Did you know that before the Second World War, there were no international laws to protect civilians in war?
Yes, really. And let me explain.
Modern rules of war are only 150 years in the making. Some claim they started with Abraham Lincoln’s enactment of the Lieber Code in 1863, which tried to limit the military actions of his Union forces by permitting certain humanitarian measures to be taken (upon the condition that they do not contradict military objectives, of course). But I would argue that it began in 1864 on the other side of the ocean, when the red cross on a white background – the opposite of the Swiss flag – came to symbolize a neutral protective party helping another in conflict, known as the Red Cross.
Today, the international community has developed a fairly robust series of international laws that explicitly aim to limit the effects of armed conflict for humanitarian reasons. (Although reinforcing these laws is an entirely different matter…)
The critical problem before the Second World War was that individuals were subject to the laws of their nations, but could not claim rights under international law since they were not subjects of international law. (For an excellent lecture on this topic by Thomas Buergenthal, graduate of Harvard Law, a Holocaust survivor and former judge of the UN’s International Court of Justice, see here). Looking at it the other way around, as objects of international law, individuals’ status did not differ from a State’s territory or its other sovereign possessions; individuals thus belonged to the State. And let’s take a moment to consider those poor stateless individuals, such as refugees, or Jews stripped of their citizenship (as was legal in pre-war Germany), who lost their rights to any national laws…
Thus, before 1939, individuals were subjects to the laws of their nations, but not to international law. A rather subtle but critical difference, you might say.
In both the First and Second World Wars, this equated to entirely different treatment between civilians and other groups, such as prisoners of war. For example, sending or receiving post, which remains a cornerstone of human rights today, was not granted to interned, displaced or detained civilians; but instead these rights existed for POWs. Because the 1907 Hague Convention explicitly stipulated that POWs would “enjoy the privilege of free postage. Letters, money orders, and valuables, as well as parcels by post, intended for prisoners of war, or dispatched by them, shall be exempt from all postal duties,” this meant that you could send your husband knitted socks or a food parcel to a POW camp, or ask about your loved one’s whereabouts to relevant authorities.
The Third Geneva Convention in 1929 expanded the rights of POWs even further to include the establishment of official information bureaux by all belligerent nations and the coordinated relief of prisoners, whereby properly accredited professionals should both monitor camp operations and distribute relief. In practical terms, this meant that POW camps in WWII were regularly inspected by Red Cross officials, whereas concentration camps were not subject to humanitarian inspections.
But the Third Geneva Convention again neglected to define civilian rights.
In 1934, the world came very close to providing civilians international rights at the 15th International Conference of the Red Cross and Red Crescent Societies held in Tokyo. The international community vigorously tried to clearly define the rights of civilians as those people within the territory of a belligerent, or as individuals in the power of the enemy in occupied territories. But the Tokyo Draft was not signed nor implemented with any legal authority in the years that followed, and by the outbreak of the Second World War, it was shelved, reconsidered, and finally made legitimate in the Fourth Geneva Convention of 1949.
Thus, by the outbreak of the Second World War, there were no international laws to protect civilians in war.
But then, the Nuremberg Trials.
In light of the mass atrocities and tremendous violations of human rights that occurred throughout wartime Europe, the Nuremberg Trials sought to administer justice to the Nazi politicians, administrators and bureaucrats that allowed such murderous policies to flourish.
The International Military Tribunal (IMT) – the agreement between France, Britain, the US and Russia to persecute and punish war criminals in a court of law – decided upon four categories of crimes:
- Conspiracy to commit charges 2, 3 and 4, listed here;
- Crimes Against Peace “defined as participation in the planning and waging of a war of aggression in violation of numerous international treaties”
- War Crimes “defined as violations of the internationally agreed upon rules for waging war”; and
- Crimes Against Humanity “namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecution on political, racial, or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of domestic law of the country where perpetrated.”
In 1946, Judges from the allied nations of France, Britain, America and Russia presided over the legal hearings of 22 of Germany’s highest ranking Nazis in the first and most publicized trial. Each defendant was tried for one or even all four categories based upon the available evidence often gathered from captured German records. Fortunately for justice, the Nazis were pedantic record-keepers.
