COVID-19 and Crimes Against Humanity: What the Nuremberg-Hague Trials Can Teach Us

COVID-19 and Crimes Against Humanity: What the Nuremberg-Hague Trials Can Teach Us
COVID-19 and Crimes Against Humanity: What the Nuremberg-Hague Trials Can Teach Us

A high court recently pronounced:

“The death of Covid patients just for non-supplying of oxygen to the hospitals is a criminal act and not less than a genocide…how can we let people die in this way?”

The honorable court added that it finds it “necessary to direct for immediate remedial measures to be taken by the government”.

This was a huge pronouncement, one that equates intentional massacres of civilian populations with “letting people die” of starvation, or from a lack of air. It redefines the production of death itself, beyond wars and natural disasters. By pointing to those in authority who had reneged on their responsibilities, the honourable court was also implicitly probing larger questions of leadership, political parties and the state, holding each of these accountable. The pronouncement recalls two historical trials that illuminate the larger questions our own honourable court has raised: that of “crimes against humanity” itself.

The start of the prosecution of Herman Goering, Albert Speer and other Nazi officials on November 21, 1945 at the Palace of Justice, Nuremberg, Germany and the commencement of the International Criminal Tribunal for the Former Yugoslavia (ICTY) for the prosecution of Slobodan Milosevic of Serbia – the first head of state to be prosecuted in this fashion – on February 11, 2002 at The Hague, Netherlands prepared a checklist for humanity: what to look out for in dictators or political parties, their mobilisation of hatred, the organisation of ethnic cleansing, the naturalisation of torture and discrimination, among others.

The opening and closing remarks of the prosecution in both cases themselves, therefore, serve as manifestos. (The full trial archives, running to 150 volumes in just the Donovan Nuremberg collection and 1800 hours of video in the case of Milosevic’s, would of course be far more disturbingly instructive.) They teach us what to watch for in political leaders and parties, to be vigilant.

The party, the cult and iconophilia

At the trials, an attempt was made to distinguish between individual and collective guilt.

The persons were tried, as both Robert H Jackson, the Chief United States Prosecutor at Nuremberg and the Milosevic prosecutor Carla Del Ponte emphasised, as individuals. Their respective nations, Germany and Serbia, were not on trial. Nor, they underscored, was their country’s population on trial. It was to be ‘personal responsibility’ in each case. Jackson stated (Jackson’s Remarks, Reports and other documents are collected in one volume, The Nürnberg Case, 1947):

The idea that a state, any more than a corporation, commits crimes, is a fiction. Crimes always are committed only by persons. While it is quite proper to employ the fiction of responsibility of a state or corporation for the purpose of imposing a collective liability, it is quite intolerable to let such a legalism become the basis of personal immunity.

Carla Del Ponte, Chief Prosecutor at the Milosevic trial, stated:

“No state organisation is on trial here today. The indictments do not accuse an entire people of being collectively guilty of the crimes… It may be tempting to generalise when dealing with the conduct of leaders at the highest level. But that is an error that must be avoided… Collective guilt forms no part of the prosecution case.”

The trials repeatedly teach us this: in totalitarian states, or those morphing into one, the leader reconstructs the party in a way that is iconophilic towards him or her.

Here is Jackson reading the Nazi Party:

“The Nazi Party … was bound by an iron discipline into a pyramid, with the Führer, Adolf Hitler, at the top and broadening into a numerous Leadership Corps… The membership took the Party oath which in effect amounted to an abdication of personal intelligence and moral responsibility… The membership in daily practice followed its leaders with an idolatry and self-surrender more Oriental than Western.”

Thus, the Nazi Party as a party was subsumed under the leader, whose ‘iron discipline’ ensured no dissent:

“In discipline, structure, and method the Nazi Party was not adapted to the democratic process of persuasion. It was an instrument of conspiracy and of coercion.”

