Judge Dennis Davis
Nuremberg War Crime Trials

Judge Dennis Davis - Nuremberg War Crime Trials

- Okay. Well, good evening, good afternoon to everybody. The lecture I’m giving this evening is somewhat complicated by the fact that over the period of Lockdown, I’ve done at least two sessions on the film “Judgement at Nuremberg”, and at least one lecture, if I recall correctly, on the famous clash between Hersch Lauterpacht and Raphael Lemkin. You may recall that this particular dispute between these two, and will come there later in this lecture, was made famous with a wonderful book by Philip Sands, “East West Street”. So, I kind of decided I’d have to do this slightly differently. It has become a really important lecture to give, certainly for South Africans, because for reasons that I’ll come to presently. Of course, the Nuremberg trials, which essentially were the fons et origo of modern international criminal law, eventually you could say is a lineage which gave rise to the International Criminal Court. And those of you who are South Africans who follow South African politics will know that there’s a great controversy now about the fact that having signed the treaty, which makes us a signatory there too, the South African government is desperately trying to find ways out of having to implement the treaty which they signed very early on, because Vladimir Putin is intended, it appears, to come to South Africa for the BRICS Conference. We’ll talk about that a little bit presently. So there’s a real, real live context to this lecture that I’m giving, and in some ways therefore becomes, certainly for me, an important, a very important event which we should know a little bit more about.

But let me start then at the beginning. So essentially, well, on November 20th 1945, the first of the Nuremberg trials, as we call them, began in the Main Courts building in the Bavarian town of Nuremberg with the indictment of 22 of the most senior Nazis that had been captured alive. In the dock, one found Hermann Göring, who of course was head of the Luftwaffe; Hans Frank, who had treated Poland like his personal fiefdom and of course had the nickname the butcher of Krakow; Ernst Sauckel, who had organised the Nazi’s Slave Labour Programme; Albert Speer, the Armaments minister and Hitler’s architect; and a whole bunch of other Nazis who were amongst the 22 who were tried. And so, these trials which began on the 20th of November ‘45, were celebrated as a triumph of law over evil and a very important marking, turning point in legal history. I wanted just to give you some context, and so we’ll play a clip which just gives you the contextual background to all of this before we fill it in with more of these details.

CLIP BEGINS

• It’s 1945 and World War II is over. Adolf Hitler is dead. So were his top lieutenants, Heinrich Kimmler and Joseph Goebbels. But dozens of high level Nazis are still alive and in prison. What do the Allied Powers do with them? They take them to court in their own backyard. The Nuremberg trials were a series of international prosecutions that decided the fates of Nazi war criminals. Why hold these trials in the German city of Nuremberg? Well, for one, unlike a lot of German towns, Nuremberg was relatively undamaged by the war. And, just as importantly, the city had been the site of several infamous Nazi rallies. Prosecuting Nazi leaders there brought a symbolic closure to the Third Reich. The trials were administered by the four principle nations of the Allied Powers: the United States, Great Britain, the Soviet Union, and France. However, each of these countries had their own laws and legal system and had to settle on a common framework of justice. They couldn’t try each defendant four different ways. So in August of 1945, they all sat down and hammered out the London Charter of the International Military Tribunal. With the London Charter, the Allies agreed that the defendants would stand trial and be allowed to have their own defence attorneys. Instead of a single judge, there would be a tribunal: four judges, one from each Allied country. The London Charter also defined the three major charges each criminal would face: crimes against peace, like planning and starting a war; war crimes such as killing POWs; and crimes against humanity. In other words, killing civilians as the Nazis did during the Holocaust. The trials lasted at Nuremberg from 1945 to 1949. But the highest profile cases were brought to court between 1945 and 1946. This period was known as the Trial of the Major War Criminals. Among the 22 Nazi leaders on trial at Nuremberg were Gestapo founder, Hermann Göring; deputy fuhrer, Rudolph Hess; Nazi Foreign Minister, Joachim Von Ribbentrop; and the German architect, Albert Speer.

Two additional Nazis have been indicted, but one, labour chief Robert Ley, killed himself before the trials. The other, weapons manufacturer Gustav Krupp von Bohlen und Halbach was declared mentally unfit. He was senile. Starting in November of 1945, the Tribunal heard testimony and reviewed evidence for 216 court sessions. The horrors and crimes of the Nazis were put on display for all the world to see. In October of 1946, the court handed down its verdicts: 12 death sentences, including those for Göring and Ribbentrop; three got life in prison; four got lengthy jail terms; and three were acquitted. Nothing could undo the devastation of the war. Nothing could bring back the millions of lives lost in the Holocaust and the millions more lost in battle. But the Nuremberg trials were an important step towards rebuilding an international system of justice. They established important legal precedents for future international trials, including those for Japanese war criminals and for trials decades later in Rwanda and the former Yugoslavia. The Nuremberg trials officially entered the crimes of the Third Reich into the historical record, so that there would be no doubt about what the regime had done.

