Lustration of Informers to Promote Trust

Posted on October 11, 2024 by Mark Kersten

The following is the final contribution to our ongoing symposium on Mark Drumbl and Barbora Holá’s new book Informers up Close. It was written by Cynthia Horne, a Professor Political Science at Western Washington University. To see all of the other submissions to the symposium, click here.

Communist-era buildings in Tartu, Estonia

Lustration was a particular form of vetting used in most post-communist transitional justice programs. Although lustration differed by national context, at its most basic, individuals were screened for evidence of employment in or collaboration with the secret police and/or high-ranking communist party membership drawing on information found in the secret police files.  Evidence of collaboration could negate eligibility for public office or employment in a range of public and semi-public positions. In some cases this evidence was also publicly disclosed, with the intention of shaming individuals to recuse themselves from consideration for positions. 

A core goal of lustration was (re)building trust.  This was an acute issue in post-communist countries, which suffered from especially high levels of both social and political distrust. The Vice Minister of the Interior of the Czech situated the lustration of informers within this trust-building context: 

The network of [secret police] collaborators is like a cancer inside Czechoslovak society. Is it so difficult to understand that people want to know who the former agents and informers are?  This is not an issue of vengeance, nor of passing judgments. This is simply a question of trusting our fellow citizens who write newspapers, enact laws and govern our country.

How was lustration supposed to support trust-building?  First, removing those with a past tainted by collaboration was alleged to improve citizens’ trust in the capacity and integrity of public institutions. Second, the threat of revelation was expected to prompt the recusal of collaborators from public office, catalyzing bureaucratic change.  Third, the process of revealing the files and acknowledging collaboration was intended to support “the purification of state organizations from their sins under the communist regimes.” In essence, a combination of personnel changes and changes in the ‘moral culture’ of citizens was expected to build trust in the state and public institutions.   

Interpersonal trust was expected to change, although how was not entirely clear at the start of the transitions from communism to democratic governance. Finding out that your neighbors, co-workers and family members were spying on you could break any remaining social trust networks. Alternatively, although painful, revealing the scope of the spy networks might help society confront its own complicity in past harms. 

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On the far-reaching relevance of Holá’s and Drumbl’s Study of Informers from Cold War Czechoslovakia

Posted on October 10, 2024 by Mark Kersten

The following is a contribution from Novak Vučo and Vladimir Petrović to JiC’s ongoing symposium on Mark Drumbl and Barbora Holá’s new book, Informers up Close. Vladimir is a Research Professor at Institute for Contemporary History Belgrade and a researcher at the NIOD Institute for War, Holocaust and Genocide Studies, Amsterdam. Novak is a prosecuting attorney from Belgrade, Serbia, specializing in war crimes. To see all of the other submissions to the symposium, click here.

Communist era buildings in Czechia (Photo: Depositphot)

Writing about secret service surveillance operations has always been popular. However, writing sensibly on this topic is incredibly difficult. Accordingly, books from which we can actually learn something about it are rather rare. There are many reasons for that. The modus operandi of these organizations is soaked in secrecy, mystery, obfuscation, and disinformation. Hence, it is no wonder that established academics rarely venture into such a sticky domain. The result is that this field is sadly almost entirely abandoned to popular accounts of questionable accuracy, as well as populated by authorized and semi-authorized publications by those same services or their proxies and admirers. If only for this reason, Mark Drumbl and Barbora Holá’s book should be highly praised, as it rests on solid academic ground and aims at shedding light into this dark corner of our reality.  

In our view, the authors succeeded in their effort for several reasons. Firstly, they are both experienced in the realm of international criminal law in general, and criminology in particular, but they are also well-versed in the promises and pitfalls of transitional justice mechanisms in various contexts around the world. Secondly, they decided to zoom into only one such organization, namely, the political police of Communist Czechoslovakia. Thirdly, they delved into only one crucial aspect of its activity: the interaction with the citizenry in order to obtain information. Spying on elements of society deemed unreliable was pervasive all over the Eastern Bloc and created an entire, massive subgroup in society – the informers. Drumbl and Holá unwind how this dynamic played out in postwar Czechoslovakia. What was the scope of the surveillance and its societal impact?

