Kristallnacht

Seventy-five years ago, on 9-10 November 1938, Nazi persecution of the Jews took an ominous turn. Reacting to the assassination of a German diplomat in Paris by a Jewish man whose family had already suffered terribly under the Nazi regime, a pogrom took place in Germany and Austria during which scores of Jews were murdered, tens of thousands were arrested and taken to concentration camps, and many synagogues were burned and destroyed. It is known as die Kristallnacht because of the broken glass that littered the roads and footpaths next to Jewish-owned shops and synagogues.

No convictions were ever registered for the Kristallnacht atrocities by either the International Military Tribunal or in the subsequent proceedings held by American military tribunals at Nuremberg. The reason is the approach taken by these courts to the scope of crimes against humanity. Pursuant to the Charter of the International Military Tribunal, where crimes against humanity were first codified, a link with the aggressive war was required as an element of the crime. Indeed, there were no convictions by these tribunals for any crimes against humanity committed prior to September 1939.

As I noted in an article published a few months ago in the Leiden Journal of International Law, one of the significant features of the Eichmann trial held in Jerusalem in 1961 (for those readers who have not seen it, the current film on the trial, ‘Hannah Arendt’, is highly recommended) was the first conviction for crimes against humanity committed prior to the outbreak of the war. The judgment contains the following passages that are of relevance to Kristallnacht.

57. On 27 October 1938 the Germans for the first time carried out an act of mass expulsion against Jews. Thousands of Jews of Polish nationality living in German cities were arrested simultaneously, transported by rail to the Polish border in the region of Zbaszyn and cruelly expelled and forced to cross the border (Session 14, Vol. I, p. 207; Session 17, Vol. I p. 226). Amongst them was the witness Zyndel Grynszpan, who had been living in Hanover since 1911, with his wife and two of his children. Another of his sons, Hirsch Feivel Grynszpan, shot the Counsellor of the German Embassy in Paris, vom Rath. After this act, the wave of persecution swelled up against the Jews in general.

On 9 November 1938 news came that vom Rath had died of his wounds, and immediately the signal was given for pogroms against the Jews on the same night (the eve of 10 November 1938), known as “Crystal Night.” In the cities of Germany organized gangs burst into Jewish shops and apartments on orders from above, committed acts of violence against Jews, destroyed and plundered everything that fell into their hands. One hundred and ninety-one synagogues went up in flames and another seventy-six synagogues were demolished. The day after, throughout the Reich, there began the arrests of thousands of male Jews, who were brought to concentration camps.

On 12 November 1938, Goering, who was in charge of the Four Year Plan, issued an order for the payment by the Jews of Germany of a billion marks as “expiation money.” This order was carried out by levying twenty-five per cent of the value of Jewish property (T/634). He also issued a second order on the same day forbidding Jews, inter alia, to maintain retail establishments and to work as independent craftsmen (T/76).

During the same period regulations were issued for the “Aryanization” of Jewish businesses and other assets, that is to say, for their forced transfer to non- Jews at unrealistic prices (T/79). Simultaneously with the persecution of the Jews as individuals came the control by the German state over their autonomous institutions. In March 1938, their status as public bodies was withdrawn from the Jewish communities, which thereby lost their authority to levy taxes, and on 4 July 1939 the Jews were organized compulsorily in the “Reich Association of the Jews in Germany” (Reichsvereinigung) which was placed under the control of the Minister of the Interior (T/81).

The minister was also authorized to disband existing Jewish organizations or to merge them in the Reich Association. Such a merger of an organization involved a transfer of its assets to the Reich Association. Thus a convenient instrument was created for total control by the Reich Government of the public property of German Jewry.

