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Nuremberg’s 70 years

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By Elizabeth Naumczyk and Duke Michael of Mecklenburg (reported on Judge Howard Morrison’s speech).

Commemorative lecture ‘70 years Nuremberg’

To commemorate the 70th anniversary of the Nuremberg Trials against the principal perpetrators of the Hitler regime the Peace Palace Library held the Commemorative Lecture ’70 Years Nuremberg’ in the Auditorium of the Academy Building of the Peace Palace on the afternoon of 14 November, 2015.

After the opening remarks by the Director of the Peace Palace Library, Mr Jeroen Vervliet, the three speakers were introduced: H.E. Justice Shirin Avis Fisher, Residual Special Court of Sierra Leone (SCSL), H.E. Judge Howard Morrison, International Criminal Court (ICC) and Mr. Alex Fischer, researcher at the Philipp University of Marburg, Germany.

Judge Fisher’s topic was Gender Crimes in International Criminal Justice. She started by saying that the Nuremberg Trials, despite their criticism as victor’s justice, their legacy and uniqueness as part of the annals of jurisprudence, including the establishment of foundation legislative documents cannot be disputed. There were four judges from four countries, five different legal systems and four different languages. Between 1945-1949, 22 of the important leaders of the Third Reich were put on trial, culminating in 13 trials. The Charter of the Tribunal does not mention specifically gender crimes and ‘war and rape’ are not listed.

The Nuremberg Trials other legacy was that it provided an accessible record in all the six United Nations official languages, with press coverage to assure the German population of the substantial evidence at hand. Evidence requires participation with particular subjects being accommodated to provide testimony and have their voices heard, even if corroboration is not always possible. The Nuremberg Trials facilitated this and now we can identify the gender crimes of sterilization, medical experiments, rape and sexual humiliation. We now see that such crimes cannot be treated as gender neutral.

Trials are important to the development of gender law and 50 years later at The International Tribunal for the former Yugoslavia (ICTY, 1993) and The International Criminal Tribunal for Rwanda (ICTR, 1994) sexual violence and rape were regarded as a serious crime in international law as any other crime because of the disproportionate sexual violence. At the ICTY and ICTR rape was illegal under customary international law and in Article 2 and 5 of the Statute of the ICTY it states it is a crime against humanity, alongside torture and extermination. In 2001, the ICTY became the first international court to find an accused person guilty of rape as a crime against humanity.

In 1998, the ICTR became the first international court to find an accused person guilty of rape as a crime of genocide. Rape against Tutsi women was used to perpetrate genocide and constituted a war crime and crime against humanity.

The Special Court for Sierra Leone (SCSL) expanded rape, as a crime against humanity to include sexual violence in many forms such as prostitution and forced pregnancy, Article 2 (g) (i) of the Statute of the SCSL. The definition of forced marriage was not listed separately under its Statute but was developed through case law as a crime against humanity and a crime of sexual violence. Judge Doherty in her partially dissenting opinion in Trial Chamber II in The Armed Forces Revolutionary Council (AFRC) case, said forced marriage qualifies as an “Other Inhumane Acts” causing mental and moral suffering, which was upheld on appeal.

The creation of the International Criminal Court (ICC) at the Rome Conference in 1998 allowed the drafters to adopt the Rome Statute which came into force in 2002. The OTP issued a Policy Paper on Sexual and Gender Based Crimes in June 2014–June-2014.pdf and the Executive Summary states “The Statute of the ICC is the first international instrument expressly to include various forms of sexual and gender based crimes including – rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, and other forms of sexual violence – as underlying acts of both crimes against humanity and war crimes committed in international and non-international armed conflicts.

The Statute also criminalises persecution based on gender as a crime against humanity. Sexual and gender based crimes may also fall under the Court’s jurisdiction if they constitute acts of genocide or other acts of crimes against humanity or war crimes. The Rules of Procedure and Evidence … and the Elements consolidate important procedural and evidentiary advancements to protect the interests of victims and enhance the effectiveness of the work of the Court.” The Office of the Prosecutor has made sexual and gender based crimes one of its Key strategic goals in its Strategic Plan 2012-2015.

The second speaker was Judge Howard Morrison from the International Criminal Court, who gave his personal perspective on the Nuremberg Trials, their development and legacy.

He began by saying that at the time of the Nuremberg Trials and its military courts international law and procedures were being developed on a daily basis.

Initially, the most important war criminals were tried before the International Military Tribunal (IMT). Judgements were issued quickly giving rise to criticisms of victor’s justice. Despite the political nature of the trials and the necessity for justice, there was a determination to apply the rule of law and underscore the abhorrence of the crimes against peace and the crime of aggression and the jurisprudence developed with subsequent trials.