CLIP ENDS

• The question I’ve got for you, and if we were sitting in a room together and I could ask you, but I’m happy to ask it if you want to, you’re very welcome to put your view on the page, on the comment page. The question I have for you is, is his claim right? That, well, let’s start the fact. The fact is clearly the Nuremberg trials began a process is true. It began much earlier. If you look at the context, it started off in 1907 at the 4th Hague Convention in which it was the first international agreement outlining the basic rules of land warfare. But I think it’s fair to say that, and we’ll come to the principles that emerged out of Nuremberg presently, but it’s fair to say that Nuremberg was the fons et origo, as I’ve suggested, of modern international criminal law. The question I have for you is, is he right that this what started a process and subsequently that process has now built up a recognised viable set, I’m paraphrasing, of international criminal law? And I ask that question because here we are sitting in the year 2023 with another war in Europe and in which Vladimir Putin has been charged with crimes against humanity by the ICC. And I want to come circle back to the comment I made at the beginning, I see people entering now so I’m sorry for repeating, but let me make the point. I want to come back to this particular point, particularly in the light of the South African government’s behaviour towards the International Criminal Court and its international obligations. But I run ahead of myself. That’s the question. And I’d be interested whether you think that in fact we have come a long way and that upstanding Yugoslavia and Rwanda, we now have a relatively viable set of international law that is in fact enriched governance around the world. But that’s the question for you.

Let me start with the background to Nuremberg. Basically what occurs is that Robert H. Jackson, who is himself very interesting, he had been appointed to the Supreme Court of the United States of America in 1941 by Roosevelt. I might add a time when the court, really as it were held the admiration of the entire democratic world, something rather different to today, sadly, but that’s another matter. He made a visit to London in late May '45, in which he conferred with the Foreign Minister Anthony Eden and the British Attorney General David Maxwell Fyfe. And what this was for was to try to work out whether in fact at the end of the war, which of course was basically in relation to Germany was already there, could in fact a set of trials be organised and would there be no significant differences between the American and the British goals for these trials. But of course, the problem was that Stalin had already said on more than one occasion that his approach was that there should be an execution of all war criminal summarily, and that there should be no such trials. And so the question was, and I might add that Churchill had not exactly taken a fastidious opposition to that point at that moment. On June of '45, Jackson then met with a whole group of both British and American officials. And what they tried to do was to say, “Actually, we can’t just execute these German, these Nazis. We need to have the trial.” And they thought that the trial would take place in Munich, although there was some doubt as to whether that was the case. By late June, the Russians had now been invited for a discussion about this, and of course, here was part of the problem. To have the Russians on board was very important on one level, and of course, one was then able to persuade the Russians that in fact trials should take place as opposed to summary executions. But consider the problem, the Anglo-American system of law differed considerably from the continental system that the French and the Russians used.

And the first point of contention was over the function of the indictment. Because in Anglo-American law, there’s a statement of charges against a criminal which informs him or her of the crime which they’re being charged with. Under the Soviet system, the indictment includes all of the evidence that will be utilised during the trial. Here, the Americans won and the American system prevailed. The second point was whether organisations, such as the SS and the Gestapo could be tried as criminal entities. The Russians said no, the Americans said yes. Eventually, Americans were given the responsibility of proving this portion of the case. There were a whole series of further particular problems which we’ll get to with regard to the nature of the charges, and this is where Lemkin and Lauterpacht do come in. But ultimately, on the 8th of August '45, the four nations which included France, gathered to sign the agreement and charter for the prosecution and punishment of major war criminals of the European Axis. It was called the Agreement of London. And this created the system in which they would be tried, statute to up four counts of crimes which the German leadership be charged conspiring, in other words, to engage in what would the other three counts. Count two being crimes against peace, the actual planning, preparation, and waging of aggressive war.

Then there was a further count of war crimes, which included killing and mistreating the soldiers and civilians in ways not justified. And then finally, the crimes against humanity, and I want to come back to that if I may, which was a new idea dealing with inhumane actions committed against civilians. And included in this, of course, was the mass murder of Jews. So ultimately and amazingly, notwithstanding the massive differences between the Russians and the Anglo-American group, if you could put it that way, these 22 were finally tried at Nuremberg as I’ve indicated. Let me just say something immediately then about the dispute between Lauterpacht and Lemkin. That dispute, and we can come back to that if you like, because it’s not an unimportant debate. That dispute concerned the question of whether the fundamental charge be crimes against humanity or whether, as Lemkin had argued, there should be a specific crime against genocide. Now, the Lauterpacht view, which is very important, was that he argued that he, that this were, sorry, that the crimes had to be directed against individuals for it was individuals who had perpetrated these docily crimes, and that one did not want to try the state as such because the state was made up of individuals. In a very famous passage, which was quoted and incorporated into the ultimate judgement in Nuremberg, this is what Lauterpacht said: “The rules of warfare, like any other rules of international law, are binding not only upon impersonal entities, but upon human beings.