64. … It has not been proved to us that [Eichmann] took part in organizing the Crystal Night pogroms, on the eve of 10 November 1938, in Austria (behind which were the Gestapo and the SD), though the very same night information about the events was transmitted to him through service channels (T/138, T/140, N/34). But it is a fact that he exploited for his own purposes the panic which reigned amongst the Jews because of these events, in order to speed up the process of forced emigration. Mr. Fleischmann described the speech made by the Accused to the Jews who crowded into the Palestine Office in Vienna on the day following Crystal Night:

. “He (the Accused) spoke about the unsatisfactory rate of the disappearance of Jews from Vienna. He said that entirely different ways and measures would have to be used, and that he would see to that.” (Session 17, Vol. I, p. 262.) And so we read in the general report describing the activities of Dr. Loewenherz about a conversation which took place in March 1939, when the Accused said to him, “that the number of applications for emigration had gone down considerably in the last few days, and if the number of applications did not go up within two days, he would propose the adoption of measures which could take on the same form for everyone as in November 1938” (T/154, p. 9; Session 90, Vol. IV, pp.xxxx15, 16; with regard to the authentication of the report, see Mr. Zidon's affidavit, T/37 (233)).

. A similar threat was uttered by the Accused to the representatives of German Jewry after their visit to Vienna, when it displeased him that, while there, they contacted the Jews of Vienna of their own accord.

. “ “If this happens again, you will go to the Konzertlager” (instead of Konzentrationslager - concentration camp). (Session 15, Vol. I, p. 228.)

The judges of the District Court of Jerusalem did not find that Eichmann had any direct role in Kristallnacht. In their conclusions, they wrote:

184. With regard to the period up to the outbreak of war, the acts specified in section (d) of the third count were not yet part of the programme for the Final Solution by way of complete physical extermination. Accordingly, we have to consider separately each of these series of acts - for example, the events of the Crystal Night. If so, there is, in our view, grounds for saying that the mass acts of violence, committed by the National Socialist regime up to the outbreak of the War, as for instance the dispatch of thousands of Jews to concentration camps, were already committed with intent to destroy the Jewish People in part, and therefore they already come within the definition of “crime against the Jewish People,” within the meaning of Section 1(a)(1) of the Nazis and Nazi Collaborators (Punishment) Law; for it was clear from the outset to those who sent the Jews to the concentration camps because of their being Jews, that the prisoners would be placed there in such living conditions as would cause many of them to die - and this was the purpose of those who sent them there.

But there is no need for us to decide this question finally, because, in our view, it has not been proved that, until his transfer to Vienna in 1938, the Accused had already taken an active part in the mass persecutions mentioned in section (d) of the third count. We have explained above (in section 62) that up to that date the Accused was engaged in intelligence work and not on executive measures. We have also found that it has not been proved that the Accused participated in the organization of the Crystal Night in Austria (Section 64).

185. With regard to the activity of the Accused in the Central Office for Emigration in Vienna, Prague and Berlin, designed to bring about the forced emigration of Jews, we have found that here the Accused exerted pressure and used threats of terror (Section 65). Amongst other things, he also threatened to send Jews to a concentration camp if emigration were not speeded up as he wanted. We have come to the conclusion that these threats do not amount to active participation in dispatching Jews to concentration camp or in what occurred inside these camps. The organization of forced emigration itself was not yet accompanied by intent to destroy the Jewish People, but there is no doubt that in the circumstances that have been described these were acts of expulsion of a civilian population which fall within the definition of “crime against humanity.”

Thus, although Eichmann was not convicted for direct involvement in the Kristallnacht, he was convicted of crimes against humanity that were part of the aftermath of that terrible night. Eichmann 'exploited for his own purposes the panic which reigned amongst the Jews because of these events, in order to speed up the process of forced emigration'.

Albert Camus

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Today is the 100th anniversary of the birth of Albert Camus. He was awarded the Nobel Prize for literature in 1957. Others will write about the immense contribution of Camus to literature and philosophy. A few words should be said about his engagement in favour of the abolition of capital punishment. The same year that he was awarded the Nobel Prize, Camus published, with Arthur Koestler, Réflections sur la peine capitale (‘Reflections on the death penalty’). The contribution by Camus, entitled Réflections sur la guillotine, is available in French on the internet.

It is also available in English as Reflections on the Guillotine.

Here are the immortal words of Camus:

But what then is capital punishment but the most premeditated of murders, to which no criminal's deed, however calculated it may be, can be compared? For there to be equivalence, the death penalty would have to punish a criminal who had warned his victim of the date at which he would inflict a horrible death on him and who, from that moment onward, had confined him at his mercy for months. Such a monster is not encountered in private life.

