1 In his 2011 book on the NMTs, Kevin Jon Heller wrote: ‘To determine the legal character of the NMTs, we must first identify what distinguishes an international tribunal from a domestic court. Perhaps surprisingly, that issue has been largely ignored by scholars. The primary exception is Robert Woetzel…’. See K. J. Heller, The Nuremberg Military Tribunals and the Origins of International Criminal Law (2011), 110.

2 See, e.g., Schabas, W. A. and Bernaz, N. (eds.), Routledge Handbook on International Criminal Law (2011)Google Scholar, A. Cassese (ed.), The Oxford Companion to International Criminal Justice (2009), A. Cassese, International Criminal Law (2008), I. Bantekas and S. Nash, International Criminal Law (2007), M. Cherif Bassiouni (ed.), International Criminal Law (1986), Vol. 1–3.

3 S. Williams, Hybrid and Internationalised Criminal Tribunals – Selected Jurisdictional Issues (2012), 58–133. See also C. P. R. Romano, A. Nollkaemper, and J. K. Kleffner, Internationalized Criminal Courts: Sierra Leone, East Timor, Kosovo, and Cambodia (2004).

4 See, e.g., A. Cassese, ‘The Rationale for International Criminal Justice’, in A. Cassese (ed.), The Oxford Companion, supra note 2, at 123–30, and F. Jessberger, ‘International v. National Prosecution of International Crimes’ in ibid., at 208–15.

5 See, e.g., Bantekas and Nash, supra note 2, at 577–84, and Donlon, ‘Hybrid Tribunals’, in Schabas and Bernaz (eds.), supra note 2, at 85–105.

6 As a noteworthy exception, Alexander Zahar and Göran Sluiter state in a footnote concerning inter-nationalized criminal courts that ‘… the source of the court's authority … is in our view decisive as to the institution's position as part of the international or the national legal order’. A. Zahar and G. Sluiter, International Criminal Law – A Critical Introduction (2008), 12. See also W. Schabas, Unimaginable Atrocities: Justice, Politics, and Rights at the War Crimes Tribunals (2012), 19. Schabas argues that '[t]he test should be whether the tribunal can be dissolved by the law of a single country'.

7 R. K. Woetzel, The Nuremberg Trials in International Law (1962).

8 S. Williams, Hybrid and Internationalised Criminal Tribunals – Selected Jurisdictional Issues (2012).

9 See further Woetzel, supra note 7, at 41 et seq.

10 Ibid., at 42.

11 See, however, Ronen, ‘Blind in their Own Cause: The Military Courts in the West Bank’, paper presented at the Fifth Research Forum of European Society of International Law held in May 2013, available at <www.esil2013.nl>. Yaël Ronen claims that the Military Courts in the West Bank are a part of the inter-national legal order because ‘… they … draw their authority from the laws of occupation’. Ronen thereby seems to overlook the fundamental difference between setting up a criminal tribunal under international law and setting up a criminal tribunal under domestic law in compliance with international law.

12 Ibid., at 43.

13 Ibid., at 43.

14 Ibid., at 48–49. Notably, Bantekas and Nash imply without further discussion – and without explicit reference to Woetzel – that the recognition of the international community is necessary for a criminal court to be labeled ‘international’. In their opinion, however, the IMT did not meet this requirement, since ‘… although no State objected to its establishment, the Allied powers received only 22 statements of support’. See Bantekas and Nash, supra note 2, at 505–6.

15 See further section 4, infra.

16 Woetzel, supra note 7, at 52–53.

17 See ibid., at 100: ‘… it was to be expected that some authors would criticise the Judgment of the Nuremberg Tribunal on the ground that international law applied only to states, while national law applied to individuals. According to their point of view, national law and international law are two spheres which cannot overlap but which exist parallel to each other, even when they are identical in contents’.

18 Ibid., at 104.

19 Ibid., at 105.

20 See, e.g., Gaja, ‘Dualism – a Review’ in J. Nijman and A. Nollkaemper (eds.), New Perspectives on the Divide Between National and International Law (2007), at 52–53, and Nijman and Nollkaemper, ‘Beyond the Divide’ in ibid., at 341.

21 Ibid., at 108.

22 On the other hand, it is clear from the academic debate on the nature of these tribunals that he was not the only scholar to view the developments in international criminal law through the lens of the orthodox presumption against the international legal personality of individuals.

