Nuremberg Tribunal: A Precedent for Victor’s Justice
FEATURED RESEARCH PAPER, 21 Sep 2020
21 Sep 2020 – The Nuremberg Tribunal was the first Transitional Justice body formed against the heinous crimes committed by the leadership of Nazi Germany. This study is a review that assesses the truth to connect with perpetrators, victims or survivors, people and institutions based on International (Public) Law and Laws of War (International Humanitarian Law). It shares the physical, material and emotional losses and change professed through the works of the Tribunal.
The specific objectives of the paper are to identify the situations of the investigation, prosecution and punishment to the Nazi war criminals on accountability for justice and to analyse the preference for justice: victors’ justice or victims’ justice. Experiences on Transitional Justice, Human Security, and Human Rights, among others, touched, inspired and motivated the author for this pioneering paper. This state-of-the-art paper is characterised by archival research, exchanging and sharing way forward with over 100 international publications and lessons-learned centric theoretical approach comprising snowball techniques.
The Tribunal pursued the Retributive Justice Theory following an ancient method of justification for punishment. Likewise, punishment is justified as perpetrator deserves for a penalty, equivalent retaliation. The Nuremberg Tribunal had virtually been victor’s justice with sanctimonious scam and lynching body rather than a free, fair and autonomous justice body. The war winner USA and its allied victors established threatocracy and crowdocracy against the poor victims and the defeated war loser nation to further discourage and weaken them. The newly formed UN failed to restore peace and security as per its International Peace and Security Charter. As a result, cronyism was widespread. And that the Tribunal appeared no-less than a pseudo justice body.
People criticised the Nuremberg Trial for being one-sided, inefficient, ineffectiveness, politicised, very costly and unfair body. The USA and its satellite nations controlled all the initiatives of the Tribunal providing funds, instruments and staff. Most grave crimes and crimes against humanity committed by victors/perpetrators had neither been investigated nor been punished. Thus, justice delivery to the victims appeared as a sword in a judge’s toupee. The Tribunal ironically ensured victor’s justice (war winner) further limiting the victim’s justice (war loser). At the same time, USA-led allied victors had a determined notion of taking a stern action against the Germans in the name of Nazi. Rather than providing free and fair justice by the Tribunal, the victors’ atrocities gave a passage to initiate the Cold War.
Tribunal is a special judiciary body that examines certain types of debates or disputes or conflicts in a given timeframe. Tribunal is “a specific court or group of people who are officially chosen to examine problems of a particular type” (dictionary.cambridge.org/dictionary/english/tribunal). Generally, a Tribunal is an institution or person with judicial authority that determines disputes by persons (Walker, 1980). It is not a court of ordinary and regular jurisdiction but constituted for a specific duration with certain purpose on the course to comply with International Public Law, International Human Rights Law, International Humanitarian Law (Laws of War) and International Criminal Law.
The International Military Tribunal (IMT) was established and opened on November 19, 1945 in place of justice – Nuremberg of Germany – which is now known as the Nuremberg Tribunal. The Nuremberg had largely remained undamaged and material loss by the World War II (WW II). It was set up six-and-half months after Germany surrendered. The Tribunal was formed by the allied victors (forces) such as United States of America, Soviet Union, France and Britain under international law and the laws of war (No. 251, August 8, 1945). The punishment led to the high-level political and bureaucratic officials and military authorities for war crimes and other atrocities against innocent humans. People did not have an opportunity to tell the horrible truth as storytelling before the Tribunal where victims suffered, witnessed and experienced and proved those suspected individuals or perpetrators.
This paper aims to thoroughly study the works of the Nuremberg Tribunal investigating the axiomatic truth of human wrongdoings (war crimes and crimes against humanity) that occurred during WW II. It analyses a set of judicial measures of systematic human rights violations and/or abuses and reviews them critically, but the process could not proceed smoothly due to the biased nature of victors for the sake of justice.
The General Objective of the paper is to investigate the truth of offences of war crimes and crimes against humanity critically examining the specific contribution made by the Tribunal and their critical perceptions argued by victims, commoners, leaders, eyewitnesses or survivors, perpetrators and academia inland and beyond. The specific objectives of the paper are to identify the post-war situations of the investigation, prosecution and punishment to the Nazi war perpetrators on accountability for justice and to analyse the preference for justice: victors’ justice or victims’ justice initiated and adopted by the Tribunal.
