Category Archives: Legal

History, Human Rights, Legal, Second World War, Society

International Re-evaluation: ‘Were the Nuremberg War Trials (1945-6) a Travesty of Justice?’…

(From the archives) Originally posted on February 7, 2011 by markdowe

HISTORY: NUREMBERG WAR TRIALS

Intro:-

THE ACTIONS carried out by the Nazis in the Second World War led the Allied powers as early as 1943 to promise to bring war criminals to justice. These trials were held in Nuremberg between November 1945 and August 1946. The Allies set up an international Military Tribunal to judge the accused, the bench comprising four judges, with a deputy for each in case of illness, representing the four main Allied powers: Britain, France, the USA and the USSR. Some 199 were accused at Nuremberg, but thousands of others were tried elsewhere: in Allied military courts, by their own countrymen after the Allied withdrawal, and in former occupied countries. Important questions about the legality of the trials were raised even at the time, and continue to be asked by those who think they were inspired more by vengeance than by justice.

 

AT NUREMBERG, the prisoners were tried on four counts: crimes against peace – preparing and carrying out acts of aggression; war crimes – the ill-treatment of prisoners of war and civilian populations; extremes of brutality against individuals or groups; and conspiracy – participation in plans to commit the other three offences. A number of the accused, including Hitler, Goebbels and Himmler, were already dead. Another, Robert Ley, former Head of the Nazi Labour front, hanged himself before the trial started; another, Hermann Goering, swallowed cyanide when it was over in order to avoid the gallows. Another Gustav Krupp, was senile and did not understand the charges; his son Alfred was later tried and sentenced in his place. Of the twenty-four who were brought to trial, three were acquitted. Three, including Hitler’s deputy, Rudolf Hess, received life imprisonment. Two got twenty years, one fifteen and Doenitz, who had made the final surrender to the Allies, got ten years’ imprisonment. A number of the accused, including Adolf Eichmann (responsible for administering the ‘Final Solution’ for the Jews) and Franz Stangl (the former Commandant of the camps at Treblinka and Sobibor), were later found abroad, brought to trial and convicted. Twelve were hanged on 16 October 1946.

Week after week, the evidence had mounted up during the trial, evidence at the same time chilling and overwhelming. One of the accused, Hess, gave every sign of mental derangement; only Goering maintained his quick-witted awareness to the end. The others were broken men. One, Hans Frank, whose thirty-eight volume diary gave irrefutable evidence of his involvement in murder, starvation and extermination, despaired completely and summed up what many of them felt when he said: ‘A thousand years will pass, and this guilt of Germany will not pass away!’

How justified was this trial and its outcome? Few disputed the moral justification for it. The crimes involved were so dreadful and so overwhelming that no one imagined there was no redress; everyone supposed that the legal basis for the trial lay in The Hague and Geneva Conventions. The general reaction, therefore, was to welcome the trial as going some way towards atoning for unprecedented atrocities.

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YET THERE REMAIN disturbing features. How could aggression be illegal if there was no legislative agreement under which it could be punished? It was highly unusual for any state or individual ruler to be punished for breaking a treaty, though a number of such trials have been held since Nuremberg. To spare the Soviet Union’s embarrassment, for the USSR had also been guilty of exactly the same offences against Poland and Finland, the charge was confined to aggression by the Axis powers alone. Thus the offence seemed to be specially designed to fit the crime and was applied only selectively. No Italians were ever charged. Italy had changed sides, and to indict an ally would have opened the door to a similar indictment against the USSR.

The accused were also condemned for crimes that were not crimes in international law at the time they were committed. If extreme crimes against humanity, or conspiracy to commit such crimes, were now offences against international law, the same charges could have been brought against Churchill for his complicity in the bombing of Dresden, if the Germans had been victorious instead of defeated.

Furthermore, the accused were not allowed to say: ‘But I was only obeying my orders.’ To expect an individual subordinate to be able to distinguish between a legal order and a criminal one was quite unrealistic. The Allies themselves, throughout the war, considered men bounded by superior orders, and not legally liable for them. But now the Allies were saying that obedience to orders was not a defence, but only a mitigation. This would have certainly been bad news to the bombardier aboard Enola Gay who was ordered to drop the first atom bomb on Hiroshima.

But the most fundamental criticism was the simplest. For punishment to have at least the appearance of justice, the prosecutor must not also be the judge. The judges at Nuremberg represented the nations that were parties to the action, and therefore could not be said to be impartial. It would have been better that the judges should have been empanelled from among neutral nations such as Sweden or Switzerland, for this would have given a greater impression of impartiality. The partiality of the bench gave ammunition to those who maintained that the trials were merely acts of vengeance carried out by the victor against the vanquished. As Goering himself shrewdly observed at the trial: ‘The victors will always be the judge, the vanquished the accused.’ Such a criticism will always weaken the moral justification of the Nuremberg Tribunal, though it will not lessen the frightfulness of the crimes that brought the trials about.

