Silence at Nuremberg

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SILENCE AT THE NUREMBERG TRIALS: THE INTERNATIONAL MILITARY TRIBUNAL AT

NUREMBERG AND SEXUAL CRIMES AGAINST WOMEN IN THE HOLOCAUST

By Hilly Moodrick-Even Khen* and Alona Hagay-Frey**

“While written history is continually reconstructed,

portions of the past wait to be revealed.”1

I. PROLOGUE

Dozens of testimonies mention the Kerkschutz commander Fritz Bartenschlager, who would sometimes attend selections in order to choose “escort girls.”2 In October 1942, for example, five of these women were taken to a feast at his apartment where they were ordered to serve the guests in the nude and were ultimately raped by the revelers.3 In January 1943, when Bartenschlager’s visitors included SS district commander Herbert Boettcher and Franz Shippers, the SS commander of Radom, three women . . . were brutally raped and then murdered.4 Other commanders chose the most beautiful young women of each newly arrived transport as personal “housemaids.”5 When Paul Kiessling, camp commander at Werk C tired of his “maid,” he sent her to Hans Schneider, Werkschutz

* Dr., Professor of public international law at Sha’arei Mishpat College, Israel (from 2006) and Senior

Lecturer (from 2011); LL.D, Hebrew University of Jerusalem (2007); M.A. in philosophy (Magna Cum

Laude) Tel Aviv University (2001); LL.B, The Interdisciplinary Center of Herzliya (2000); B.A. in

humanities, Hebrew University of Jerusalem (1996). ** Ph.D. candidate, Bar Ilan University (since 2013), LL.M. (cum laude) Tel Aviv University (2009),

B.A. in Business Administration, LL.B. in Law (cum laude ) The Interdisciplinary Center of Herzliya

(2002). [email protected].

1 Joan Ringelheim, Thoughts About Women and the Holocaust, in THINKING THE UNTHINKABLE,

MEANINGS OF THE HOLOCAUST 141, 141 (Roger S. Gottlieb ed., 1990) [hereinafter Thoughts About

Women].

2 Felicja Karay, Women in the Forced-Labor Camps, in WOMEN IN THE HOLOCAUST 285, 290

(Dalia Ofer & Lenore J. Weitzman eds., 1998).

3 Karay, supra note 2, at 290-91.

4 Id. at 291, 308 n.18 (citing the testimony of Hayim Milchman).

5 Id. at 291.


44 WOMEN’S RIGHTS LAW REPORTER [Vol. 35

commander at Werk A.6 Schneider discovered that the woman was pregnant and dispatched her to the “shooting range.”7

Although poorly documented in the past, it is now well-known that during WWII, women in Nazi concentration camps suffered not only from starvation, torture, and inhuman treatment along with the men, but also from a gamut of sexual offenses, including forced nakedness, intrusive body searches, forced sterilization, forced or solicited prostitution, and rape.8 Many of these cases have been documented and reported over the years.9 In a perverse irony, “despite the fact that the 1935 Law for the Protection of German Blood and German Honor prohibited intercourse between Aryans and Jews[,]” Jewish girls and women were often raped “[p]rior to being murdered in Einsatzgruppen actions[.]”10

Nevertheless, sexual crimes in general and specifically sexual crimes against women were excluded from Article 6 of the Charter of the International Military Tribunal at Nuremberg (IMT),11 which referred to war crimes and crimes against humanity. This striking disregard of such abhorrent conduct has neither a single nor a simple explanation; it rather requires a thorough examination of the legal, historical, and sociological factors that generated it. Such an inquiry is the crux of this paper.

6 Id.

7 Id. at 291, 308 n.19 (citing the testimony of Lola Arlajtman-Rozenfeld). The author, a labor camp

survivor, cites cases of individual and collective rapes of Jewish women in the Skarzysko-Kamienna

labor camp in Poland. See id.; see also Myrna Goldenberg, Lessons Learned from Gentle Heroism:

Women’s Holocaust Narratives, in 548 ANNALS OF THE AM. ACAD. OF POLITICAL & SOC. SCI. 78, 84

(1996) [hereinafter Lessons Learned] (recounting testimonies of survivors solicited to prostitution even

by their mothers who hoped that “[if the girls] do anything anybody asks [them] to do, [they might]

save [their lives]”).

8 This chapter focuses on women victims of sexual assaults because the vast majority of sex crime

victims are women. See Brook Sari Moshan, Women, War, and Words: The Gender Component in the

Permanent International Criminal Court’s Definition of Crimes Against Humanity, 22 FORDHAM INT’L.

L.J. 154, 156-59 (1998). Furthermore, rape of men by men is committed mostly within the one-

dimensional stratumm of inter-ethnic war, whereas the rape of women occurs mainly in a bi-

dimensional context—inter-ethnic and inter-gender/sexual—two distinct strata. See ALONA HAGAY-

FREY, SEX AND GENDER CRIMES IN THE NEW INTERNATIONAL LAW: PAST, PRESENT, FUTURE 89

(Stephanie Raker trans., 2011). For an account of men as victims of sex crimes, see Sandesh

Sivakumaran, Sexual Violence Against Men in Armed Conflict, 18 EUR. J. INT’L L. 253 (2007). It is also

important to note that sexual crimes against women were committed by both sides of the armed conflict

of WWII. One infamous example is the rape of 100,000 women in Berlin by Russian soldiers in the last

month of the war. Tilman Remme, The Battle for Berlin in World War Two, BBC HISTORY (Mar. 10,

2011), http://www.bbc.co.uk/history/worldwars/wwtwo/berlin_01.shtml.

9 ASTRID AAFJES, GENDER VIOLENCE: THE HIDDEN WAR CRIME 8 (1998).

10 Goldenberg, Lessons Learned, supra note 7 at 83; see also Karay, supra note 2, at 289; Fionnuala

Ni Aolain, Rethinking the Concept of Harm and Legal Categorizations of Sexual Violence During War,

1 THEORETICAL INQUIRIES IN LAW 307, 319-20 (2000). Note also Göring’s testimony in the Nuremberg

Trial referring to this prohibition. See MICHAEL R. MARRUS, THE NUREMBERG WAR CRIMES TRIAL

1945-46: A DOCUMENTARY HISTORY 209-10 (1997).

11 Charter of the International Military Tribunal art. 6, Agreement for the Prosecution and

Punishment of the Major War Criminals of the European Axis (London Agreement), Aug. 8, 1945, 58

STAT. 1544, 82 U.N.T.S. 280 [hereinafter Charter of the IMT].