It was, in short, a cult rather than a party, and this is an important insight into how Parties are made to obey, irrationally, the Leader’s edicts (one notes in passing Jackson’s stereotyping of the “Oriental” penchant for idolatory!).

In the case of Milosevic, all ‘national’ ideals, notes Del Ponte, were made to serve one man’s aspirations:

“An excellent tactician, a mediocre strategist, Milosevic did nothing but pursue his ambition at the price of unspeakable suffering inflicted on those who opposed him or who represented a threat to his personal strategy for power.

Everything … everything, was an instrument in the service of his quest for power.

They were not his personal convictions, even less patriotism or honour, or even racism or xenophobia, which inspired the accused, but the quest for power, and personal power at that.”

In iconophilic political parties, national ideals are what the charismatic leader says they are, and only serve to consolidate the leader’s iron grip on the party.

The party’s organization of terror

Jackson offered a pithy account of the ‘stupendous work in organization’ of the Nazi party:

“Their … entire structure of offices and officials was dedicated to the criminal purposes and committed to the use of the criminal methods planned by these defendants and their co-conspirators… Some of its purposes would commend themselves to many good citizens, such as the demands for “profit-sharing in the great industries,” “generous development of provision for old age,” “creation and maintenance of a healthy middle class,” “a land reform suitable to our national requirements,” and “raising the standard of health.”

Jackson underscored that the entire party apparatus built on a certain appeal:

It also made a strong appeal to that sort of nationalism which in ourselves we call patriotism and in our rivals chauvinism.

By pretending to serve a national cause, the party imposed limitations on freedoms:

The forecast of religious persecution was clothed in the language of religious liberty, for the Nazi program stated, “We demand liberty for all religious denominations in the State.” But, it continues with the limitation, “so far as they are not a danger to it and do not militate against the morality and moral sense of the German race.”

The excuse of nationalism was trotted out to produce a war machine:

it started the work of making war less offensive to the masses of the people.

The party claims all its actions are in the national interest, where ‘national interest’ is defined by ignoring historical contexts of intercultural existence.

The Nazi Party had several organizational levels:

[It] had its own secret police, its security units, its intelligence and espionage division, its raiding forces, and its youth forces. It established elaborate administrative mechanisms to identify and liquidate spies and informers, to manage concentration camps, to operate death vans, and to finance the whole movement.

It is multi-layered, with specific tasks and focus-groups for each layer, and made possible the efficient brutality of the Nazi state:

They terrorized and silenced democratic opposition and were able at length to combine with political opportunists, militarists, industrialists, monarchists, and political reactionaries.

The various cadres undertook the implementation of the party’s ideological war against specific targets across the nation-state, whether this was the industrialist community or the youth. Jackson concluded his comments on the party’s role:

The Government, the Party formations indicted before you as criminal organizations, the Secret State Police, the Army, private and semi-public associations, and “spontaneous” mobs that were carefully inspired from official sources, were all agencies that were concerned in this persecution

It was not just the ‘central’ office, but its minions, even ‘private and semi-public associations’ down the hierarchy, that terrorized the country, carrying out the vision of the cult and its leader. The party unleashes an army of minions to do its bidding, the grassroot level organisation enables it, through coercive measures, including moral policing, to establish a reign of terror.

The nature of the witness

Nuremberg relied extensively on documentary evidence to indict the captured Nazis. For instance, the handwritten diary of Alfred Jodl documented detailed plans by Germany against individual nations: Austria (titled ‘Case Otto’), Czechoslovakia (titled ‘Case Green’) and others.

This emphasis on documentation as material witness to the events was a radical shift in the way trials were to be held:

We will not ask you to convict these men on the testimony of their foes. There is no count in the Indictment that cannot be proved by books and records. The Germans were always meticulous record keepers… We will show you their own films. You will see their own conduct and hear their own voices as these defendants re-enact for you, from the screen, some of the events in the course of the conspiracy.