The rules of law are binding not upon an abstract notion of Germany, but upon members of the German government, upon German individuals exercising governmental functions in occupied territory upon German officers, upon German soldiers.” What Lauterpacht wanted was, in a sense, to individualise the process. To say, “Hermann Göring, you can’t use superior orders. You can’t say that ultimately you were just some apparatchik in the state. You, Hermann Göring, are responsible for the crimes of which we are charging you, not in your capacity as anything else other than as it were a Nazi politician who in a sense, in his own way, contributed absolutely, manifestly, and extraordinarily to the genocide or to the Holocaust, and to all of the murders that had taken place.” By contrast, Lauterpacht wanted there to be a crime, sorry, Lemkin wanted there to be a specific crime against genocide. In other words, he wanted these defendants to be charged with extermination of racial, national, and religious groups. What his argument was that it wasn’t just a question of individual crimes against individuals. There was more than just a crime against humanity, which was basically committed against the individual members of humanity. There is a crime which was basically committed against groupings. In other words, Jews, gipsies, others. And so Lemkin’s argument was ultimately that they should have been incorporated into the law an incorporation of genocide. What he said was that the basic weapon used by Hitler in its struggle, was a weapon against certain groups, specifically defined groups.

And those groups ultimately in Lemkin’s view were the subject of the crimes and therefore, instead of individualising this, you could have a specific crime called genocide, which was target not against individual members of society, but against the entire community, in this case of Jews, and particularly Jews but obviously certain other groups as well. That was a dispute between them. Lauterpacht won out, possibly because already there was a feeling that what we’re creating additions to criminal law in the crimes against humanity, and that it was easier to individualise it. You killed X, Y, Z, A, B, C rather than the group. We can again debate that if you like, but I thought it important to try to sketch for you the two fundamentals disputes which they were. But at the end of the day, as I say, the charges excluded the charge of genocide but included crimes against humanity. And there is a great deal of jurisprudential confusion about them, but I think the significant point is do you look at the victims as individuals or do you look at them as members of a group? And it was the group that ultimately a cause their death because of the hatred which the Nazis targeted, for example, as Jews and other such groups. Now, before I move on, I thought I would just have a little interlude. I’ve already mentioned an introduction to my lecture that “Judgement at Nuremberg”, the film, a Stanley Kramer’s film which I’ve discussed a couple of times over Lockdown and do not want to repeat yet again, but it’s really well worth watching of course.

And I’ve used it for teaching purposes many, many times. Still do. But there is also an interesting miniseries, which I think appeared right about the year 2000, on Nuremberg which has Alec Baldwin playing Robert Jackson and has a very famous actor playing Göring. And in this particular case, what is made very clear with just the absolutely crust and undisguised anti-Semitism hatred of Jews which Göring held absolutely central to his very existence. And I just wanted to introduce you to this miniseries in case you’re interested and play you one clip, which is a clip of Hermann Göring actually having an engagement with a psychiatrist. And there were psychiatrists of this kind who ultimately happens to be Jewish and was advising Robert Jackson in relation to the trial. Guess who the actor is who plays Hermann Göring.

CLIP BEGINS

• A rat catcher catching rats. Is that the kind of thinking it takes to carry out state sanctioned mass murder? Not just blind obedience, but also a belief that your victims are not human.

• Let me ask you this. What was Hiroshima? Was it not your medical experiment? Would Americans have dropped bombs as easily on Germany as it did upon Japan, killing as many civilians as possible? I think not. To an American sensibility, a Caucasian child is considerably more human than a Japanese child.

• America was at war with Japan, a country that had attacked it without provocation. You murdered millions of your own citizens.

• And what about the American citizens of the Japanese race who were put into protective custody in your own concentration camps?

• That was wrong.

• And why was this not done to American citizens of Italian and German descent?

• I said it was wrong.

• And what about the Negro officers in your own army? Are they allowed to command troops in combat? Can they sit on the same buses as the whites? The segregation laws in your country and the anti-Semitic laws in mine, are they not just a difference of degree? Let me tell you. From the beginning of the century, through the First War until the rise of Hitler, the free masonry of the Jewish merchants consistently undermined the German economy and the nationhood of the Fatherland. That is why we made anti-Semitic laws and why you, my friend, can never understand anti-Semitism. Why? Because you are a Jew.