A precedent for Victor’s Justice has been examined based on the author’s three-decade-long studies, researching, observations and teachings on international human rights, humanitarian law and conflict management-transformation, human security studies and transitional justice among others. The author gained experiences working with human wrongdoings; human insecurities, armed conflict and heinous crimes committed and analysed their cause (of conflict) and effect (victor’s or victim’s justice) relationships.
The author’s reflections are gained either through literature review or exchanging and sharing approach rather than theoretical conception. The author’s experiences acquired from a few of his notable international publications on Transitional Justice, for instance, Critiques on the Tribunals and The Hague Court (2020b), Can Former Child Soldiers File a Complaint at the International Court against Nepal’s Maoist Leaders? (September 2020), Generations of Transitional Justice in the World (2019), Jurisdictions of The Hague Court (2020a), A Comparative Study of World’s Truth Commissions: From Madness to Hope (2017) and World’s Disappearance Commissions: An Inhumanious Quest for Truth (2016).
Therefore, this state-of-the-art paper is pursued based on the archival research with lessons-learned centric conception following networking tracking method or snowball techniques. The pioneering paper briefly adopts victim-centric and reader-friendly approaches. It reviews whole critiques of the Tribunal to ease faculty members, research scholars, students of educational institutions and policymakers. On the whole, the entire critique is to connect the victims, societies and other concerned persons and institutions with the changes they attained by the Tribunal and share them accordingly.
The Nuremberg Tribunal was no less than pursue Retributive Justice. The retributive justice is a proportional punishment which is an ancient method of justification for punishment. It is a response of crime that is proportional to the past offence (Kumar, January 15, 2015). The wrongdoings which caused to (innocent) humans or the society are held as indictable offences. Retribution is a theory of punishment imposed on someone (offender or perpetrator) as vengeance for wrongdoing or a criminal act. It is the same punishment in return to the perpetrator for their past inhumane actions. For example, a perpetrator gets the death penalty for having committed murder or killing in the past. Retributive ideas seem an inherent part of thinking having crime and punishment (Tony, 2011). The retributive principle is blameworthy for wrongdoers who must be punished. However, there is a retributive gap between the allegation of such offenders and the punishment inflicted upon them (Materni, September 2011).
Kant and Hegel stated that retribution is a punishment that gratifies the public desire for vengeance (Stephen, 1883). Retributive hatred is a desire for revenge (Murphy, 1990). The Retributive Theory indicates that offenders or perpetrators shall receive the same punishment what they deserve for their past wrongdoings (Baier, 1977). The punishment is the reaction of human beings or society against crimes committed. The purpose of punishment is to be neutralising the effect of the wrongful act of the offender or perpetrator (Shrivastava, November 25, 1920).
It is a crime imposed for punishment in the name of justice for victims. It means, the perpetrators who break the rules of law deserve to be punished. It is the punishment to the perpetrators for crimes which is acceptable as long as a proportionate response that is made for the crimes committed. The USA and its allied victors widely practised the rationale for punishment through the retribution theory such as International Military Tribunal at Nuremberg rather than utilitarian and denunciation theories. Thus, the IMT is called the victor’s justice.
The Nuremberg Tribunal was formed after World War II by the allied forces such as United States of America, Soviet Union, France and Great Britain under international law and the laws of war (No. 251, August 8, 1945). The Nuremberg had largely remained undamaged by WW II; a large prison had been a part of the complex; and was considered ceremonial birthplace of the Nazi Party (Burleigh, 2000). The allied four victors supplied the prosecution team.
The Nazi Party, under the leadership of Adolf Hitler, killed some 5.7 million European Jews, along with over 4 million non-Jews during WW II (Bauer, 1978). Hitler had not been the first State-leader who practised enforced disappearances and extrajudicial killings to repress his political opponents. Stalin regime followed the same methods against his rivalries (Vermeulen, August 1979).
