A Crime without a Name: Nuremberg and the Birth of "Genocide"

Law & Theory Sep 02, 2019

By Kemal Kongar
Published 2018-12-11

War has been a fact of human life for thousands of years. Used as a means of obtaining advantages such as increased territory and control over populations, it was viewed as a necessity for the continued existence and prosperity of large communities of people. These factors made frequent armed conflicts a reality of communal life. The rise of nationalistic imperial empires in the 19th century led to a drastic increase in the number and severity of wars. Between 1816 and 1965, 50 interstate wars and 46 wars of colonial acquisition occurred, engulfing the entire globe in conflict. While punitive peace treaties have been used throughout history, trying individuals for their actions during war was unprecedented until the end of the First World War. It was not the norm for war-time actions to be tried and punished in peacetime. Thus, it is important to recognize the historical factors that led to the recognition of 'crimes against humanity' as acts individuals in war had the duty to avoid, and, to an extent, prevent.

War Crimes and Crimes Against Humanity
Although the Nuremberg Trials are recognized as the first successful example of trying individuals for crimes committed in war time, the term “crimes against humanity” goes back further than the Second World War. Post-WWI, the Allied governments pressured Turkish officials to prosecute individuals responsible for "crimes against humanity" in their treatment of the Armenian population during wartime. A short while after the enactments of Turkish policies targeting Armenians, the Allied powers released a public statement pointing out:

In view of those new crimes of Turkey against humanity and civilization, the Allied governments announce publicly to the Sublime-Porte [Ottoman government] that they will hold personally responsible [for] these crimes all members of the Ottoman government and those of their agents who are implicated in such massacres (Kramer 442).

The concept that a government could be accused of committing acts considered beyond the necessities of wartime, and therefore criminal, was new. While there are conflicting reports, it is believed that between 800,000 and 1 million Armenians were ‘massacred’ between 1915 and 1918. Due to internal divisions in the Turkish government at the time, and conflicting calls to action from Allied governments, the trials of those responsible for the ‘massacre’ were seen as failures. That being said, this can be seen as the breakthrough in the evolution of international expectations from states in war-time. The ‘Armenian issue’ continued to be an international relations problem for the Turkish government after the coining of the term ‘genocide’ by the United Nations in 1946 (UN Resolution A/RES/96-I).

After their surrender in 1918, by signing the Treaty of Versailles, the German government faced similar pressure to try war criminals.

Hundreds of officers and political leaders were charged with responsibility for waging ruthless warfare, killing thousands of civilians during the invasion of Belgium and France in 1914, cruelty to prisoners of war, U-boat warfare in which unarmed civilians and non-combatants were drowned, and laying waste to territory during the German retreats in 1917 and 1918. (Kramer 442)

The trial of those charged with such crimes was also considered a failure of the judiciary as many, such as Kaiser Wilhelm II, were never tried. However, these trials in Leipzig and Istanbul can be seen as precursors to the trials that were to take place in Nuremberg and Jerusalem in response to the Nazi actions during the Second World War.

There is evidence of substantial changes between the wars of the 19th century and the Great War –the first conflict in which the entire state machinery was used, and in which the victors considered it necessary to try their enemies for their actions during wartime. Given the treatment of soon-to-be colonial subjects in places such as South Africa, which included the first use of concentration camps by the British, it is curious that German actions were considered reprehensible enough to be branded as “crimes against humanity” and “war crimes,” despite the fact that these crimes were not unique on an international scale. Even methods that were seen as ‘unacceptable’ after the war, such as the use of poison gas, were employed by both sides. This gives the impression that the call for the trial of ‘war criminals’ was a means of further humiliating the German government and encouraging further submission to punitive peace terms. While it can be argued that U-boat warfare and similar acts targeted civilian populations, it must not be` forgotten that the British government, throughout the war, tried to starve the German populace into submission via their naval blockade. Although it is not the aim of the paper to use ‘whataboutism,’ it must be said that the tactics followed by both the Entente and the Central Powers reflected their aims of defeating the opposing side using any means necessary. Thus, it is reasonable to assume that the calls for the trial of ‘war criminals’ for acts branded as ‘crimes against humanity’ within the German government and army were a way for the Allies to obtain moral superiority over their recently defeated enemies; aiming to justify war-time propaganda of branding the Germans as barbarians incapable of following moral standards.

While these arguments can be made in support of the German government’s refusal to accept blame for events that occurred during the war, the situation in Turkey must be investigated separately. Contrary to the actions of the Germans, which involved taking advantage of the resources of local populations in territories under occupation or aiming to cripple the British war efforts via the use of U-boat warfare, the Turkish government followed policies which resulted in the deaths of about a million people residing within their borders. Although the British attempted to try those responsible for the ‘massacre’ in their own courts:

The government in Istanbul protested, stating this infringed their sovereignty, and arrested suspects accused by the British of maltreatment of prisoners of war, in order to pre-empt their extradition. Lacking both incriminating evidence from the Turkish government, which refused to cooperate, and also lacking support from the French to put pressure on the Turkish government, the British dropped the demand for extradition, and released the prisoners at various stages between spring 1920 and November 1921. (Kramer 444)

The indecisive results in the case of the Ottoman government proved to be a failure of international law in the face of ‘crimes against humanity’. While the events were a clear example of a war-time government using disproportionate force against civilians that were deemed ‘dissidents,’ the international community failed to capitalize on the opportunity to make an example of the event. This would change after the German atrocities in World War II which prompted the international community to pass resolutions recognizing such events as acts of “genocide.”