No. 1] Silence at the Nuremberg Trial 45

II. INTRODUCTION

The IMT for the trial of major German war criminals at Nuremberg (“the Nuremberg trial” or “the Nuremberg Tribunal”) is a whole greater than the sum of its parts. The articles of the Tribunal’s Charter generated a fraught legacy of “moral and legal issues raised by applying judicial methods and decisions to challenged wartime acts.”12 The legal legacy of Nuremberg can be seen in the development of international law—and particularly international humanitarian law, international human rights law, and international criminal law. On December 11, 1946, the United Nations General Assembly unanimously adopted Resolution 95(I) (Affirmation of the Principles of International Law recognized by the Charter of the Nuremberg Tribunals), and in 1950 the International Law Commission (ILC) formulated the Nuremberg Tribunal, together with its judgment into seven principles.13 These decisions introduced new types of crimes into international law: the crimes of waging an aggressive war (crimes against peace) and crimes against humanity.14 They also fixed a number of new concepts firmly in international law: the individual criminal liability for these crimes regardless of the state’s responsibility for them; the denial of official immunity from prosecution for state leaders; and the denial of the notion of superior orders.15

These crucial developments in international law—which dramatically changed the legal and moral framework for regulating breaches of international law perpetrated in times of war—emerged due to the unprecedented crimes, both in scale and character, that the Nuremberg Tribunal had to face, crimes which existing written law could not answer.16 A memorandum for the American President from the staff preparing the Tribunal stated:

the criminality of the German leaders and their associates does not consist of

scattered individual outrages . . . but represents the result of a systematic

enterprise for achieving domination of other nations and other peoples with

ruthless disregard for the law of nations, the rules of war and the accepted

moral standards of mankind.17

12 TELFORD TAYLOR, THE ANATOMY OF THE NUREMBERG TRIALS: A PERSONAL MEMOIR 626

(1992).

13 MADOKA FUTAMURA, WAR CRIMES TRIBUNALS AND TRANSITIONAL JUSTICE: THE TOKYO TRIAL

AND THE NUREMBERG LEGACY 31-32 (2008).

14 Id. at 33.

15 Id. at 33-34.

16 Id. at 34.

17 BRADLEY F. SMITH, THE AMERICAN ROAD TO NUREMBERG: THE DOCUMENTARY RECORD 1944-

1945, at 98 (Bradley F. Smith ed., 1982).



The Tribunal was thus set up to handle large scale and hideous atrocities, such as mass executions in gas chambers, the Jewish Holocaust,18 and the brutal treatment in the concentration camps.19

The significant implications of the Nuremberg Tribunal for international criminal justice makes the exclusion of sexual offences in general and sexual offenses against women in particular from Article 6 of the Charter quite conspicuous. The absence significantly clouds the Nuremberg’s distinguished legacy of facilitating the augmentation of restrictions on individuals and states during war and of creating the bedrock for the legal branch of international human rights law.

In this paper, we consider the reasons for the Tribunal’s disregard of sexual crimes against women in the Holocaust.20 In the first section below, Section C, we analyze the historical procedures leading to the establishment of this Tribunal, and rethink some of the public myths about the Tribunal’s goals and about the trial itself. We turn in Section D to a feminist analysis of the historical and legal background of WWII, focusing on the development of the legal concepts of sexual assault on women in international criminal law. In Section E we discuss the general marginalization of women in that era, and draw parallels to women’s suffering in Germany during and after WWII. Section F examines sexual assaults of women during the Holocaust committed by Nazis and their collaborators; and in Section G, we examine and suggest an explanation for the Tribunal’s non-account of these acts. Section H concludes.

III. THE ESTABLISHMENT OF THE NUREMBERG TRIBUNAL

Numerous historical accounts describe “the road to Nuremberg,”21 written both by historians and by officials (mainly the prosecutors) who participated in the establishment of the Tribunal and the conduct of the trial.22 These writings outline the bureaucratic and political factors at the foundation of the Tribunal as we know it. However, re-reading these accounts also shatters the myths that have grown up around Tribunal,

18 See MARRUS, supra note 10, at 193 (noting it was this trial that introduced “six million” as the

number of Jews killed by the Nazis).

19 See id. at 46 (noting that the trial would focus on “war crimes and crimes against humanity”).

20 As most evidence focuses on Jewish victims, we concentrate on these. But this does not mean to

exclude the victimization of many others by the Nazis, such as communists, socio-democrats, Romani

peoples, homosexuals, etc. See Holocaust Encyclopedia, Mosaic of Victims: In Depth, UNITED STATES

HOLOCAUST MEMORIAL MUSEUM, http://www.ushmm.org/wlc/en/article.php?ModuleId=10007329

(last visited Jan. 2, 2014).

21 One of these accounts is even called “The American Road to Nuremberg.” See SMITH, supra note

17.

22 See, e.g., TAYLOR, PERSONAL MEMOIR, supra note 12; VICTOR H. BERNSTEIN, FINAL

JUDGMENT: THE STORY OF NUREMBERG (Latimer House, 1947); TELFORD TAYLOR, FINAL REPORT TO

THE SECRETARY OF THE ARMY ON THE NUREMBERG WAR CRIMES UNDER CONTROL COUNCIL LAW NO.

10 (William S. Hein & Co., 1997).



enabling us to construct a different understanding of the Tribunal’s purposes and challenges.

The idea of punishing the Nazis for their conduct—which was considered outside the bounds of civilized behavior—arose several years before the war ended.23 The first mention came in the St. James declaration of 1942.24 In January 1942, the governments in exile in London and the Free French Committee met in St. James Palace in London to denounce the occupation’s “regime of terror characterized amongst other things by the imprisonments, mass expulsions, the execution of hostages and massacres[,]” and they called for “the punishment, through the channel of organized justice, of those . . . responsible for these crimes, whether they have ordered them, perpetrated them or participated in them.”25

In July 1942, with evidence of new German atrocities, the signatories of the St. James declaration sought support from the Allies: the UK, the U.S., and the Soviet Union.26 The three major forces at first did not share a common policy on this issue, a situation that would recur throughout the process of establishing the Tribunal.27 While the U.S. and Britain supported the establishment of a UN commission on war crimes (UNWCC) for the identification and investigation of war crimes suspects,28 the Soviets set up their own “Extraordinary State Commission to investigate Nazi crimes on Soviet territory[.]”29 It was not until November 1943, with signs that the end of the war was nearing, that the Allies reached a first (albeit broad and inexplicit) agreement on the subject.30 In the “Moscow Conference of the Foreign Ministers of Britain, the United States, and the Soviet Union, a declaration on war crimes was promulgated over the names of Churchill, Roosevelt, and Stalin speaking in [sic] behalf of the United Nations[,]”31 in which the Allies stated that the “major criminals whose offences have no particular location . . . will be punished by a joint decision of the Governments of the Allies.”32 This declaration was the first step towards

23 MARRUS, supra note 10, at 19.

24 Id. at 18-19 & n.2.

25 MARRUS, supra note 10, at 18-19 & n.2 (quoting 1 Inter-Allied Information Committee,

Punishment for War Crimes: The Inter-Allied Declaration Signed at St. James Palace, London on 13th

January 1942 and Relative Documents, ([London]: His Majesty’s Stationary Office, [1942]) 3-4);

TAYLOR, PERSONAL MEMOIR, supra note 12, at 25.