23 Williams, supra note 3, at 249.

24 Ibid., at 249–50.

25 Ibid., at 250.

26 Ibid., at 251.

27 See also Nouwen, S., ‘The Special Court for Sierra Leone and the Immunity of Taylor: The Arrest Warrant Case Continued’, (2005) 18 LJIL 645CrossRefGoogle Scholar, at 657.

28 Williams, supra note 3, at 252.

29 Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, 8 August 1945, 82 UNTS 279. Reprinted in Report of Robert H. Jackson, United States Representative to the International Conference on Military Trials (1949), at 420–8.

30 Kelsen, H., ‘The Legal Status of Germany According to the Declaration of Berlin’, (1945) 39 AJIL 518CrossRefGoogle Scholar, at 523. See also, for example, Wright, Q., ‘The Law of the Nuremberg Trial’, (1947) 47 AJIL 38CrossRefGoogle Scholar, at 50–1.

31 See, e.g., Laun, K. V., ’The Legal Status of Germany’, (1951) 35 AJIL 267CrossRefGoogle Scholar, at 268. See also H. Lauterpacht (ed.), Oppenheim's International Law (1946), Vol. I, at 519–20, and Jennings, R. Y., ‘Government in Commission’, (1946) 23 BYIL 112Google Scholar, at 133–40.

32 Kelsen, supra note 30, at 521.

33 Available at <http://avalon.law.yale.edu/wwii/ger01.asp>.

34 The Berlin Declaration in fact largely follows Kelsen, H., ‘The International Legal Status of Germany to be Established Immediately Upon the Termination of the War’, (1944) 38 AJIL 689Google Scholar.

35 IMT, Judgment, 1 October 1946, reprinted in 41 AJIL (1947) 172.

36 Schwarzenberger, G., ‘The Judgment of Nuremberg’, (1947) 11 Tulane Law Review 329Google Scholar, at 338. See further ibid., at 333–5, and Schwarzenberger, G., ‘The Problem of an International Criminal Law’, (1950) 3 Current Legal Problems 263CrossRefGoogle Scholar, at 290–1. See also Wright, supra note 30, at 48–51, and Bantekas and Nash, supra note 2, at 505–6.

37 The fact that it was subsequently ratified by other states eliminates all doubt that the London Agreement is a treaty.

38 Schwarzenberger, supra note 36, at 334.

39 See further Heller, supra note 1, at 123–4.

40 Schwarzenberger, supra note 36, at 335.

41 Schwarzenberger, ‘The Fundamental Principles of International Law’, (1955-I) 87 RdC 191, at 354–5.

42 See further Kjeldgaard-Pedersen, A., ‘The Influence of the Concept of International Legal Personality in the Drafting of the Statute of the Permanent Court of International Justice’, (2014) 16 Journal of the History of International Law, at 9–25CrossRefGoogle Scholar. See also R. Portmann, Legal Personality in International Law (2010), at 283.

43 See Kelsen, K. J., ‘Will the Judgment in the Nuremberg Trial Constitute a Precedent in International Law?’, (1947) 1 International Law Quarterly 153Google Scholar, at 169–70

44 Following this line of thought, the phrase ‘they have done together what any one of them might have done singly’ does not, as inferred by, for example, Cassese, International Criminal Law, supra note 2, at 322, support the idea that the IMT (and the IMTFE) were – as Cassese puts it – ‘judicial bodies acting as organs common to the appointing states’. It may just as well be read as a reinforcement of the Allied Powers’ legislative jurisdiction over Germany at the time.

45 The issue falls beyond the scope of the present article. See, e.g., Lowe, V. and Staker, C., ‘Jurisdiction’ in Evans, M. D. (ed.), International Law (2010), at 318Google Scholar–20. See also Milanovic, M., ‘Is the Rome Statute Binding on Individuals? (And Why We Should Care)’, (2011) 9 Journal of International Criminal Justice 25CrossRefGoogle Scholar.

46 Reprinted in Heller, supra note 1, at 473–6.

47 See J. B. Bing, ‘Control Council Law No. 10’ in Cassese (ed.), The Oxford Companion, supra note 2, at 281.

48 However, it was explicitly noted that ‘[a]dherence to the provisions of the London Agreement … by any of the United Nations … shall not entitle such Nations to participate or interfere in the operation of this Law…’.

