war criminals regardless of location. While the charter implied that the prosecution of war criminals was a long-standing goal of the United Nations, it also introduced several unprecedented legal standards. The tribunal’s bench was immune to challenge as Article 15 and Article 36 of the Charter explicitly prohibited it. Moreover, Article 77 removed the traditional legal shield of immunity based on official position, declaring that defendants could still be held accountable and punished despite their rank or authority. Article 88 further reinforced this by clarifying that acting under orders from a superior or government did not absolve defendants of responsibility. There was no mechanism for appeal and the principles of natural justice were also compromised.

For example, Article 129 allowed the tribunal to proceed with trials in the absence of the defendant, undermining the right to be heard. Additionally, the tribunal had the discretion to admit any evidence it deemed to have probative value, with no legal restrictions. The structure of the Charter has been critiqued for prioritizing convictions over procedural fairness. Acquittals were the exception rather than the norm, and the overall structure of the charter tilted toward securing a guilty verdict. III.

Legal Positivism: Keep your morality to yourself The Nuremberg Trials illustrate the conflict between Natural law and Legal Positivism. On one hand, even most legal positivists would agree that mass murder is wrong; yet, on the other hand, can individuals be convicted for actions that were legally permissible under the laws of their regime at the time? This question became one of the central contentions for the bench. The defence repeatedly argued that while laws coinciding with morality are only subjectively preferable, morality is irrelevant to the objective validity of a law. 5 Agreement for the Prosecution and punishment of the major war criminals of the European Axis, art. 1, 8 August 1945. 6 Agreement for the Prosecution and punishment of the major war criminals of the European Axis, art. 3, 8 August 1945.

7 Agreement for the Prosecution and punishment of the major war criminals of the European Axis, art. 7, 8 August 1945. 8 Agreement for the Prosecution and punishment of the major war criminals of the European Axis, art. 8, 8 August 1945. 9 Agreement for the Prosecution and punishment of the major war criminals of the European Axis, art. 12, 8 August 1945.

“To say that human laws which conflict with the Divine law are not binding, that is to say, are not law, is to talk stark nonsense10. ” In essence, law’s legitimacy, according to positivists, comes not from its moral righteousness but from its being posited by a sovereign power. Friedrich Nietzsche, however, critiqued traditional morality by arguing that concepts of morality are shaped by power dynamics rather than an inherent sense of right or wrong. He suggested that what is considered moral is often a construct of the dominant power. 11. For instance, while an individual may inherently believe that murder is wrong, if Hitler, as the sovereign, decrees otherwise, morality is redefined by that decree. However, Nietzsche’s philosophy focuses on the critique of morality and power rather than endorsing legal positivism.

Legal obligations, therefore, can be interpreted in terms of power and coercion, not moral right or wrong, though Nitzsche’s views on morality remain distinct from the positivist tradition. This emphasis on positivism was reflected in the sentences handed down during the Nuremberg Trials as many of those accused of war crimes received relatively light sentences12. The defence heavily relied on Austin’s Command Theory13, questioning the validity of the alleged sovereignty of the ‘higher-order’ International Law. They also brought along an “Act of State” defence, that is, following Austin’s logic, any laws brought into action by the sovereign, that is Hitler, demanded obedience.

Austin’s Command Theory holds that laws are commands issued by a sovereign, backed by the threat of sanctions14, and therefore any individuals following such laws shall be under the protection of the state and would be absolved from any moral responsibility. Thus, even if the accused individuals were acting in an allegedly ‘immoral’ manner, they cannot be held responsible because ‘morality’ is not a component of law. The jurisdictional basis for the trials was also left unaddressed by the Allied powers. The defence’s invocation of the “act of state” doctrine—arguing that actions taken under the authority of the sovereign state are protected—was never fully answered.

10 JOHN AUSTIN, THE PROVINCE OF JURISPRUDENCE DETERMINED (1832).

11 STANFORD ENCYCLOPEDIA OF PHILOSOPHY, https://plato.stanford.edu/entries/nietzsche-moralpolitical/ (last visited 3 October 2024).

12 JUDAH MURRAY, NATURAL LAW AND LEGAL POSITIVISM IN THE NUREMBERG TRIALS 10

(Liberty University 2014).

13 AUSTIN, supra note 10.

14 Id.

IV.