The authors provide a valuable overview of organization of repression in socialist Czechoslovakia, beginning with a special focus on 1948-1956. This ’Period of Stalinization’ was formative for the institutional culture of its robust security apparatus. Evolving under the watchful Soviet gaze, this system was generally set to provide total control over the population by extracting information considered to be valuable for the regime protection. At its center was the secret police, State Security (Státní bezpečnost – StB). Modeled according to its Cheka/NKVD precursor, the StB was also supposed to act as the Communist party’s “sword and shield”. In 1955, 38% of the informers were Communist party members, and although in the mid-1960s that number dropped below 10%, there is no doubt that they provided valuable service to the all-powerful party. 

This is not an unusual development – it happened in every country which fell under Stalin’s influence after the Second World War. However, even though they came from the same mold, and were also closely intertwined, Eastern European security regimes showed some slight, albeit telling, variations. For instance, they all relied on informers, but to a different degree. 

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Victims who Victimize – Understanding Informers

Posted on October 10, 2024 by Mark Kersten

The following is Irit Dekel‘s contribution to JiC’s ongoing symposium on Mark Drumbl and Barbora Holá’s new book, Informers Up Close. Irit is an Assistant Professor of Germanic Studies and Assistant Professor of Jewish Studies at Indiana University, Bloomington. To see all of the other submissions to the symposium, click here.

A soviet-era apartment building (Photo: Dreamtime)

In Informers Up Close Mark Drumbl and Barbora Holá aim to understand both the act of informing and informers themselves. In this beautifully written volume, Drumbl and Holá make sense of what informers did and how subjective values of the Communist era in Czechoslovakia both affected informer worldviews and knowledge formation of informer actions. As its title promises, the book offers a microscopic analysis of Czechoslovak secret police (StB) files about informers and individuals they informed upon, their own writing, those of recruiters and bureaucrats, the state, and its operatives in what was given to or withheld from citizens in Communist Czechoslovakia. The authors use the most detailed elements of human experience and social mechanisms to draw a larger picture of how informing came to be and was sustained and how informers were caricatured and denounced after the regime ended. A central finding of the book is that informing dynamically takes shape as an intimate and relational act of social navigation. The authors conceptualize StB informers as victims who victimize. 

Drumbl and Holá focus on ‘everyday collaboration’, such as denouncing a spouse or refusing to report on a close friend and still being useful to the state. Their sensitivity to detail enables them to paint a multi-faceted picture of informing and informers beyond their case study.  While the archived StB files constitute the epistemological foundation of Informers Up Close, the authors helpfully incorporate extensive content from a robust array of secondary sources: accounts in the “Memory of Nations” oral history archive, academic literature, newspaper articles, informal discussions they have conducted, and literary works. For instance, reading the recruitment proposals the authors show, rather than tell, the salience of individual interpersonal connections amid the intricate structure of the bureaucracy. Understanding informers in this way, the authors shed light on multiple aspects of transitional justice after conflict or regime end. The book also opens space for future studies of the residual effect of authoritarian regimes, the lingering emotions that first moved the informers and sustained their actions; and after the regime’s end morphed into a shared disdain toward informers and their acts, and into the lingering distrust and anger toward that time.

As a sociologist and ethnographer who focuses on memory in contemporary Germany and on witnessing, my discussion of this fascinating book follows questions its authors encourage readers to consider: (1) What files do? (2) What to do with files? (3) The ‘memory’ of files: and how to understand with them, or the long- lasting impact of narratives built upon the figure of the informer for the post-communist societies.