Twelve subsequent Nuremberg Trials persecuted other Nazi groups. These included the “Doctors’ Trial” against Nazi medical researchers who conducted experiments on concentration camp victims, the “IG Farben Trial” and “Krupp Trial” against businessmen and industrialists who profited from slave labour, and the “Judges’ Trial” against Nazi judges who enforced racial laws and eugenics.
But given that Germany’s national legal system created laws to support their discriminatory policies (ie. The Nuremberg Race Laws of 1935), and given that civilians had no international rights but were only subject to national laws, then how could the international community enforce international law?
The IMT, the judges, ultimately rejected Germany’s argument that they had been following official policy and thus was actually legally permissible by national law. Instead, they returned to a small but powerful introduction from The Hague Conventions (referred to as the Martens Clause), which states:
Until a more complete code of the laws of war has been issued, the High Contracting Parties deem it expedient to declare that, in cases not included in the Regulations adopted by them, the inhabitants and the belligerents remain under the protection and rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience (Hague Convention, 1899).
This rather vague and imprecise sentence was sufficient grounds for these judges (admittedly, the victors of the war) to argue that Germany had contradicted the basic human rights afforded to all civilians by the laws of humanity.
And this, ladies and gentlemen, is when it all changed.
While the Nuremberg Trials sought to punish these criminals for their cruel treatment of civilians, it actually achieved so much more – it was a dramatic legal and conceptual transformation that internationalized human rights. Importantly, it eliminated that subtle but critical difference discussed earlier; individuals were no longer subject to the laws of their nations, but subject to a higher authority of international law that guarantees their human rights.
What legacies did the Nuremberg Trials create?
1) Defined an international concept of universal human rights.
See above discussion.
2) Granted civilians in war basic human rights.
Today, civilians who experience war are guaranteed basic human rights that all belligerents must abide, or else be accused of war crimes. These are further defined by additional humanitarian laws that provide different protections depending on the whether the civilian is a child, disabled or a migrant.
For simplicity’s sake, these are some of the basic rights granted to civilians in war, which seem revolutionary compared to the pre-WWII period:
- civilians have a right to receive relief and aid from any party, government or non-state actor
- when detained or imprisoned, civilians must be given food, water, and allowed to communicate with loved ones in order to preserve one’s dignity and physical health;
- sick or wounded have a right to receive medical assistance, regardless of whether they are a belligerent
- medical workers must always be allowed to provide life-saving assistance to wounded or injured and must never be attacked
- belligerents are prohibited from causing the following upon civilians: violence to the life, health or physical or mental well-being of persons (including murder, torture, corporal punishment and mutilation), outrages upon personal dignity, in particular humiliating and degrading treatment, enforced prostitution and any form of indecent assault; taking hostages, collective punishments and threats to commit any of the above.
If you’re a POW, you’re also afforded significant rights. If you’re a belligerent yourself, you have certain obligations to provide for civilians under occupation, and you have rights to legal process and representation.
While the Nuremberg Trials may have closed the pre-WWII loophole regarding civilians’ rights in war, war crimes against civilians still occur today. Shocking examples include the increasing male victims of rape at Libyan detention centers, or last week’s sexual exploitation of Syrian women in return for relief, or the recent abduction of 110 Nigerian school girls by Boko Haram…
3) Genocide became a crime.
It might sound ridiculous to think that genocide had never been outlawed until WWII, but when one pauses and considers the multiple genocides that occurred before the Holocaust, explicit laws were evidently required to deter governments or political groups from undertaking acts “with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group” (1948 Geneva Convention). And, if one pauses to consider this meaning of genocide, then it can be evidenced in other major historical contexts or themes, including colonialism, imperialism, slavery, nationalism, etc.
After the collapse of communism in the 1990s, when suppressed nationalism of multiple ethnic groups was unleashed in places like Yugoslavia and Bosnia, the UN investigated evidence of war crimes for the first time since Nuremberg. Notably, rape was recognized as a crime against humanity for the first time in the aftermath of the Bosnian Civil War.