A total of 24 policymakers (high-ranking Government-Political Officials) and policy implementers (military officials) were indicted along with seven Nazi organisations (Pathak, 2019). Seven organisations included the Nazi Party, the Reich Cabinet, the Schutzstaffel, General Staff and High Command of the Army, the Gestapo and the Sturmabteilung, which were determined as criminal organisations (Fraser, 2017). Among the top 24 indicted individuals, Hitler and two of his top associates, namely Heinrich Himmler and Joseph Goebbels committed suicide before they could be brought to Tribunal. One of the indicted men had been medically unfit to stand Tribunal; another indicted man killed himself when the Tribunal began. Twelve accused were sentenced to death (hanged till death), six received prison sentences ranging from 10 years to life imprisonment, and one had been in absentia on October 16, 1946 (Solsten, 1995). Hitler’s promoted successor Hermann Göring, the Head of the German Air Force, committed suicide by cyanide capsule the night before his execution (Henkel, 2011).
On August 8, 1945, the United States of America, England, France and the Soviet Union signed the London Agreement (Charter). The London Charter became the basis for the Tribunals (No. 251, August 8, 1945). The Charter which defined the jurisdiction and general principles of crimes were:
- Crimes against Peace: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing;
- War Crimes: namely, violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave labour or for any other purpose of the civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity;
- Crimes against Humanity:namely, murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in the execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated (www.roberthjackson.org/article/london-agreement-charter-august-8-1945/).
The Charter had been applicable to all including civilian officials and military officers who had been responsible for the holocaust. The Nuremberg Tribunal has been controversial on the course of prosecution and punishment for the criminals of the WW II.
Article 6(c) of the Tribunal which charges of crimes against humanity at Nuremberg has not been immune from criticism. Douglas pointed out that the Military Tribunal failed to clarify exactly what they meant by the word “humanity”; whether it referred to a precise standard of humaneness or whether it denoted to humankind as a whole (2001). The same Article mentions some restrictions and limits on the application of the Article. The crimes against humanity could be interpreted as a kind of a byproduct of war or applicable in connection with war (Schwelb, 2008). In regards to crimes against humanity, the pre-war atrocities against the Jews did not fall within its jurisdictional competence (Douglas, 2001). More so, the crimes against humanity violated the principles of national sovereignty and domestic jurisdiction (Schwelb, 2008).
The Nuremberg Tribunal dominated state-centric law or domestic law by the international authority. It means the Nuremberg judgment ratified the supremacy of international law beyond the borders over national law (Beigbeder, 2006; Ratner & Abrams, 2009). Thus, international law went beyond obligations on States and attaching duties to individuals involved in criminal responsibility (Clapham, 2003). However, Teitel (2000) describes post-Nuremberg liability as an explosion. Nuremberg’s instigators used several arguments in answering the charge that the Military Tribunal was implementing a retroactive law (Santry, August 19, 2013).
Harlan Stone, Chief Justice of the US Supreme Court described the proceedings of the Nuremberg Tribunal as a “sanctimonious fraud” and a “high-grade lynching party” to Germans (Mason, 1956). After the conclusion of the Nuremberg Tribunal, the US Political Scientist Quincy Wright objected how the Nuremberg Tribunal could have obtained jurisdiction to find Germany guilty of aggression. It further exposed when Germany had not consented to the Tribunal and how the law (Nuremberg Charter) could have bound the defendants on trial when they committed the acts years earlier in April 1948.
In October 1945, having the weakness of the Tribunal, Robert H. Jackson (Chief United States Prosecutor) wrote a letter to the then US President Harry S. Truman stating, “Allies themselves have done or are doing some of the very things we are prosecuting the Germans for. The French are so violating the Geneva Convention in the treatment of prisoners of war […]. We say aggressive war is a crime and one of our allies asserts sovereignty over the Baltic States based on no title except conquest” (Luban, 1994).
A US Associate Supreme Court Justice William O. Douglas charged that Allied victors were guilty of “substituting power for principle” at Nuremberg and Nuremberg Tribunal were unprincipled (Thompson & Strutz, 1983). US Deputy Chief Counsel Abraham Pomerantz resigned protesting the low calibre of the judges assigned to try the industrial war criminals (Ambruster, 1947). The Chief Justice of the United States Supreme Court Harlan Fiske Stone called the Nuremberg Tribunal a fraud (Mason, 1956). Robert A. Taft, a US Senate Majority Leader (Ohio) criticised the Nuremberg Tribunal for trying Nazi war criminals under ex post facto laws (Kennedy, 1955).