CLIP ENDS

• I just want to say, bravo, I’m just having a look, to Francois who got it absolutely right. That was Brian Cox from “Succession” playing Goebbels, sorry, playing Göring. And it’s a miniseries called “Judgement in Nuremberg”. It’s, I think best, oddly enough for watching Brian Cox, who’s absolutely brilliant in playing the awful, awful character of Hermann Göring. So we now, essentially the trial now begins. And before I just start with that, let me just make a point that the point made by Göring in his exchange with the psychiatrist, and I’m not talking about the latter part about, “You can’t understand anti-Semitism because you’re a Jew.” I’m not talking about that. I’m talking about the earlier part where he talks about American as it were crimes against Blacks and double standards, the point made as well in the Stanley Kramer version of “Nuremberg”. The truth is that there was a lot of that spoken about at the time. The trials were plagued even at the time by allegations of being little more than a victor’s justice. These were made not only by Germans, but also by American and British lawyers who felt that it was illegal travesty. The judges and prosecutors were not not neutral. They came from the four victorious powers, which led to oddities such as a Soviet prosecutor citing the Hitler-Stalin Pact as evidence of German aggression against Poland. I mean, which is quite extraordinary. Or a Soviet judge with ample experience of running Stalin the show trials, one who would run them, trying to persuade his colleagues that the massacre against Polish officers in Katyn who had been shocked by the Soviets should be added to the tally of German war crimes. And the hypocrisy was not exclusive to the Soviet side.

The London Charter, to which I’ve made reference, which basically established the Tribunal, explicitly limited its limit to war crimes committed by the Axis powers. The tribunal also applied the so-called tu quoque principle which holds that any illegal act was justified if it had also been committed by the enemy, meaning “you, too” in Latin. Pardon my Latin pronunciation. No Nazi was charged with terror bombardment since the use of strategic bombardment against civilians being the pillar of the British. We know the controversy relating to Bomber Harris in particular. And when US admiral Chester W. Nimitz testified that the US Navy had conducted a campaign of unrestrained submarine warfare against the Japanese from the day after Pearl Harbour, it’s interesting that charges against Admiral Karl Doenitz, who was of course the U-boat commander, were quietly dropped. So there was a lot of, the point that is made in this clip is not an unimportant one to bury in mind. And yet, when all is said and done, it was a remarkable event and it was a remarkable event in my case for my lecture for two specific reasons. The one was that it happened at all. Because before the end of the world, the war, sorry, Churchill and Stalin, and perhaps even Roosevelt, there’s evidence that John thought that summary executions of thousands of leading Nazis was the appropriate form of retribution.

And it was only when there was a lot of protests about that the old idea from World War I was revived 'cause the Versailles Treaty had compelled Germany to hand over Kaiser Wilhelm II and hundreds of senior officers to an international tribunal to be tried for war crimes. Kaiser, of course, fled to Netherlands, the German government refused to hand over any officers, but the idea was there and of course, as I’ve indicated, thanks to Jackson’s tenacity, it was incorporated into. So that was the first. And I think what was related there too is that trials did take place. Evidence was presented, and the trials established an irrefutable and detailed account of the Nazi regime’s crimes, such as the Holocaust at precisely the time when many in the world, including Germans, were eager to forget or claim complete ignorance. I’m not suggesting for one moment that tragically we now live in a world where social amnesia is the order of the day and anti-Semitism is rapidly on the incline. But at that particular point in time, it was also so, and therefore I think the trials are important for that reason. The second reason which I’ll come to presently is because the Nuremberg trials developed a series of principles which gave rise to the body of modern international criminal law. But before I do that, let me go back to the first major attribute of these trials, which was the fact that they took place in what they were representing. And in order to do that I want to play you just briefly the clip of the opening address by the chief prosecutor, Robert Jackson. And then I’m going to just read you part of the text in case you didn’t hear it well enough.

CLIP BEGINS

• [Announcer] The chief prosecutor for the United States of America.

• [Jackson] The privilege of opening the first trial in history for crimes against the peace of the world imposes a grave responsibility. The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated. That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgement of the law is one of the most significant tributes that power has ever paid to reason. This Tribunal, while it is novel and experimental, is not the product of abstract speculation nor is it created to vindicate legalistic theories. This inquest represents the practical effort of four of the most mighty of nations, with the support of 15 more, to utilise international law. There is no count in the Indictment that cannot be proved by books and records. The Germans were always meticulous record keepers, and these defendants had their share of the Teutonic passion for thoroughness in putting things on paper. Nor were they without vanity. They arranged frequently to be photographed in action. We will show you their own films. You will see their own conduct and hear their own voices as these defendants re-enact for you some of the events in the course of the conspiracy. We would also make clear that we have no purpose to incriminate the whole German people. I will now take up the subject of Crimes in the Conduct of the War. Even the most warlike of peoples have recognised in the name of humanity some limitations on the savagery of warfare. Rules to that end have been embodied in international conventions to which Germany became a party. This code had prescribed certain restraints as to the treatment of belligerents. The enemy was entitled to surrender and to receive quarter and good treatment as a prisoner of war. We will show by German documents that these rights were denied, that prisoners of war were given brutal treatment and often murdered. This was particularly true in the case of captured airmen, often my countrymen. They led their-