49 Recently they have been scrutinized in Heller, supra note 1. See also Zeck, W. A., ‘Nuremberg: Proceedings Subsequent to Goering Et Al’, (1947–48) 26 North Carolina Law Review 350Google Scholar, and Lippman, M., ‘The Other Nuremberg: American Prosecutions of Nazi War Criminals in Occupied Germany’, (1992–93) 3 Indiana International & Comparative Law Review 1Google Scholar.

50 In total 1,814 individuals were convicted in the American occupation zone. The Soviet trials are largely unrecorded, but it is estimated that more than 10,000 individuals were convicted. 2,107 persons were convicted in the French zone. See M. Cherif Bassiouni, Crimes Against Humanity – Historical Evolution and Contemporary Application (2011), 158. The British trials, which lead to the conviction of 1,085 individuals, see ibid, were completed according to Royal Warrant – Regulations for the Trial of War Criminals issued by the British War Office on 18 June 1945, reprinted in T. Taylor, Final Report to the Secretary of the Army on the Nurenberg War Crimes Trials under Control Council Law No. 10 (1949), at 254–7. See further A. P. V. Rogers, ‘War Crimes Trials under the Royal Warrant: British Practice 1945–1949’, (1990) 39 ICLQ 780, at 786–95.

51 Reprinted in Heller, supra note 1, at 477–82.

52 Ibid. at 109 et seq.

53 See United States of America v. Ernst von Weizsaecker et al. (’Ministries’), Order of 29 December 1947, XV TWC 324, at 325.

54 United States of America v. Josef Altstoetter et al (‘Justice’), Judgment, 4 December 1947, III TWC 954, at 958.

55 Heller, supra note 1, at 112.

56 For a discussion on the competence of the Control Council, see ibid., at 113–18.

57 See also Taylor, supra note 50, at 9: ‘Law No. 10 may be a statute of Germany …’.

58 Reprinted in N. Boister and R. Cryer, Documents on the Tokyo International Military Tribunal (2008), 7.

59 Zahar and Sluiter, supra note 6, at 5–6.

60 This proposition was dismissed by the US Supreme Court's decision of 20 December 1948 in Hirota v. MacArthur, 338 US 197 (Sup.Ct.1949).

61 Reprinted in Boister and Cryer, supra note 58, at 1.

62 Japan accepted the terms on 2 September 1945. The Japanese Instrument of Surrender is reprinted in ibid., at 3.

63 The report of the Moscow meeting, which is dated 27 December 1945, is available at <http://avalon.law.yale.edu/20th_century/decade19.asp>. See item II(B)(5).

64 For a detailed analysis of the nature of the IMTFE, see N. Boister and R. Cryer, The Tokyo International Military Tribunal: A Reappraisal (2008), 20–31 and 40–43.

65 Hereinafter ‘the Agreement’. Available at <www.sc-sl.org>.

66 Ibid.

67 SCSL, Appeals Chamber, Decision on Immunity from Jurisdiction, Prosecutor v. Charles Ghankay Taylor, Case No. SCSL-2003-01-I, 31 May 2004, para. 6. Hereinafter ‘31 May 2004 Decision on Immunity’.

68 Ibid., para. 9.

69 Ibid., para. 38. The construction of the Agreement between the UN and Sierra Leone as an agreement between all members of the UN and Sierra Leone has (rightfully) been widely criticized. See, e.g., Frulli, M., ‘The Question of Charles Taylor's Immunity’, (2004) 2 Journal of International Criminal Justice 1118CrossRefGoogle Scholar, at 1124, and Nouwen, supra note 27, at 651. This question is, however, not of particular interest for present purposes and will not be explored further.

70 31 May 2004 Decision on Immunity, para. 51.

71 Arrest Warrant of 11 April 2000 (Belgium v. Democratic Republic of Congo), Judgement of 14 February 2002, [2002] ICJ Rep. 3, at 61, para.61.

72 Orentlicher, ‘Submission of the Amicus Curiae on Head of State Immunity’, SCSL Appeals Chamber, The Prosecutor v. Charles Ghankay Taylor, Case SCSL-2003-01-I, 23 October 2003, at 13–14. Available at <www.sc-sl.org>.