26 TAYLOR, PERSONAL MEMOIR, supra note 12, at 26.

27 See id.

28 Id.


30 Id.


32 MARRUS, supra note 10, at 21 (quoting Winston S. Churchill, Franklin D. Roosevelt, & Joseph

Stalin, Moscow Declaration, Nov. 1, 1943).



the Nuremberg Tribunal.33 Yet, the road to it was difficult as the differences between the Allies and the bureaucrats facilitating it persisted.34

Historian Bradley Smith suggests that what the world now knows as the Nuremberg trial system was developed in late 1944 and early 1945 almost exclusively by a group of American government officials.35 For the first time in history, the international community was willing to deal with war criminals and not leave this mission in the hands of individual states.36 Diplomatic opinions were divided. While President Roosevelt “avoided taking a stand” on the question of how to deal with Nazi major war criminals to avoid “sharpen[ing] divisions among the Allies[,]” some branches in his government “had in fact been hard at work on these questions . . . leading figures in his administration were hoping to win his support[.]”37 The competing views were those of Secretary of the Treasury Henry Morgenthau and Secretary of War Henry L. Stimson.38 Morgenthau suggested “a harsh settlement for the Germans” and the summary execution of the “arch-criminals.”39 Stimson, on the other hand, urged a war crimes policy with a constructive approach, one that sought to “promote economic recovery and industrial development by utilizing German industrial capacity.”40 Hence, he encouraged the “punishment of [the major war criminals] in a dignified manner consistent with the advance of civilization,” which would be based on at least the “rudimentary aspects of the Bill of Rights, namely notification to the accused of the charge, the right to be heard and . . . to call witnesses in his defense.”41

These differences were not merely a matter of internal U.S. politics. They were also shared by Britain and the Soviet Union. While Churchill, supported by Foreign Secretary Anthony Eden, encouraged “national tribunals for the trial of lesser individuals accused of violating the laws of war[,]” he feared an international war crimes tribunal would echo the “fiasco of the Leipzig trials” after World War I.42 Hence, the British

33 Id.

34 See id. at 22-23 (discussing the dispute between Churchill and Stalin with regards to the question

of what should be the appropriate treatment of the German General staff); see also infra Part III

(discussing the disputes between the American Secretary of Treasury, Henri Morgenthau, and the

Secretary of War, Henri L. Stimson, regarding the United States policy on this issue).

35 SMITH, supra note 17, at x.

36 In fact, the international community was operating through the victorious states—the Allies—and

was dealing only with criminals of the defeated states—Germany and Japan. FUTAMURA, supra note

13, at 34. Yet, the fact that war criminals were handled by the international community was innovative.

37 MARRUS, supra note 10, at 23-24.

38 Id. at 26.

39 Id. at 24. Rank and file criminals who participated in the death of any human being unlawfully

should have been, according to the Morgenthau plan, tried promptly by military commissions.

40 Id. at 26.

41 Id. at 27 (quoting Henry L. Stimson, Memorandum Opposing the Morgenthau Plan, Sept. 9,

1944.)




suggested principal Nazi leaders “be dealt with by a political decision of the Allied Powers.”43 The idea that major war criminals would be executed “in accordance with a previously prepared list” and after their identity had been proven was discussed in a number of meetings between the three Allies.44 The British seemed to support this idea (with Churchill expressing some conflicting opinions);45 however, Stalin objected strongly, pointing out that executions without trials would imply the Allies were afraid to try the Nazis.46 Finally, the complete capitulation of Germany and Italy by the end of April 1945; Hitler’s and Goebbels’s suicides; and the support of the next American president, Harry Truman, for a trial of the major war criminals generated the American Draft Agreement for a trial of the major German war criminals that was presented to foreign ministers in San Francisco on April 1945.47 “The resolute policy in Washington”48 led, eventually, the British and soon the French and the Soviets to accept led the three Allies to accept the American plan of bringing to trial the major German war criminals.49

The trial preparation posed a number of challenges for the extremely large group of officials involved.50 Who would be prosecuted? What were the crimes and charges? How would the evidence be gathered? The Nuremberg Charter authorized the military tribunal to try and punish the major war criminals of the European Axis;51 yet the founders of the Tribunal were also willing to prosecute rank and file Nazis before national, military, or occupation courts. To this end, they relied on the legal concept of conspiracy, generating Article 10 in the Charter; this enabled the Tribunal to declare a group or organization within the Nazi administration as criminal and to rely on this declaration as proof in the subsequent trials for rank and file Nazi criminals.52

43 Id.

44 Id. at 30-31; MARRUS, supra note 10, at 22-23.


46 Churchill reported Stalin’s reply to President Roosevelt on Oct. 22, 1944. See TAYLOR,

PERSONAL MEMOIR, supra note 12, at 31.


48 Id. at 38.

49 Id. at 36.

50 Each of the Allies sent its own chief prosecutor under whom several of prosecutors worked. Each

of the chief prosecutors’ assistants was responsible for several parts of the trial, including the collection

of evidence. The teams worked with several sources for evidence, including Judge Advocate General’s

Corps (JAG) officers and even U.S. intelligence—the Wartime Office of Strategic Services (OSS), the

precursor of the CIA. For a comprehensive account of the role of the OSS in the preparation for the

Nuremberg trials, see MICHAEL SALTER, NAZI WAR CRIMES, US INTELLIGENCE AND SELECTIVE

PROSECUTION AT NUREMBERG: CONTROVERSIES REGARDING THE ROLE OF THE OFFICE OF STRATEGIC

SERVICES (2007).

51 Charter of the IMT art. 1, supra, note 11.

52 For a discussion of the concept of conspiracy and its support and promulgation by Prosecutor

Jackson and the other American officials participating in the preparation of the Trial, see TAYLOR,



The nature of the crimes finally included in the Nuremberg Charter was alluded to by U.S. Chief Prosecutor Robert H. Jackson, who suggested the purpose of the prosecution was to provide “a well-documented history of what we are convinced was a grand, concerted pattern to incite and coerce the aggressions and barbarities which have shocked the world.”53 This heroic mission was translated in the Charter to the charges of crimes against peace (“the planning, preparation, initiation or waging a war of aggression”),54 war crimes,55 and crimes against humanity (“murder, extermination, enslavement, deportation, and other inhumane acts”).56 Two of these charges in fact generated new charges in prevailing criminal law: crimes against peace and against humanity.57

The concept of crimes against peace—that is, condemning the waging of aggressive war in contradiction to the prohibition of aggressive war in international law that was invoked in the Kellog-Briand Pact of 1928—was the most important for the Nuremberg Charter founders.58 It was integrated in the post–WWII international peace and security policy of the Allies, and was part of the big plan of reform policies towards post-war Germany: “denazification, demilitarization, decentralization, and decartelization.”59 These policies were also reflected in Stimson’s plan for the Nuremberg

PERSONAL MEMOIR, supra note 12, at 35-36, 41, 75; id. at 46 (citing Jackson’s speech); SMITH, supra

note 17, at 98-105.


54 Charter of the IMT supra, note 11, at art. 6(a).

55 Id. at art. 6(b).

56 Id. at art. 6(c).

57 This added another challenge for those framing the Nuremberg Charter: how to convince the

international legal community that the Charter adhered to the principle of legality in criminal law, also

known as the nullum crimen sine lege principle. Prosecutor Jackson suggested that the new concept of

crimes was aligned with English common law, which developed not primarily by acts of Parliament but

by “decisions reached from time to time in adopting settled principles to new situations.” TAYLOR,

PERSONAL MEMOIR, supra note 12, at 54 (quoting Jackson). The Nuremberg Tribunal justified the

application of new crimes by stating that “the maxim nullum crimen sine lege is not a limitation of

sovereignty, but is in general a principle of justice.” International Military Tribunal, TRIAL OF THE

MAJOR WAR CRIMINALS BEFORE THE INTERNATIONAL MILITARY TRIBUNAL, NUREMBERG, 14 Nov.

