Iran in the Light of the Nuremberg Principles |
CounterPunch Exclusives
CounterPunch Exclusives
Iran in the Light of the Nuremberg Principles
Photograph Source: Raymond D’Addario – Public Domain
As international law developed over the centuries, the principle of State sovereignty and the prohibition of interference in the internal affairs of other states gradually evolved — from the Peace of Westphalia of 1648 through the Congress of Vienna 1814-15, the establishment of the League of Nations in 1919 and the adoption of the United Nations Charter in 1945 as an incipient world constitution aimed at promoting peace, development and human rights.
In the light of the hecatomb of the Second World War, as a reaction to the Holocaust and other Nazi crimes, the victorious allies set up the International Military Tribunal for Nürnberg[1] and conducted numerous trials pursuant to the London Agreement of 8 August 1945 and Control Council Law Nr. 10.
The IMT Statute defined three principal crimes:
(a) ‘ Crimes against peace: ‘ namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing; (b) ‘ War crimes: ‘ namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity; (c) ‘ Crimes against humanity.- ‘ namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions 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 the domestic law of the country where perpetrated.
(a) ‘ Crimes against peace: ‘ namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing;
(b) ‘ War crimes: ‘ namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity;
(c) ‘ Crimes against humanity.- ‘ namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions 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 the domestic law of the country where perpetrated.
Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan.”
The US Chief prosecutor at the International Military Tribunal for Nuremberg (IMT) Robert Jackson wisely stated in his opening statement in October 1945 that “while this law is first applied against German aggressors, the law includes, and if it is to serve a useful purpose it must condemn aggression by any other nations, including those which sit here now in judgment[2].” Similarly, the Tribunal’s1946 judgment concluded that: “to initiate a war of aggression is not only an international crime; it is the supreme international crime, differing only from other war crimes in that it contains within itself the accumulated evil of the whole.”[3]
In the same way as the prohibition of the crime of aggression extends to any aggression committed by any country (e.g. the USSR aggression against Finland in November 1939, the USSR aggression against Poland in September 1939), the prohibition of war crimes and crimes against humanity must provide for the indictment of all suspects, regardless of their country of origin. The principle of “tu quoque” means that all violations of international criminal law should be prosecuted, not only those of the vanquished. International criminal law must be applied uniformly. If applied selectively, international law loses authority and credibility and would promote a culture of impunity.
The London Agreement of 8 August 1945 which laid down the statute of the IMT suffered from a “birth defect” or “original sin” – it was a classical victor’s tribunal. The judges and prosecutors all came from the four victorious powers, none of them came from neutral countries. All of the accused were defeated enemies.
The victorious Allies also set up a special Tribunal to try the Japanese aggressors and conducted trials in Tokyo. Alas, the Statute of the Tokyo Tribunal did not establish jurisdiction over crimes committed by the US, UK, France, Russia in their war against Japan.
The statutes of the IMT and Tokyo Tribunals did not envisage universal jurisdiction, the capacity to indict all persons who were suspected of violating the Hague and Geneva Conventions on the laws of war and international humanitarian law.
It was outside the IMT mandate to prosecute USSR officials for the execution of some 15,000 Polish officers and soldiers at Katyn and elsewhere, impossible to prosecute the Royal Airforce for the carpet-bombing of population centers in Germany, causing some 600,000 civilian deaths, for the crimes of the “dam-busters” who destroyed dams in Germany causing horrendous floods and tens of thousands of civilian deaths, for the atomic bombing of Hiroshima on 6 August 1945 or for the recidivist bombing of Nagasaki on 9 August 1945.
It was not possible to hold the participants of the Potsdam Conference accountable for the decision to “transfer” some 14 million ethnic Germans from territories where their ancestors had lived for seven hundred years, the expulsion and spoliation of the Germans of East Prussia, Pomerania, Silesia, East Brandenburg, Bohemia, Moravia, and for the expulsion of German “minorities” from Slovakia, Hungary, Slovenia, Croatia, Serbia, etc. These expulsions were far more serious than the “ethnic cleansing” practised in Yugoslavia during the 1990’s, which the international community unanimously condemned. Few know that up to two million human beings did not survive the ordeal.[4]
Notwithstanding numerous jurisdictional problems associated with the Nuremberg and Tokyo tribunals, it cannot be denied that they established a new international legal regime and that much of it is forward-looking and should be applied today to........