Article By: Deepali Joshi, SVKM’s Pravin Gandhi College of Law
As the world celebrated the 75th Anniversary of the first ever international trial of war criminals at Nuremberg, we were reminded of the inhumanity and callousness with which the Nazi regime had undertaken barbarities on Jewish populations. Reserving this opportunity, I explore in the following article, the aftermath of the Holocaust, in that, specifically, the reforms and developments in international criminal laws in order to ensure that we do not see another systemic ethnic cleansing in the future. For the readers’ amenity, I have divided this article into two parts. Part 1 deals with the circumstances surrounding the Holocaust and the ensuing decision of the Allied powers to establish an International Military Tribunal that prosecuted the major war criminals responsible for the extermination of at least 6 million Jews. Part 2 examines the developments that took place in criminal laws on the international front as a result of the first-ever international trial (Nuremberg Trial) of 24 Nazis in 1945.
The Holocaust was the state-sponsored genocide of at least 19 million Jews, Soviet civilians and prisoners of war, non-Jewish Polish civilians, Serb civilians, Roma (Gypsies), homosexuals and persons with disabilities in Germany of 1930s and 1940s. Besides building a network of concentration camps for mass executions, victims were subjected to gut-wrenching cruelty in the form of a myriad of medical experiments.
Wounds deliberately inflicted on the experimental subjects were infected with bacteria like streptococcus and tetanus. Circulation of blood was interrupted by tying off blood vessels at both ends of the wound to make a condition almost like that of a battlefield wound. Infection was aggravated by forcing excelsior and ground glass into the injuries. The infection was treated with sulfanilamide and other drugs to work out their effectiveness.
_Nurnberg Military Tribunals, Indictments.[i]
As the World War II ended in 1945, the Allies, as well as the rest of the world, were deliberating on a further course of action- how could the Nazis and their collaborators be punished for all the evils that they had undertaken during the course of the war? On 8th August, 1945, the Government of the United States of America, the Provisional Government of the French Republic, the Government of the United Kingdom of Great Britain and Northern Ireland, and the Government of the Union of Soviet Socialist Republics drew up the London Agreement for the “Prosecution and Punishment of the Major War Criminals of the European Axis.” Article 1 of the London Agreement provided for the establishment of a World Military Tribunal known as the International Military Tribunal. (Article 1: There shall be established after consultation with the Control Council for Germany an International Military Tribunal for the trial of war criminals whose offenses have no particular geographical location whether they be accused individually or in their capacity as members of organizations or groups or in both capacities).
The US Chief Prosecutor, Robert H. Jackson, in his 3 hour long opening statement[ii] before the International Military Tribunal said that, “The privilege of opening the first trial in history for crimes against the peace of the world imposes a grave responsibility. The wrongs which we seek to condemn and punish are so calculated, so malignant than devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated.”
The jurisdiction of this tribunal extended to all those war criminals who, whether as individuals or as members of any criminal organizations (such as the SS, the Gestapo, the Leadership Corps of the Nazi Party or the Reich Cabinet), committed any of the 3[iii] crimes:
Crimes Against Peace: that’s, planning, preparation, initiation or waging of a war or aggression.
War Crimes: that’s, violations of laws or customs of war, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property.
Crimes Against Humanity: that’s, murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian population on political, racial or religious grounds.
Based on these crimes, the criminals were indicted on 4[iv] counts at the trials. These counts were namely, the common design or conspiracy (count one), war crimes (count two), crimes against humanity (count three), membership in criminal organization (count four).
The Tribunal recognized individual accountability for the first time and did not allow the decades old defense based on state sovereignty to sustain. It built a legal system wherein even Heads of States could be prosecuted for Crimes Against Humanity. Justice Robert H. Jackson reiterated at the Nuremberg Tribunal that, “The common sense of mankind demands that the law shall not stop with the punishment of petty crimes by little people. It must also reach men who possess themselves of great power and make deliberate and concerted use of it to line in motion evils which leave no home in the world untouched.”[v]
Let’s now take a look at how the Nuremberg trials ushered in an era of codification of international criminal laws and humanitarian laws. At the outset, it is pertinent to mention some of the most important conventions that took birth after the trials. These were conventions such as the Genocide Convention (1948), the Universal Declaration of Human Rights (1948), the four Geneva Conventions and Additional Protocols (1949) that protect the civilians and victims of war and the European Convention on Human Rights (1950). The United Nations affirmed[vi] that, “genocide is a crime under international law which the civilized world condemns.” This declaration was finally incorporated two years later into the Genocide Convention. The Convention defined[vii] genocide as any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
Article III[viii] of the said Convention punished genocide, conspiracy to commit genocide, direct and public incitement to commit genocide and attempt to commit genocide. Not only that, it also criminalized mere complicity in genocide.
