Hospitals & Asylums
Holocaust Prevention HA-13-9-06
1. "Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity", declared the Outcome Document adopted by the United Nations at the 2005 World Summit in September. Historically, genocide and crimes against humanity had an uneasy relationship. Genocide required physical destruction of an ethnic group, while crimes against humanity spoke to a spectrum of acts of persecution, falling short of extermination. But genocide could be committed in time of peace, whereas the law of Nuremberg had declared that crimes against humanity required a connection with aggressive war, although it is now well-established that these crimes may be committed in peacetime. Meantime, our concept of genocide is expanding to cover acts falling short of physical destruction of groups. As a result, criminalization of atrocities is relatively seamless - replace the law of force by the force of law.
2. Freedom from fear"-these seminal words of Franklin D. Roosevelt, first expressed in his "Four Freedoms" speech to the United States Congress in January 1941, appear in the preambles of the Universal Declaration of Human Rights and in two succeeding international covenants. The anti-war premise that underpins modern human rights law can be glimpsed in article 20(1) of the International Covenant on Civil and Political Rights: "Any propaganda for war shall be prohibited by law." Unlawful war results in unlawful killing, which is a violation of human rights. article 6 of the International Covenant on Civil and Political Rights declares that "[n]o one shall be arbitrarily deprived of his life". Many recent authorities suggest that human rights law should defer to international humanitarian law in the event of armed conflict.3 Obviously, it is desirable to attempt to reconcile these two bodies, whose common mission is to protect the dignity of human beings (Schabas 06).
3. Sixty years ago, in January 1945, Auschwitz was “liberated”. Auschwitz was a web of concentration camps and sub-camps. The central one contained installations of torture, pseudo-medical experimentation and execution, but most of its inmates were exploited as slaves in nearby industrial complexes until their final collapse. On the other hand, Auschwitz-Birkenau, situated a couple of kilometres from the central camp, was used for mass extermination. As the Second World War drew to a close, the extermination installations in Auschwitz-Birkenau were blown up by the Nazis themselves. It is interesting to note that the “master race”, being aware of the monstrosity of their actions, tried to cover up (the magnitude of) their crime (Luke 05) The sixtieth session of the General Assembly saw the unanimous backing of a resolution that marks 27 January—the anniversary of the liberation of the Auschwitz death camp—as an annual International Day of Commemoration in memory of the victims of the Holocaust (Holocaust 05).
4. In August 1945, the United States, the Soviet Union, Great Britain and France signed another Charter, creating the International Military Tribunal (IMT), to bring to justice some of the German leaders responsible for aggression, crimes against humanity and related atrocities. Germany had surrendered unconditionally and each of the four occupying Powers assigned leading jurists to serve as judges and prosecutors for the IMT. It was agreed that the proceedings had to be absolutely fair; the situs would be in Nuremberg, the home of Nazi party rallies. Robert H. Jackson, a leading architect for the trials, took leave from the United States Supreme Court to serve as America's Chief Prosecutor. In his opening statement, he set the standard: “We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow.” Of the 24 defendants, 3 were acquitted, 9 were imprisoned and 12 were sentenced to hang.
5. Subsequent trials at Nuremberg, in Tokyo and elsewhere built on the IMT foundation. The Allied Powers were unable to agree on another joint international trial, but each could try their own captives. Since the Tribunal could provide only a snapshot of Nazi criminality, the United States decided to conduct a dozen “subsequent proceedings”, to be directed by General Telford Taylor, a key player on Justice Jackson's staff. Indictments were filed against doctors who performed forced medical experiments, judges who perverted the law, and industrialists, military leaders and ministers who supported illegal Nazi policies. Of the 185 tried in the “subsequent proceedings”, 142 were convicted. The 22 defendants in the Einsatzgruppen case were selected on the basis of high rank and education—many held doctor’s degrees, six were SS generals. The principal defendant, General Dr. Otto Ohlendorf, patiently explained why his unit had killed about 90,000 Jews.
6. The problems were thoroughly explored and documented in a number of books that I published between 1975 and 1983, and my 1994 book, New Legal Foundations for Global Survival, was a comprehensive overview, which UN Secretary-General Kofi Annan generously described as “remarkable”. It took mass rapes in the former Yugoslavia in 1991 to shake the world out of its lethargy. In 1993, the UN Security Council created the International Criminal Tribunal for the Former Yugoslavia (ICTY) to hold accountable those responsible for war crimes, crimes against humanity and the genocide cloaked as “ethnic cleansing”. To the everlasting shame of the international community, when over 800,000 people were butchered in Rwanda in fratricidal tribal rivalries, the Council set up another ad hoc tribunal—the International Criminal Tribunal for Rwanda (ICTR)—to bring the instigators and perpetrators to justice. Similar international tribunals, with limited jurisdictions, are beginning to function for crimes against humanity committed in Cambodia, Sierra Leone, Timor Leste and elsewhere.
7. After many years of difficult negotiations and compromises, the Statute for the International Criminal Court (ICC) was adopted under a treaty signed in Rome on 17 July 1998, with 120 delegations voting in favour and 7 against. Secretary-General Annan called it “a gift of hope to future generations”. By 1 July 2002, the treaty went into effect, with 60 ratifications, and by the end of 2005 the number had swelled to 100, but ratification by some of the major Powers is still outstanding. The United States indicated its early support for the ICC when President Bill Clinton addressed the UN General Assembly and had the treaty signed at the United Nations on New Year's Eve of 2000. But in an unprecedented repudiation, his signature was cancelled as the new Bush Administration in May 2002 notified the United Nations that the United States had no intention of becoming a party to the ICC (Ferencz 05).
8. International Criminal Tribunal for the former Yugoslavia and International Criminal Tribunal for Rwanda Security Council Resolution 1534 (2004) recalls that resolution 1503 (2003) cites the Completion Strategy (S/2002/678) called on the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) to take all possible measures to complete investigations by the end of 2004, to complete all trial activities at first instance by the end of 2008, and to complete all work in 2010. Urging Member States to consider imposing measures against ICTY, including measures designed to restrict the travel and freeze the assets of such [tribunal].
Schabas, William A. Preventing Genocide and Mass Killing - From a Culture of Reaction to Prevention. UN Chronicle Online Edition Is. 1, 2006.
Holocaust Remebrance: A Resolution Unfolds – The World Remembers Is. 4, 2005
Ferencz, Benjamin B a former chief prosecutor at the Nuremberg Trials. The Holocaust and the Nuremberg Trials Is. 4, 2005
Luke, Tom. Terror in the Soul: Remembering Auschwitz Is. 1 2005
Sanders, Tony J. International Tribunal for Eastern Europe HA-25-12-04
ICTY completion strategy (S/2002/678)
Security Council Resolutions. International Criminal Tribunal for the former Yugoslavia and International Criminal Tribunal for Rwanda Security. 1503 (2003) 1534 (2004)