CLIP ENDS

• You can leave it at this stage, Emily. Emily, we can stop this and we can move on. I wanted to give you a feel of what of the actual speech. And now let me just read you a little bit of the text. “The privilege of opening the first trial”, said Jackson, “in history for crimes against the peace of the world imposes a grave responsibility. The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating that civilization cannot tolerate their being ignored, because it cannot survive their being repeated. That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgement of the law is one of the most significant tributes that power has ever played to reason.” I’ll just read the next paragraph. “This Tribunal, while it is novel and experimental, is not the product of abstract speculations nor is it created to vindicate legalistic theories. This inquest represents the practical effort of four of the most mighty of nations, with the support of 17 more, to utilise international law to meet the greatest menace of our times, aggressive war. The common sense of mankind demands that law shall not stop with the punishment of petty crimes by little people. It must also reach men who possess themselves of great power and make deliberate and concerted use of it to set in motion evils which leave no home in the world untouched. It’s a cause of that magnitude that the United Nations will lay before Your Honours.” I’ll leave it there because I wanted to tell you that with all of its reservations, that’s a very profound statement. And what it gave rise to was in 1950, the UN International Law Commission unveiled a set of seven Nuremberg Principles, seven Nuremberg Principles, which were the basic principles for international law.

I won’t read all of them to you, but I’ll read some of them to you 'cause I want to revert back to them briefly. “Any person who commits an act which constitutes a crime against international law is responsible therefore and liable to punishment,” principle one. Principle two, “The fact that internal law,” that’s national law, “does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law.” Here is the individualised idea that Lauterpacht spent most of his life pursuing, and finally had it implemented. Three, “The fact that a person who committed an act which constitutes a crime under international law, acted as Head of State or responsible government official, does not relieve him from responsibility under international law.” And I want to come back to that. I want you just to hold onto that. That if you acted as head of state or responsible government official does not relieve him from responsibility under international law. Four, “The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him at the time.” Five, “Any person charged with a crime under international law has the right to a fair trial on the facts and law.” And then six sets out a series of crimes against peace, planning wars of aggression, participating in conspiracies of such kind, war crimes and crimes against humanity.

And finally, “Complicity”, seven, “is in the commission of a crime against peace, a war crime, or a crime against humanity is a crime under international law.” So in 1950, thanks to Nuremberg, the world finally got seven, these seven basic principles, which they were central and are central to international criminal law and to international governance. Now, as a result of that, in 1992, Bosnia-Herzegovina, one of the remaining Yugoslavia Republics, declared independence. We know that a civil war breaks out amongst Bosnia’s Muslims, Croats, and Serbs. The Serbs initiate the policy of ethnic cleansing, forcibly removing people from their homes in an effort to create ethnically pure regions and detain many non-Serbs in concentration camps. As a result, in 1993, the Security Council of the UN agrees to establish the International Criminal Court for the Former Yugoslavia based in Hague. In '94, explosion of interethnic strife in Rwanda, more than 500,000 people, most of the members of the Tutsi minority, are massacred by the Hutus majority over a four month period. In November of that year, Security Council establishes the International Criminal Court in Rwanda, in Arusha, Tanzania is actually where it took place. In '95, the ceasefires negotiated in Bosnia combatant sign a peace treaty in Dayton, Ohio. Troops from NATO begin patrolling in Bosnia. In '96, the International Criminal Tribunal for the Former Yugoslavia imposes its first sentence on Dražen Erdemović, a Bosnian crow to serve in the Bosnian serve army. He’s sentenced up to 10 years. And then there’s the full trial in '97 with a conviction of Duško Tadić on 11 accounts of war crimes.

And then in '98, and this is the important, after 50 years of discussion, or more if you like, from the time of Nuremberg, the final International Criminal Court, not just an ad hoc one of the kind that I’ve alluded to in relation to Yugoslavia and Rwanda is established through the Rome Statute of the International Criminal Court adopted in July 17th, 1998. We know that Milošević and others were indicted pursuant there too, but let’s leave that aside for the moment. That’s the international criminal law, which flows directly from the 1945 trials and the 1950 principles. And here we are in the year 2023, almost as it were, 80 years later, in which we’ve got a war in Europe, in which the ICC has indicted Vladimir Putin, in which I suspect there is more than a prima facie case for crimes which have been committed and observed the principles which I read out in relation to the Nuremberg Principles. Clearly, there is something here, more than something. Now, I mentioned that in relation to South Africa, there is going to be a BRICS conference later this year, and Vladimir Putin, obviously is the Russian president, has been invited. We, South Africa, to our great honour, were one of the first countries to sign onto the Rome Statute.