1945 - 1 Oct. 1946, 219 (1947). Extensive research has justified the Nuremberg Tribunal’s application

of the principle of legality as an implementation of substantive justice instead of strict legality. See, e.g.,

ANTONIO CASSESE, INTERNATIONAL CRIMINAL LAW (2d ed., 2008) 36-41; JUDITH N. SHKLAR,

LEGALISM 164 (1964); see also CrimA 336/61 Eichmann v. Attorney General PD [1962] (Isr.),

reproduced in 5 THE TRIAL OF ADOLF EICHMANN: RECORD OF PROCEEDINGS IN THE DISTRICT COURT

OF JERUSALEM 2340-42 (State of Israel, Ministry of Justice trans., 1994) [hereinafter EICHMANN].

58 This is extrapolated from Jackson’s description of this crime as “the crime which comprehends

all lesser crimes[.]” TAYLOR, PERSONAL MEMOIR, supra note 12, at 54; see also id. at 42 (quoting

Jackson) (“[w]e at last reach to the very core of international strife, and we set a penalty not merely for

war crimes, but for the very act of war itself, except in self defense”). Note as well that the Nuremberg

Charter, the spiritual founder of the 1990s tribunals of war crimes in Yugoslavia and Rwanda, differed

from them in that it was the only tribunal that consisted of a crime of aggression, while these latter

tribunals did not even include such an offense in their statutes. See FUTAMURA, supra note 13, at 49,

166 n.140.

59 FUTAMURA, supra note 13, at 42.



Tribunal to serve as “a comprehensive war criminal trial system, systematically punishing Nazi leaders and organizations, as the best means of settling the Allies’ score with the Third Reich and securing the future peace of the world.”60

The second new concept of criminal charges was crimes against humanity, described in Article 6 of the Nuremberg Charter as

murder, exterminations, 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 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.61

While traditional international law was able to criminalize and sanction

perpetrators of war crimes (grave breaches of the laws of war aimed at civilians or combatants of the adversary), international law had no legal tools to suppress atrocities committed by a party to an armed conflict against its own citizens. These acts were regulated and treated by each state’s local law, and were thus simply ignored by international law. In creating the offense of crimes against humanity, the Nuremberg Statute sought to tackle legally the atrocities the Nazis perpetrated against the German Jews and other Germans condemned by the Nazi regime (communists, socio-democrats, Romani peoples, homosexuals, etc.).62

The influence of the Tribunal’s innovative concept of crimes against humanity on envisioning a new legal branch of international human rights law cannot be exaggerated.63 Indeed, “the law of crimes against humanity has developed since the time of the Nuremberg trial to an extent that could hardly have been foreseen in view of its modest beginnings.”64 The definition of crimes against humanity in the Charter is considered as “the most revolutionary contribution . . . to international law.”65 Not only did it establish for the first time direct international criminal responsibility for

60 Id. at 43 (quoting Bradley Smith).

61 Charter of the IMT, supra, note 11, at art. 6(c).

62 Henri Donnedieu de Vabres, The Nuremberg Trial and the Modern Principles of International

Criminal Law, in PERSPECTIVES ON THE NUREMBERG TRIAL 213, 236 (Guénaël Mettraux ed., 2008).

63 Donnedieu de Vabres, supra note 62, at 238; see also Theodor Meron, The Humanization of

Humanitarian Law, 94 AM. J. OF INT’L L. 239, 263 (2000).

64 Donnedieu de Vabres, supra note 62, at 238; see generally CASSESE, supra note 57, at 98-123; 1

THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY 353-77 (Antonio

Cassese, Paola Gaeta & John R.W. Jones eds., 2002); William A. Schabas, THE INTERNATIONAL

CRIMINAL COURT: A COMMENTARY ON THE ROME STATUTE 137-87 (2010) (discussing the recent legal

concept of crimes against humanity and its evolution in the war crimes tribunals in Rwanda and

Yugoslavia).

65 FUTAMURA, supra note 13, at 32 (citing Meron, supra note 63).



atrocities committed in a country, even between its citizens,66 it also generated the concept of the protection of human rights and the focus of international law on the rights of human beings.

However, and somewhat in contradiction to the intrinsic connection between human rights and individual human suffering, the Nuremberg trials themselves seemed to concentrate much less on the “human aspect” and much more on formal, documentary evidence.67 In order to prove the almost inconceivable deeds of the defendants translated into charges in the indictment, substantive evidence had to be collected and legal issues that had to be tackled.68 This evidence was basically documentary,69 because, in the words of Prosecutor Jackson, it was crucial that the prosecution showed a “well-documented history” in order to prove the culpability of the defendants and convince the world of the legitimacy and the promptness of the legal procedure.70 Collecting the evidence for the number and variety of offenses and the inordinate numbers of offenders was, in fact, a difficult mission, “without precedent in the field of criminal justice”71 and to which great efforts were allocated.72

However, the tendency to lean on documentary evidence created the impression that “humanity [was] lost amid a barrage of paperwork.”73 One reporter noted: “It was the largest crime in history, and it promised the greatest courtroom spectacle. . . . [However, it was] an excruciatingly long and complex trial that failed to mesmerize a distracted world.”74 Indeed, some testimonies of witnesses75 and cross examinations of the defendants

66 Id.

67 LAWRENCE DOUGLAS, THE MEMORY OF JUDGMENT: MAKING LAW AND HISTORY IN THE TRIALS

OF THE HOLOCAUST 20 (2001). Note that Douglas, nevertheless, indicates that “the testimony of

witnesses who did not take the stand . . . added precisely the ‘human aspect’ so often missing from the

trial.”

68 See generally SMITH, supra, note 17 (discussing the process of collecting evidence and deciding

legal questions such as difficulties of identification and proof of who were criminals to be punished).

69 DOUGLAS, supra, note 67; see also MARK OSIEL, MASS ATROCITY, COLLECTIVE MEMORY, AND

THE LAW 91 (Transaction Publishers 1997) (quoting New Yorker novelist Rebecca West, who covered

the Nuremberg trial and called it “insufferably tedious”).


71 SMITH, supra note 17, at 99.

72 See id. at 109; TAYLOR, PERSONAL MEMOIR, supra note 12, 49-50; SALTER, supra note 50, at

258-59, 277-306 (discussing the legal difficulties of proving individual charges).

73 CHRISTOPHER J. DODD & LARY BLOOM, LETTERS FROM NUREMBERG: MY FATHER’S

NARRATIVE OF A QUEST FOR JUSTICE 44 (Crown Publishing 2007).

74 OSIEL, supra note 69, at 91 & n.41 (quoting Alex Ross of the N.Y. TIMES); see also DODD &

BLOOM, supra note 73 (American prosecutor Thomas J. Dodd’s insistence that the prosecution relied

more on evidence that “viscerally demonstrated how the Nazis dehumanized their victims”).