Natural Law: Simon says ‘Listen to God’ The prosecution argued for adherence to Natural Law, the ‘higher’ human law. They invoked the idea of an inherent moral code grounded in human nature, often referring to the concept of imago dei, that is, the image of God. This aligns with the natural law theory that laws, to be just and valid, should conform to universal moral principles. St. Augustine’s famous dictum, “An unjust law is no law at all,”15 and Thomas Aquinas’ view that natural law principles such as “do not murder”16 are universally recognized, were central to the prosecution’s arguments. Such universal recognition brings legitimacy to Natural Law as an international legal authority. In many ways, it outstrips legal positivism, particularly because International Law often requires nation-states to give up some of their sovereignty in favour of greater international oversight.

However, this raises critical questions: If a sovereign is subject to an authority above them, can they truly be considered sovereign? And if they are not sovereign, how applicable is the law they posited, especially when it lacks an underlying moral framework? This tension makes international law an unappealing notion for many sovereign states, which typically value their national autonomy. Nonetheless, natural law possesses a unique strength on the international stage; it holds nations accountable to a standard of right and wrong. This universality applies to all people and all governments, contrasting sharply with the narrower focus of legal positivism, which is limited to the nature and authority of the sovereign. Natural Law, when dealing with international law, has a compelling advantage over Legal Positivism.

Under Natural Law, Hitler’s regime could not hide behind the veil of sovereignty, as it was bound to a higher moral law that condemned the atrocities committed. In essence, Natural Law holds that even sovereigns must answer to universal moral standards. By addressing the universal character of the sin of genocide, the court could have established the presence of a universal jurisdiction based on natural law. The Nuremberg Trials also served a utilitarian purpose by promoting global peace and setting a precedent for international justice. Bentham’s assertion that “the greatest happiness of the

15 ST. AUGUSTINE, DE LIBERO ARBITRIO VOLUNTATIS.

16 THOMAS AQUINAS, TREATISE ON LAW.

greatest number is the foundation of morals and legislation”17 applies here, as the trials aimed to prevent future atrocities by establishing a deterrent and achieving justice for victims. Furthermore, Lon Fuller’s natural law theory could have been a powerful tool at the Nuremberg Trials. Fuller argued that for laws to be valid, they must adhere to his eight principals of legality, such as generality, clarity, consistency, and non-retroactivity, collectively forming the “internal morality of law.”18 According to Fuller, Nazi laws failed the test of legality because they lacked any semblance of internal morality. Fuller’s theory, therefore, supports the justification for the international community’s moral intervention at Nuremberg, as it highlighted the importance of aligning law with fundamental moral and procedural standards. V.

Legal realism: Is it really just about ‘Justice’? Looking at the Nuremberg trials through the lens of legal realism shows that these trials were unprecedented, exploring uncharted legal territory. Rather than focusing purely on delivering justice, they were designed primarily to punish. While punishment and justice might seem synonymous to some, the distinction is crucial. True justice requires an impartial adjudicating body, whereas these trials were deeply influenced by the realities of power and social forces. The Allied Powers held all the authority, not only militarily but also morally and politically. They were the ones who determined how justice would be administered. This is where the concept of “victor’s justice” emerges. 19 The Allies, being in control, defined the crimes, selected the defendants, and delivered their version of justice.

Notably, no Allied leaders were prosecuted for potential violations of wartime conduct, such as the bombings of Dresden or the atomic bombings of Hiroshima and Nagasaki20, even though these actions could be considered breaches of wartime norms. From a realist standpoint, the legal actors at Nuremberg were not merely applying established international law; they were creating new legal principles that coincided with the interests of the victorious nations. The judges at Nuremberg had significant discretion to interpret legal standards in ways that

17 JEREMY BENTHAM, AN

INTRODUCTION

TO THE PRINCIPLES OF MORALS AND LEGISLATION

11 (1789).

18 LON L. FULLER, THE MORALITY OF LAW 39 (1964).

19 DANIEL BUTT, ‘Victors’ Justice’? Historic Injustice and the Legitimacy of International Law’ in Lukas H. Meyer, LEGITIMACY, JUSTICE AND PUBLIC INTERNATIONAL LAW (Cambridge University Press, 2009). 20 BRITANNICA, https://www.britannica.com/event/atomic-bombings-of-Hiroshima-and-Nagasaki (last visited

4 August 2024).

supported post-war reconstruction and the development of a new international order. This legal flexibility was necessary to address the magnitude of Nazi atrocities but also reflected the political power dynamics of the time. As Oliver Wendell Holmes said, "The life of the law has not been logic; it has been experience. " The Nuremberg Trials, viewed in this context, were less about applying pre-existing legal norms and more about the Allied powers asserting moral authority and ensuring the stabilization of post-war Europe. The well-established principle of justice that prohibits the retroactive application of laws- nullum crimen, nulla poena sine lege, no crime or punishment without a pre-existing law- was disregarded during the trials, showcasing substantive peculiarities in International Law.

