In the period just prior to the June 26, 1945 signing of the Charter of the United Nations, the governments participating in its drafting were opposed to conferring on the United Nations legislative power to enact binding rules of international law. As a corollary, they also rejected proposals to confer on the General Assembly the power to impose certain general conventions on states by some form of majority vote. There was, however, strong support for conferring on the General Assembly the more limited powers of study and recommendation, which led to the adoption of Article 13 in Chapter IV of the Charter. It obliges the United Nations General Assembly to initiate studies and to make recommendations that encourage the progressive development of international law and its codification. The Nuremberg Principles were developed by UN organs under that limited mandate. Unlike treaty law, customary international law is not written. To prove that a certain rule is customary one has to show that it is reflected in state practice and that there exists a conviction in the international community that such practice is required as a matter of law. In this context, "practice" relates to official state practice and therefore includes formal statements by states. A contrary practice by some states is possible. If this contrary practice is condemned by other states then the rule is confirmed. In 1947, under UN General Assembly Resolution 177, paragraph, the International Law Commission was directed to "formulate the principles of international law recognized in the Charter of the Nuremberg Tribunal and in the judgment of the Tribunal." In the course of the consideration of this subject, the question arose as to whether or not the Commission should ascertain to what extent the principles contained in the Charter and judgment constituted principles of international law. The conclusion was that since the Nuremberg Principles had been affirmed by the General Assembly, the task entrusted to the Commission was not to express any appreciation of these principles as principles of international law but merely to formulate them. The text above was adopted by the Commission at its second session. The Report of the Commission also contains commentaries on the principles.
Examples of the principles supported and not supported
Concerning Nuremberg Principle IV, and its reference to an individual's responsibility, it could be argued that a version of the Superior Orders defense can be found as a defense to international crimes in the Rome Statute of the International Criminal Court. Article 33, titled "Superior Orders and prescription of law," states:
2. For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful.
There are two interpretations of this Article:
This formulation, especially, whilst effectively prohibiting the use of the Nuremberg Defense in relation to charges of genocide and crimes against humanity, does however, appear to allow the Nuremberg Defense to be used as a protection against charges of war crimes, provided the relevant criteria are met.
Nevertheless, this interpretation of ICC Article 33 is open to debate: For example, Article 33 protects the defendant only if "the order was not manifestly unlawful." The "order" could be considered "unlawful" if we consider Nuremberg Principle IV to be the applicable "law" in this case. If so, then the defendant is not protected. Discussion as to whether or not Nuremberg Principle IV is the applicable law in this case is found in a discussion of the Nuremberg Principles' power or lack of power.
Nuremberg Principle IV, and its reference to an individual's responsibility, was also at issue in Canada in the case of Hinzman v. Canada.Jeremy Hinzman was a U.S. Army deserter who claimed refugee status in Canada as a conscientious objector, one of many Iraq War resisters. Hinzman's lawyer, Jeffry House, had previously raised the issue of the legality of the Iraq War as having a bearing on their case. The Federal Court ruling was released on March 31, 2006, and denied the refugee status claim. In the decision, Justice Anne L. Mactavish addressed the issue of personal responsibility:
An individual must be involved at the policy-making level to be culpable for a crime against peace... the ordinary foot soldier is not expected to make his or her own personal assessment as to the legality of a conflict. Similarly, such an individual cannot be held criminally responsible for fighting in support of an illegal war, assuming that his or her personal war-time conduct is otherwise proper.