In the same year that the European Convention on Human Rights was adopted, the UN International Law Commission unveiled seven basic Nuremberg Principles.[ix] These proved to be golden principles which influenced the course of codification of several Conventions and ultimately, international criminal law itself. The Genocide Convention was one of the Conventions that was heavily influenced by the Nuremberg Principles. The first and foremost of these principles imposed duties and liabilities upon individuals for the first time. In its commentary[x], the ILC wrote, “Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provision of international law be enforced.” This principle made it inconsequential as to whether the said crimes imposed a penalty in the domestic laws of the country or not. This was a remarkable development as it made it clear that individuals have international duties which transcend the national obligations of obedience imposed by the individual State. Similarly, in a first, the third principle made it inconsequential as to whether the accused acted as a Head of State or pursuant to the orders of his government or superiors. The Nuremberg Tribunal had said, “The principle of international law which, under certain circumstances, protects the representatives of a State, cannot be applied to acts which are condemned as criminal by international law. The authors of these acts cannot shelter themselves behind their official position in order to be freed from punishment.”[xi] The fifth Principle provided for the right to a fair trial on the facts and laws. These developments were significant, although they were slow to come. The term “Crimes Against Humanity” that was used in the official indictments of the Nurnberg Military Tribunals made certain practices theoretically “illegal” within the international community as it criminalized governments, collectives and individuals, whether military or civilian.[xii] However, there was still no permanent practical Court on the international level to try these crimes.
In the early 1990s with the dissolution of former USSR and former Yugoslavia, countries in Eastern Europe began their transition into democratic polities. In 1991, an ethnic based conflict arose in Yugoslavia killing thousands of people. In 1993, UN set up an International Criminal Tribunal for the former Yugoslavia (ICTY) to investigate the Bosnian Genocide and punish the criminals responsible for it. Similarly, in 1994, the shocking genocide in Rwanda which took about 800 thousand lives prompted the UN to set up an International Criminal Tribunal for Rwanda. Finally, after the horrors of the ethnic cleansing in Yugoslavia and Rwanda, the international community found itself compelled to have an International Criminal Court to try these crimes and ensure that they are not repeated in the future. In 1998, the Statute of the International Criminal Court was approved in Rome and it entered into force on the 1st of July in 2002. The Court is deemed to be “a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern.” Since then, the Court has tried 30 cases including the investigation of the Myanmar affair surrounding the persecution of the Rohingya population and the alleged war crimes in the Democratic Republic of Congo and Uganda among others. Recently, on 4th February 2021, the International Criminal Court declared Dominic Ongwen of Northern Uganda guilty for a total of 61 counts comprising crimes against humanity and war crimes.
The international criminal laws are still in their nascent stages. The International Criminal Court too has its limitations in the form of limited resources and institutional restrictions. It is severely criticised for being manipulated by states and faces allegations of dispensing justice selectively. However, the ICC is ambitious about restoring a world order where humanity can be protected from the gravest of human rights violations and ensuring that human dignity is guarded at all costs.
“I reiterate the importance of redoubling our efforts to make sure the continued expansion of the family of States that cooperate to fight against impunity and to guard the victims of genocide, crimes against humanity, war crimes and the crime of aggression”.
President of the Assembly of States Parties to the Rome Statute, Sidiki Kaba[xiii]
[i] Nurnberg Military Tribunals, Indictments, p.8, [available at: https://www.loc.gov/rr/frd/Military_Law/Nuremberg_trials.html
[ii] United States Holocaust Memorial Museum, Washington, DC, International Military Tribunal at Nuremberg, [available at: https://encyclopedia.ushmm.org/content/en/article/international-military-tribunal-at-nuremberg]
[iii] Charter Of The International Military Tribunal, Article 6, signed on Oct. 6, 1945
[iv] Nurnberg Military Tribunals, Indictments, p.5-12, [available at: https://www.loc.gov/rr/frd/Military_Law/Nuremberg_trials.html]
[v] Robert H. Jackson Center, Nuremberg Opening Statement- 75th Reading Anniversary, [available at: https://youtu.be/OU-d9esunwc]
[vi] United Nations Resolution 96 (1), Dec. 11, 1946
[vii] Convention on the Prevention and Punishment of the Crime of Genocide, Article 2, signed on Dec. 9, 1948, U.N.T.S
[viii] Convention on the Prevention and Punishment of the Crime of Genocide, Article 3, signed on Dec. 9, 1948, U.N.T.S
[ix] Yearbook of the International Law Commission, 1950, Vol. II, p. 374-378
[x] Yearbook of the International Law Commission, 1950, Vol. II, p. 374
[xi] Yearbook of the International Law Commission, 1950, Vol. II, p. 375
[xii] Tove Rosen, The Influence of the Nuremberg Trial on International Criminal Law, [available at: https://www.roberthjackson.org/speech-and-writing/the-influence-of-the-nuremberg-trial-on-international-criminal-law]
[xiii] [available at: https://www.icc-cpi.int/about/how-the-court-works]