The Propaganda Prosecutions at Nuremberg: The Origin of Atrocity Speech Law and the Touchstone for Normative Evolution
37 Pages Posted: 25 Apr 2017
Date Written: January 16, 2017
The black and white image of a two-tiered bench seating the cream of surviving Nazi leadership, framed by white-helmeted Allied sentries and dark-wood paneling, is by now the definitive meme for the birth of international criminal law (ICL). Less associated with that grainy photograph, though, is the origin of an important sub-branch of ICL – one that I call “atrocity speech law.” For among the defendants in that iconic Nuremberg dock were Julius Streicher, editor-in-chief of the rabidly anti-Semitic tabloid Der Stürmer, and Hans Frtizsche, head of the Radio Division of Joseph Goebbels’s Propaganda Ministry. Nearly two years later, the Third Reich’s Press Chief, Otto Dietrich, assumed his place on the same set of pews as part of the Ministries trial of the so-called “subsequent Nuremberg proceedings.” From the judgments rendered in respect of these three defendants, Allied judges formulated a set of nascent but influential principles regulating the relationship between hate speech and large-scale human rights violations. This article, an invited submission for a special symposium issue on the Nuremberg trials, revisits those cases, which centered on persecution as a crime against humanity. In doing so, the article provides an overview of Nazi Holocaust propaganda, the rhetorical template for the modern mass-murder campaign. Within this historical context, it traces the development of atrocity speech law in the decades since, paying particular attention to the normative wellsprings of incitement to genocide at the International Criminal Tribunal for Rwanda (ICTR). And its analysis regarding persecution’s subsequent development provides an indispensable point of repair for understanding the jurisprudential split between the ICTR (concluding that hate speech on its own can satisfy persecution’s conduct element) and the International Criminal Tribunal for the former Yugoslavia (ICTY) (reaching the opposite conclusion). As the article points out, on balance, the Nuremberg jurisprudence favors the ICTR approach. With important contemporary cases before domestic courts, the ICTY and the International Criminal Court, the Nuremberg propaganda judgments will continue to function as important doctrinal touchstones going forward. This article, which develops and expands on the Nazi propaganda sections featured in my recently-released Oxford University Press book, “Atrocity Speech Law: Foundation, Fragmentation, Fruition,” permits readers to see the Nuremberg judgments in a new light and understand their likely normative impact on international hate speech law for generations to come.
Keywords: Nuremberg, Ministries case, atrocity speech law, crimes against humanity, incitement to genocide, persecution, Nazi propaganda, Julius Streicher, Hans Fritzsche, Otto Dietrich
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