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The Politics of Ambivalence: Revisiting the Communist Past with Drumbl and Holá

Posted on October 9, 2024 by Mark Kersten

The following contribution to JiC’s ongoing symposium on Informers Up Close comes from Patryk I. Labuda. Patryk is an assistant professor of international law and international relations at Central European University in Vienna and a researcher on the ‘Memocracy’ project at the Polish Academy of Sciences, Institute of Law Studies in Warsaw. For all other contributions to the symposium, please see here.

Stasi Files (Photo: Amnesty International)

Mark Drumbl and Barbora Holá’s new book ‘Informers Up Close’ is a beautifully written, riveting read and first-rate scholarship. Drawing on the case study of Czechoslovakia during communism, the authors open up the ‘black box’ of collaboration to offer a nuanced, multi-level, and emotionally informed analysis of the informer – whom they define as “a common citizen who gathers and then supplies information, usually clandestinely, to authorities”. In this post, I offer some thoughts on the book’s path-breaking analysis of Czechoslovak informers, its innovative proposals for how to think about informing in transitional justice processes, and then turn to a few broader comparative riddles and epistemological challenges arising from the Eastern European context.

One of the book’s major contributions to the literature is its deep dive into the Czechoslovak archives. Building on oral histories and secondary scholarship, Drumbl and Holá examine hundreds of secret police files to extract and analyse “the emotions that drive and animate… informing and talking to the secret police”. The book identifies and unpacks four main emotions as drivers of informing – fear, desire, resentment, and devotion. However, the authors recognize that these are not airtight categories, that other emotions may also explain certain behaviours, and that an emotional analysis of informing is ultimately a methodological choice (but not the only research lens into informing). 

Chapter 4’s careful, rich and vivid reconstruction of six informers captivates and immerses the reader into a distant world whose written and unwritten rules we try to understand as best we can, while guiding us through ordinary and less ordinary lives where informing played different roles – from mundane gossip about neighbours to denunciations that harmed people. Lily’s tragic story (and unknown fate) sits uneasily alongside Golfus’ complicated and inglorious personality or Soukup’s messy life ‘choices’. (I am aware, and embrace, that the order of ‘memorable’ characters and the emotional adjectives used to describe their stories may reveal something about my own positionality vis-à-vis this book). Ultimately, the six files – and several more in an online annex – are meant to do two things: first; help readers to think through why informers worked with the secret police in a repressive regime like communist Czechoslovakia; and second, a “‘high-resolution portrayal’ of informers aims to unsettle ‘assumptions of the homogeneity of secret collaborators that underpin the lustration and similar laws” (quoting Roman David).

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Rethinking Informers in transitional justice in liberal times

Posted on October 9, 2024 by Mark Kersten

The following is a contribution by Jean Chrysostome K. Kiyala to JiC’s ongoing symposium on Mark Drumbl and Barbora Holá’s new book, Informers Up Close. Dr. Kiyala is a Senior Lecturer at the International Centre of Nonviolence, in the Faculty of Management Sciences in Durban University of Technology in South Africa. For all other contributions to the symposium, please see here.

An old communist-era apartment block in Brno (Photo: Czech Centre Museum)

Informers Up Close stands as a synthetic corpus of multidimensional memories and experiences in Communist Czechoslovakia. The country was initially formed as an independent state on 28 October 1918 in the wake of declaring independence from the Austro-Hungarian Empire. Czechoslovakia comprised the historical Czech lands (Bohemia, Moravia, and Czech Silesia) and Slovakia.   Communists took over power in Czechoslovakia in 1948; the Communist regime continued until 1989 and was subverted by the Velvet Revolution that commenced on 17 November and led to the end of one-party Communist rule in the country on 28 November 1989. 

