CYIL vol. 15 (2024)

CYIL 15 ȍ2024Ȏ PROSECUTING „HATE SPEECH“ AT THE IMT, NUREMBERG … the domain of international law. 5 As would be seen later, sequel developments in international

criminal law and justice would corroborate these views. 6 2.1 Instigation in the Charter of the IMT, Nuremberg

The Charter of the IMT, Nuremberg, stands out for several reasons: first, it was the first successful effort mounted by the international community to bring to justice perpetrators of serious crimes in international law. At the opening ceremony, US Supreme Court Associate Justice Robert H Jackson remarked that the entire humanity was the prosecutor even though the victorious Allied Powers spearheaded the process. 7 Secondly, prior to the Charter of the IMT, Nuremberg, positive and concrete recognition of serious crimes in international law was non-existent. The Charter of the IMT, Nuremberg, created and defined what would eventually grow as serious crimes in international law, over which the IMT, Nuremberg, would have jurisdiction. 8 Thirdly, influenced by the general principles of law in every major legal system in the world, the notion of participation, even though stipulated compendiously, captured the principal and complex modes of participation in criminal law. The proviso to Article 6(c) of the Charter of the IMT, Nuremberg, criminalised the following: Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy to commit any of the foregoing crimes [crimes against peace, war crimes and crimes against humanity] are responsible for all acts performed by any persons in execution of such plan. 9 As would be unravelled by the prosecution strategy and trial files at Nuremberg, numerous key civil and military personnel of the Nazi Regime were indicted and prosecuted. 10 In 5 Arguably, the crimes over which the IMT, Nuremberg, had jurisdiction, were, prior to its establishment, inexistent as serious crimes in international law. 6 Beyond the Charter of the IMT, Nuremberg, colossal developments occurred in the domain of international criminal justice. One notably development in this regard would be the consistent recognition and categorisation of specific atrocities as serious crimes in international law, some of which include genocide; crimes against humanity; and war crimes. Except for the crime of crimes against humanity, the others have been the subjects of specific multilateral treaties such as the Genocide Convention and the Geneva Conventions I – IV of 1949 and their Additional Protocols. 7 See United States’ Supreme Court Associate Justice and Chief Counsel for the United States at the IMT, Nuremberg’s Opening Statement: The privilege of opening the first trial in history for crimes against the peace of the world imposes a grave responsibility. The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated … This Tribunal… represents the practical effort of four of the most mighty of nations, with the support of 17 more, to utilize international law to meet the greatest menace of our times-aggressive war. The common sense of mankind demands that law shall not stop with the punishment of petty crimes by little people … It is a cause of that magnitude that the United Nations will lay before Your Honors . (Emphasis added). Robert H Jackson, ‘Robert H. Jackson’s Opening Statement at the IMT, Nuremberg’ (1945) accessed May 19, 2023. 8 Those crimes were crimes against peace; war crimes; and crimes against humanity: see Article 6(a)-(c) of the Charter of the IMT, Nuremberg. 9 Emphasis added. 10 Looking at the prosecutorial history, the prosecution commenced with the selection of ten names: that was guided principally by the wide publicity those names had in German households. Those individuals were key state actors who occupied influential offices in the Nazi Regime. They included the following: Wilhelm Frick (the Minister of the Interior and subsequently appointed the Protector of Bohemia and Moravia); Hans

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