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)