75 See MARRUS, supra note 10, at 192. One such important evidence is from a woman who survived

the concentration camp. See infra, note 147. Astonishingly, for political reasons (the British feared a

testimony by Chaim Weizmann, president of the World Zionist Organization, would attract special

sympathy for the Jews and endanger “British standing as the ruling authority in Palestine”) the Jewish

story of the Holocaust was recounted by non-Jews. MARRUS, supra note 10, at 192.



contributed to the human aspect in the trial.76 Yet, the most impressive living evidence was the documentary film on concentration camps, which showed “emaciated survivors in the midst of corps . . . graphic evidence of mutilated prisoners, of executions of Slovenian partisans and of Auschwitz and other concentration camps . . . tortured prisoners, bodies and the appalling conditions in the concentration camps.”77 Its impact, both in the courtroom and across the world, burned the Nuremberg trials into universal collective memory as a condemnation of crimes against humanity much more than a trial that established the criminality of waging aggressive war.78

Nevertheless, the emergence of the Nuremberg Tribunal as promoting the sense of transitional justice and condemnation of crimes against humanity seems to have occurred in spite of, rather than according to, the Tribunal’s founders’ original aims. The Allies were much more concerned with denunciating Germany and the major war criminals for crimes against peace. In the words of Prosecutor Jackson:

We are put under a heavy responsibility to see that our behavior during this

unsettled period will direct the world’s thought toward a firmer enforcement of

the laws of international conduct, so as to make war less attractive to those

who have governments and the destinies of peoples in their power.79

This emphasis neatly intertwined with the new political world order that

the Allies and especially the US bureaucrats planned after the end of the war.80 It was also well integrated with the Tribunal’s founders’ sense of responsibility for the lessons to be imparted to next generations81 and to the Germans and the German nation.82

76 DOUGLAS, supra note 67.

77 DODD & BLOOM, supra note 73, at 46; see generally SALTER, supra note 50, at 266 (describing a

film shown at trial depicting the concentration camps after the liberation of the camps).

78 OSIEL, supra note 69, at 226. Osiel notes at 226 that in fact the allied prosecutors and the

Tribunal itself concentrated on crimes against peace and expected that international punishment of such

acts would be Nuremberg’s central legacy. See also TAYLOR, PERSONAL MEMOIR, supra note 12, at 35

(summarizing a memorandum by Colonel Murray Bernays regarding prosecution of WWII war

criminals).

79 TAYLOR, PERSONAL MEMOIR, supra note 12, at 55 (emphasis added) (quoting Jackson’s report of

June 7, 1945 to the President of the United States).

80 See Henry L. Stimson, Memorandum Opposing the Morgenthau Plan, in THE NUREMBERG WAR

CRIMES TRIAL 1945-46: A DOCUMENTARY HISTORY 26, 26-27 (1997).

81 See TAYLOR, PERSONAL MEMOIR, supra note 12, at 55 (noting Jackson’s speech: “Now we stand

at one of those rare moments when the thought and institutions and habits of the world have been

shaken by the impact of the world war on the lives of countless millions. . . . We are put under a heavy

responsibility to see that our behavior . . . will direct the world’s thought toward a firmer enforcement

of the laws of international conduct . . .”); FUTAMURA, supra note 13, at 45, 166 n.110 (stating that

British Chief Prosecutor Sir Hartley Shawcross also notes that “this tribunal . . . will provide a



Hence, in order to achieve its precedential missions, the Tribunal was to some extent compelled to concentrate on the macro picture, and in doing so, it “missed the micro picture: the story of the victims—the human experience of uncomprehending suffering that official brutality produced.”83 While Nuremberg admittedly shifted the focus from the state to the individual—that is, for the first time in history, “leaders, organizers, instigators and accomplices” were prosecuted personally for acts committed in official positions, whose positions served as no excuse or mitigation84 —the emphasis was on the individual perpetrator, not the individual victim. With little testimony by surviving victims of the concentration camps, the trial could not account for the “experience of life there or its emotional aftermath.”85

Nevertheless, the poor account of individual suffering in the Nuremberg Trial86 is just the tip of the explanation for the disregard of sexual crimes against women by Nazi war criminals. The status of women in that time period and the lack of perspective of the feminine experience in all legal systems also influenced such neglect. This relegation of women’s suffering was rooted in the historic legal background of that era, which could be named “the era of silence” with regard to women as victims.87 It was thus the combination of prevailing legal, sociological conventions and the nature of this tribunal and its objectives that generated this silence.

IV. SEXUAL CRIMES AGAINST WOMEN: LEGAL BACKGROUND

Imagine that for hundreds of years your most formative traumas, your daily

suffering and pain, the abuse you live through, the terror you live with, are

unspeakable—not the basis of literature. . . . When you try to speak of these

things, you are told that it did not happen, you imagined it, you wanted it, you

enjoyed it. Books say this. No books say what happened to you. Law says this.

No law imagines what happened to you, the way it happened.88

From the early beginnings in the development of international law, rape

was considered an acceptable practice in the heat of natural instincts during

contemporary touchstone and an authoritative and impartial record to which future historians may turn

for truth, and future politicians for warning”).

82 See FUTAMURA, supra note 13, at 44, 166 n.106 (citing P.H. Maguire, LAW AND WAR: AN

AMERICAN STORY 13 (2001).

83 OSIEL, supra note 69, at 103.

84 Herbert Wechsler, The Issues of the Nuremberg Trial, in PERSPECTIVES ON THE NUREMBERG

TRIAL 308, 309 (Guénaël Mettraux ed., 2008).

85 OSIEL, supra note 69, at 103.

86 Compare with the famous Eichmann trial in Israel, which focused on testimonies of survivals and

was one of the most moving accounts of living testimonies about the horrors of the Jewish Holocaust.

See EICHMANN supra note 57.

87 HAGAY-FREY, supra note 8, at 59-68.

88 CATHARINE A. MACKINNON, ONLY WORDS 3 (1993).



battle.89 Crimes against women during war were deemed unavoidable consequences, essential to preserving the troops’ morale, along with pillaging and property crimes.90 The conquering of women by rape served for centuries as a mark of victory, proof of soldiers’ masculinity and success, and compensation for service.91 In 1204 the Crusaders raped women in Constantinople;92 in 1937 Japanese soldiers raped women in Nanking;93 during WWII German soldiers raped many Jewish94 and Russian women,95 and Russian soldiers raped German women.96

While criminal prohibitions of rape can be randomly traced in the laws of war, there is no specific moment in history when wartime rape was legally prohibited internationally.97 Rather, women’s rights in war and their place in international law have developed historically in a gradual and non-uniform manner. The period from the beginning of international criminal law, through Totila the Ostrogoth (546 A.D. conqueror of Rome who forbade his soldiers to rape the women of the city),98 and up to the Hague Conventions of 190799 can be referred to as the era of silence. While one can find a number of examples of domestic laws and local treaties forbidding rape during armed conflicts,100 these prohibitions were not a matter of a uniform international policy. The Hague Conventions of

89 See, e.g., KELLY DAWN ASKIN, WAR CRIMES AGAINST WOMEN: PROSECUTION IN

INTERNATIONAL WAR CRIMES TRIBUNALS 21 (1997) .

90 Id. at 18-23.

91 Id. at 19.

92 SUSAN BROWNMILLER, AGAINST OUR WILL: MEN, WOMEN AND RAPE 35 (Simon & Schuster

1975).

