“The Nuremberg trial laid bare to the world’s view the basic evils that afflict our time. Unhappily, it did not end these evils. The Nuremberg lesson has been written. But has it been learned?” – Robert H. Jackson, Chief Prosecutor of the International Military Tribunal and Associate Justice, Supreme Court of the United States. April 15, 1947
The International Military Tribunal held in the German city of Nuremberg 70 years ago was the first international trial of its kind, aimed at bringing to justice those who instigated and perpetrated World War II and the Holocaust. In the dock sat some of the masterminds of the most brutal war in modern history, a war that led to the death of more than 60 million people – including six million Jews – and to the devastation of vast parts of Europe.
The judiciary results of this trial were overwhelming, and their impact on international law unquestionable – but since then, it has become sadly clear that international criminal tribunals do not deter all gross human rights violations or even genocide. Such trials are often too little, too late.
Nuremberg was the most dramatic in a series of trials of Nazi war criminals that continue to this day (in Germany, two trials of SS officers at Auschwitz are just beginning this month). For the first time ever, crimes against humanity were defined and prosecuted, exhaustively detailed in Article 6 of the London Charter of the International Military Tribunal as including, inter alia, “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.”
This was indeed a milestone in international law, as it went beyond the traditional definition of war crimes to include mass atrocities committed against civilians. There can be no doubt that the concept of ‘crimes against humanity’ applied for the first time 70 years ago made a monumental jurisprudential impact.
But has the world really learned the lessons set by this great legal precedent?
International tribunals are of critical importance. We owe it to the victims of genocide and other atrocities to ensure that as many war criminals as possible are brought to justice, either in national jurisdictions, or in their absence, by international tribunals.
However, the Nuremberg tribunal did not stop the Khmer Rouge from executing hundreds of thousands of people in Cambodia, nor did it halt the genocidal slaughters in Srebrenica, Rwanda or Darfur over the last three decades. In some – but by no means all – of these cases, the despots who orchestrated these mass murders were put on trial before special international criminal tribunals. But atrocious crimes continue to be carried out.
When we look around, we see many present-day perpetrators of crimes against humanity: ISIS, Boko Haram, al-Qaeda, the Taliban. Clearly, these criminals are not deterred by international law – there is hardly a convention that ISIS leader Mohammed Bakr al-Baghdadi and his gang have not breached. The notion that these terrorists will eventually be tried for crimes against humanity seems far-fetched.
Hence the importance of halting war crimes and crimes against humanity in their nascent stages, of curbing incitement to violence and genocide before murderous acts can even be carried out.
The fear of an international tribunal alone will not stop those determined enough from trying again to rid the world of their perceived foes. So, the prerequisite for trying war criminals must be an effort to stop the crimes, through active diplomacy, and if necessary military intervention. If nothing is done to prevent genocide, subsequent trials – as necessary as they are – will leave a sour aftertaste for the victims’ families.
All too often, the term ‘crimes against humanity’ is politicized by the very bodies that are supposed to enforce international law – such as the United Nations Human Rights Council – doing a great disservice to international justice. Israel is repeatedly singled out for such untenable accusations, while blatant human rights abusers such as Syria and Afghanistan, among many others, are let off the hook for political reasons, leaving these crimes both unaccounted for and undeterred.
One of the greatest lessons of Nuremberg is its conviction that those who incite to war crimes, to genocide or to crimes against humanity, are criminals as well. In its judgment, the International Military Tribunal convicted Julius Streicher, the notorious gauleiter of the city of Nuremberg and publisher of the vile anti-Semitic newspaper Der Stürmer, for crimes against humanity in connection with his incitement to the mass murder of European Jewry.
The tribunal considered incitement to murder and extermination as a form of persecution on political and racial grounds, punishable as a crime against humanity and held one of Nazi Germany’s chief propagandists responsible as an inciter of the Holocaust.
Streicher’s conviction established a precedent-setting link between inflammatory speech and criminal action in international law. The 1948 UN Genocide Convention made “direct and public incitement to commit genocide” a crime under international law. There is no requirement that any such genocide actually be committed.
Alas, this provision in international law is rarely invoked. As an example, the UN Security Council has so far failed to take any action against Iran’s leadership for its repeated calls for the destruction of Israel, which is a blatant instance of incitement to genocide.
The legacy of the Nuremberg trial is that the term ‘never again’ must be more than just a slogan. The lesson of Nuremberg is that those inciting to crimes against humanity must be stopped and tried before they can carry out their genocidal plans.
Robert R. Singer is the CEO and Executive Vice President of the World Jewish Congress.