Sir Geoffrey Lawrence of Britain had been chosen to serve as the President of the Tribunal, but, the most prominent of the judges there was his American counterpart, Francis Biddle (Persico, 2000). Prior to the judge of the Tribunal, Biddle had been working as an Attorney General of the United States, but he was ousted from the position by the US President Harry S. Truman earlier in 1945. President Truman appointed Biddle as the prominent American judge at the Tribunal as an apology asking for his resignation (Persico, 2000). Working as an Attorney General, Biddle opposed the idea of prosecuting Nazi leaders for crimes committed before the beginning of the war (Smith, 1977).
Professor A. L. Goodhart at Oxford University opposed by stating that judges were appointed by the victors; the Tribunal was not neutral and could not be regarded as a court in the true sense (Goodhart, April 1946). The IMT had not been a binding treaty as there had not been signatories. That just addressed based on the judgment of war crimes and crimes against humanity (Yale Law School, 2008). The Tribunal itself got disputed as London Charter had been an ex-post-facto law. The validity of the Tribunal had been questioned on several grounds such as rules of evidence (Art. 19 & 21). There had not been defendants’ provision of appeal.
Rather than being a watershed of modern law, the Nuremberg Tribunal had been an example of high politics masquerading as law. The Tribunal, instead of promoting, retarded the coming of the day of world law (Wyzanski, April 1946). A contemporary German jurist stated that justice is not served when the guilty parties were punished in any old way. Justice is only served when the guilty are punished in a way that carefully and conscientiously considers their criminal errors according to the provisions of valid law under the jurisdiction of a legally appointed judge (Pendas, 2005).
The Chief Soviet prosecutor submitted false documentation stating that Germany murdered thousands of Polish soldiers in the Katyn forest. However, the other allied victors (prosecutors) refused to support German lawyers. None of the Germans were charged or found guilty at the Nuremberg Tribunal for the Katyn Forest massacre (BBC, April 28, 2010). In 1990, the Soviet Government acknowledged that more than 20,000 Polish soldiers were massacred at the Katyn forest by the Soviet secret police, not by the Germans (BBC, December 16, 2004).
Utley noted that General Sergei Rudenko, the Chief Soviet Prosecutor, became commandant of the Soviet Union established a socialist concentration camp in August 1945 (Wiggers, 2003). After the fall of East Germany, the human remains of 12,500 Soviet-era victims mainly children, adolescents and elderly people were uncovered at the camp (The New York Times, September 24, 1992) due to the catastrophic prison conditions, hunger, psychological and physical exhaustion (www.stiftung-bg.de/gums/en/geschichte/speziallager/spezial01.htm).
Amongst other things, Freda Utley charged the Nuremberg Tribunal as double standards (January 1, 1949). She pointed to the Allied use of US’s inhumane treatment of German captives, civilians as slaves and deliberate starvation of civilians occurred in their occupied territories (Wiggers, 2003).
On October 16, 1946, they were given death sentences by hanging not using the standard drop method instead of the long drop, but the US soldiers denied claims. The short drop length had been caused to condemn on the course to die slowly from strangulation instead of quickly (Time Magazine, October 29, 1946). Some of the condemned men died (agonisingly) slowly, struggling for 14-28 minutes before finally choking to death (Flagpole Magazine, 17 July 2002).
Some of the dead bodies were taken to Dachau and burned there in a crematorium in Munich, where the ashes scattered over the river Isar (Hirsch, 2020). The French judges suggested that the military personnel be shot by a firing squad as standard for military court-martial, but that was opposed by the US and Soviet judges arguing that the military officers had violated their military ethos (Evans, 1996).