93 Rana Lehr-Lehnardt, One Small Step for Women: Female-Friendly Provisions in the Rome

Statute of the International Criminal Court, 16 BYU J. PUB. L. 317, 320 & n.17 (2002) (noting,

interestingly, this event is commonly referred to as the “Rape of Nanking,” thus focusing on the city

and not on the actual victims of rape—the women).

94 See Joan Ringelheim, Women and the Holocaust: A Reconsideration of Research, 10 SIGNS 741,

743 (1985); Catherine MacKinnon, Genocide’s Sexuality, in POLITICAL EXCLUSION AND DOMINATION

313, 317 (Melissa S. Williams & Stephen Macedo, eds., 2005).

95 Rana Lehr-Lehnardt, supra note 93, at 320.

96 See Pascale R. Bos, Feminists Interpreting the Politics of Wartime Rape: Berlin, 1945;

Yugoslavia, 1992-1993, 31 SIGNS: 995, 1001-07 (2006) (discussing the documentary Befreier und

Befreite: Krieg, Vergewaltigung, Kinder (1992) by German feminist filmmaker Helke Sander and

historian Barbara Johr, which was about the rape of German women in WWII).

97 See id. at 995.

98 BROWNMILLER, supra note 92, at 34.

99 Lehr-Lehnardt, supra note 93, at 321.

100 See, e.g., BROWNMILLER, supra note 92 (citing Richard II, THE ARTICLES OF WAR (1385));

Treaty of Amity and Commerce, U.S.-Prussia, art. XXIII, July 9 - Sept. 10, 1785, 8 Stat. 84, T.S. No.

292; Gen. Orders NO. 100: The Lieber Code: Instructions for the Government of Armies of the United

States in the Field, (Apr. 24, 1863) (The Avalon Project, Yale Law Library), available at

http://avalon.law.yale.edu/19th_century/lieber.asp (adopted by the U.S. and several European

countries).



1899101 and 1907,102 perhaps the first comprehensive international treaty of the laws of war, did not explicitly refer to rape and other sexual violence, but they provided in general language an obligation toward “family honors” and “religious convictions and practice,”103 formulations that can be interpreted as granting some and only vague protection to women against sexual violence.104 These treaties were the valid law during WWII.105

A comprehensive historical legal review, however, must refer to the legal developments following WWII with regard to the international prohibition of sexual assaults. If the era above discussed can be referred to as the “era of silence,” the Geneva Conventions (1949) mark the beginning of an “era of honor.”106 For the first time, certain sexual crimes were legislated in international criminal law, enumerated in the list of crimes against honor.107 Therefore, from the perspective of the Geneva Conventions, rape was considered an injury to the woman’s “honor” in its social meaning, rather than “dignity” in the sense of her inherent dignity as a human being.108 The “honor” paradigm perpetuated the historic patriarchal idea that sex offenses are inferior crimes—such as crimes of property, torts and plunder—rather than crimes against the body and dignity of the victim who has been attacked.109 This inclusion of rape in the list of war crimes was somewhat improved by the Additional Protocols of 1977110—Protocol I in protecting women and children in international

101 Hague Convention (II) with Respect to the Laws and Customs of War on Land art. 46, July 29,

1899, 1899 U.S.T. 31.

102 Hague Convention (IV) Respecting the Laws and Customs of War on Land art. 46, Oct. 18 1907,

1907 U.S.T 29.

103 Lehr-Lehnardt, supra note 93, at 321.

104 YOUGINDRA KHUSHALANI, DIGNITY AND HONOR OF WOMEN AS BASIC AND FUNDAMENTAL

HUMAN RIGHTS 145 (1982).

105 See Lehr-Lehnardt, supra note 93, at 321.

106 HAGAY-FREY, supra note 8, at 69-77.

107 See, e.g., Geneva Convention Relative to the Protection of Civilian Persons in Time of War art.

27, Aug. 12, 1949, 75 U.N.T.S. 287.

108 See id.

109 For further discussion and criticism of the Geneva Conventions’ concept of the crime of rape, see,

e.g., Hilary Charlesworth, Feminist Methods in International Law, 93 AM. J. INT’L L., 379, 386 (1999);

Adrienne Kalosieh, Consent to Genocide?: The ICTY’s Improper Use of the Consent Paradigm to

Prosecute Genocidal Rape in Foca, 24 WOMEN’S RTS. L. REP. 121, 122-23 (2003); Valerie Oosterveld,

Sexual Slavery and the International Criminal Court: Advancing International Law, 25 MICH. J. INT’L

L. 605, 613 (2004); Rhonda Copelon, Gendered War Crimes: Reconceptualizing Rape in Time of War,

in WOMEN’S RIGHTS, HUMAN RIGHTS: INTERNATIONAL FEMINIST PERSPECTIVES 197, 201 (Julie Peters

& Andrea Wolper eds., 1995); HAGAY-FREY, supra note 8, at 69-78.

110 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection

of Victims of International Armed Conflicts, Aug. 12, 1949, opened for signature June 8, 1977, 1125

U.N.T.S. 3 [hereinafter Protocol I]; Protocol Additional to the Geneva Conventions of 12 August 1949,

and Relating to the Protection of Victims of Non-International Armed Conflicts, Aug. 12, 1949 opened

for signature June 8, 1977, 1125 U.N.T.S. 609 [hereinafter Protocol II].



armed conflicts,111 and Protocol II, in protecting victims in non-international armed conflicts, prohibiting rape and regarding it as an outrage upon the victim’s dignity.112

The third era in the evolution of sexual crimes in international criminal law commenced in the 1990s with the establishment of the international criminal tribunals for the former Yugoslavia (ICTY) and for Rwanda (ICTR),113 two ad hoc tribunals (ICTs) that created a temporary revolution in their treatment of sex crimes in international law. By acknowledging sex crimes and declaring them serious international crimes—including them in all of the existing criminal categories under international law (war crimes, genocide, and crimes against humanity)—these ICTs broke the silence and breached the honor boundaries created by the Geneva Conventions.114 In 1998, the Rome Statute of the International Criminal Court (ICC)115 was established, and a new status quo emerged. The Rome Statute unified the entire history of criminal law, making it arguably the modern code of international criminal law. However, this treaty did not follow entirely the path paved by the ICTY and ICTR precedents, but rather partially halted the progress—by including sex crimes explicitly in only some of the traditional crime categories, such as crimes against humanity, and excluding them from others, such as genocide.116

V. WOMEN’S MARGINALIZATION AND SUFFERING DURING AND AFTER

THE WAR: A FEMINIST HISTORICAL ACCOUNT

The legal reality described above was well integrated within a world-wide perception that marginalized women in every public arena of life—political, social and economic. In the spirit of the liberal tradition, society distinguished between those areas of “public” interest, thus governed by the international community and international law, and those areas of “private” interest, thus regulated by the authority of the sovereign states.117

In this

111 Protocol I, supra note 110, at art. 76.

112 Protocol II, supra note 110, at art. 4(2)(e).

113 HAGAY-FREY, supra note 8, at 79.

114 Id. at 101 n.31.

115 Rome Statute of the International Criminal Court, 17 July 1998, 2187 U.N.T.S. 3 [hereinafter

ICC Statute].