Thanks to Diane Amann and  Jean-François Loyant

The ICC and Tunisia: Speech by Judge Hans-Peter Kaul

Readers of the blog may be interested in reading this speech by Judge Hans-Peter Kaul of the International Criminal Court, delivered a couple of weeks ago in Tunis. It is in French, so some readers may need to resort to Google Translate. It is of general interest and deserves to be widely circulated.

New Approach to Investigations at the International Criminal Court

The Prosecutor of the International Criminal Court has announced that her office is making important changes in its approach to investigations. She spoke about the change in remarks delivered at the Free University of Brussels on Thursday on the occasion of an award to her of an honorary doctorate. Prosecutor Bensouda said that a document explaining the changes is about to be posted on the website of the Office of the Prosecutor.

There was a strong sense in her remarks that the current approach to investigations, developed by her predecessor Luis Moreno-Ocampo, had not delivered the sort of results that were expected. More than once she referred to the fact that the judges had set higher standards and expectations about the amount and quality of evidence than the Office was in a position to provide at various stages in the proceedings.

She said that the Office of the Prosecutor plans to move away from the ‘focussed investigations’ that were the hallmark of the first nine years of activity. For example, in the Lubanga prosecution the scope of the prosecution was ‘focussed’ on the child soldier offences whereas, she indicated, many other charges might have been considered but were not. In the future, she said that more alternatives would be considered at early stages in the investigations.

Prosecutor Bensouda said that future investigations might not be directed at those ‘most responsible’ for atrocities in a given situation. Rather, the Office might try to start at the base, and build up. This is an approach reminiscent of that developed by Richard Goldstone when he was Prosecutor of the International Criminal Tribunal for the former Yugoslavia in the mid-1990s.

She also said that there would be a move away from the very heavy reliance upon eye witness testimony.

The Prosecutor said that rather than prepare investigations in stages, depending upon the procedural requirements of the Statute, the Office will now endeavour to have its cases as close to trial ready as possible as early as possible. This has been a source of frequent criticism from judges of the Court.

This report is based upon notes taken during her remarks. Probably the document setting out the new approach will complete our understanding of what the Office proposes to do.

The new prosecutorial approach is a welcome development. At the very least, there is a recognition that something within the Office has failed and needs to be changed. What remains to be seen is whether these changes will be effective and whether they will be adequate. In particular, the difficulties of the Office of the Prosecutor, and of the Court more generally, may well go beyond the approach to investigations. In her remarks in Brussels on Thursday, the Prosecutor did really address what may be a far more important source of difficulty for the Court, namely its relationship with the African Union, African States more generally and the political forces that are at work there and elsewhere. On this point, she said only that she would ‘not consider broader matters concerning peace and security’ and that she would ‘respect the mandates of others’.

As always, she presented her views in a modest and accessible manner. Her personal style is a sharp contrast with the hectoring, arrogant and very over-confident manner of the previous Prosecutor.

Appeals Chamber Rules on Presence of Kenyan Leaders During Trial

The ruling of the Appeals Chamber on the issue of presence at trial by the Vice-President of Kenya (and, by implication, the President) was delivered Friday. The Appeals Chamber confirms the reading of article 63 as permitting absence from trial. The wording appears to be peremptory and absolute. The Prosecutor had argued that the only exception was that provided in the Statute concerning removal of a disruptive accused.

The argument for the strict and literal construction of article 63 relies in part on the observation that it is not there to protect the right of the accused to be present, something that is already found in article 67 dealing with the rights of the accused. The fact that there are two provisions dealing with presence at trial certainly raises a problem of interpretation.

Bismarck once said that if you love laws and sausages it is better not to see how they are made. His observation is probably applicable to the Rome Statute. It is difficult to discern any profound purpose in the decision of the drafters to specify presence at trial in two places and not one. According to the Appeals Chamber in the recent ruling, ‘part of the rationale for including article 63 (1) of the Statute was to reinforce the right of the accused to be present at his or her trial and, in particular, to preclude any interpretation of article 67 (1) (d) of the Statute that would allow for a finding that the accused had implicitly waived his or her right to be present by absconding or failing to appear for trial’. The more flexible view adopted by the Appeals Chamber that presence at trial is a right to be exercised by the accused that can be waived is surely the correct one.