Nuremberg Tribunal argued that the charges against the perpetrators were only defined as crimes after they were committed (Nicholls, Undated). Nuremberg Tribunal had not been the first attempt to bring German leaders to book for starting a World War. In 1918 and 1919, the British Prime Minister Lloyd George and the France Prime Minister Georges Clemenceau both wanted to bring the Kaiser, the Crown Prince and others to justice. Under Article 227 of the Versailles Treaty, the Kaiser was to be brought before an international tribunal of 5 judges appointed one each by France, UK, USA, Italy and Japan and under articles 228 and 229 the Germans undertook to surrender accused persons committed under violation of the laws of war (Nicholls, Undated).
The Economist, a British weekly newspaper, criticised the hypocrisy of both Britain and France for supporting the removal of the Soviet Union from the League of Nations over its unprovoked attack against Finland in 1939 and for six years later cooperating with the USSR as a respected equal to all at Nuremberg (Editorial, October 5, 1946). The victor in the war had ensured the right to conduct court-martial to the defeated nation’s individuals who had committed atrocities in the past contrary to the accepted laws of war against the victor’s nationals (Editorial, October 5, 1946). The Economist asks, “Can the Anglo-Saxon leaders who at Potsdam condoned the expulsion of millions of Germans from their homes hold themselves completely innocent?” (Editorial, October 5, 1946).
The secret agenda of all allied victors was to prosecute and punish the Germans so that it would not rise and boast of being a powerful country again, rather than to ensure free, fair and independent investigation and provide fair justice to them. It had happened owing to the vested interest of international politics (Pathak, 2019). Despite changes taken place in the world order system, same egoistic attitude, coldhearted behaviour and contentious structural context have been continued by the US Government till date, for instance, US President Trump ended relations with World Health Organization on May 30, 2020.
The US never favors peace, co-existence, harmony, conflict transformation by peaceful means and informal-formal indirect (mediation and facilitation) and informal-formal direct (official) dialogue as it achieves one of the largest incomes through selling the weapons, trading war-related instruments and earning money through copyrights jurisdiction. Therefore, the US led war on terror is branded as a misnomer. Thus, retributive holds that if an offender breaks the law, justice suffers similarly to the ancient Jewish cultural justice ‘tit for tat’: ‘life for a life’, ‘eye for an eye’ among others. Thus, Nuremberg Tribunal was no less than that.
The Nuremberg Tribunal was established to investigate, prosecute and punish to the perpetrators in theory. But in practice, the Tribunal was used as a platform to show and prove victors’ justice through their own power, politics, property and privileges further weaken the poor and vulnerable victims, communities and nation as a whole. Besides the criminal offence, victors were accountable or responsible for political assault, physical injury, mental or emotional impairment, socio-cultural trauma and economic loss.
The victors had adopted conspiracy to suppress victims’ voices and opinions as well as ordered the rank and file to snatch and destroy evidence what the victims had. The victors applied threatocracy and congestion (crowdocracy) on the poor victims and defeated nation to further discourage and weaken them. The Tribunal did not have a complaint registration, concomitant and prospecting places for storytelling or telling the truth of victims’ pains, sufferings and grievances. Though the Tribunals pursued a thorough investigation, the officials were instructed to deliver one-sided judgment or final verdict to the victims as per the vested interests and desires of the victors.
Thereby, the decisions of the Tribunals were one-sided, inefficient and ineffectiveness. As a result, double-standard, hypocrisy and arrogance threatocracy prioritised retribution (pay one in his own coin) to Germans soldiers, politicians and bureaucrats-technocrats. Therefore, the Tribunal are no less than tu queque in practice.
Freda Utley charged the Nuremberg Tribunal as double standards (Utley, January 1, 1949). She pointed to the Allied use of the US’s inhumane treatment of German captives, civilians as slaves and deliberate starvation of civilians occurred in their occupied territories (Wiggers, 2003). It is very pity that Americans dropped the atom bomb and the British destroyed the cities of western Germany, but the Tribunal did not hear the pleading of the Germans (The Economist, October 5, 1946). Michael Newton and Michael Scharf noted that opinion polls conducted by the US State Department starting from 1946 to 1958 revealed 80 percent of the West German population did not believe the findings of the Tribunal and rejected it as ‘Victor’s Justice’ (Newton & Scharf, September 16, 2008).