116 For further discussion of the advantages and disadvantages of the ICC Statute see HAGAY-FREY

supra note 8, at 79-109. Although the ICC Statute mainly reflects international customary criminal law,

some states, such as the US and Israel, had reservations about several controversial provisions and thus

chose not to sign and/or ratify the treaty. See generally Darryl Robinson, Defining “Crimes Against

Humanity” at the Rome Conference, 93 AM. J. INT’L L. 43 (1999).

117 Hilary Charlesworth, Christine Chinkin & Shelley Wright, Feminist Approaches to International

Law, 85 AM. J. INT’L L. 613, 625-630 (1991). Of course this distinction was thought to be neutral and

objective, but it has been obscured in recent decades by developments in international criminal law.

However, it seems that the international community still prefers to intervene only in matters related to a

public international interest, such as systematic crime. See HAGAY-FREY supra note 8, at 18.



respect, both the accused (the war criminals on trial and Nazis in general) and the accusers (the Allies through the mechanism of the Tribunal) shared similar lines of thought, even though the Nazis radically and perversely twisted these ideas.

The Nazi view of women is a “paradigm of misogyny[:] . . . an extreme reduction of woman to her biological capacities and functions.”118 Their chief concern with women was for their capacity as child bearers.119 Women were encouraged to give up work for the private domestic realm and to bear many children to fulfill their destiny, thus serving the Nazis’ aim for world domination by increasing the Aryan population.120 Every aspect of women’s lives was controlled, from dress (they were prevented from wearing French and English fashion) to pregnancy and health (through forcible abstention from tobacco and alcohol).121 The Nazis’ ideal type of woman was the wholesome peasant wife devoted to land and family.122 Urban women were criticized and ridiculed, and the Nazi Party’s puritans conducted a vigorous campaign against them.123 Indeed, while these views were prevalent in German society prior to the Nazi regime, this regime “benefited from attitudes which had already developed and hardened, and found at least tacit-and often open-support for their promised policy of restoring women to a position of security, decency and domesticity.”124

The Nazi war machine translated the marginalization of women in Nazi society into contempt for women who were not Aryan.125 The male Jews were the “essential” targets of anti-Semitism: these were the Jews the Nazis feared and abhorred.126 From within the perspective of anti-Semitism, then, the Jewish woman was the “other.” Furthermore, even when despised, men remained persons of a variety of attributes, while the women were reduced to their “femaleness.”127 Of course, although the functions of the Aryan

118 Ringelheim, Thoughts About Women, supra note 1, at 146.

119 JILL STEPHENSON, WOMEN IN NAZI SOCIETY 189 (1975).

120 Id.

121 Id. at 190, 197 n.109. Note, for example, the words of the Rector of Erlangen University, who

stated unequivocally that “[f]or a woman, smoking is without doubt, a vice.” Id. at 190 (quoting H.

Wintz, ‘Die Frau und das Rauchen’, Schriften des ‘Verein Deutsche Volksheilkunde e.V.’, Nuremberg,

1939).

122 Id. at 191.

123 Id.

124 Id. at 196.

125 We refer to Jewish women victims mainly because most research on women’s suffering in the

WWII is directed at Jewish women in the Holocaust. Other women in labor and concentration camps

suffered from sexual crimes as well and we shall refer to them when relevant.


127 Id. The testimony of Hermann Göring in the Nuremberg trial is illuminating in this context.

Göring explains that even though the Nuremberg Laws intended to bring a clear separation of races and

hence to prohibit sexual relations between Aryans and Jews, for example, it was provided by the penal

regulations that “never the woman but always the man should be punishable, no matter whether he was



and the Jewish women were essentially the same (reproduction and nurturing), their value was radically different. The superior Aryan women were valued because they bore children, and it was for this precise reason that Jewish women were despised.128 While Jewish men were abhorred because they were “authentic Jews.”129 Jewish women were despised and exterminated because they were not only female but defective and worthless females—Jewish females. The Nazis could never have allowed them to fulfill their “essential” function: that is, to reproduce.

Hence, it should be understood that sexism played a major role in the Nazi war and extermination machine, along with anti-Semitism and the crusade against other groups mentioned above. Jewish women—as Jews and as females—suffered both anti-Semitism and sexism in their genocidal forms. The practical consequences were that women were deported and killed in greater numbers than men.130 Women’s chances for survival were thus not equal to those of men. “As Leon Wells writes in The Death Brigade, ‘Only infants and children, the old, the sick, and, for the most part, women, could be certain the German would kill them as soon as they arrived at [the concentration camp].’”131 “The division of labor by sex [through] sexual function” essentially meant “an immediate death sentence for women.”132 “Clearly women were systematically endangered [both] as Jews and as women.”133

However, historic accounts of women’s suffering under the Nazi regime before and during the war for many years went missing from scholarly, legal, and social records.134 Marion A. Kaplan points to the “unfortunate tendency among historians to view a history of Jewish men as Jewish history but a history of Jewish women as women’s history[,]” thereby marginalizing women’s lives and history.135 Yet, marginalization

German or Jewish. The German woman or the Jewess should not be punished.” MARRUS, supra note

10, at 210.


129 Id.

130 Id. at 147.

131 Id.

132 Id. at 148.

133 Id.

134 The suffering of rape sometimes continues after the war has ended: publicizing a rape can have

severe consequences in patriarchal and traditional societies, where the woman who has been raped is

often ostracized by family and society. See BROWNMILLER, supra note 92, 39-40; HAGAY-FREY supra

note 8, at 31-36, 94.

135 MARION A. KAPLAN, THE MAKING OF THE JEWISH MIDDLE CLASS: WOMEN, FAMILY, AND

IDENTITY IN IMPERIAL GERMANY vii-xi (1991); see also Goldenberg, Lessons Learned, supra note 7, at

82 (stating that “the differences in responses by Jewish men and women to Nazi deprivation and

cruelty” were until very recently neglected). The phenomenon of men telling the collective story has

been subject to extensive criticism in feminist theory. See CATHARINE A. MACKINNON, FEMINISM

UNMODIFIED: DISCOURSES ON LIFE AND LAW 38-39 (1987) (stating male freedom of speech has



was the lesser evil. Both scholars and survivors objected to the presentation of Holocaust experiences as feminist experiences, believing that feminist accounts of the Holocaust trivialized the Holocaust because “the oppression of women [was] an insignificant matter[,]” subsidiary to the acts of the Nazis against Jews.136 They insisted that “[t]he holocaust happened to victims who were not seen as men, women, or children, but as Jews.”137

This monolithic account of the Holocaust and the refusal to understand that women and men suffer from oppression in different ways, even in its genocidal forms, permeated the judicial sphere and legal account of the Holocaust. The selection of witnesses in trials of Nazi soldiers and commanders were mostly, if not solely, men describing the evils they suffered by the Nazi regime.138 The Eichmann trial in Israel, one of the most explicit live testimonies of Holocaust victims, presented chiefly the testimonies of male survivors, neglecting the experiences of women survivors as mothers and as female inmates in Auschwitz.139 According to Michael Gilad (Goldman), one of the prosecutor’s assistants in the Eichmann trial and himself a Holocaust survivor: “We did not think about it. [The marginalization of women’s stories] was unintentional. We were simply unaware of that.”140

Women did in fact testify in the “Doctors’ trial,”141 in which twenty-three Nazi doctors were tried for biological experiments on human beings, both women and men. This was the only specifically gendered violation legally scrutinized in the trials subsequent to the Nuremberg trials. Evidence demonstrated that thousands of inmates, predominantly women, underwent sterilization procedures.142 Women’s testimonies were also planned for Dr. Clauberg’s trial in Germany on the sterilization of women, a trial that never occurred because of Clauberg’s death in prison.143 It is

silenced female freedom of speech. The subordination of women has weakened their voice and created

an internalized consciousness of subordination). 136 Ringelheim, Thoughts About Women, supra note 1, at 145.