I might add, the United States of America never has, which is an act of extraordinary expediency, but that’s a debate I think of a slightly an adjacent time. So we signed this thing in '98. We then have a terrible problem when Omar al-Bashir arrives a few years ago into South Africa, you know, the butcher of Sudan, and he is let out of the country by the executive of the country having been here, notwithstanding litigation which is initiated in order to have him arrested. And ultimately, the Constitutional Court of South Africa, I’m not sure, the Supreme Court of Appeal, after Omar al-Bashir is back in Sudan, comes to the judicial conclusion that we had acted in flagrant breach of international law and our obligations. And here we are in the year 2023, where what are we told? We told, “Well, the ICC Rome Statute, which we had signed as one of the first countries, is in fact really just not as sufficient to deal with all the complexities of the modern world.” We’re also told that we wish to amend it, our participation by a new domestic statute, which would to a large degree give the government power to exempt heads of state from any purview of the ICC. And so the depressing feature for me is that here we are, as I say, all these years later in which these principles which were fundamental, born, as Jackson rightly says, of the horrors of the war. And here we are 80 years later where in fact we sign an agreement, where country sign it and we can’t implement it. Now I understand all the difficulties about arresting Putin, but one would at least say this, that a government which is committed to international law would say, “Sorry, you can’t come here because if you do come here, we’re obliged to arrest you.” That is not going to happen. I should tell you.

And for me, it’s an extraordinary sadness that all of these lessons that I’ve been articulating for the past 40 minutes really amount to very little at the end of the day. True, as I’ve indicated, there were steps taken against Milošević at Hague and there were steps taken against Pineshry. But in the main you have to ask yourself, to what extent was the promise of those principles of 1950 have they been vindicated? Now, I want to conclude and then I’m happy to take questions because I’ve made a number of remarks deliberately this evening in order to provoke you into thinking about this. It is interesting of course, when you have a trial of this kind, just what ordinary people thought about it. What were going through the mind of people who attended those trials, and to what extent can the ordinary mind actually grasp the enormity of the inhumanity perpetrated by all of them. And so I thought I’d just end this part of the lecture by a final clip which reflects a view of a soldier who was guarding the prisoners at Nuremberg in '45.

CLIP BEGINS

• I was one of three officers that were assigned to the courtroom detail of the Internal Security Detachment. The Internal Security Detachment were comprised of the prison detail and the courtroom detail. And the officer would stand by the main door, and I would handle just whatever had to be done. People coming into the courtroom, I’d have to see if they were supposed to be there. And I’d just have to make sure that the prisoners didn’t talk and unless they were allowed to at times, communications with their attorneys who sat in front. Just had to keep order, had to get everybody’s attention when the Tribunal marched in, had everybody stand up. And of course, when the Tribunal came in and sat down, I’d have everybody sat down and I just right there on the courtroom floor. I never did have too many problems except with Göring. Göring was always a headache. Kaltenbrunner was sort of a headache, too. Hess never was. Hess was asleep most of the time. The one that I enjoyed talking to was Doenitz. I stood right beside Doenitz as much of the time during the proceedings. And when there was the lull in the proceedings, so I would check, chat back and forth. Göring was just sitting there, just mostly, mostly he was okay during the trial. He would yell out or something when somebody said something he didn’t like. He was very arrogant, is the only way you can describe it. Well, initially he was trying to get everybody to team up as a team, you know, and act jointly to oppose everything. But nobody really wanted to listen to him. I mean, they were not under his command or anything. I mean, as much power as he had during the war, I mean, that power was gone and they all knew it. They didn’t listen to him. They ignored him. Keitel, I like Keitel because Keitel was the Prussian chief of staff, but Keitel was just a yes man to Hitler.

None of the orders that came down to the troops from the supreme command, they were all Hitler’s orders, but they had to come through Keitel, and Keitel was a military, Prussian bearing through and through. I was a lieutenant at the time. Of course, you know enemy officers, after the war’s over they have to salute the victorious officers. So I got a kick out of Keitel having to salute me. Every time we passed, where saluting was required, I mean, Keitel have to salute me, you all would have to salute me. It was sort of fun. I mean, I had a couple of years as an enlisted man, I had a couple of years as an officer. I had a decent amount of combat experience, and I had a history making assignment at the very end at Nuremberg. And I got to see all the guys that started the war finally be held accountable. And it was sort of a nice wrap up of everything.

CLIP ENDS

• Just interesting listening to somebody reflecting on the differences of these particular accused at the time. Well, I want to, if I may, take, I see there’s quite a few questions and I wouldn’t mind just spending the last few minutes on them.

Q&A and Comments:

Q: Eileen’s asked, “There were some acquitted at Nuremberg.”

A: And they were acquitted because actually in that sense, the court tried to apply itself to all of the evidence and found that amongst the 22, there were a few of more minor ones who were, there was not enough evidence to suggest that you could bring a conviction home against those charges.

You quite dream. It’s not perfect, but it gave a framework to judge the current war, gave a framework to judge any war, Jean. And that’s why I suggested that when I read to you the various principles from Nuremberg, they really do hold sway today.

Q: James says, “If Putin attends the BRICS summit and South Africa fails to arrest them, to Africa should be treated as a pariah by the international community.”