In German, the victors ordered their chains of command to destroy structural facts, statements and other evidence that might prove them guilty or affect their showy investigation. The same victors took special attention to draft the perpetrator-centric Act or Decree that further weakened the voices of the victims and survivors. They prioritised cronyism appointing officials at the Tribunal as the victors provided necessary funds and staff. And such cronies’ appointment defended their respective vested interest, institution(s) and individuals rather than pursuing free, fair and independent investigations. A question arises, “whether Hitler was assassinated similar to Che Guevara in 1967 immediately after Germany surrendered?” A further study needs to be done.
The US policy adopted discouraging future aggressors against axis power whose Charters were drafted by a handful of statesmen from the highest ranks of the Government for a particular purpose. The Tribunal had not been more than a sword in a judge’s wig. It means, IMT and was for the acceptance of victor’s justice. It was no less than brutalisation and overthrow of the conquered nations.
The foundation of Nuremberg Tribunal was built as a precedent of victor’s justice putting the victors (perpetrators) at the centre. As a corollary, the transitional justice bodies which were formed afterwards of Nuremberg Tribunal such as the Tokyo Military Tribunal also followed the same precedent of victor’s justice path. The first transitional justice body ‘Commission of Inquiry into the Disappearances of People in Uganda’ formed in January 1971 could not truly ensure victim’s justice. Besides, the Ugandan Truth Commission did not properly follow six-pillar judicial and non-judicial policies:
- right to know the truth,
- right to justice,
- right to vetting,
- right to prosecution,
- right to reparation and
- guarantee of non-repetition (institutional reforms).
Over 90 truth commissions have been formed so far, the rights to victim’s justice have been overshadowed, making accountable to the perpetrators for justice. The sharp interest of alleged perpetrators on the Truth Commissions in Bolivia, Ecuador, Haiti, former Yugoslavia and Zimbabwe were disbanded, and consequently, their reports could not be produced. Such victor’s justice precedent developed while transitional justice is more political and less legal and humanitarian in practice (Pathak, 2016, 2017, 2019, 2020a, 2020b).
Moroccan Commission held public hearings after signing the bond paper for not to disclose the names of the perpetrators whereas Guatemala did not include the perpetrators’ names in the report. Philippines’ Commission had limited investigation jurisdiction over the army, but treated the insurgents differently. The UN established its Commissions in Sierra Leon, El Salvador and East-Timor, but failed to restore normalcy in Kosovo. All perpetrators were controversially granted amnesty despite the TRC recommendation in South Africa. The victims and people still blamed Mandela that he sold out black people’s struggle (Pathak, 2016, 2017, 2019, 2020a, 2020b). Ironically, the perpetrators have received victor’s justice precedent, but the victims are further victimised. The victim’s justice shall only be ensured if transitional justice rebuilds socio-cultural trust, repairs a fractured justice system and develops a democratic system of governance.
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A former Senior Commissioner at the Commission of Investigation on Enforced Disappeared Persons (CIEDP), Professor Pathak has been a Noble Peace prize nominee each year from 2013 for his noble finding of Peace-Conflict Lifecycle similar to ecosystem. Mr. Pathak holds Ph.D. on Conflict Transformation and Human Rights. He is the President and Director of the Peace and Conflict Studies Center (PSC Center). He is a Board Member of the TRANSCEND Peace University and also a Board Member of TRANSCEND International for Nepal. His book on Politics of People’s War and Human Rights in Nepal (2005) is widely circulated. He has over 100 international publications comprising Transitional Justices , Human Rights, UN, Human Security, Peace, Civil-Military Relations, Community Policing, and Federalism including: Generations of Transitional Justice in the World (Jul 2019); Jurisdictions of The Hague Court (Feb 2020); A Comparative Study of World’s Truth Commissions: From Madness to Hope (2017); World’s Disappearance Commissions: An Inhumanious Quest for Truth (2016); and Can Former Child Soldiers File a Complaint at the International Court against Nepal’s Maoist Leaders? (Sep 2020). He can be reached at email@example.com.
Tags: Crimes against Humanity, Europe, Fascism, Germany, Justice, Nazism, Nuremberg Trials WWII, Restorative Justice, Transitional Justice, Truth, USA, United Nations, WWII, War crimes
This article originally appeared on Transcend Media Service (TMS) on 21 Sep 2020.
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