The international Miltary Tribunal was founded by the Allies in Nuremberg after the end of World War II in order to investigate and try the crimes committed by the Nazi regime. Originally, British officials had plead to convict the principal war criminals and impose the death penalty. They feared that international criminal procedures would last too long and that its legality would be disputed. They also intended to avoid that the accused persons would abuse the trial as a forum to disseminate their propaganda and justify their heinous acts.
After intervention of the U.S.A. all Allies agreed to establish an International Military Tribunal. By this move the U.S. President Truman and the then chief prosecutor of the U.S.A. in Nuremberg, judge Robert Jackson, wanted to achieve a deterrent effect, the development of international criminal law and a indelible historic record of the heinous crimes of the Nazi regime for future generations.
The London Agreement of 8 August 19945 did not only establish the IMT, but contained also its statute. The international prosecutors in Nuremberg issued indictments for crimes against peace, and crimes against humanity. The Nuremberg Statute contained an express provision, according to which the official capacity of a perpetrator does not protect him or her to be later prosecuted for criminal conduct committed in office. Acting upon superior orders was no longer a complete defence, but only considered as a mitigating circumstance.
Critics of the IMT argued that the crime against peace, which permitted the punishment of planning, preparation and waging an aggressive war, would violate the principle nullum crimen, nullum poena, sine lege. The critis argued that until 1945 there was no conviction or punishment of members of government or Heads of State for waging a war. A similar argumentation was invoked in relation to convictions based on crimes against humanity. The IMT however based the individual criminal responsibility on a reference to the Briand Kellog Pact from 1928. This international treaty, which was also ratified by the German Reich, declared the use of violence (and thereby a fortiori the waging of an aggressive war) unlawful.
Since all prosecutors and judges of the IMT were citizens of the Allied powers critics argued that the IMT would render "victors' justice".
