THE LESSONS OF NUREMBERG

THE city of Nuremberg is synonymous with some of the finest examples of late medieval art treasures in the whole of Europe, the painter Albrecht Durer, and one of the most significant trials in the whole of the twentieth century.

The most important legal fact about the Nuremberg trials which took place ore than 50 years ago now is that it was wholly international. Nuremberg was a world court. It was a world event. It was international justice with an international jurisdiction and authority for its actions. It was a recognition of the fact that single-nation courts are sometimes an inadequate way to give authoritative interpretations of international law.

Nuremberg is a permanent act of goodwill against the collective evil of any nation. This fact alone gives it a relevance which is almost timeless.

It was a precedent, but it was a precedent which has still not been followed through to its logical conclusion; the establishment of a permanent international court to deal with acts such as war crimes and crimes against humanity.

On December 11, 1946, the General Assembly of the United Nations accepted the principles of international law recognised by the Charter of the Nuremberg Tribunal and the judgment of the tribunal itself.

Under the Charter of the International Military Tribunal which established the legal foundation for the Nuremberg trials and which was signed by the United Kingdom, America, France, and the Soviet Union on August 8, 1945, there were four specific indictments. Crimes against peace, war crimes, crimes against humanity, and an overall conspiracy to commit these crimes.

The Nuremberg Charter reaffirms the fact that the conspiracy to wage aggressive war is an international crime. However, the charter itself simply states that the conspiracy to wage aggressive war is an offence, but it doesn't define what it means by waging aggressive war and any attempt to do so since Nuremberg has fallen foul of legal difficulties.

The United Nations did set up a special committee to define aggression, but it was unable to agree on a legal definition. Nuremberg tended to adopt the attitude that aggression is easier to recognise than it is to define. This inability to define aggression has created problems for countries such as America with its involvement in Vietnam.

The indictment on war crimes is more straightforward and it clearly illustrates the responsibilities that individuals have during a war. War crimes include acts such as: '''Violations of the rules or customs of war which include, but are not limited to, murder, ill treatment of prisoners of war or persons of the sea, killings of hostages, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity''.

The rules and customs of war are as ancient as human society, but they should not be dismissed as ancient history. They are very real and very contemporary.

There are several reasons for maintaining the rules of war. The first and most basic reason is that they work, not all of the time, but some of the time and that is important. If you have a rule which says that you shouldn't bomb hospitals, or kill prisoners of war, it doesn't mean to say that hospitals will not be bombed and prisoners won't be killed. All it means is that it won't happen as often as it probably would if the rule didn't exist.

The laws of war maintain the distinction between legitimate military action and non-military action. They are there to prevent soldiers turning into murderers. To quote from a very reliable poisoned dwarf, ''No international law of warfare is in existence which provides that a soldier who has committed a mean crime can escape punishment by pleading as his defence that he followed the commands of his superiors. This holds particularly true if those commands are contrary to all human ethics and opposed to the well-established usage of warfare''. The fact that these words were spoken by Adolf Hitler's Chief of Propaganda himself, Joseph Goebbels, doesn't make them any less true today.

The relevance of the Nuremberg trials for today is not just that it was an international court, with international authority and jurisdiction, and that the indictments issued at Nuremberg against former Nazis are now part of the indictments which have been issued against the Bosnian Serb leadership and others, by the United Nations International Criminal Tribunal For The Former Yugoslavia (ICTY), which was established on November 17, 1993, in the Peace Palace in The Hague and held its first meeting on November 8, 1994.

The indictments issued by the ICTY include four different offences. Grave breaches of the 1949 Geneva Conventions, violations of the laws or customs of war, genocide, and crimes against humanity.

It was the Nuremberg trials which introduced the concept of crimes against humanity into international law. The concept of crimes against humanity is the real innovation of Nuremberg.

At Nuremberg, crimes against humanity were defined as: ''Murder, extermination, enslavement, deportation, and other inhuman acts done against civilian populations, or persecutions on political, racial, or social grounds, when such acts are done or such persecutions are carried out in execution of or in connection with any crime against peace or any war crime''.

So, although a crime against humanity could be done in connection with a war crime, it is not a war crime. The extent of a crime against humanity is greater than a war crime. Murder is the same as murder, but extermination is not the same as murder; murder may be part of extermination but it is still not the same. Extermination is more deliberate and final and it quite obviously implies the death of more than one person. Ill-treatment of prisoners of war is a war crime, but it is not the same as enslavement, it may be part of it, but not to the same extent.

For all intents and purposes genocide is a crime against humanity, which some people have suggested renders its perpetrators, hostes humani generis, hostile to humanity in general, and therefore makes the crime of genocide a matter of universal jurisdiction, but it is also a separate category of crime in international law which needs some explanation. The existing law on genocide, the 1948 Convention On The Prevention And Punishment Of The Crime Of Genocide, is the only major piece of legislation which came out of the Nuremberg trials.

Genocide has been described as the unlawful killing of a group linked to a political ideology with a view to the permanent extermination of that group. As a crime, genocide is essentially defined by intention, accompanied by sufficient acts by way of the implementation of the basic intention, ''to destroy, in whole or in part, a national, ethical, racial, or religious group as such''. The constituent acts include killing members of the group, causing them serious mental or bodily harm, inflicting upon them conditions of life calculated to destroy them, imposition upon them of measures to prevent reproduction among them, and forceable transport of their children out of the group.

It is important to note that genocide may be said to have taken place by killing two, possibly one, members of the group with, and this is the important point, the relevant intention.