A: If I could just add something to that, James. I interviewed Fikile Mbalula. for my television programme on Tuesday. Those of you in South Africa will be able to watch it next week and I think Wednesday and Thursday. And one of the questions I put to him was about why it was that we were so obsequious in relation to the Russians and was that the reason why we were prepared to actually just abrogate all our responsibilities with respect to the Rome Statute, which we’d so proudly signed in '98. And the interesting thing about that is he started blaming the Americans, saying this is a particular American imperialism. And when I asked him, I said, but then why is the president sent a whole group of ANC or government people to America to try to save the agreement, which gives us preferential export benefits. I got no answer. It’s quite an extraordinary saga, and I would want to suggest that on the polls as we get them in South Africa, the majority of people are rather appalled by the fact that unlike other African countries we have not done anything to suggest that we find the invasion of another country or any of the attendant crimes something that we should be protesting about.

Yes, Eleanor, I agree. It’s the best we have at the moment.

Q: Myrna, “Does this challenge the question of free will?”

A: Well, I’m not entirely sure of what you’re on about, and excuse me, but if it is that what you’re suggesting, if you look at Lauterpacht, no, that is exactly what he was saying. Was that if you want to argue by virtue of the construction of the state and hide behind it, then in fact you probably do abrogate the principle of free will. But his argument was that you needed to individualise this. So individuals take responsibility for the actions that they commit on behalf of the state. And if you observe the various principles of the Nuremberg code, you’ll see that the idea of superior order is assured. You can’t rely on it.

Q: Then there’s a question here from Agnes. Two questions, if I understand. “Was the crime committed by the state nor individuals on the basis of the Lauterpacht doctrine?” “So what was the dispute?”

A: Lemkin and Lauterpacht wasn’t about crimes committed by the state or individuals. It was the question of what were the crimes? Were these crimes crimes which were targeted against individual members of humanity, or were these crimes crimes which were targeted against groups? And it was particularly because Lauterpacht was anxious to get rid of the group concept in relation to the former idea, namely that you could say it was the group who committed the war crimes, not individuals. He wasn’t keen at all on adding this new crime of genocide, which would effectively introduce the concept of a group or be it in relation to the target of the crime rather than to the perpetrator thereof. But it was that was the fundamental difference. I agree, it’s quite a nuanced debate, but that’s in essence what it was about. No, Don, Lincoln’s genocide was adopted after Nuremberg. In fact, I did make a note of that on one of my notes. And I think it’s particularly interesting that in one of the trials, let me get it, there was a trial in '46, yes. The Supreme National Tribunal of Poland in the trial of Arthur Greiser. In fact, there, the judge actually did convict Greiser of a crime of genocide, but not in '45.

Q: Oh, Shelly, this is a very complicated, “What do the Germans have against the Freemasons and how the Jews relate to Freemasons?”

A: This is an age old conspiracy theory which has plagued us Jews for the vicious truth of history. The idea being that there’s an alleged secret coalition of Jews and Freemasons, and it’s been very popular over time amongst the far-right in France, Spain, Portugal, Italy, Germany, wherev, and Russia to take as examples. It’s interesting that to some extent the stems from “The Protocols of the Elders of Zion” because that in itself lays claim to an earlier text, a text somewhere around about 1800, if I recall correctly, by the French priest Barruel. I’m probably spelling and pronouncing it wrongly, but it’s I think B-A-R-R-U-E-L, and he had this idea that the French Revolution was essentially caused in order to undermine the Catholic Church. And that this was a Masonic Jewish led conspiracy and that gave rise in many ways the inspiration for the protocols, which of course in turn was used by the Nazis and every other anti-Semite ever since then. One could have a whole talk on that alone and I’m quite happy to do it, but that’s the brief answer.

Q: “Can you comment as keith on the Speer trial?”

A: Yes, I think he did perjure himself. But Speer presented himself as Mr. Reasonable and unlike the others, if you contrasted him to Göring, who admittedly of course committed suicide before he could be hanged, Speer was Mr. Reasonable having acknowledged a whole lot of the atrocities in one way or the other, carefully distancing himself from it. I think he was probably very lucky to get away with what he did. And I think that to a considerable extent, it was the manner in which he presented himself at the trial that assisted him so greatly. Let me, sorry, see.

Q: Then Susan, “Do you think that the speed with which the trials took place after the end of the war reflects in some way the guilt felt by some Western nations, particularly US and UK about the lack of action to prevent atrocities once that occurred?”

A: It’s possible, Susan. I think the reason for the trials taking place as quickly as they did was, of course, already you had lost quite a lot of the Nazis. Martin Bormann, for example, was supposed to be tried at Nuremberg. Most think he committed suicide. There was an anxiety about getting them before the dock. There’s no doubt that there were a series of motivations for this. As I’ve indicated, much of it was kind of perhaps accused of being hypocritical. But I never read anything which essentially that the governments of those two countries, UK and US, felt any mericooper for their abysmal emission in not bombing the various camps at the time. And the book by Jonathan Friedland, which we should be discussing at Lockdown, about the two men who escaped from Auschwitz I think really illustrates precisely why that, to such a considerable extent, is such a crime against humanity of its own and raises questions of about who is responsible, et cetera. But it’s perhaps a topic for different.