“If the criminal nature of that sort of act is already established by international law, then the pinpointing of the objective side of the crime can be effected later as well. This occurred at Nuremberg... where the Charter of the International Military Tribunal was elaborated... after the factual commission of acts which, however, long before that were recognized as criminal. ”21 As Hart argued, it is important to distinguish between “the law that is and the law that ought to be”22. The Nuremberg Trials imposed moral judgments ex post facto, contradicting the positivist emphasis on a clear, pre-existing legal framework. While Hart may not have supported the Nazi laws, his theory raises an important question: Can justice be legitimately imposed outside an existing legal structure?

Fuller’s critique of Hart’s positivism counters this view by asserting that law cannot be separated from morality. This debate is central to understanding the Nuremberg Trials, where the defendants’ actions, though technically lawful under Nazi law, were morally indefensible. According to Fuller, "to be valid, a legal system must embody some measure of moral integrity. 23" He also outlines eight fundamental ways in which a legal system can fail. The Nazi legal system, which facilitated atrocities, failed many of these tests, which justifies the moral

21 RESHETOV, ‘THE TEMPORAL OPERATION OF NORMS ON CRIMINAL RESPONSIBILITY’ IN G.

GINSBURG AND V. N. KUDRIAVTSEV (EDS.), THE NUREMBERG TRIAL AND INTERNATIONAL LAW 114 (Dordecht: Martinus Nijhoff, 1990).

22 H.L.A. HART, ‘POSITIVISM AND THE SEPARATION OF LAW AND MORALS’ 606 (Harvard Law

Review 1958)

23 LON L. FULLER, ‘POSITIVISM AND FIDELITY TO LAW

A REPLY TO PROFESSOR HART’ 632 (Harvard Law Review 632 1958) condemnation at Nuremberg. As he stated, "A system that cannot guide behaviour because its laws are too vague, contradictory, or retroactive cannot be called a legal system at all.24" VI.

The Doctrine of Individual Responsibility & Contemporary Jurisprudence To advance the argument of moral integrity, the IMT implemented a stringent version of the doctrine of individual responsibility. The charter explicitly clarified that individuals could not evade accountability by claiming they were following orders from superiors. This principle highlighted the importance of personal responsibility, emphasizing that individuals must avoid committing ‘universally recognized wrongs. ’ However, this raises philosophical dilemmas. What actions are universally wrong? For instance, if killing is wrong, does that still hold true if one life is taken to save five others? Similarly, if lying is generally immoral, can it be justified to spare someone from unnecessary suffering? The challenge lies in determining where to draw the line. How rigid or flexible should our moral judgments be?

Moreover, how do these standards vary across different societies, and who decides which version holds the moral high ground? Is it a government, an international body, or perhaps a religious leader? This problem of moral relativism is infinite. The IMT addressed these questions by reinforcing individual responsibility and promoting a jurisprudence of accountability. This approach enabled the tribunal to prosecute and punish individuals for severe violations of International Law25. This application of the doctrine of individual responsibility was later endorsed by the General Assembly of the United Nations, following which, the International Law Commission prepared a formulation of the principles of international law recognized in the Charter and the Judgment of the Nuremberg Tribunal.

These principles were unanimously affirmed by the General Assembly, and in 1947, the Commission was further tasked with incorporating them into the Draft Code of Crimes Against the Peace and Security of Mankind26. The Nuremberg Trials have left an enduring legacy in contemporary jurisprudence, especially in the areas of Human Rights and International Law. They established the foundational principle that all of humanity is protected by an international legal framework and that even a

24 FULLER, supra note 18, at 70.

25 Reinhold Gallmetzer , Mark Klamberg, Individual Responsibility For Crimes Under International Law The Un Ad Hoc Tribunals And The International Criminal Court (2005) https://ssrn.com/abstract=1576024.