Drumbl and Holá examine the trajectory of transitional justice following the Velvet Revolution, efforts that sought to handle the fate of informers who had operated within the ambit of the Czechoslovak State Security Police (Státní bezpečnost (StB)) during the Communist rule. Drumbl and Holá outline the poignancy of being an informer under Communism and the fate of people who served as informers—a term that refers to “all categories of StB secret collaborators, including agents, informers (as one of the sub- categories used by the StB until 1972), residents, owners of conspirational flats, confidants, and candidates for secret collaboration)”. Beside the brutalities and inhumanities of the Communist party, what matters most in Informers Up Close, are the processes and diverse contours of justice aimed at holding former StBs accountable under the transitional dispensation that inaugurated the new political era of Czechoslovakia. 

 The book begins with the history of Communist Czechoslovakia and the StB, including its structure, modus operandiand interrelations with national security. The book effectively traces informers’ missions in the StB and the behavioral patterns of recruitment. It then offers a repertoire of informers’ narrated stories: the intimate and emotional character that spun around the life of informers along with their paradoxical portrayals (victims, heroes, or traitors). This book unwraps memories filled with emotions and rancor. It presents justice pathways to redress the past harm of informing and identifies salient upshots of the transitional processes. Finally, the authors eloquently recapitulate the ubiquity of informers and offer their perspectives on new directions in understanding the term ‘informers’ outside of repressive states. 

Here, in this last space, the authors shed light on the distinctly politicized characterization and perception of informers. The authors assert that there could be a category of informers who will be held as heroes, specifically “Individuals who betrayed others so as to inform to the successful resistance rather than against the successful resistance”. These individuals would not be subject to excommunication (or reconciliation) regardless of the motives of their operations. Drumbl and Holá for instance refer to individuals who share information with military forces in a context whereby an iniquitous foreign power occupies a country: such informers are perceived as strikingly different after liberation than those who informed to the resistance. Indeed, a retrospective glance at informers in the Communist Czechoslovakia thereby opens horizons for considering their prospective role in liberal times.

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As the past repeats we see the ‘other’ in us all – A review of Informers Up Close

Posted on October 8, 2024 by Mark Kersten

The following contribution to Justice in Conflict’s ongoing symposium was written by Emma J Breeze, Assistant Professor in international criminal law and international humanitarian law at the University of Birmingham. For all of the other submissions, please see here.

The former headquarters of the State Security Police (StB)

Mark Drumbl and Barbora Holá’s Informers Up Close challenges readers to reflect upon themselves through the narratives of the informers of Czechoslovakia during the Communist period (1948-1989). A ubiquitous theme in transitional justice, international criminal law, and legal or other formalised processes that take place before, during and after conflict is dealing with the ‘other’: the vanquished, the victor, the abandoned, the good guy and/or the bad guy. By delving into the State Security Police (StB) archives, Drumbl and Holá bring to life the stories of those who acted as ‘everyday informers’ during the communist-era of Czechoslovakia. In doing so, they challenge the reader to see beyond the label and to see the ‘other’. Far from monolithic and from the ‘vile toxins’ dangerous to the new order, these individuals present a complex picture of humanity. If we were to try and sum up these everyday informers, we could say that their primary commonality is their humanity, the intrinsic aspects of the human condition that make up all of us. 

With compassion, Drumbl and Holá present the findings of their archival study. They clearly show how Czechoslovakia’s transitional justice mechanisms failed to truly reflect the nature of informing – i.e., the ‘(e)motions’ presented by the everyday informers, in other words the various motivations that underscored their actions and decisions to inform and on what they chose to disclose. These mechanisms did so by treating informers as a monolithic group, dangerous to ‘the new liberal democracy’. This led to prosecutions, exclusions, lustrations, ostracizations, while the demands for retribution and rehabilitation have been articulated in a largely blanket fashion to those who informed the State Security Secret Police (StB). These actions, based on the ideological and political drivers perceived to be the motivating force of everyday informers, is shown by Drumbl and Holá to be wholly inaccurate. Further, the transparency mantra of transitional justice has, in this case, seen the release of all the files held by the Secret Police (StB) to the public.  