In the Trial Chamber, much attention was devoted to the application of article 27. A quite imaginative suggestion was advanced that the prohibition of the defence of official capacity meant that it was improper to take into consider the special functions of Vice-President Ruto in applying article 63. The Appeals Chamber ignores this point entirely.

After acknowledging that the Trial Chamber has discretion to excuse the accused from presence at trial, the Appeals Chamber goes on to find that the discretion of the Trial Chamber was not exercised properly. This is the unconvincing part of the judgment. It seems as if we leave the legal environment, where the Appeals Chamber reaches conclusions based upon interpretation of the text in light of the drafting history and the case law, and move onto the terrain of the individual opinions of its members.

The Appeals Chamber doesn’t agree with the way the Trial Chamber used its discretion. It sets out a number of criteria for applying article 63. Where these come from is a mystery. Confronted with such a problem, the late Antonio Cassese would have canvassed the sources of applicable law in order to see if rules and guidelines could be derived from, for example, ‘general principles of law’ found in national court decisions. But here the Appeals Chamber does nothing of the sort. The final portion of the judgment in which it develops the standards for applying article 63 is exceedingly brief and does not seem to be rooted in any recognised sources of law.

I suppose the Appeals Chamber devised the criteria to be applied in its wisdom, based upon ‘common sense’. But then so, presumably, did the Trial Chamber. That’s the whole point of discretion. If legislation leaves a judge with discretion, then the exercise of that discretion should be respected absent evidence that it has been exercised in a grossly abusive manner or for improper motives, which has never been suggested in this case.

It is probably not helpful to the proper administration of justice for the Appeals Chamber to intervene with the Trial Chamber merely because in its view the latter ‘interpreted the scope of its discretion too broadly and thereby exceeded the limits of its discretionary power’, as the Appeals Chamber says. As things stand right now, we simply have a disagreement amongst judges about the use of discretion. Why should that be a matter for appeal?

Belfast Guidelines on Amnesty and Accountability

Yesterday the Belfast Guidelines on Amnesty andAccountability were released.

They are the product of a series of expert meetings convened by Louise Mallinder and Tom Hadden at the University of Ulster. The document represents a consensus of the experts who participated.

The Guidelines reject the view that amnesty is prohibited by international law. They set out a series of principles that may be applied during peace negotiations in balancing a range of competing interests. In particular, they note that ‘prosecution and punishment are not the only forms of accountability; amnesties can be used to facilitate selective prosecution strategies, or made conditional on participation in truth commissions, public inquiries, restorative justice, and reparations.’

Versions of the Guidelines are available in the six official languages of the United Nations.

Moving Away from the Death Penalty in South East Asia

Participants in the Bangkok conference.

I'm on my way home from an important meeting in Bangkok organised by the Ministry of Justice of Thailand and the UN Office of the High Commissioner for Human Rights entitled 'Moving away from the death penalty in South East Asia'. Most of the States in the region were represented by government officials, academics and other representatives of civil society. We considered such issues as the role of public opinion, the 'most serious crimes' question and the use of the death penalty for drug crimes. There is a sense that the entire region is 'moving away' from capital punishment, with some States being fully abolitionist (Cambodia, Philippines), others de facto abolitionist (Myanmar, Brunei Darussalem, Laos), still others with an unofficial moratorium (Thailand), some manifesting important reductions in numbers of executions and other reforms (Singapore, Malaysia), and some where the direction seems uncertain (Indonesia, Vietnam). Fundamentally, it is a positive picture and one consistent with the worldwide trend. See

Robert Badinter, Sandra Babcock and myself in Paris last week.

Sandra Babcock's blog on the meeting.

Last  week, I was at a fascinating meeting in Paris on capital punishment, held at the École normale supérieure. It was an intersection of philosophy and law, with much discussion of the recent book of lectures by Jacques Derrida on the death penalty, published posthumously.

Katyn: Amnesia in Strasbourg

The Grand Chamber of the European Court of Human Rights has dismissed an application by the families of victims of the Katyn massacre based upon an evolving theory concerning the temporal application of the European Convention: Janowiec and Others v. Russia. For a comment and critique of the decision, see the statement by the European HumanRights Advocacy Centre, which had intervened in the case. There is also a very vigorous dissenting judgment by several members of the Court.

The applicants had previously been partially successful before a seven-judge Chamber of the Court. One of the ironies of this case is that it was the applicants who took the issue to the Grand Chamber where they in effect had a setback from their achievements in the Chamber.

