Crimes against humanity and other charges

For a public prosecutor, drafting the charges is the most significant stage of criminal proceedings. This “act of indictment” determines the search for evidence, the defendants’ defence strategy, the scope of the entire proceedings, and the severity of the sentence imposed in the event of a conviction. At Nuremberg, there were many novel developments. Apart from the most obvious aspect – that the victors were putting the vanquished on trial – the creation of new offences conflicted with the well-established principle of ‘nullum crimen, nulla poena sine lege’, which is also enshrined in our Constitution. A vast number of pages have been written on this contradiction, and we shall spare the reader the details. Here we shall confine ourselves to describing the four offences for which the accused were, in whole or in part, called to account. It should be noted, however, that even today books, films and television dramas tend to create a certain amount of confusion. We shall draw our information from the original Charter agreed upon in London by the four representatives of the victorious powers.

The first charge is commonly referred to as ‘conspiracy against peace’, but this is a summary that may give rise to misunderstandings. The exact original definition is as follows: “Crimes against peace, namely: the planning, preparation, initiation or waging of a war of aggression, or a war in breach of treaties, agreements or assurances, or participation in a common plan or conspiracy to achieve any of the aforementioned purposes”. This complex wording evidently seemed too convoluted and was, as we shall see, broken down. Count 1) became ‘Conspiracy’, or a plot to commit the offences set out in the following count. Count 2) was simplified to ‘Crimes against peace’.

The Charter was clearer regarding subsequent charges. We quote Article 3: “War crimes, that is to say, violations of the laws or customs of war. Such violations shall include, but shall not be limited to, murder, ill-treatment, or deportation for the purpose of forced labour or for any other purpose, of civilian populations in occupied territories; murder or ill-treatment of prisoners of war or persons at sea; the killing of hostages; the plundering of public or private property; the arbitrary destruction of towns, villages or hamlets; or devastation not justified by military necessity”. Section 4) concerned ‘crimes against humanity, namely murder, extermination, enslavement, deportation and other inhumane acts committed against the civilian population, before or during the war, or persecution on political, racial or religious grounds, in the commission of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the law of the place where the offence was committed, and whether or not falling within the jurisdiction of the Tribunal”.

Sections 3) and 4) were relatively straightforward to interpret. As regards war crimes, there were numerous international conventions governing the treatment of populations in occupied territories, respect for the lives and safety of prisoners, and, more generally, punishing the arbitrary killing of enemies who were no longer a threat. As for crimes against humanity, the genocide of Jews and the extermination of Roma, homosexuals, Jehovah’s Witnesses, and political and religious opponents had been on such a vast scale, and were so unequivocally documented, that they alone formed the basis for dozens of trials. This is indeed what happened, at Nuremberg and elsewhere, in the months that followed.

The ‘unbundling’ of the original first offence set out in the London Charter would have sparked a series of legal and procedural controversies. On the one hand, it was argued that the ‘prosecutors’ had exceeded their mandate by broadening the scope of the charges. On the other hand, it was argued that Count 2) appeared to be a repetition of the previous one, and that rather than simplifying it, it complicated matters. Indeed, the average reader struggles to understand the difference between a crime against peace and a conspiracy to commit it, or between a plot to organise a war of aggression and the aggression itself. The explanation given by the prosecution, and by the court, was more or less as follows: in charge 1) (the conspiracy), the focus is primarily on intent, that is, on the common aim set by various parties who had joined forces to unleash the conflict. Count 2) focuses on the action itself, that is, the invasion of one or more countries, in breach of treaties, without the need for a prior agreement. As can be seen, this is a sort of precursor to the distinction between aiding and abetting a crime and external participation in a mafia-type organisation, which has given rise to so much debate in our current legal doctrine and case law. In fact, the confusion increased when the American and British prosecutors, tasked with presenting counts 1) and 2) respectively, encroached upon each other’s territory, introducing facts for which it was unclear to which charge they related. The French, sceptical of the very principle of conspiracy, did not intervene in the dispute. The Russians did the same, regarding these distinctions as a waste of time.

Apart from these strictly legal aspects, breaches of peace and wars of aggression had been a common feature amongst virtually all peoples since the time of Lugalzagesi, the Sumerian king of Uruk, to whom the earliest accessible historical sources can be traced. In any case, by 1945 the four powers owned, or controlled, four-fifths of the globe, and apart from a few exceptions, these territories had been conquered by force of arms, perhaps at the expense of populations who, in turn, had behaved in the same way towards their neighbours. The lesson imparted by the Athenians to the Melians, in Thucydides’ well-known account, applied to everyone: ‘As far as we can imagine the world of the gods, and as far as we know with certainty the world of men, we believe that both obey a law of nature which compels the stronger to dominate the weaker. We did not invent this law, nor were we the first to apply it. Others taught it to us, and we obey it, and so will those who come after us. And so would you, were you in our place.”

Jackson and his colleagues were obviously aware of this Darwinian rule, but believed it should be superseded by a higher moral law, enshrined in binding legislation and backed by appropriate sanctions. For this reason, the staunch American judge argued with great vigour right from his opening statement, convinced that, if his argument were accepted, it would usher in a new era in relations between states and in international law. Whether this expectation was fulfilled or dashed is a matter of personal opinion.

