Historical Origins of Human Rights

1
Historical Origins of Human Rights

• Lecture 15
• The Nuremberg Trials
• Mass Atrocity and
• Legal Consciousness
• March 19, 2007

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outline

• intro
• options for transitional justice
• why trials?
• facts about the Nuremberg trials
• the trial scene
• critiques
• trials and legality
• the significance of Nuremberg in history

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transitional justice

• a series of options
• summary execution (shoot your enemies)
• try them and punish them by law
• establish facts about past (commission)
• reconciliation devices
• example reparations

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stay the hand of vengeance

• That four great nations, flushed with victory
  and stung with injury, stay the hand of vengeance
  and voluntarily submit their captive enemies to
  the judgment of the law is one of the most
  significant tributes that Power has ever paid to
  Reason.
• According to the UDHRs Preamble ..it is
  essential.that human rights should be protected
  by the rule of law

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evolution of Allied policy

• FDR and Winston Churchill, 1941 the punishment
  of Nazi crimes should now be counted among the
  major aims of the war.
• Soviets wartime trials
• early zonal trials (e.g., British trials at
  Dachau)
• International Military Tribunal negotiations
  (August 1945 document)

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IMT four counts

• conspiracy for world domination
• aggressive war/crimes against peace
• war crimes
• crimes against humanity

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Justice Robert Jackson
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who to target?

• major criminals
• Jacksons theory proof of conspiracy would allow
  trials to prove membership of each individual
  and, later, of minor criminals
• many trials in 1940s, in zones and in countries
• also medical standards (American zonal trial of
  Nazi doctors)
• problem presentation at centerpiece Nuremberg
  trials of Nazism as a product of fiendish
  archcriminals (household names)

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Tokyo trial

• Nuremberg equivalent for Japanese criminals
• 28 tried, of which 7 were executed (six generals
  and one politician)
• controversial, for all the Nuremberg reasons, but
  also because the imperial family was exempted
  from justice

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who were the defendants?

• Twenty-two individuals, chosen as representative
  of Hitlers enablers, high civilian and military
  leadership, SS chiefs

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Hermann Göring (before Nuremberg)
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(at Nuremberg)
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(in prison)
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Albert Speer
architect, government minister, expressed remorse
and survived (released in 1966)
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Julius Streicher
editor of Der Stürmer
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Nuremberg in 1945
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Nuremberg palace of justice
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the courtroom
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the problem of legality

• two sources written and unwritten law
• crimes against peace illegal as a matter of
  international law (Kellogg-Briand pact)
• war crimes Hague regulations
• crimes against humanity -- Martens clause and
  unwritten or customary law
• but what about concerns about ex post facto
  victors justice?

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conspiracy
American jurisprudence, Justice Jackson, and the
conspiracy charge
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crimes against peace

• This inquest represents the practical effort of
  four of the most mighty of nations, with the
  support of 17 more, to utilize international law
  to meet the greatest menace of our time --
  aggressive war. (Jackson, opening statement)
• Hartley Shawcross the British prosecution

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war crimes

• definition of war crimes
• Hague convention of 1907
• POWs, civilian hostages
• other civilian depredations not justified by
  military necessity
• push to expand definition, from during the war
• popular consciousness that Nazis had gone beyond
  reasonable standards
• crimes against humanity
• cases accorded to French and Soviets and began
  long after spectacular beginning of trial

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crimes against humanity

• the mystery of the missing semicolon
• Article 6(c) Crimes against Humanity namely,
  murder, extermination, enslavement, deportation,
  and other inhumane acts committed against any
  civilian population, before or during the war, or
  persecutions on political, racial or religious
  grounds in execution of or in connection with any
  crime within the jurisdiction of the Tribunal,
  whether or not in violation of the domestic law
  of the country where perpetrated.
• radical innovation
• An undisputed gain coming out of Nuremberg is
  the formal recognition that there are crimes
  against humanity (Harry S Truman)
• selectivity in legal definition ambivalence in
  usage
• civilization/barbarism

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real innovation individual guilt

• Charter Art. 7 The official position of
  defendants, whether as Heads of State or
  responsible officials in Government departments,
  shall not be considered as freeing them of
  responsibility or mitigating punishment
• Charter Art. 8 The fact that the defendant
  acted pursuant to order of his Government or of a
  superior shall not free him from responsibility
  but may be considered in mitigation of punishment
  if the Tribunal determines that justice so
  requires.
• but organizations like Nazi party and SS indicted
  too

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Nazi Concentration Camps documentary
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justice and pedagogy

• beyond retribution and future deterrence,
  criminal adjudication can play a symbolic
  function
• problem besides distortion, is the trial the
  best way to teach
• Rebecca West citadel of boredom
• reinforcing or creating communal norms
• what were the norms created at Nuremberg, and
  what were their prospective effect?

