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Nuremberg At 75: Its Current Relevance

The Nuremberg judgment resonated, 75 years ago, that a global war would probably annihilate the human race. The attendant reasoning was based on the covert premise that individual acts of henchman that go to further the persuasions of an ideologue could be the pivot to devastation and destruction. 

by Dr. Ruwantissa Abeyratne in Montreal

“Ye are my witnesses” Isaiah 43:10

The 75th anniversary of the commencement of the Nuremberg Trials fell on 20 November 2020.  The above quote from the holy scriptures is what one sees as one enters the portals of the Holocaust Museum in Washington DC.  At my unforgettable visit there, which left the most profound impact in me – an experience I have not had in all my travels - I was left with a mixed sense of intense sadness and unbridled anger – that the world stood by and allowed the travesty of the Holocaust to happen.  I was profoundly moved to see youngsters holding hands and crying at various exhibits of the Museum. At the same time, I was glad in a way that I had carried  the burden of a legal education which has left me with  at least the hope that whatever happens, justice will eventually prevail.

The Nuremberg Trials were not merely to administer justice and punish guilty Nazi war criminals. It was, a fortiori  a seminal pronouncement of morals and ethics that brought to bear profound issues which were calculated to guide future generations. British Judge Norman Birkett, sitting in judgment said that  Nuremberg was “the greatest trial in history”.  American prosecutor Justice Robert Jackson said: “ This trial has a scope that is utterly beyond anything that has ever been attempted that I know of in judicial history”. Judge Jackson explained his statement by observing that in a single litigation, a whole continent was involved with innumerable players and multifarious instances. The defendants were not all born and brought up in Germany.  On the contrary, they were from different countries and that effectively precluded a possible assumption that the Nazis had targeted a particular race. The victims were persecuted, tortured, and killed based on their ethnicity, religion, political beliefs, or sexual orientation.  The Nazis  had been involved in annihilating, in the cruellest possible manner, not only Jews, but also Russians, Belarusians, Poles, Ukrainians and Serbs, Romanis (gypsies), LGBT people (lesbian, gay, bisexual, transgender), the mentally or physically disabled, mentally ill; Soviet POWs, Roman Catholics, Protestants, Jehovah's Witnesses, people of the Baháʼí Faith, among others.

The two major issues the judges had to address were whether the Holocaust was one big conspiracy and whether the institutions involved were guilty of genocide.  After due consideration the judges decided to bring the word “ conspiracy” within the parameters of “waging aggressive war”. Although the judges agreed that the “conspiracy” had begun on 5 November 1937 when Hitler spelled out his plan of aggression, they went on the basis that the Holocaust was the composite result of individual actions carried out on individual instances. The Court, in its verdict stated: “to initiate a war of aggression is not only an international crime, it is the supreme international crime differing only from other war crimes in that it contains within itself  the accumulated evil of the whole”.  The Court rejected the defence of the defendants that they had acted upon orders that they were forced to carry out: “ Hitler could not make aggressive war by himself. He had to have the cooperation of statesmen, military leaders, diplomats, and businessmen. When they, with knowledge of his intentions, gave him their cooperation, they made themselves party to the plan he had initiated.”  There was also the statement from a member of the Court: “ I admit that Hitler was the chief villain.  But for the defendants to put all blame on him is neither manly nor true. Other legs must run his errands: other hands must execute his plans.  On whom did Hitler rely on such things more than upon these men in the dock?” This collective conspiracy of individual acts had resulted in several war crimes, too many to enumerate, being  committed within the broad definition of “total war”.

The current relevance of the judgement at Nuremberg can be seen in the text of the judgement itself: “ Today, the danger of being terrorized by technocracy threatens every country in the world. Hitler not only took advantage of technical developments to dominate his own people – he almost succeeded, by means of his technical lead, in subjugating the whole of Europe.  In five or ten years, the technique of warfare will make it possible to fire rockets from continent to continent with uncanny precision. A new large-scale war will end with the destruction of human culture and civilization. Nothing can prevent unfettered engineering and science from completing the work of destroying human beings, which it has begun in so dreadful a way in this war. Therefore, this trial must contribute toward preventing  from contributing such degenerate wars in the future and toward establishing rules whereby human beings can live together”. 

What is most striking in this statement is that it was made 75 years ago and it is even more relent now.  Yuval Noah Harari, the much-celebrated historian and academic, at an interview in 2018 stated that one of his three fears for the world is nuclear war (climate change and the rise of technology and the speed in which it advances being the other two).  He also said that we have had global peace because the powerful nations respect each other’s capabilities.  However, Harari  said: “ What we need to realise is that in recent decades war declined not thanks to any miracle or the intervention of some god. War declined because of wise human decisions. And if humans start making unwise decisions, war will return. It takes a lot of wise people to make peace, but it is sometimes enough to have one fool to have a war”.

The Nuremberg judgment resonated, 75 years ago, that a global war would probably annihilate the human race. The attendant reasoning was based on the covert premise that individual acts of henchman that go to further the persuasions of an ideologue could be the pivot to devastation  and destruction. All this would hinge on individual power and action. This should not be so. Dr. Rudi Teitel, Professor of Comparative Law at New York Law School and Visiting Professor, London School of Economics, Global Governance, in her book Humanity’s Law (Oxford University Press: 2011) says: “ sovereignty is no longer a self-evident foundation for international law. This shift is driving the move from the State-centric normative discourse of global politics – which had prevailed until recently – to a far ranging, transnational discourse in which references to changed subjectivity have consequences. That new discourse is constructed more among humanity law lines”. This statement is consistent with the pronouncement of the International Criminal Tribunal for the former Yugoslavia which in its adjudication of Prosecutor v. Dusko Tadic said: “a state-sovereignty oriented approach has been gradually supplanted by a human being-oriented approach”. 

Thomas Jefferson once wrote that the purpose of government is to enable the people of a nation to live in safety and happiness. Government exists for the interests of the governed, not for the governors. As Benjamin Franklin wrote, "In free governments the rulers are the servants and the people their superiors and sovereigns." The ultimate powers in a society, therefore, rest in the people themselves, and they should exercise those powers, either directly or through representatives, in every way they are competent and that is practicable. There are two broad reasons for this shift: the natural historical progression of world affairs which shifted trends chronologically; and the growing instances of torture, rape and killings in circumstances of internal strife and military warfare.

This shift led to the solid grounding of international society in an area of law called humanitarian law, encompassing human rights. From there came international criminal justice. Spawned by the Nuremberg rules which were formulated on the basic observation of Justice Robert Jackson who said: “Of course, it was, under the law of all civilized peoples, a crime for a man with his bare knuckles to assault another. How did it come that multiplying this crime by a million, and adding firearms to bare knuckles, made it a legally innocent act?”, international criminal justice has, through its ancestor – the Nuremberg rules –made crimes against humanity an arm of positive law.

The author, a former official at the United Nations, teaches international law at McGill University.

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