Seventy-five years ago, international criminal jurisprudence underwent a remarkable and permanent sea change. For the first time, mass killings and related persecutions by a nation-state were formally designated as crimes under international law for which their perpetrators could and would be held accountable.
On Nov. 20, 1945, the International Military Tribunal (IMT) at Nuremberg began with the reading of the indictment. In the dock sat 20 of the most prominent leaders of the Nazi German Third Reich as well as the publisher of a semi-official antisemitic tabloid. Among the charges leveled against the defendants, alongside war crimes and crimes against peace, was a cause of action newly minted in the tribunal’s Charter, crimes against humanity. The charge encompassed “murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war,” as well as “persecutions on political, racial, or religious grounds.”
Equally important, the victims of this newly codified category of crimes were brought out of the shadows and accorded the dignity of formal recognition of their suffering. In a global environment still rife with antisemitic mindsets, the indictment charged the defendants with engaging “in a program of relentless persecution of the Jews, designed to exterminate them.” The indictment went on to specify that:
The program of action against the Jews included disfranchisement, stigmatization, denial of civil liberties, subjecting their persons and property to violence, deportation, enslavement, enforced labor, starvation, murder and mass extermination. . . . Of the 9,600,000 Jews who lived in the parts of Europe under Nazi domination, it is conservatively estimated that 5,700,000 have disappeared, most of them deliberately put to death by the Nazi conspirators. Only remnants of the Jewish population of Europe remain.
From the perspective of 2020, with institutions such as the International Criminal Tribunals for the former Yugoslavia and Rwanda in our rearview mirror, holding national leaders such as Republika Srpska President Radovan Karadžic and Rwandan Prime Minister Jean Kambanda accountable for atrocities committed against national, religious, or ethnic groups has become unremarkable, if not the norm. Both were tried for and convicted of genocide and crimes against humanity and are serving life sentences.
In 1945, however, the very concept of bringing senior German government officials like Hitler’s designated successor, Hermann Göring, Foreign Minister Joachim von Ribbentrop, and Armaments Minister Albert Speer to justice for any reason before an international tribunal such as this one was unprecedented. Formally charging them with the mass murder of millions, including their own nationals, constituted a 180-degree turn in jurisprudence.
Turning a Blind Eye to Barbarity
The conventional understanding that national leaders could act with impunity within territories under their control had been expressed succinctly in 1915 by Henry Morgenthau, the U.S. ambassador to the Ottoman Empire. Morgenthau had alerted the State Department from Constantinople that “Deportation of and excesses against peaceful Armenians is increasing and from harrowing reports of eye witnesses it appears that a campaign of race extermination is in progress.” He subsequently wrote in his memoirs that, “Technically, of course, I had no right to interfere. According to the cold-blooded legalities of the situation, the treatment of Turkish subjects by the Turkish Government was purely a domestic affair; unless it directly affected American lives and American interests, it was outside the concern of the American Government.”
Following the end of World War I, the Commission on the Responsibility of the Authors of the War and on Enforcement of Penalties, appointed at the second plenary session of the Paris Peace Conference, issued a report. It set forth a long series of offenses committed by the so-called Central Powers – that is Germany and the Austro-Hungarian Empire, together with the Ottoman Empire and Bulgaria – including murders and massacres, torture of civilians, deliberate starvation of civilians, rape, abduction of girls and women for the purpose of enforced prostitution, deportation of civilians, and internment of civilians under inhuman conditions.
The commission found that the Central Powers had carried out the war “by barbarous or illegitimate methods in violation of the established laws and customs of war and the elementary laws of humanity.” The commission concluded that:
All persons belonging to enemy countries, however high their position may have been, without distinction of rank, including Chiefs of States, who have been guilty of offenses against the laws and customs of war or the laws of humanity, are liable to criminal prosecution.
The commission’s recommendations were never implemented. In a strong Memorandum of Reservations, the U.S. members of the commission, rejecting the very notion that there was such a thing as “laws of humanity” in international law, argued that “moral offenses, however iniquitous and infamous and however terrible in their results, were beyond the reach of judicial procedure and subject only to moral sanctions.”
A `Declaration on Atrocities’
Over the course of World War II, however, political if not yet judicial attitudes began to change. The news from Europe of the carnage being perpetrated by Nazi Germany and its multinational accomplices proved impossible to ignore or side step. On Nov. 1, 1943, the United States, the United Kingdom, and the Soviet Union issued a Declaration on Atrocities, in which they gave “full warning” that “German officers and men and members of the Nazi party who have been responsible for or have taken a consenting part in . . . atrocities, massacres and executions” would be tried in the countries where “their abominable deeds were done.” The declaration also served notice that “major criminals whose offences have no particular geographic location . . . will be punished by a joint decision of the Governments of the Allies.”
On May 2, 1945, President Harry Truman appointed U.S. Supreme Court Associate Justice Robert H. Jackson “as the Representative of the United States and as its Chief of Counsel in preparing and prosecuting charges of atrocities and war crimes against such of the leaders of the European Axis powers and their principal agents and accessories as the United States may agree with any of the United Nations to bring to trial before an international military tribunal.” Over the course of the following several months, Jackson negotiated with representatives of the British, Soviet, and French governments what would become the Charter of the IMT, including the formal introduction into international jurisprudence of crimes against humanity.
In his opening address on the second day of the tribunal, Jackson set forth in detail why he believed that “The most savage and numerous crimes planned and committed by the Nazis were those against the Jews.” In so doing, he placed what we now refer to as the Holocaust at the core of the charges against the erstwhile leaders of the Third Reich. “The persecution policy against the Jews,” he said,
commenced with nonviolent measures, such as disfranchisement and discriminations against their religion, and the placing of impediments in the way of success in economic life. It moved rapidly to organized mass violence against them, physical isolation in ghettos, deportation, forced labor, mass starvation, and extermination. . . . The conspiracy or common plan to exterminate the Jew was so methodically and thoroughly pursued, that despite the German defeat and Nazi prostration this Nazi aim largely has succeeded. Only remnants of the European Jewish population remain in Germany, in the countries which Germany occupied, and in those which were her satellites or collaborators. Of the 9,600,000 Jews who lived in Nazi-dominated Europe, 60 percent are authoritatively estimated to have perished. Five million seven hundred thousand Jews are missing from the countries in which they formerly lived, and over 4,500,000 cannot be accounted for by the normal death rate nor by immigration; nor are they included among displaced persons. History does not record a crime ever perpetrated against so many victims or one ever carried out with such calculated cruelty.
Nuremberg permanently transformed international human rights law in that it not only legitimized a cause of action for crimes against humanity, but made possible the adoption of the Genocide Convention and the eventual establishment of the International Criminal Court.
That’s the good news.
Seventy-five years later, we must take stock and acknowledge that the international community has not come close to putting an end to genocide and other equally heinous crimes against humanity. One need only recall the genocides in Darfur, Rwanda, and at Srebrenica, or consider the present-day plight of the Rohingya. Still, thanks to the precedent set at Nuremberg, we have at least established the principle that the perpetrators of such monstrous crimes can and must be brought to justice. Scant progress perhaps, but progress nonetheless.
IMAGE: Prosecutor Robert Jackson at Nuremberg Trials, Nov. 21, 1945. Courtesy: U.S. Holocaust Memorial Museum via Wikimedia Commons.