## Facts

- The International Military Tribunal (IMT) was created by the London Agreement of Aug. 8, 1945, and empowered by its Charter to try major European Axis war criminals.
- The Charter provided jurisdiction over crimes against peace, war crimes, crimes against humanity, and conspiracy connected to those crimes.
- An indictment charged Hermann Wilhelm Göring and other senior Third Reich leaders with planning and carrying out a program of aggressive war and associated atrocities.
- The prosecution alleged widespread war crimes and crimes against humanity, including murder, ill-treatment of prisoners of war and civilians, deportation, forced labor, persecution, and extermination.
- The case included evidence of occupation policies and programs such as the “Night and Fog” decree, involving secret transfers of detainees to Germany and concealment of their fate.
- Defendants were also charged “individually and as members” of certain Nazi organizations and state bodies alleged to have facilitated the crimes.
- After extensive hearings, the IMT issued its judgment and sentences on Oct. 1, 1946.

## Issues

1. Whether prosecution under the IMT Charter violated nullum crimen sine lege, particularly as to aggressive war and crimes against humanity.
2. Whether waging a war of aggression was already prohibited by international law such that individuals could be punished for initiating it.
3. Whether international law imposes direct criminal responsibility on individuals, not only on states.
4. Whether official position or obedience to superior orders bars criminal liability.
5. Whether the Charter’s categories of war crimes and crimes against humanity reflected existing international law, and the conditions under which crimes against humanity were punishable.

## Decision

- The IMT rejected the nullum crimen sine lege objection and treated the Charter’s crimes as reflecting international law applicable at the time of the conduct.
- The IMT held that aggressive war had been outlawed by international instruments before 1939 and could ground criminal responsibility.
- The IMT affirmed that individuals may be held criminally liable under international law for crimes against peace, war crimes, and crimes against humanity.
- The IMT held that neither official status nor superior orders provided a complete defense, though superior orders could be considered in sentencing.
- The IMT treated the Charter’s war crimes provisions as declaratory of existing law, including rules expressed in the Hague Regulations.
- The IMT held crimes against humanity punishable when committed in execution of, or in connection with, crimes against peace or war crimes.
- The IMT convicted and sentenced multiple defendants (including death sentences for several) and acquitted some defendants on some or all counts.

## Legal Principles

- International law may impose duties and criminal liability directly on individuals; enforcement of international law can require punishment of persons rather than states alone.
- The prohibition on aggressive war, reflected in pre-war international commitments, supported criminal accountability for initiating a war of aggression.
- War crimes charged by the Tribunal were grounded in customary and conventional law recognized as binding by 1939, including protections for civilians and occupied populations.
- Crimes against humanity (including extermination, enslavement, deportation, and persecution) are punishable under the Tribunal’s jurisdiction when linked to crimes against peace or war crimes.
- Official capacity does not immunize an accused from responsibility for international crimes.
- Obedience to superior orders does not bar conviction, though it may be weighed in mitigation.
- Secret disappearance programs in occupied territories, including concealment of detainees’ fate from families, may constitute war crimes under the laws of war.

## Conclusion

The IMT’s judgment confirmed the legality of trying and punishing senior leaders for aggressive war, war crimes, and crimes against humanity, grounded individual criminal responsibility in international law, and rejected official-status and superior-orders defenses while treating many core laws-of-war rules as binding customary and treaty-based law.


In re Goering & Others, 13 I.L.R. 203 (Int'l Mil. Trib. 1946)