73 P. Sands, ‘Submission of the Amicus Curiae on Head of State Immunity’, SCSL Appeals Chamber, The Prosecutor v. Charles Ghankay Taylor, Case SCSL-2003-01-I, 23 October 2003, para. 56. Available at <www.sc-sl.org>.

74 See also W. Schabas, ‘The Special Tribunal for Lebanon: Is a “Tribunal of an International Character” Equivalent to an “International Criminal Court”?’ (2008) 21 LJIL 513, at 514.

75 There is little indication in para. 61 that the ICJ found Art. 27(2) of the ICC Statute to apply vis-à-vis third states. The ICC Statute cannot override the rules on immunity under customary international law unless it is binding on the state in question – either because that state has ratified the Statute, or because the relevant situation has been referred to the Court by the UN Security Council in accordance with Art. 13(b). See further D. Akande, ‘International Law Immunities and the International Criminal Court’, (2004) 98 AJIL 407, at 416 et seq.

76 See, e.g., Deen-Racsmány, ‘Prosecutor v. Taylor: The Status of the Special Court of Sierra Leone and Its Implications for Immunity’, (2005) 18 LJIL 299, at 313–20.

77 The law as amended on 27 October 2004 is available at <www.eccc.gov.kh/en/documents/legal/law-establishment-extraordinary-chambers-amended>.

78 Available at <www.eccc.gov.kh/en/documents/legal/agreement-between-united-nations-and-royal-government-cambodia-concerning-prosecution>.

79 ECCC, IENG Sary's Supplementary Observations on the Application of the Theory of Joint Criminal Enterprise at the ECCC, Case No. 002/19-09-2007-ECCC-OCIJ, filed to the OCIJ on 24 November 2008, para. 63. See further ECCC, Ieng Sary's appeal against the closing order, Case No. 002/19-09-2007-ECCC/OCIJ(PTC 75), filed to the PTC on 25 October 2010, paras. 103–14.

80 ECCC, Order on the Application at the ECCC of the Form of Liability Known as Joint Criminal Enterprise, Case No. 002/19-09-2007-ECCC-OCIJ, 8 December 2009. Hereinafter ‘8 December 2009 Order’.

81 ECCC, Public Decision on the Appeals against the Co-Investigative Judges Order on Joint Criminal Enterprise, Case No. 002/19-09-2007-ECCC/OCIJ (PTC38), 20 May 2010. Hereinafter ‘20 May 2010 Decision’.

82 ECCC, Decision on the Applicability of Joint Criminal Enterprise, Case No. 002/19–09–2007-ECCC/TC, 12 September 2011. Hereinafter ‘12 September 2011 Decision’.

83 8 December 2009 Order, para. 21.

84 ECCC, Decision on Appeal against Provisional Detention Order of Kaing Guek Eav alias “Duch”, Case No. 001/18-07-2007-ECCC-OCIJ (PTC01), 3 December 2007, para. 20.

85 20 May 2010 Decision, para. 47.

86 Ibid., para. 48.

87 Ibid.

88 ECCC, Public Decision on Ieng Sary's Appeal Against the Closing Order, Case No. 002/19-09-2007-ECCC/OCIJ (PTC75), 11 April 2011, para. 222. Hereinafter ‘11 April 2011 Decision’.

89 See, e.g., Spiga, ‘Non-retroactivity of Criminal Law’, (2011) 9 Journal of International Criminal Justice, at 5–23, and M. Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary (2005), 360.

90 A parallel objection can be made to the ECCC's findings on the application of the ne bis in idem principle: ‘The Pre-Trial Chamber finds that no international ne bis in idem protection exists under the ICCPR. Taking into account its finding below that the ECCC is an internationalised court functioning separately from the Cambodian court structure, the Pre-Trial Chamber finds that the “internal ne bis in idem principle” as enshrined in Article 14(7) of the ICCPR does not apply to the proceedings before the ECCC. In these circumstances, the Pre-Trial Chamber will seek guidance in the procedural rules established at the international level to determine if Ieng Sary's previous conviction by a national Cambodian court shall prevent the ECCC from exercising jurisdiction against him for the offences charged in the Closing Order.’ 11 April 2011 Decision, para. 131. See also Williams, supra note 3, at 385–7.

91 Williams, supra note 3, at 252.