26 Resolution 177(II), adopted on 21 November 1947, A/177(II).

Head of State could be held criminally responsible for acts of aggression and Crimes Against Humanity. One of the most significant outcomes of the Nuremberg Trials was the emergence of the right to humanitarian intervention. This concept, which allows intervention to prevent Crimes Against Humanity—even by a sovereign against their own citizens—grew out of the Nuremberg principles, later affirmed by the United Nations27. The influence extends beyond the immediate post-war era and into the creation of the International Criminal Court (“ICC”), whose predecessors include the tribunals at Nuremberg and Tokyo. The formation of the ICC owes much to the legal foundations set by these tribunals, which not only recognized crimes against peace and humanity but also demonstrated that international law could hold individuals accountable for such crimes.

By establishing the doctrine of individual accountability, the trials marked a shift in International Law, from holding states liable for acts of war to recognizing the personal culpability of individuals, regardless of their official status or obedience to orders. This principle is enshrined in Articles

25 and 28, which delineate individual criminal responsibility and command responsibility,

respectively.28 Nuremberg's legacy also reshaped the way international law distinguished between jus ad bellum and jus in bello29. The former concerns the legality of engaging in war, while the latter focuses on conduct during warfare. By introducing new categories like Crimes Against Peace and Crimes Against Humanity, the trials expanded international concern to include both the reasons for waging war and the methods by which it is conducted. This framework directly influenced the ICC’s mandate, as seen in cases such as Prosecutor v. Thomas Lubanga Dyilo30, where the court emphasized accountability for war crimes related to conscription and use of child soldiers, and Prosecutor v. Omar Hassan Ahmad Al-Bashir,31 which addressed crimes

27 Tove Rosen, The Influence of the Nuremberg Trial on International Criminal Law, ROBERT H. JACKSON

CENTER (7 October 2024), https://www.roberthjackson.org/speech-and-writing/the-influence-of-thenuremberg-trial-on-international-criminallaw/#:~:text=The%20Nuremberg%20trials%20established%20that,aggression%20and%20Crimes%20Against% 20Humanity. 28 Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 3.

29 Tove Rosen, The Influence of the Nuremberg Trial on International Criminal Law, ROBERT H. JACKSON

CENTER (7 October 2024), https://www.roberthjackson.org/speech-and-writing/the-influence-of-thenuremberg-trial-on-international-criminallaw/#:~:text=The%20Nuremberg%20trials%20established%20that,aggression%20and%20Crimes%20Against% 20Humanity.

30 [2007] ICC-01/04-01/06 (Lubanga).

31 [2009] ICC-02/05-01/09-139 (Al-Bashir).

against humanity and genocide. These cases demonstrate the ICC’S commitment to upholding the principles first articulated at Nuremberg, ensuring that individuals responsible for heinous acts face justice regardless of their rank or political influence. VII.

Conclusion

Thus, the Nuremberg Trials were a turning point, not just for International Law but also for how we think about justice on a global scale. They emphasized the consequences of a legal system that fails to account for moral outrage, challenging us to consider how justice can be administered when the legal framework is inadequate to address the magnitude of crimes committed. And perhaps most importantly, can law and morality ever be truly separated? At Nuremberg, these debates showcased an intersection between Natural Law, Legal Positivism, and Legal Realism. Legal positivism, which insists that law is independent of moral judgment, was challenged by the necessity of holding individuals accountable for unspeakable atrocities. Natural law offered a counterpoint, asserting that some acts are universally wrong and demand justice, even when no legal system is in place to address them.

Meanwhile, legal realism highlighted the trials as not merely abstract exercises in justice but also as reflections of power dynamics and political will. Despite these tensions, the trials left a lasting legacy in jurisprudence. They established the principle that heads of state and military leaders could be held accountable for crimes against humanity, regardless of their official capacity or obedience to orders. They showed the world that the law must evolve to meet the demands of justice, even when the existing frameworks fall short. Nuremberg laid the groundwork for modern International Law, creating institutions like the International Criminal Court and embedding the principle of individual responsibility into global governance.

But beyond the legal milestones, Nuremberg left us with an ongoing challenge: how do we balance the rule of law with the moral imperatives that arise in times of crisis? The tensions between law, morality, and power that surfaced during the trials are still with us today. While Nuremberg did not answer all questions or provide a perfect solution, it represented a necessary step forward. The trials demonstrated the importance of continually striving for justice, even when it is complex and incomplete. They remind us that justice is not static but an evolving concept that must adapt to new realities. Although the journey toward justice is often fraught with challenges, it remains a path worth pursuing.