The third charge related to the violation of the so-called laws of war, namely the mistreatment and killing of prisoners, the devastation of villages, indiscriminate looting, reprisals against civilians, and so on. Here, the prosecution’s task, as we shall see in the next instalment, was easier. The Nazis had violated every human and divine law so many times that it was simply a matter of selecting the most atrocious cases, or those best documented. This task was made easier by the efficient German bureaucracy, which had preserved the directives signed by Keitel and the military leadership on conducting the war ruthlessly, especially towards the ‘Untermenschen’ in the eastern territories.

The fourth charge was, and remains, the most chilling. Whilst it is true that wars of aggression were the preserve of almost all states capable of waging them; and whilst it is true that war crimes, including the torture of prisoners and the killing of hostages, have stained the history even of the most advanced nations—including, regrettably, our own—it is also true that never has the extermination of a people been conceived, planned and carried out with such intensity, scope and efficiency as that set out in the so-called ‘Final Solution’ to the Jewish question. Massacres of innocent people have always featured in the dark catalogue of human atrocities, but never before had there been the scientific extermination of a people, meticulously planned on paper and carried out with rigorous industrial efficiency. It is worth concluding this instalment by highlighting some key moments from the trial, when a leader of the Einsatzgruppen and the commander of an extermination camp were called to give evidence.

The Einsatzgruppen were special units formed, following the invasion of the Soviet Union, by SS members belonging to the SD, the Gestapo and the Security Police. Whilst the extermination camps were intended to gather Jews – and other designated victims – from the occupied countries, these murder squads operated locally, thereby avoiding the difficulties and costs of transport. Otto Ohlendorf, whom we have already mentioned as the head of a branch of the SD, commanded one of these groups for a few months. It is worth quoting part of the interrogation he underwent at the hands of the American prosecutor, John Amen. Question: “What were the instructions regarding Jews and communists?” Answer: “The instructions were that in the areas of Russia where the Einsatzgruppen were operating, both Jews and political commissars were to be liquidated.” Q: “By ‘liquidated’, do you mean killed?” A: “Yes, I mean killed.” Q: “Do you know how many people were liquidated by the Einsatzgruppe under your command?” A: “Between June 1941 and June 1942, 90,000 people.” Q: “Does that figure include men, women and children?” A: “Yes.” This testimony was supplemented by that of SS General Erich von dem Bach-Zelewski, who described the overall strategy behind these executions. The total number of victims remains unknown; historians estimate around one and a half million defenceless civilians. There is virtually no documentation. One of the few documents recovered, relating to the Babi Yar massacre in Ukraine, where 33,771 Jews were killed in two days, would have been more than enough to send at least half of the defendants to the gallows: it shows dozens of naked women piled up, waiting for a blow to the back of the head, whilst the torturers throw mortar on the corpses of those already murdered. For the record, Ohlendorf was hanged. Bach-Zelewsky saved his own skin through his collaboration; he was subsequently put on trial and died in 1972 in the prison hospital.

However, the height of horror was reached with the testimony of Rudolf Höss, who had been commandant of Auschwitz for three years and was subsequently put in charge of managing all the extermination camps. Unlike Eichmann, whose devilish grin was plain to see, Höss had the appearance of a modest provincial clerk. He was diligent, respectful and, in his own way, sentimental. He loved his family, flowers and animals. He directed, with diligent competence, the gassing and incineration of two and a half million people, the majority of whom were Jewish. At the end of the war, he fled, like many of his colleagues, using false identity papers, and went into hiding on a farm where, according to him, he spent one of the most pleasant periods of his life, tending cows and horses. A determined British officer tracked him down, located and captured his wife, threatening to hand her over, along with their children, to the Russians. The woman revealed her husband’s hiding place; he denied being Höss. The officer asked him to show the inside of his wedding ring; the man replied that he was having difficulty removing it. “No problem,” replied His Majesty’s captain, drawing his bayonet, “we’ll cut off the finger.” At that point, the ring slipped off easily, revealing the owner’s identity. The British patrol, which included some Jewish soldiers, took moderate satisfaction in a “passage à tabac” which Höss considered appropriate, and which encouraged his cooperation. He would later write his memoirs, for which no adjective would do justice. One must read them. At Nuremberg, he was called as a witness by Kaltenbrunner’s defence. No one understood why the lawyer for this acromegalic executioner had summoned him: in fact, he proved to be a ‘hostile witness’, and dealt a fatal blow to Heydrich’s successor. Nevertheless, he proved invaluable in describing the crimes against humanity set out in the fourth count of the indictment. Höss proved to be a meticulous technician rather than a fanatical Nazi. In a calm voice and with precise detail, he described the planning of the extermination of two and a half million people: their arrival by train after several days’ journey without water or food; the selection between those destined for labour and those for the gas chambers; the collection of clothing and other personal effects; the orderly queue to enter the ‘showers and disinfection’ chambers; the introduction of Zyklon B into the ventilation ducts; the duration of their agony and deaths; the clearing of the chambers; the extraction of teeth and the cutting of the hair from the lifeless bodies; and, finally, the cremation. He proudly explained how he had perfected the technique used at Treblinka, where things had gone wrong, whilst at Birkenau everything proceeded in an orderly and methodical manner; finally, he lamented the leak of information regarding the medical experiments, which should have remained secret. During interviews with American psychiatrists, he confirmed these complex operations in minute detail. He was tried and hanged at Auschwitz, which has rightly preserved the gallows from which he was hanged.

(4 – Continua)