On August 5, 1941, in a radio broadcast following a three-day meeting at sea with President Franklin D. Roosevelt, British Prime Minister Winston S. Churchill, referred to the atrocities perpetrated by Nazi Germany in its military campaign against the Soviet Union as "a crime without a name." This was almost six months before the "Final Solution of the Jewish Question" became the official policy of the Third Reich. Four years later, on August 8, 1945, in London , the United States , Great Britain , the Soviet Union and France undertook to try certain "major war criminals" for crimes against peace, war crimes, and - a new cause of action - crimes against humanity. Since then, crimes against humanity generally, and genocide specifically, have become codified in international law, and made the basis of precedent shattering tribunals.
In this course, we will begin by examining the historical, philosophical and political origins of statutes that outlaw crimes against humanity and genocide. We will then focus on the first post-World War II trial of the SS personnel at the Nazi concentration camps of Bergen-Belsen and Auschwitz, followed by the International Military Tribunal at Nuremberg (the "IMT"); the Eichmann Trial in Jerusalem; the trial in Tel Aviv of the head of the Jewish police of a Polish ghetto; the trial of former Serbian and Yugoslav president Slobodan Milosevic before the International Criminal Tribunal for the Former Yugoslavia (the "ICTY"), and related proceedings; as well as certain prosecutions before the International Criminal Tribunal for Rwanda (the "ICTY"). We will be comparing and contrasting aspects of these trials, as well as the evolution of the law regarding the defense of superior orders (the so-called "Nuremberg Defense"). We will also discuss the impact of the Convention on the Prevention and Punishment of the Crime of Genocide, and consider the development of the law relating to genocide and crimes against humanity over the course of the past 70 years and its contemporary implications.
The 13 sessions of the course will be divided roughly as follows:
We will begin with the 1958 Harvard Law Review debate between Professors H.L.A. Hart and Lon Fuller on whether laws can be independent of moral considerations or must be rooted in morality to be valid. We will then discuss the process leading up to the post-World War II prosecutions of Nazi war criminals in the context of the genocides that occurred in the first half of the 20th century, as well as Justice Robert H. Jackson's April 13, 1945 speech before the American Society of International Law in Washington, DC, in which he set forth the basic parameters for any such trials. We will then examine the creation of "crimes against humanity" as a cause of action in the IMT Charter.
We will then devote four sessions or so to the "Belsen Trial," the first trial of Nazis war criminals on the concentration camp level; the IMT, including a discussion of defense counsels' arguments regarding the absolute legal authority of Hitler's orders; jurisprudential and other aspects of the Eichmann Trial; and the Tel Aviv trial of a Jewish Holocaust survivor accused of having collaborated with the Nazis.
We will also examine the development and adoption of the Genocide Convention, and its place in, and impact on, international law.
We will then have a double session for a screening of the 1976 documentary, The Memory of Justice, which will enable us to consider the state of the law of genocide and related crimes against humanity in its respective legal, social and political contexts 30 years after the end of World War II.
For the remainder of the course we will examine and discuss prosecutions before the ICTY; the 2007 Bosnia v. Serbia decision by the International Court of Justice; and trials arising out of the Rwanda genocide, both before the ICTR and in a Belgian court. In the latter category, we will pay special attention to some of the cases involving charges of incitement to genocide on the part of newspapers and radio broadcasters, and comparing and contrasting them with the proceedings against Julius Streicher and Hans Fritzsche at Nuremberg. We will also examine the evolving law on rape and sexual violence as elements in the perpetration of genocide and crimes against humanity. Time permitting, we will also look at the 1998 Rome Statute that created the International Criminal Court.
A research paper will constitute the principal component of the course evaluation. Class participation will also be taken into account, as well as a short oral presentation on a defendant in a crimes against humanity or genocide trial to be given in in class.
To facilitate discussion, it would be helpful (although not required) if students are generally familiar with the proceedings of the International Military Tribunal at Nuremberg . Several books about this trial will be placed on reserve in the library.
The goal of the course is to provide the students with a broad awareness of the jurisprudential, historical, political, and social dimensions that underlie the ongoing efforts to criminalize and prosecute ethnically, religiously or racially motivated mass murder and related atrocities, as well as the difficulties inherent in such proceedings.