Human rights after Nuremberg
A ‘human right’ can be defined as an entitlement to treatment a person has simply
by virtue of being ‘human’, and as such human rights must be applicable irrespective
of time and place. If we were to say that a person’s rights are conditional on her
being a citizen of a particular state, or belonging to a particular culture, then the
rights would not rest simply on the fact of being a human being, and they would
not be universal. This raises a difficulty for human rights discourse. The language
of human rights is a modern phenomenon, traceable to the eighteenth-century
Enlightenment, but only embodied in legal documents in the twentieth century. This
suggests that human rights are culturally specific – that is, the product of a particular
time (the modern period) and a particular place (Western Europe). For critics of
human rights the problem of cultural relativism is thought to be fatal – the alleged
universalism of human rights simply masks a form of cultural imperialism.
There is no doubt that while human rights are claimed to be universal the
widespread use of the concept is a relatively recent phenomenon. It is only with the
formulation and signing of the Universal Declaration of Human Rights (hereafter
referred to as the UDHR) (1948) that respect for human rights has become a
significant consideration in domestic and international politics (that does not mean
that human rights are, in fact, respected). And alongside the philosophical discourse
and political rhetoric there has also developed a body of international human rights
law and a set of international legal institutions, such as the International Criminal
Court (ICC) in The Hague (the Netherlands). So there is a history to human rights.
In the course of this chapter we will discuss whether the historicity of human rights
undermines the claim made for their universality.
The UDHR was ‘adopted and proclaimed’ by the General Assembly of the newly
formed United Nations on 10 December 1948. It was developed against the
background of the Nuremberg War Crimes Trials, which followed the defeat of
Germany and its allies in May 1945. There were two sets of trials: those of the
‘major war criminals’, before the International Military Tribunal (1945–46), and
those of the ‘lesser war criminals’ before the US Nuremberg Military Tribunals
(1946–49). The Nuremberg process was criticised by some commentators as a series
of show trials based on ‘victor’s justice’; after all, among the indictments were acts
that had undoubtedly been carried out by the victorious Allies, such as the British
air war against Germany, which deliberately targeted citizens, and the murder of
German prisoners of war by the Soviet Union. However, Nuremberg is significant
for the study of human rights, in part because of its flaws, and, in part, because it
introduced novel concepts. The legally significant features of the Nuremberg process
were as follows:- The indictment, or charges made against the defendants, were created ex post
factoand were not related to the laws of Germany. The indictment contained
four counts (types of charge): (a) conspiracy to wage an aggressive war; (b)
planning, preparation and waging of an aggressive war; (c) war crimes, which
included, for example, the mistreatment of prisoners of war; (d) crimes against
humanity. - The compulsion defence – ‘I was only obeying orders’ – was removed.
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