*EPF409 07/05/01
Backgrounder: Nuremberg War Crimes Legacy -- Part One
("Crimes Against Humanity") (1410)
By David Pitts
Washington File Staff Writer

(This is the first of two revised articles based in part on an interview with Ben Ferencz, one of only a few U.S. Nuremberg prosecutors still living. The articles provide background for the upcoming trial of former Yugoslav leader Slobodan Milosevic in The Hague.)

The July 3 appearance of former Yugoslav leader Slobodan Milosevic in The Hague, who is accused of crimes against humanity, is the first time since the post-World War II war crimes trials in Nuremberg and Tokyo that such a high-level leader has stood in court accused of war crimes. A defiant Milosevic, who triggered the worst violence in Europe since the Second World War, refused to enter a plea saying, "I consider this tribunal a false tribunal and indictments false indictments."

The charge of "crimes against humanity" originated in Nuremberg in the trials that were held there shortly after World War II concluded. Without the precedent set at Nuremberg, says Ben Ferencz, a former U.S. prosecutor in the German city, the ad hoc tribunals to try war crimes committed in the Former Yugoslavia and Rwanda likely would not have been convened, and the charge of "crimes against humanity" likely would not have been leveled.

In an interview with the Washington File, Ferencz, who is now 80 years old and still active in the human rights movement, says the Nuremberg precedent was important "not only because war crimes were prosecuted, but also because the trials were fair; the accused were told what they were being accused of; they had the right to attorneys of their choice and to present evidence; and the sentences were not disproportionate."

In other words, says, Ferencz, "the trials were just," and were "a precedent" for the ad hoc tribunals that would be established much later.

In the years since the Nuremberg trials, scores of wars and conflicts have occurred. Until 1993, however, when the International Criminal Tribunal for the former Yugoslavia was established under U.N. auspices, no persons accused of human rights violations during wartime had been subject to prosecution under international law, largely because of differences among the major powers created by the Cold War. In 1994, a similar tribunal was established to prosecute human rights violations committed during the conflict in Rwanda.

Although the Nuremberg principles underpin the efforts of the current tribunals, it is worth recalling that 55 years ago the question of what to do with the men who planned and executed the most destructive war in history and who sought to exterminate an entire race, was a subject of much deliberation. The idea of prosecuting the waging of aggressive wars, including the planning of them by high government officials, evolved during the latter years of World War II.

The principle was first officially enunciated in the Moscow Declaration of 1943, which was signed by Roosevelt, Churchill and Stalin. As a result of the Declaration, the allies set up a War Crimes Commission. The Commission met in London throughout 1944 preparing lists of war criminals and debating ways of dealing with them.

There was much disagreement among members of the Commission and within the allied governments about the fate of the Nazi human rights violators. Some favored summary execution for the worst offenders, recalls Ferencz, others a quick trial and execution -- the so-called "perfunctory trial and execution plan." But it was ultimately agreed that the Nazi leaders should be tried according to acceptable principles of law and evidence so that a precedent would firmly be established.

At the London Conference of the four victorious powers in June 1945, a plan for the trial system was adopted. This became the London Charter, the basic document of the International Military Tribunal (IMT) and the whole Nuremberg trial procedure. In the most important trial, the indictment named 24 Nazis, Hitler's top henchmen. International agreements were cited, such as The Hague Convention of 1907 and the Geneva Convention of 1929, to support the indictment.

"The long list of precedents cited by the distinguished IMT jurists made plain that the Charter was not ex post facto justice," says Ferencz. "Its articulation of 'crimes against humanity' reflected and clarified emerging precepts expressed in the Conventions at The Hague and other international pacts where nations, groping for a more humane order, relied on the laws of humanity and the dictates of the public conscience. It was not an invention of law but rather a codification of emerging law," he adds.

"The IMT Charter gave the Tribunal jurisdiction over three categories of war crimes," says Ferencz. The categories were "'crimes against peace,' which meant the waging of a war of aggression; 'war crimes,' namely violations of the traditional laws and customs of war; and the key category of 'Crimes against Humanity,' such as extermination and enslavement of civilian populations."

Of the 24 top Nazis who were named in the original indictment in the most important trial, 19 were found guilty; 12 of them were sentenced to death. Ferencz was the chief prosecutor in a subsequent trial that brought 22 senior SS officers to justice for the murder of an estimated one million people. All the prosecutors at Nuremberg were conscious of the historical importance of their work and its significance for the future of human rights, says Ferencz. They, as well as allied leaders, believed the crimes committed during World War II should not be defined as historically unique, as horrific as they were, but that the principles underlying the Nuremberg judgment should have universal application for the future.

The chief U.S. prosecutor at the main trial, Robert Jackson, stressed that war crimes are war crimes no matter what country commits them and irrespective of the war being waged. Jackson also stressed the comprehensive nature of the indictment. "Never before in legal history has an effort been made to bring within the scope of a single litigation the developments of a decade, covering the whole continent, and involving a score of nations, countless individuals and innumerable events," he said.

The Nuremberg trials were followed avidly by a press and public seeking justice after a war that took the lives of more than 50 million people. Commenting on the meaning of Nuremberg to future generations, Ed Murrow, the CBS reporter whose wartime radio broadcasts from Europe informed and moved millions, said, "It is now established that planning, preparing and initiating aggressive war constitutes an international crime. And it is also established that atrocities -- crimes against humanity -- are not merely the responsibility of those who commit them, but also the responsibility of the highest government officials."
The U.N. General Assembly unanimously affirmed the principle and it became part of international law. After Nuremberg, it seemed the United Nations might establish a permanent, international criminal court with enforcement power to impose sanctions. But the Cold War intervened and only now is such a court a functioning possibility. Ferencz is solidly in support of it and last December wrote an opinion piece for the New York Times, co-authored with former Defense Secretary Robert McNamara, urging then-President Clinton to sign the international criminal court treaty. The president did so shortly before leaving office. But the U.S. Senate has not yet ratified it.

Whatever the future of the international criminal court, it is likely -- with the Cold War over -- that war criminals and major human rights violators will not escape judgment as easily as they did during the Cold War. It is significant that the special tribunals to deal with war crimes in the Former Yugoslavia and Rwanda were established in the post-Cold War era when the big powers were more willing to cooperate through the United Nations to bring violators to account.

Applying the precedent set at Nuremberg may have been delayed because of the Cold War, but it is now a living legacy for the justices sitting on the current tribunals, as Milosevic has now learned. For Ben Ferencz, and the other U.S prosecutors at Nuremberg, the goal was not just punishment, but a more humane and peaceful world governed by internationally binding criminal law. "Nuremberg was the beginning," he says. "We are now building on what was done there."

(Part two to follow.)

(The Washington File is a product of the Office of International Information Programs, U.S. Department of State. Web site: http://usinfo.state.gov)
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