CYIL vol. 15 (2024)

AVITUS A. AGBOR 1. Introduction

With regards to the prosecution of instigation as a mode of participation in the planning, preparation or commission of serious crimes in international law, it can be argued that the IMT, Nuremberg, served as the baptismal locus. At least two reasons can be advanced for this argument: first, as discussed below, the Charter of the IMT, Nuremberg, criminalised instigation as a mode of participation. Secondly, two individuals, Hans Fritzsche and Julius Streicher were prosecuted for this mode of participation, with an acquittal for the former while the latter was convicted and sentenced to death. This paper looks at the criminalisation and prosecution of instigation as a mode of participation at Nuremberg. It details the portfolios and contributions of Fritzsche and Streicher that amounted to criminal participation as contemplated within the Charter of the IMT, Nuremberg. To do this, some excerpts of the speeches and publications authored by these two individuals are put together. For Streicher who was successfully convicted based on his publications, and further analysis of the reasoning of the IMT, Nuremberg, is of critical importance as that would (inadvertently, though), lay the foundation of what would eventually evolve in international human rights and international criminal law discourse as hate speech, even though no international instrument has since then made use of that phraseology. This paper also appraises the impact of the Julius Streicher judgment, conviction, and contribution to the recognition of similar kinds of speeches and literature in the planning, preparation or commission of serious crimes in international law, notably the Genocide Convention. The paper also explores some of the blind spots that have become contentious in international criminal justice, for example, the academic use of the phrase “hate speech” and the requirement of causation for the conviction of the accused. 2. Synopsis of trial records In economics, history, race relations, and national security, Nuremberg is that name, word and city that evokes numerous and profound memories: an industrialized city in the Northern Bavaria of Germany. For the Third Reich, it was its seat and the place where the Nazis organized mass rallies annually. 1 It was the place where the Nazis, in 1935, enacted the notorious “Nuremberg Laws”: these laws stripped the German Jews of their German citizenship. 2 They also made marriage or sexual relations between Germans and Jews unlawful. 3 Nuremberg also suffered heavy bombardment during the War because of the number and sizes of armament factories located and by the end of the War, it had been reduced to what Arzt called a “virtual rubble heap”. 4 Added to those is the domain of international criminal law and justice: laying down the principle of individual accountability for criminal conduct that violated in international law, it further became an epoch-setting city as the Tribunal established therein would have jurisdiction over crimes which were hitherto, non-existent in 1 TAYLOR, Telford, The Anatomy of the Nuremberg Trials: A personal memoir (Little, Brown and Co. 1993) 1. 2 Law for the Protection of German Blood and Honor, September 15, 1935; First Ordinance to the Reich Citizenship Law, November 14, 1935. 3 See generally The Black Book: The Nazi Crime Against the Jewish People (Jewish Black Book Committee 1946). See also MILLER, Richard, L. Nazi justiz: law of the Holocaust (Praeger 1995) 145–148. 4 ARTZ, Donna, E. ‘Nuremberg, Denazification and Democracy: The Hate Speech Problem at the International Military Tribunal’ 12 New York Law School Journal of Human Rights, 689–690.

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