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three critiques

• 1) retroactivity
• 2) politicization
• 3) selectivity
• empathy in spite of faults, were results more
  civilized than a program of organized violence
  against prisoners? (Herbert Wechsler, famous
  Columbia law professor)

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retroactivity

• Jackson says the point of the trial is about law
• Chief Justice high class lynching party
• but thanks to Nuremberg, the worry about legality
  subsequently relaxed
• Once established, the Nuremberg tribunal and its
  ideas no longer could be viewed as unprecedented.
  Yet the precise precedent established includes
  application to conduct committed before the clear
  statement of laws, in sharp contrast with basic
  notions of the rule of law (Martha Minow)
• response would these norms have been legalized
  any other way?

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Judith Shklar

• Legalism (1964) on Nuremberg trials
• of course liberal idea of living according to
  rules and principles is a myth
• but perhaps it is a beneficent one or noble lie
• for this perspective, the point is not that the
  rule of law is ever (much less always) followed,
  as that political actors have to pretend to do so

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Cold War politics

• John McCloy, American zone
• revision of zonal sentences
• last war criminal tried in American zone still
  held released in 1958 as part of amnesty and
  parole
• Later perception de-Nazification superficial
• Eichmann trial (1961), Frankfurt Auschwitz trial,
  Düsseldorf Treblinka trial (early 1960s)

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selectivity

• only individuals, not the nation
• only certain kinds of war crimes
• only those crimes committed after the outbreak of
  the war in 1939
• only those crimes committed by the Axis powers,
  not the Allies
• historiographical consequences

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august 6, 1945
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august 8, 1945
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august 9, 1945
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the Holocaust

• very largely absent from Nuremberg trials
• as it was from immediate postwar consciousness
• not what the trials were about
• privilege of concentration camps over death camps
  (which were not yet well known)
• effect on historiography and popular
  understanding
• key mistake to think that the Holocaust prompted
  1940s humanitarianism and human rights

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law as a vehicle for false sense of recovery?

• The Nazi crimes, it seems to me, explode the
  limits of
• the law and that is precisely what constitutes
  their
• monstrousness. For these crimes, no punishment
  is
• severe enough. It may well be essential to hang
  Göring,
• but it is totally inadequate. That is, this
  guilt, in contrast
• to all criminal guilt, oversteps and shatters any
  and all
• legal systemsWe are simply not equipped to deal,
  on
• a human, political level, with a guilt that is
  beyond crime. (Hannah Arendt)

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long life of Nuremberg

• 1945 International Military Tribunal at
  Nuremberg
• 1946 -- UN General Assembly resolution adopting
  the principles of international law recognized
  by the Charter of the Nuremberg Trial.
• 1948 Genocide Convention develops definition
  of crimes against humanity contemplated creation
  of a permanent international penal tribunalthis
  was blocked by onslaught of the Cold War
• 1949 Four Geneva Conventions expand on the
  definition of war crimes
• 1950 Nuremberg Principles adopted by UN
• 19932005- Security Council passes a resolution
  establishing the ICTY (International Criminal
  Tribunal of Yugoslavia). Main innovation crimes
  against humanity can be tried regardless of
  whether they were committed in an international
  or internal armed conflict no nexus between war
  crimes and crimes against humanity required.
• 1994 ICTR nexus required entirely omitted
  from ICTR statute
• 1998 Pinochet heads of state do not have
  immunity
• 2002 Rome Statute creating the International
  Criminal Court
• 2005 Supreme Iraqi Criminal Tribunal ?

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extra-governmental use of war crimes tribunals

• Russell Tribunal of 1967 -- Stated Aims of the
  Tribunal
• German Green Party war crimes tribunals at
  Nuremberg in early 1980s
• World Tribunal on Iraq of 2005 -- Ends and Means
  of the Tribunal BCC
• Arundhati Roy, Spokesperson of the Jury of
  Conscience International law grounds the
  political and moral demand for the criminal
  indictment and prosecution of those responsible
  for the Iraq War
• The legitimacy of the World Tribunal on Iraq is
  located in the collective conscience of humanity

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conclusion is Nurembergs importance a myth?

• certainly a widely recognized event in its time
• but -- like UNDHR -- had to be retrieved later
• It is hard not to notice the enormous gap in
  time between the Nuremberg trials and any
  comparable effort to prosecute war times in
  international settings. The intervening forty
  years included many atrocities, and this fact
  undermines claims that the Nuremberg trials
  deterred mass violence (Martha Minow).