Anyone who commits or encourages any of these acts, whether in public or in private is liable to trial in the country in which the offence was committed, or by a recognised international tribunal. The municipal law of countries which have signed the convention are required to outlaw the crime. It is interesting to note that Rwanda is one of the countries which signed the 1948 Convention on Genocide.

Since the end of the Second World War there have been several post-Holocaust holocausts. In the past 30 years there have been at least three, probably more, well-documented incidents of genocide in the world, and two out of the three have happened in the past five years. The awful truth is that genocide is a very human act. As Rebecca West once said, ''No course of action is so mad that some human being will not adopt it''.

At Nuremberg there is a certain quality of values which go beyond the immediate world. The whole event has a mysterious timelessness about it all, which is not something we should be afraid of; it is something we should welcome into our lives. It is an essential part of the human side of the Nuremberg trials. Nuremberg represented the aspirations of a generation for a fairer world at the time, but its significance goes far beyond its time.

It was the former Conservative MP, the late Airey Neave, who was at Nuremberg at the time, who called it: ''A hope for posterity''. It was and still is in a very real way, part of the future.

Nuremberg might not give us all the answers, as to what the law ought to be, but it certainly asks the questions. It also asks a very simple and profound question, is it always right for individuals to obey the law? Are there certain circumstances in which they should disobey the law? Nuremberg would tend to imply that there is. To paraphrase Telford Taylor, the US Chief Counsel at Nuremberg: ''The Nuremberg trials set before the waiting world some universal standards of human behaviour that transcend the duty of obedience to national law''.

The Nuremberg trials take us back to the individual. The most important fact which the trials gave to the world is individual responsibility in international law. There is no such principle as collective guilt. There is collective responsibility but not collective guilt. Individuals are accountable for their own actions. Nuremberg greatly expanded this principle.

It is not states that commit crimes in international law. As Sir Hartley Shawcross, the Chief British Prosecutor at Nuremberg, rightly pointed out: ''The state's rights and duties are the rights and duties of men''. This principle of individual accountability is also the reason why the defence of superior orders was rejected.

The irony surrounding Nuremberg is not that the Soviet Union was a member of the International Military Tribunal, although that in itself is ironic. The real irony is in the words of the US Chief Prosecutor, Robert H Jackson, and I quote: ''While this law is first applied against German aggressors, if it is to serve any useful purpose it must condemn aggression by any other nations, including those which sit here now in judgment''.

The irony is that it hasn't. The political examples of where we have fallen short of our own standards for others are too numerous to mention.

The massacre of 500 innocent men, women, and children by US paratroopers in March 1968 in the village of My Lai, in Vietnam, is an American crime against humanity.

And just in case you think I am indulging in bashing Uncle Sam, listen to what an American had to say about American involvement in Vietnam. ''We have smashed the country to bits, and we will not even take the trouble to clean up the blood and rubble. Somehow we have failed to learn the lessons we undertook to teach at Nuremberg.'' I think a lot of people would be forced to agree with Telford Taylor.

Of course, there will always be those people who say that you have to live in the real world, but if living in the real world allows the government of Democratic Kampuchea, (Pol Pot's Kymer Rouge), a government which was responsible for the genocide of at least two million of its own people, to continue to have a seat at the UN from 1979-81 even although that government had been deposed, then living in the real world is simply an excuse for national self interest and accepting what is evil.

Our involvement in the former Yugoslavia has, to say the least, been more positive. The International Criminal Tribunal For The Former Yugoslavia, the first of its kind since the end of the Second World War, represents the judicial side of the United Nations policy in the former Yugoslavia and covers four different offences, and there have been 12 different indictments. based on the four different offences.

The indictments' jurisdiction concentrates on individual responsibility. Armies do not commit crimes. As article seven of the statute says: ''A person who planned, instigated, ordered, committed, or otherwise aided and abetted in the planning, preparation, or execution of a crime referred to in articles 2 to 5 of the present statute, shall be individually responsible for the crime''. In other words, it is not only people who commit crimes, such as crimes against humanity who are guilty, but also the people who are involved in the planning of these crimes.

Meanwhile, think what a tragedy it would be, if in a country where 200,000 people were deliberately exterminated and 400,000 were made refugees, the International Tribunal which was set up to deal with the situation was prevented from doing its work by lack of money. Is this not another argument for having a permanent international court to deal with such crimes as genocide anywhere in the world? Although having said that, if you're looking for another reason for having an international court to deal with such crimes as genocide and crimes against humanity then you don't have to look any further than what's been happening in central Africa in recent months.

The Nuremberg trials leave us with more questions than answers, but it is always important to ask the right questions and simply by having a trial Nuremberg answered a very important question. The most important reason for the Nuremberg trials is the same reason for having any International Criminal Tribunal anywhere in the world. When a war or a conflict ends, it is not over.

If peace is to have any chance of success we must look to the future, not the past, but having said that if there is to be a future at all, we must at least try to deal effectively with the past. You do not deal with the past by denying what actually happened. This applies as much to the situation which exists in Rwanda and in the former Yugoslavia as it did for the people who were involved in the original Nuremberg trials at the end of the Second World War.

The last word in these situations is not to be found in any court of law. Ultimately, it is not judgment that is important; it is forgiveness. Both are important; one should never be an excuse for the other.

If there is to be a future at all and not just a continuation of the past, then individuals who have in the past confronted each other will have to learn to live with each other. Forgiveness is a sacrifice. If it costs nothing, it is worth nothing.

n.Will McMillan is a freelance writer, originally from Ayrshire but now based in Edinburgh.