Although genocide has been criminalized, this has not deterred governments and political groups from committing mass atrocities. To date, genocides have occurred in Uganda, Cambodia, Rwanda, Somalia, Bosnia, and many other nations. Also, the legal process to administer justice can extend into the decades. For example, on 24 March 2016, Radovan Karadzic, the former Bosnian Serb leader nicknamed “the Butcher of Bosnia,” now aged 70, was found guilty of genocide, war crimes and crimes against humanity by a United Nations tribunal for his actions in 1995 in Srebrenica. He was sentenced to 40 years’ imprisonment – more than many Nazi war criminals from Nuremberg.
4) Introduced explicit laws for research upon human subjects.
Subsequent Nuremberg Trials also charged the scientists and doctors with crimes against humanity for their extensive medical experiments upon concentration camp inmates. Nazi doctors’ defense was that they were ordered by their government to investigate how to overcome common ailments of German pilots and soldiers (such as hypothermia). However, the persecution team argued, forcing concentration camp victims to die in frigid and icy baths for “medical research” failed to honour doctors’ Hippocratic Oath and underlying ethics to do no harm to patients.
Ultimately, the trial exposed that there was no single blueprint for medical research and, ironically, it forced the American persecution team to find the best and most ethical doctor to testify to research physiology and whose wartime scientific interests corresponded to Nazi research interests. Dr. Andrew Ivy was called as witness for the prosecution and his testimony lasted four days, the longest of the trial.
Dr. Ivy claimed he personally followed three common-sense rules when experimenting on human subjects, such as avoiding all unnecessary physical and mental suffering and injury to patients, or conducting trials on the basis of animal experimentation first. While such guidelines were evidence that medical experiments could be undertaken ethically, this trial revealed that there were no written principles of research in the United States or elsewhere before December 1946. In fact, the legal defense at the time argued that there was no difference between the actions of Nazi doctors and those actions of U.S. doctors at Stateville Prison in Joliet, Illinois, by experimenting with a malaria vaccine on prisoners.
Again, as victors of the war, the Nuremberg judges had the final say. They created a 10-point research ethics code, known today as the “Nuremberg Code.” Although it was not formally adopted by any nation, the irrefutable importance of informed consent was adopted into the UN’s international laws in 1966. Informed consent was, and remains, the core pillar of any research upon human subjects to this day.
5) Created a permanent international court for war crimes.
The International Criminal Tribunal for the former Yugoslavia, or ICTY, was the first war crimes trial held after Nuremberg. In many ways, ICTY was similar because it held four categories of crime, it had a panel of judges, it pursued justice according to international laws and conventions. But, of course, it was modified from its predecessor; according to Bernard D. Meltzer, the ICTY sat at The Hague to signify its neutrality and internationality, it had a smaller team to collect evidence and thus relied heavily on oral history testimonies, it also utilised new methods in forensic evidence, etc.
After the International Criminal Tribunals for former Yugoslavia and then Rwanda, the international community created the International Criminal Court (ICC), in force since the Rome Statute in 2002. According to the Robert H. Jackson Centre, the ICC “is the first ever permanent, treaty-based, international criminal court established to promote the rule of law and ensure that the gravest international crimes do not go unpunished.”
The ICC is currently investigating war crimes in Uganda, Darfur (Sudan), Democratic Republic of Congo, Kenya, Libya, Mali, Georgia, Central African Republic, Côte d’Ivoire, and Burundi.
6) Created an irrefutable historical record of war crimes.
At a time when German society, and the international community, wanted to move on from war and embrace happier peacetime activities, the Nuremberg Trials became an invaluable historical record for future generations. No one today can claim ignorance to the atrocities or scale of the Holocaust. And a great part of that is due to the extensive research, legal proceedings and publicity of the Nuremberg Trials.
Today’s discussions about Nuremberg – and essentially about international justice – now include the great disparity between Nazi Germany’s culpability and the Allies’ culpability of war crimes. For example, no Nazi at Nuremberg was charged with terror bombardment since the use of strategic bombardment against civilians had been a pillar of the British and US war efforts (the controversy surrounding Dresden still rages today). Or, the failure of Nuremberg to legitimise the brutal mass rape of German women by Soviet AND American forces in immediate post-war Germany. And, of course, many others that may not be fully explored until the victor’s narrative of the Second World War, and generation who experienced and created it, passes away.