Q: “Does it matter that the country is not signed onto the ICC?”

A: Well, Myrna, if it signs onto the ICC, then in terms of its international obligations it is obliged to arrest someone like Putin. Obviously if it doesn’t, then you don’t have that obligation, which is why the South African government at various points has wanted as it were to cancel its obligations under the ICC. Of course, it can’t just do it because in order to have power in South Africa, that legislation, sorry, that treaty has to be domesticated, to be passed through parliament, which it was. So you’d have to go through the parliamentary process yet to again to cancel, and there’s also a lead time. So it’s not that easy just to get out of it. But obviously if you’re not a member, then obviously you don’t have those obligations.

“I heard”, says Susan, “on NPR about some Middle Eastern countries reaching out to Saudi to start bringing him back into the field, that along with the normalising of MBS in Saudi fly in the face of everything you’re talking about.” Yes! Yes, I agree, and that’s the tragedy. That’s the tragedy that we marched into the early 1950s with a real commitment to the principles to which I’ve spoken. And effectively, if you’ve got a lot of oil or you’ve got other, you know, a lot of money, et cetera, such as MBS, then in fact everybody seems to turn a blind eye to that in the most awful fashion. And in fact, the treatment of Saudi Arabia in this regard is an utter disgrace to anybody who believes in international human rights law.

Q: Eona says, “All well and good to have these principles. They refer to national without that term being defined. What constitutes international law if the country is not signed up as being to a particular statutory item as being criminal and what best can be claimed that that country has violated international law?”

A: I suspect, and I think there is a plan for myself and Sir Jeffrey Jarl to do a lecture sometime a little later in the year on broad issues of international law which would answer your question comprehensively, but there’re two components to it. There is what we call, there’s common international law is international law which essentially is, which we find in terms of the law of nations, which essentially is recognised. Principles which are recognised generally by countries and which constitutes the body of international, notwithstanding that the heaven signed treaty. But then there’s obviously a whole range of international law which is encapsulated in treaties, which as I’ve indicated earlier, if you haven’t signed it you’re not party to it. In terms of the basic principles of international law, you are bound by those not withstanding. Of course, your point, which I think is implicit in all of this, what kind of enforcement mechanism is there? And that goes back to that earlier question, what would be the enforcement mechanism against South Africa if it refused to comply with the ICC, and I suppose other than countries regarding it to use the word of a previous question, a pariah, not a lot. That’s the difficulty.

Yes, Jacqueline, there have been attempts to get the ICC to indict senior members of the Israel Defence Force, hasn’t really amounted much, but yes. And that, of course, is an anxiety which is triggered off in this debate. Of course, the Americans essentially, because they argue that some of their soldiers might be dragged before the ICC have not been particularly keen to sign it either.

Yes, James, of course superiors would be liable for prosecution when soldiers commit crimes against civilians. And there’s a reasonably decent jurisprudence now about what would be crimes against civilians. And of course, if you take the Ukrainian example, it’s precisely because so many of these soldiers have allegedly committed war crimes against women, the elderly, and children that Putin is being held responsible therefore.

Yes, Lawrence, it’s true that many senior figures are not punished or even charged. He shared Bush, Mugabe, Marcus Franco, and others could. Yes, of course they could have. And I do not want this lecture to be construed as a desperate attempt to say international law has been hugely successful. In fact, to the contrary, the theme of this lecture is, the great promises of those early periods have not been fulfilled. Does that mean we should give up on it? Absolutely not. It gives us a mechanism by which to hold governments accountable, at least in court of public opinion if we bothered to have an act of civil society. And it may well pressurise certain governments, such as could well be the case in the South African context where consequences could unfold as a result thereof.

Yes, people were allowed to turn the trials, Jean.

“Were all the people ran the camp started to,” No, not all of them, but some of them did commit suicide, some of them escaped, and et cetera.

Luis says, “If you’re not familiar with Philippe Sands’ interest in Nuremberg, useful to read what Sands has to say.” Yes, Sally Faulkner is a fabulous academic and has a lot to say about many things. Sadly, she died, but any of her work on this particular thing is very well worth reading.

Q: “If apartheid was a crime against humanity, what should the ICC do?”

A: Well, if it had been implemented, remember the ICC came into a force after apartheid ended. Had it been there in the early period I would imagine that any South African apartheid politician who had wandered it off to one of the other countries who had been a signatory could have been arrested for that basis and probably should have. That concludes the questions and thank you very much to everybody. That’s excruciatingly difficult topic, which indicated for many of you, of course these one dissatisfied. But it’s important to realise the origins of where this all came from, the promise that it held, and the way in which we haven’t fulfilled that promise, which itself is a cause and a reason for perhaps having further discussions about that.

But goodnight to everybody and thank you so much for attending.