The core issue was whether the so-called ‘procedural obligation’ upon States to investigate violations of the right to life, something that is now well-established in the European Court’s case law, can apply to events prior to entry into force of the Convention for a particular State. In Russia's case, the operative date is 1996. The Katyn massacre took place in 1940.

Until recently, the Court had confined the scope of this procedural obligation to violations of the right to life occurring since entry into force of the European Convention. The Katyn application attempted to take it further into the past, basing itself on the very important humanitarian grounds justifying a full and proper inquiry into the massacre.

The judgment discusses the history, noting that the killings on the orders of the Soviet leaders in 1940 were subsequently uncovered by the Nazis. The Soviets denied responsibility and even insisted that the Nazi defendants be prosecuted for the crime at Nuremberg, although as yesterday’s judgment notes the final ruling at Nuremberg, including the Soviet judge’s separate opinion, was silent on the question. Much later, Russia admitted responsibility. Yet apparently important records concerning the massacre remain inaccessible on the grounds of ‘national security’.

The European Court had the chance to heal a wound in Europe’s legal history that had been left open by the Nuremberg judgment. Alas, it has missed the chance. Moreover, it seems to have closed the door on scrutiny of the atrocities of the past. Some will think this is prudent because of the unforeseen consequences of opening what might amount to a Pandora’s box. Yet progress in human rights within Europe, and the important role that European human rights law plays as a model on a global scale, cannot rest on amnesia about dark episodes in the continent’s history.

Decision on Kenyatta's Presence at Trial

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A second Trial Chamber decision concerning presence at trial has just been released. It builds to a large extent on the earlier ruling in the Ruto case, discussed last month in this blog. The more recent ruling, issued Friday, concerns presence at trial of President Kenyatta. The result is the same, with the two majority judges in the previous ruling taking the same stance, and a dissenting judge (not the same as in the previous ruling), rejecting the defence motion.

Presumably the decision will be appealed immediately by the Prosecutor and the Appeals Chamber will again suspend the execution of Friday’s decision pending its final ruling, as it did with the Ruto decision.

Comparing the two Trial Chamber decisions, issued four months apart, it is interesting to take into account the changing circumstances. The Appeals Chamber decision suspending the Ruto decision and requiring him to attend all of the proceedings was itself, in practice, suspended when the recent terrorist attack on the Nairobi mall took place. Ruto was allowed to return to Kenya and the Prosecutor made no objection, but the trial had to be stopped. Had the Appeals Chamber not suspended the earlier decision the trial would have continued. Events proved the wisdom of the Trial Chamber's decision and the error of the Appeals Chambers move to suspend the decision.

Judge Eboe-Osuji pens a separate opinion to Friday’s ruling in which he comments on the political environment, including the Court’s apparent obsession with Africa. He discusses the criticisms that have been made of the Court in this respect, saying that ‘all efforts must be made to reassure African leaders that they and their people are not the only ones under the law of the ICC’ (para. 21).

The majority decision is rich in public international law, principally in its discussion of the role of preparatory work (travaux préparatoires) in treaty interpretation. Article 36 of the Rome Statute attaches a lot of importance to having judges with public international experience, but until recently there has not been much reflection of this in the case law. Fans of Hersch Lauterpacht (including myself) will be delighted at the lengthy discussion of his views, although it bears mentioning that Lauterpacht was really the pioneering international lawyer in his insistence upon the importance of the travaux préparatoires in treaty interpretation. The judges of the Trial Chamber make a good point in cautioning against over-reliance on the preparatory work. I have always been an enthusiast for study of the travaux, but not necessarily because of their technical role for purposes of interpretation but rather their intrinsic interest from an historical point of view. It is important to know what the drafters of a treaty thought, what they wanted, how they compromised, and so on, regardless of the importance that this may take on in subsequent interpretation.

World Day Against the Death Penalty

10 October was World Day Against the Death Penalty. I published a comment on the status of capital punishment on the Oxford University Press blog.
Readers may also be interested in a fascinating document that was released by the French newspaper Le Monde earlier this month. It is the handwritten notes of the French judge who was required to witness one of the last executions in France.
Thanks to Dov Jacobs.