The book views this release as a form of cruelty which is inflicted on the informers by making their indiscretions and actions public. It also discusses how the release of files have affected their families, friends and indeed those who were informed upon. The files are described as being filled with notes, comments and details of a personal nature, and whilst the completeness of the information remains in doubt, the impact of these narratives can be deeply distressing for those implicated and their families. This reveals an interesting contrast to the ‘stool pigeons’ operated by the British MI9 during WWII. These individuals, recruited for their language skills, were placed in cells with prisoners of war to gain information on German operations, to play the role of confidante and friend. To this day the stories and identities of these ‘stool pigeons’ remain hidden, whether classified or lost to time. Secrecy has protected those concerned and their families. One wonders if, given the nature of their work for the ‘victors’, these recruited ‘stool pigeons’ would have been treated more as war heroes. In contrast to the Czech informers, these potential ‘heroes’ may have desired greater transparency so that their efforts in the service of the state could be recognised.

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Disguise, Blur, Purr, and Nakedness: Mark Drumbl and Barbora Holá on Informers Up Close: Stories from Communist Prague

Posted on October 7, 2024 by Mark Kersten

The following introductory post was written by Mark Drumbl and Barbora Holá, authors of the book Informers Up Close, the subject of JiC’s ongoing symposium. For all other contributions, please see here.

Theodor Aman (1831-1891), ‘Ball in the studio of the artist’ (1885), National Art Museum of Romania, Bucharest 

You can’t hide your lyin’ eyes

And your smile is a thin disguise

[…] 

She wonders how it ever got this crazy

She thinks of a boy she knew in school

Did she get tired or did she just get lazy?

She’s so far gone, she feels just like a fool

My, oh my, you sure know how to arrange things

You set it up so well, so carefully

[…]

You can’t hide your lyin’ eyes

And your smile is a thin disguise

– The Eagles, ‘Lyin’ Eyes’, 1975, from the album ‘One of These Nights’

Our new book, Informers Up Close, explores two questions: (i) why ordinary people inform on others in repressive times, and (ii) how, after those times end, law and politics should speak of, to, and about informers. 

As to the first question — the why — our case-study is Communist Czechoslovakia (1948-1989) and its secret police, the Státní bezpečnost (StB). Our focus is on ‘everyday informing’. We construct Czechoslovak state-society relations as interactively webbed and as illustrating both participatory dictatorship and social engineering. The source-data we mostly rely upon are the StB secret collaborator (informer) files. These currently are archived and accessible to the public.  We prepared detailed (and biopic) ‘high-resolution’ file-stories. Six are directly included in the book, another seventeen are referenced in the book and are fully accessible on this companion website.

We examine the role of emotions as catalyzing and then sustaining decisions to inform on others. Four emotions in particular jump out in our research: fear, resentment, desire, and devotion. Informing in Communist Czechoslovakia blurred the line between the political and the personal. File-stories showcase an idiosyncratic cocktail of drivers that pulled informers towards and pushed informers away from the StB and vivifies how these sentiments changed and morphed over time. Concepts such as intimacy, power, social navigation, strategy, tactics, and exchange contour the relationship between StB officers and ‘their’ informers. Some informers inflicted great harm on others while also suffering considerable pain. They thereby occupy liminal spaces between victims and victimizers. Many informers were blackmailed into informing, but many turned to the StB to leverage their private wants and actualize their immediate needs. 

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Introduction – A JiC Symposium on Mark Drumbl and Barbora Holá’s Informers Up Close

Posted on October 7, 2024 by Mark Kersten
Stasi files (Photo: Corbis)

In a course that I run on responses to international crimes, I paint my students the following scenario: Canada is taken over by a brutal dictatorship that suppresses human rights. The regime lasts for twenty years before democracy is restored. During the dictatorship, one in every ten Canadians was an informant of Canada’s secret police. We do not know who they are. They could be our loved ones, co-workers, bosses, or the person who has made us our morning coffee on the way to work. Now, we have a chance to find out because the new government decides it is best to open the secret police’s records and let us find out.