Del Ponte made the horrifying and yet simple point about Milosevic:

Many victims cannot come before you because they did not survive. Nor is it possible, in the proof of crimes on such a scale as involved in the indictment, to bring all the surviving witnesses to give evidence in court.

Rather than the perhaps emotional and subjective testimony of the survivors, Nuremberg’s Jackson unusually chose to trust the supposedly objective material record of Nazi planning and process.

Today, speeches, tweets, pamphlets, videos by citizen journalists of political gatherings, and social media enunciations by politicians : civil society would be wise to archive these because victims do not often live to tell the tale. Texts produced by demagogues and party leaders must be read closely, for they are not abstract ideals but action plans.

Trials and pedagogy

Jackson believed that the Nuremberg was for posterity:

“We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our own lips as well. We must summon such detachment and intellectual integrity to our task that this Trial will commend itself to posterity as fulfilling humanity’s aspirations to do justice.”

And hence:

“the law shall not stop with the punishment of petty crimes by little people. It must also reach men who possess themselves of great power and make deliberate and concerted use of it to set in motion evils which leave no home in the world untouched.”

For Del Ponte too, the Milosevic trial addressed questions for humanity itself:

“These crimes touch every one of us, wherever we live, because they offend against our deepest principle of human rights and human dignity.”

According to Jackson, the Nazis had dripped so much poison into the country that the forces they set in motion remain:

“these prisoners represent sinister influences that will lurk in the world long after their bodies have returned to dust…They are symbols of fierce nationalisms and of militarism, of intrigue and war-making …They have so identified themselves with the philosophies they conceived and with the forces they directed that any tenderness to them is a victory and an encouragement to all the evils which are attached to their names. Civilization can afford no compromise with the social forces which would gain renewed strength if we deal ambiguously or indecisively with the men in whom those forces now precariously survive.”

Jackson is implying that we must learn from Nazi criminals and those like them, that we should watch the work of the parties, that we must exercise eternal vigilance against the loss of freedoms and the work of ‘spontaneous mobs’ and party cadres. For, there are early signs of how the party and ‘its’ state would operate, slowly normalising discrimination and oppression:

“The persecution policy against the Jews commenced with nonviolent measures, such as disfranchisement and discriminations against their religion, and the placing of impediments in the way of success in economic life. It moved rapidly to organized mass violence against them, physical isolation in ghettos, deportation, forced labor, mass starvation, and extermination.”

Early signs, if ignored, lead to increasingly violent actions against specific communities, as the Nazi record indicates.

Producing death

Nazi Germany was a state whose leader, under the pretext of national welfare, terrorised and exterminated people. German efficiency was devoted to mass murder and Nazi politics like that of Milosevic’s, blinded by devotion to the Great Leader, was a necropolitics.

Philosophers such as Achille Mbembe argue that modern politics is often a necropolitics, a ‘production’ of death. But the forms of production of death are innovative: let us not assume that all leaders set out to exterminate populations through the army. Genocides of large populations can also be ‘achieved’ differently.

In the Ukraine during 1932-33, thanks to Josef Stalin’s policies in taking away all their grains and blockade of food movement into the region, 6 million died from starvation in the ‘Holodomor’ (‘killing by starvation’). Numerous calls have been issued since the late 1990s for the Holodomor to be termed a genocide.

Writes the philosopher in Philosophy in a Time of Terror:

“Can’t one terrorize without killing? And does killing necessarily mean putting to death? Isn’t it also “letting die,” “not wanting to know that one is letting others die” – hundreds of millions of human beings, from hunger, AIDS, lack of medical treatment, and so on – also be part of a “more or less” conscious and deliberate terrorist strategy?”

To let people die for want of food, and air now, is tantamount, says Jacques Derrida, to the genocides that scarred forever the 20th century. The Allahabad high court, while affixing responsibility for the deaths, like in the historical trials above, was making exactly the same point.

The two trials are manifestoes for our time. An attention to what was said and proved therein are salutary lessons in what to look for, and what to read, in the signs around us.


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