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Britain, European Court, Government, Human Rights, Legal, National Security, Politics, Society

Surveillance legislation: Conflicts exist between freedom and security…

SNOOPING LAWS

The announcement of a new surveillance law has fostered the suspicion that a voracious security state is elbowing aside the rights of civilians to communicate in private. There may well be cause for mistrust – but such concerns lie in the manner of the law’s introduction, and much less so the provisions it contains.

The UK Government justifies bringing in ‘emergency’ legislation as it intends to keep a full-blown register (a ‘who’s who of public enemies) that will shore up the power of government bodies to gather data on British citizens.

This is a law which has been agreed upon in principle by party leaders at Westminster behind closed doors. The speed of its introduction has raised many eyebrows, not least because this is a process that has not been open to public consultation and one which clearly adds to the impression that the Government is seizing for itself unwarranted powers.

In reality, though, the ‘emergency’ being enacted upon is more banal. In a few years, the law may actually benefit the libertarian cause. The exact cause for adopting parliamentary legislation in the first place is down to a legal case launched by the Open Rights group. Although the organisation is temporarily dormant, it has been made active following an April ruling from the European Court of Justice (ECJ). That ruling would have lifted the requirement for telecommunications companies to keep a wide range of billing data on their customers for a period of 12 months.

Keeping this data available to the authorities is the reason for instigating emergency legislation. This is preferable than to suddenly ‘going dark’, and appears to require no immediate development in changing the status of our security. Important concessions have been conceded: an independent privacy and civil liberties board is to be created, and there will be a review of the Regulation of Investigatory Powers Act (RIPA). This sets the limit on digital surveillance. The emergency amendments will also expire in 2016, so that new laws can be created once the review has been completed and appraised.

Some critics argue that what we need is smarter surveillance, not yet more of it. This far reaching extension of government spying on our daily lives, they say, would be illiberal and possibly ineffective.

Since this Bill is also about interception (and not just retention of data) many people will want to know what the additional protections will be if we are to have any confidence in such powers. One requirement is greater transparency so that we know how and why this data is being used. Government openness around surveillance can be improved without compromising security.

The Government has promised an annual transparency report. The concerns of libertarians will be whether it is sufficiently comprehensive, but that can only be deduced once the full details are known. In his annual report, the Interception Communications Commissioner, Sir Anthony May, said: ‘The unreliability and inadequacy of the statistical requirements is a significant problem which requires attention.’ Sir Anthony also expressed ‘considerable sympathy’ with those who are hazy and unsure about the details and implications of snooping legislation.

The Government has made a strong case for law enforcement agencies to be given access to communications traffic (which precludes its content as this would require a warrant) in the investigation of serious crime and terrorism.

The Coalition remains divided over how wide the new powers should be. The Prime Minister has indicated that he favours revisiting the option of wider snooping powers, but Nick Clegg remains opposed. But however surveillance legislation evolves it is right that a sunset clause exists in the Bill to curtail its powers in 2016. That forces a renewal by the next Parliament – but only after a wider democratic debate about how best to strike the balance between privacy and security.

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Africa, Britain, Government, Human Rights, Legal, Society, United Nations

Tackling rape in war through international law…

INTERNATIONAL PROTOCOL

For as long as wars have been fought, rape and sexual violence have conventionally featured in them. Men running amok with guns will always be hard to control; that the level of rape and sexual assaults in conflict zones haven’t fallen since 1945, when the Nuremberg trials decried it as a crime against humanity, points to the stubborn depravity of man. The difficulties of bringing perpetrators to justice have proven to be complex with the process often described as being an “uphill task”.

This week, a global summit has begun in London with the arch objective of changing perceptions. Participants to the symposium whose aim it will be to change the narrative are faced with a steep and problematic issue. Within the last two decades alone hundreds of thousands of women have been victims of serious sexual assault. The British Foreign Secretary, William Hague, a leading figure at the summit, acknowledges the difficulties the summit is addressing and has said that, if anything, sexual violence is getting much worse.

Mr Hague is not mistaken, though, when he says there are measures which can be taken to limit the scourge of sexual crimes. Whilst, of course, it will never be eradicated, recent studies portray a more nuanced picture of rape’s prevalence in times of war. Although the levels of rape are notoriously high in the war-torn Democratic Republic of Congo, a survey of all African conflicts between 1989 and 2009 concluded that only 26 per cent of armed groups were reported to have been engaged in sexual violence.

In addressing the hugely difficult issue of what can be done to make soldiers on the front lines think twice, an International Protocol is to be launched to standardise the kind of evidence needed for a case to be brought to court. This will lead to more convictions. And it will also hold commanders legally responsible for the behaviour of their troops. A change in the law to this effect will make it much harder to get away with rape.

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