Genocide and the Nuremberg Trials
The United Nations defines genocide as:
…a denial of the right of existence of entire human groups, as homicide is the denial of the right to live of individual human beings; such denial of the right of existence shocks the conscience of mankind results in the great losses to humanity in the form of cultural and other contributions represented by these human groups, and is contrary to moral law and to the spirit and aims of the United Nations. … The punishment of the crime of genocide is a matter of international concern.(UN Resolution A/RES/96-I).

This definition, presented in the same resolution which reiterated the desire for a tribunal based on international law for the upcoming trials in Nuremberg, defined acts of mass elimination of people groups as genocide, and thus, a crime against humanity.

The Trials that took place between 1945 and 1946 saw the hearings of many prominent persons in the German government during the Second World War. The tribunal (made up of representatives from the United States, United Kingdom, the Soviet Union, and France) tried perpetrators who had taken part in “war crimes,” “crimes against humanity,” and (to some extent) “genocide” under international, rather than German law. Using international law as basis for the trials, the Tribunal delivered sentences ranging from time in prison to execution by hanging. This was the first instance in which groups of sovereign countries collaborated to punish crimes they deemed heinous enough to require such a response.

While it could be argued that the handing down of punishment to those who partook in the killing of millions of innocent civilians would be supported by most people, certain legal scholars have argued that:

The Nuremberg trial was an unprecedented example of 'victors justice' and was consciously used to identify the Allied Powers symbolically with the rule of law and to transform a political dispute into legal terms so as to legitimize the punishment of the defeated German leaders. The Nuremberg Tribunal rejected the prevailing doctrines of international law and with minimal explanation or support adjudged all but three defendants guilty of international crimes.(Lippman 20)

Following this line of thinking, the international agreements that preceded the Trial, and the Trial itself, may be understood as ways of imposing the will of the victors on defeated Germans, regardless of pre-existing local laws or prior precedent set by international law. However, this may also be interpreted as a case in which an event as shocking as the Holocaust resulted in the need for the creation of new laws related to the treatment of individuals during peacetime. It allowed for the shifting of the belief that states had absolute sovereignty over their citizens and their lives to the belief that human dignity and security had to take precedence over absolute rule.

Examining the actions of the victorious states after the First and Second World Wars, one may be inclined to argue that the punishment of those guilty for “crimes against humanity” (and related crimes) was the imposition of a victors' peace, rather than a legitimate expression of concern for human rights. However, an examination of the evolution of international law and the standards of human welfare it demands of states leads to a less cynical narrative. The path for the improvement of universal human rights began after the atrocities seen during the First World War. While the defeated parties were subject to trials related to such issues, the building of the international conscience had begun. As the extent of German atrocities committed during the Second World War was revealed, it became impossible for state actors to ignore such acts which result in the deaths of entire people groups. The Nuremberg Trials demonstrate the insufficiency of pre-existing laws in the punishment of those in violation of certain human rights. Although it can be argued that the imposition of international law in the case of the Nazi war criminals was an act of legal overreach by the victors, it allowed for the establishment of a very important precedent in warfare. Now, even in war time, it is not acceptable to mistreat or harm one’s own population to the extent of causing mass damage. It allowed for the evolution of human rights, including the recognition of important crimes against humanity and the creation of a set of legal norms which hold perpetrators accountable. In the end, these Trials and their outcome shaped the behaviour of the international community in response to acts that would, from now on, be branded as genocide.

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Kramer, Alan. “The First Wave of International War Crimes Trials: Istanbul and Leipzig.” European Review, vol. 14, no. 04, Oct. 2006, p. 441. Crossref, doi:10.1017/S1062798706000470.

Lambert, Nicholas A. Planning Armageddon: British Economic Warfare and the First World War. Harvard University Press, 2012. ProQuest Ebook Central, http://ebookcentral.proquest.com/lib/mcgill/detail.action?docID=3301028.

Lippman, Matthew. “Nuremberg Law and Politics.” Law in Context: A Socio-Legal Journal, vol. 6, 1988, pp. 20–44.

Small, Melvin, and J. David Singer. “Patterns in International Warfare, 1816-1965.” The Annals of the American Academy of Political and Social Science, vol. 391, 1970, pp. 145–55.

The Editors of Encyclopaedia Britannica. “Nürnberg Trials | Facts, Definition, & Prominent Defendants.” Encyclopedia Britannica, https://www.britannica.com/event/Nurnberg-trials. Accessed 8 Dec. 2018.

UN Resolution A/RES/96-I. https://documents-dds-ny.un.org/doc/RESOLUTION/GEN/NR0/033/47/IMG/NR003347.pdf?OpenElement. Accessed 7 Dec. 2018.