They were lengthier and fairness as well as consistency became part of the proceedings. The Allies believed in the historical value of the trials and that they would be judged by future generations. The Nuremberg Trials were a precursor to the UN ad hoc tribunals, the ICC and the development of international criminal law and international humanitarian law. “The ICC is intended to complement existing national judicial systems and it may therefore only exercise its jurisdiction when certain conditions are met, such as when national courts are unwilling or unable to prosecute criminals or when the United Nations Security Council or individual states refer investigations to the Court”. The ICC was created using both common law and civil law traditions and like the Charter and the Judgment of the Nuremberg Tribunal the Rome Statute recognizes the principle of individual responsibility for crimes under international law.

Judge Morrison said, it is important to understand that Germany was not on trial, but the war criminals who as leaders had obligations to the state’s past and for its future.
He stated, “aggression is the biggest problem of the elements of crime”, and he defined “a crime of aggression as a crime of the leadership, due to the leaders control over their forces”. The Rome Statute was amended by Article 8 bis adding the definition of the crimes of aggression, adopted at the first review conference of the ICC in Kampala, Uganda, in June 2010. However the Court will only be able to prosecute individuals for these crimes when the amendment has entered into force for 30 states parties and on or after 1 January 2017, the Assembly of States Parties has voted in favor of allowing the Court to exercise jurisdiction.

He then predicted that in the future there would be other types of wars linked to our fundamental needs as humans being food, water and living space. He foresees a direct link between climate change, conflict and terrorism. These kinds of wars have already been fought in the past, for instance World War II was also a war about living space, ‘Lebensraum’. A significant consequence of past wars is that they caused mass migration, a result of changes to demography. He foresaw demographic changes in the future and this is already evident as a result of the conflicts in the Middle-East and the recent terror attacks in Paris. Therefore, he believed we are at the beginning of the development of new laws.

Furthermore, Judge Morrison described how in the future the crimes against humanity might be expanded to include arms trade and environmental crimes, such as illegal logging or oil spillage at the North Pole. Could transnational corporate crimes be classified as crimes against humanity and a species of war crimes? The ICC could expand its remit, provided it received the appropriate funding.

Mr Alex Fischer spoke, as the third speaker about International Criminal Law as a Success Story – The Nuremberg Trial Films of the U.S. Authorities. The films were produced by the OSS Field Photographic Branch/War Crimes, Office of Military Government, United States (OMGUS) and the U.S. Signal Corps.

He explained how the United States wanted to shape the Trial explaining to the public in Germany and worldwide the most heinous and mass crimes. The lead U.S. prosecutor, U.S. Supreme Court Justice Robert H. Jackson and the OSS Field Photographic Branch/War Crimes were involved in rebuilding the trial site and enhancing the film aspect of the first Nuremberg Trial (formally known as the International Military Tribunal) convened November 20, 1945 and the verdict rendered October 1, 1946.

The purpose was to show the German public that the Nazi leadership had been given a fair trial. It promoted the US Constitution idealizing American democratic values to stabilize Europe and create legal certainty as well as to create a historical record and an enduring lesson for mankind. Jackson and the OSS decided on how the trial should be told emphasizing the criminal character of the perpetrators who were viewed in compromising situations, essentially convicting themselves. Their ‘evidence films’ used elaborate editing to tell the story, rather than simply film evidence.

Despite disagreements between the Americans the 78 minute film Nuremberg: Its Lesson for Today was shown to German audience in November 1948 in Stuttgart and received mainly positive reactions from the German people who did not see it as propaganda. On Thursday November 26, a movie screening of this documentary will take place in the Auditorium of the Academy Building. Door open at 16:30.

In conclusion, Mr Jeroen Vervliet mentioned that in the foyer is a selection of the drawings of the defendants, prosecutors and Geoffrey Lawrence (1880-1971), President of the Judges at Nuremberg made by Gunter Peis (1927-2012) an Austrian journalist and historian who was present at the Nuremberg Trials.  The drawings were printed in : Nuremberg Court Cartoons, photographs of the Judges and Prosecutors. Cartoons of the Defendants and in The Nurnberger Extra Blatt.  This project was made possible by the generous contribution of the Austrian Embassy in The Hague. The drawings are part of the archives of Peter Martin Bleibtreu, an Austrian journalist and a reporter at the Nuremberg Trials, recently purchased and added to the special collections of the Peace Palace Library.

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