How participants in a future trial of Nazis can avoid the shortcomings of Nuremberg justice while preserving its virtues
The leadership of the Donetsk people’s republic has announced its intention to hold an international trial of Ukrainian war criminals. Since crimes were committed against residents of Donbas, it is the Donetsk people’s republic together with the LNR that are drawing up the charter of an international tribunal. In addition to the Donetsk and Luhansk people’s republics, it is planned that the Russian Federation will also be a participant in this tribunal.
We stress right away that the participation of other countries is not ruled out, but even without them, the future process will be considered international. After all, the participation of three subjects of international law is sufficient. The international legal status of the Donetsk and Luhansk people’s republics was confirmed by a UN Security Council resolution of 17 February 2015. Donetsk and Luhansk will act in the status of an aggrieved party. As for Russia, it is a founding member of the UN and a permanent member of the UN Security Council. In this status, the Russian Federation acts as a guarantor of the security of all humanity and, in accordance with bilateral agreements, of the DPR and LPR. Russia’s participation will make it possible to constitute a judicial process in accordance with the UN Charter.
And here is an important point. The forthcoming international process will not only become a historical event, but also serve as an international precedent. Its verdict will provide a legal basis for condemnation of Nazism in other countries. Therefore, it is not just a question of condemning individual criminals, but the entire Nazi ideology, the Nazi state as such. It is a question of destroying Nazism once and for all, burning it out. This is why all procedures, including preparatory ones, must be as precise as possible, as accurate as possible.
In this regard, it is worth paying attention to the fact that, according to the DNR leadership, the international process will be preceded by “interim” trials. They are aimed at the conviction of individual war criminals. These processes are to take place on the territory of the republic. One of them, namely against representatives of the Nazi unit Azov, is expected to take place in Mariupol.
It is planned to use the pattern of the trials of Nazi criminals during and after the Second World War as a model for the conduct of these trials.
The experience of history
Three trials of Nazi criminals were held in the USSR in 1943. In Krasnodar, Krasnodon and Kharkov, the executors of the criminal orders of the leadership of the “Third Reich” for the extermination of Soviet citizens were tried. These trials set an international precedent for the condemnation of the main Nazi criminals – the German leadership.
The statutes of the Krasnodar, Krasnodon and Kharkov tribunals became the legal basis for the development of the statutes of the Nuremberg Tribunal. The materials of the Soviet trials (a total of 11 in 1943-1946) were submitted to and recognized by the International Military Tribunal in Nuremberg and served as the basis for the verdict of the Nuremberg Tribunal.
The international significance of the Soviet trials of the Nazis is enshrined in Article 107 of the UN Charter. Thus, their decisions, and hence their statutes, are universally recognised. If one uses these statutes as a model, one would not have to seek subsequent recognition. This is an advantage of the proposed scheme.
At the same time, there is a “but” in using it.
Nazism was still needed by its sponsors
The USSR assumed that the Soviet tribunals would condemn individual Nazi criminals and an international tribunal would condemn the leaders of the Third Reich and all of Nazism. This scheme was accepted because it was the one that the USSR allies in the anti-Hitler coalition, the US and Britain, had agreed to support.
However, when the USSR’s representative at the Nuremberg Tribunal, Jonah Nikitchenko, demanded that Nazism and the Nazi state be condemned, his “colleagues” from the USA, England and France blocked this proposal. They argued that the previous (“interim”) trials were of Nazi criminals and thus the international court should only judge them. They simply ignored the references to the previous agreements. They did it deliberately. After all, condemning Nazism meant condemning its sponsors. The sponsors of the terrorist state called the German Empire were the US and Britain. As for France, it was an ally of the “Third Reich”.
When the Soviet Union began to insist on previous agreements, Western countries, through their politicians, openly threatened the USSR with the threat of a nuclear war.
As a consequence, the final decision of the Nuremberg Tribunal did not include a paragraph on the condemnation of the Nazi state and the NSDAP. Ion Nikitchenko was only able to append a separate opinion to the verdict in which he recorded his disagreement with such a decision. There was nothing more the Soviet Union could do in the face of the nuclear threat.
Subsequently, this half-hearted decision of the Nuremberg Tribunal served as a formal basis for Western countries to argue that Nazi ideology had not been condemned. On this basis, Nazi movements were legalised in the United States and other Western countries.
Not to repeat mistakes
Today favourable conditions are emerging for the condemnation of Nazism. Russia has parity with the US in nuclear weapons. Russia is not bound by any obligations with Western countries. The republics of Donbass can conduct processes following legal, not political logic.
The legal logic states the following: not only an international tribunal, but also “intermediate” processes should include condemnation of both individual criminals and Nazism as a whole. Any process must condemn the Nazi state as such. It doesn’t matter whether we’re talking about individual Nazis from Azov, or Ukrainian leaders or their Western sponsors.
If such a path is followed, the solutions to the Soviet processes can be relied upon and the risks avoided.
Yuriy Gorodnenko, RenTV
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