Would you look?

The responses from students are fascinating not because any one of them is more persuasive than any other but because all and none of them are. Some students don’t hesitate. They are confident that they would absolutely check the files. They simply want to know. They seem convinced that the truth will set them free or bring closure by offering some critical tidbit of information that is necessary to move on. I respect their self-assurance, though I suspect that if the exercise were a little less abstract and they were staring down at an envelope which just might include the names of their mother or brother, the situation would look a little different. Imagining that moment is something like Schrödinger’s informant. Everyone is and everyone isn’t an informant – until the envelope is opened.

Other students are more anxious about the prospect of revealing who may have informed on them. They worry about what they might find and what information – what context and what truths – might be omitted. Might finding out ruin relationships that they once valued? How would it make them feel, and would it be worth it? One student believed that if someone they cared for informed on them during the dictatorship and they needed to know, then that informant would tell them. 

Others wonder: what itch would knowing scratch and why do they have it at all? What can they do once they know? Rather than bringing closure, might finding out pieces of unsavoury and incomplete information only make that itch worse? Might the wounds of the past fester and undermine their healing once the scars have been picked at? Is there any place here for forgetting? Can we accept that sometimes forgetting may actually be a virtue, even if it runs contrary to the accumulated wisdom and insistence of transitional justice scholarship that all bad pasts must be confronted?

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An alleged ISIS war criminal has been arrested in Canada. How did he get in, and why won’t Canada prosecute his alleged atrocities?

Posted on October 4, 2024 by Mark Kersten
Ahmed Fouad Mostafa Eldidi and his son, during court proceedings in Ontario

In 2018, Ahmed Fouad Mostafa Eldidi arrived at Toronto’s Pearson Airport. After his application for refugee status was accepted in 2019, he received a work permit. He then became a permanent resident in 2021. Subsequently, the Canadian Security Intelligence Service gave his application a “favourable recommendation”, and Mr. Eldidi was granted Canadian citizenship in May 2024. Just two months later and after a tip from France, he was arrested with his son for allegedly planning a terrorist attack in Toronto. It then came to light that Mr. Eldidi had apparently appeared in a 2015 promotional video by the Islamic State, hacking the limbs off a prisoner with a sword – an act which likely constitutes a war crime.

This series of events has led to obvious questions: How could Canada not only let Mr. Eldidi into the country, but fail to identify him as a possible security threat during two separate national security screenings? And why did the Canadian authorities not know of his alleged 2015 atrocities?

These questions are being hotly debated by politicians. In House of Commons committee meetings and on social media, the political bluster over Mr. Eldidi’s case is palpable. But it is also unhelpful. Blame and excuses cannot prevail over introspection and self-reflection. The finger-pointing in Ottawa is a distraction from the fact that both Conservative and Liberal governments are responsible for leaving Canada susceptible to perpetrators of atrocities entering the country. 

What should be questioned, and answered, is what Canada did not do that left the country vulnerable to infiltration by atrocity perpetrators and what it can do to avoid a repeat in the future.

Background: A bi-partisan refusal to address international crimes 

Under the principle of universal jurisdiction, enshrined in the Crimes Against Humanity and War Crimes Act of 2000, Canada can prosecute perpetrators of war crimes abroad even if they or their victims are not Canadian citizens. But since the 1990s and the failure to convict a number of alleged Nazis living in Canada, Ottawa’s preferred approach has been to either ignore alleged war criminals living in our midst or to deport them. And when it does ‘send them back’, it does so without any guarantee that they will subsequently be investigated or prosecuted for their crimes. 

During the Conservative government of Stephen Harper, this policy was entrenched when Canada put a full-stop to prosecutions of international crimes in Canadian courts. In fact, since 2013, no case of international crimes committed abroad has been heard in a Canadian courtroom. Instead, the Harper government created a ‘Most Wanted’ list and doubled down on deporting alleged perpetrators. Under this policy, Canada might even send perpetrators back into situations where they could further torment their victims. That perpetrators would be apprehended only to escape justice once deported was a fact that earned Canada a sharp rebuke from the United Nations Committee Against Torture in 2012. 

So, if Canada won’t prosecute such figures, will it at least prevent them from getting into the country?

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An Important Past: Since Hitler, Heads of State have No Immunity 

Posted on September 26, 2024 by Mark Kersten

The following guest post was written by Dan Plesch, Professor of Diplomacy and Strategy at SOAS University of London and a Door Tenant at the Chambers of Stephen Kay KC at 9 Bedford Row. His books include, ‘Human Rights After Hitler’, ‘America Hitler and the UN’, and ‘The Beauty Queen’s Guide to World Peace’. His work on the modern relevance of the United Nations War Crimes Commission has featured in the Associated Press, the US National Public Radio, Amazon’s acclaimed documentary ‘Getting Away with Murder(s)’ and Netflix’s 9th episode of the ‘Greatest Events of WW2’.

A sample of an indictment of Hitler from 1944.

As a Head of State, Adolf Hitler was indicted for war crimes by several European states in the winter of 1944-45 under their domestic laws as well as international law. The three states, Belgium, Czechoslovakia and Poland were supported by a dozen others, including China, France, the UK and the USA who were all members of the United Nations War Crimes Commission. The legal documents were sealed for decades. When they were finally released in in the 2010s, their significance warranted a news story by the Associated Press in 2017, The documents were not available to the International Court of Justice as it considered the arrest warrant case over a decade earlier.

At a time when many are discussing and debating head of state immunity, the Hitler indictments point the way to further reducing the impunity of national leaders in the twenty first century.

As a historian observing and engaging with the community of International Criminal Law, I find it curious that this state practice has been given no weight by generations of judges, lawyers and scholars. The unanimous view of sixteen leading states that Hitler was personally and functionally liable for the atrocities committed in his name confounds the established view that individual states cannot legally prosecuted the sitting Heads of State of other governments. 

The criminal liability of Heads of State and of Government, as well as Foreign Ministers is a live issue once more with the Paris Court of Appeal’s ruling that French investigating judges could issue an arrest warrant against Syrian President Assad and with the complaints before the Office of the Swiss Attorney General against Israeli President Herzog. For some commentators, these actions contravene the 2002 decision of the International Court of Justice (ICJ) in the Arrest Warrant case, in which the ICJ held that customary international law includes the rule that sitting Heads of State, Heads of Government, and foreign ministers are immune from criminal jurisdiction, including arrest warrants and indictments, by foreign national courts, including for war crimes and crimes against humanity. The ICJ distinguished personal immunity from functional immunity, and distinguished national criminal jurisdiction from international criminal jurisdiction such as the International Criminal Court (ICC)

The long overlooked customary state practice from the 1940s can be seen as contradicting the ICJ judgment and so reinforcing the validity of the Assad and the Herzog cases. The now unsealed documentary record in relation to efforts to prosecute Hitler provides individual and multilateral state practice from the 1940s that set the immunities of Heads of State and Government in a decision of the United Nations War Crimes Commission (UNWCC) and subsequent actions of that body and its members states. Thus, the ICJ overlooked the most important state practice precedent relevant to its inquiry – and in fact the only time prior to 2002 that the world’s most powerful states considered the issue together. 

At a time when many are discussing and debating head of state immunity, the Hitler indictments point the way to further reducing the impunity of national leaders in the twenty first century. More details on these UNWCC-supported charges are now available in recent research into the unsealed archives of this multinational organisation of the mid-1940s. It has been presented in London and The Hague. The International Law Commission has recently received submissions to be considered in its work on the Immunity of State officials from foreign criminal jurisdiction.

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Posted in Germany, Guest Posts, Historical Justice, International Court of Justice, International Court of Justice (ICJ), International Criminal Justice, United Nations | Tagged | 1 Comment