137 Id. at 144 (quoting Cynthia Ozick); see also Ringelheim, Women and the Holocaust, supra note

94, at 745 (Joan Ringelheim’s account of the difficulties of interviewing women survivors of the

Holocaust about their experiences of sexual abuse); Ringelheim, Thoughts About Women, supra note 1,

at 144.

138 D. Lasok, The Eichmann Trial, 11 INT’L & COMP. L. Q. 355, 358-59 (1962).

139 Sharon Geva, TO THE UNKNOWN SISTER, HOLOCAUST HEROINES IN ISRAELI SOCIETY, 111-16

(Hakibbutz Hameuchad, 2010). [Hebrew].

140 Id. at 114.

141 United States v. Karl Brandt et al., in 1 TRIALS OF WAR CRIMINALS BEFORE THE NUREMBERG

MILITARY TRIBUNALS UNDER CONTROL COUNCIL NO. 10. NUREMBERG, Oct. 1946 - Apr. 1949, 27-738,

U.S. Gov’t Printing Office, Washington, D.C., 1949.

142 Id. at 709-10 (listing the prosecution’s evidence regarding sterilization).

143 Id. at 699-704. Carl Clauberg was a German medical doctor who conducted medical experiments

on human beings in Nazi concentration camps during WWII. Holocaust Encyclopedia, Carl Clauberg,

UNITED STATES HOLOCAUST MEMORIAL MUSEUM,

http://www.ushmm.org/wlc/en/article.php?ModuleId=10007061 (last visited Jan. 2, 2014).



interesting to note that the only case in which women were called to tell their story in the legal process was when the sexual crime was aimed at their essential biological function: to reproduce. Furthermore, in those cases, not only women were victims, but men as well. Yet these testimonies were only an indication of the immense evidence of women’s particular, idiosyncratic, and extreme suffering in the Holocaust, which has been uncovered only in recent decades.

VI. SEXUAL CRIMES AGAINST WOMEN IN THE HOLOCAUST

Research on women’s experiences in the Holocaust currently makes up an important branch of Holocaust studies, broadly encompassing, for example, the literary and artistic personal accounts of women survivors and the study of the unique feminine skills that improved women’s survival.144 In this paper, however, we focus on accounts of women suffering assaults that can be regarded as sexual crimes. While we only present examples of such testimonies, these provide a glimpse of the specific feminine experience of sadistic violence, sexual abuse, and humiliation that were given almost no legal consideration after the war.

The prologue of this paper describes moving and horrific reports of cases of rape of women in concentration camps. However, very few memoirs or other historical sources discuss actual rapes; in the words of the Holocaust survivor Judith Issacson: “The Anne Franks who survived rape don’t write their stories.”145 Given the “age of the survivors and the seriousness of the crime of Rassenschande (“race defilement”), there is virtually no likelihood that extensive Nazi documentation will be found.”146

Nevertheless, numerous accounts of other sexual assaults and humiliations that do not involve intercourse have been documented.147 Recurring memoirs relate the humiliation of the shaving of hair (body and

144 See, e.g., DIFFERENT VOICES: WOMEN AND THE HOLOCAUST (Carol Rittner & John Roth eds.,

1993) (the first anthology in English devoted to women’s experiences in the Holocaust); see also WHEN

BIOLOGY BECAME DESTINY (Renate Bridenthal, Atina Grossman & Marion Kaplan eds., 1984);

THINKING THE UNTHINKABLE: MEANINGS OF THE HOLOCAUST (Roger S. Gottlieb ed., 1990); ACTIVE

VOICES, WOMEN IN JEWISH CULTURE (Maurie Sacks ed., 1995); WOMEN IN THE HOLOCAUST (Dalia

Ofer & Lenore J. Weitzman eds., 1998); WOMEN IN THE HOLOCAUST: A COLLECTION OF TESTIMONIES

(Jehoshua Eibeshitz & Anna Eilenberg-Eibeshitz trans., 1993).

145 Goldenberg, Lessons Learned, supra note 7, at 83 (quoting Judith Isaacson, SEED OF SARAH:

MEMOIRS OF A SURVIVOR 144-45 (1990)).

146 Id. at 83.

147 See, e.g., Myrna Goldenberg, Testimony, Narrative, and Nightmare: The Experiences of Jewish

Women in the Holocaust, in ACTIVE VOICES, WOMEN IN CULTURE 95, 101 (Maurie Sacks ed., 1995)

[hereinafter Testimony, Narrative, and Nightmare] (describing the experiences of being beaten told by

authors Sara Nomberg-Prztyk and Livia Bitton Jackson upon their arrivals at Auschwitz); Goldenberg,

Lessons Learned, supra note 7, at 83-84 (1996) (describing “exposure, crude body searches . . . painful

shaves, and sexual ridicule”); Aolain, supra note 10, at 320 (describing forced nudity).



head) and forced public nakedness of women who, before being killed in gas chambers or selected for work, were made to remove their clothing and have their bodies scrutinized and ridiculed by male camp guards and soldiers.148 These personal experiences were not only reported by the victims themselves, but supported by the testimonies of objective onlookers: other, non-Jewish prisoners in concentration camps.149 While forced nakedness was a common feature of the camp reception for both sexes, women’s testimonies consistently identify it as not merely an act of gender neutral humiliation but as a form of sexual abasement.150 “[W]omen seemed to understand that nonconsensual nudity was intended to harm them in a manner distinct from their male counterparts[] . . . .”151 The humiliation of adolescent girls was of course heightened by the natural shyness typical of their age;152 similarly, these acts were particularly painful for observant Jewish women who were “subject to yet another level of abuse[,] as Judaism separates religious women from adult men . . . and places a very high value on chastity, modesty, and obedience.153 In the hands of the Nazis, observant women were, therefore, particularly defenseless against the astonishing range of degradations.154

Sara Nomberg-Przytyk describes the arrival of women zugani (new arrivals) at the camp standing naked for inspection by the SS women and herded before barbers with blows and kicks, “‘in silence with tears streaming down [their] cheeks,’ as they were required to spread their legs and be shaved.”155 Gisela Perl watched the Gestapo “while they seized [in the ghetto] one woman after another and with dirty fingers searched the depths of her body for treasures.”156 Livia Bitton Jackson describes the “women’s incredulity at being told to undress in a room ‘swarming with S.S. men’ who shouted, ‘Those having any clothes on in five minutes will be shot.’”157

In their article The Odyssey of the Women from Rhodes, four women survivors of Dachau describe the deportation of Jews in storage rooms of

148 Aolain, supra note 10, at 320.

149 MARRUS, supra note 10, at 155 (noting the testimony in the Nuremberg Trial of Marie Claude

Vaillant-Couturier, a French member of the Resistance who was also detained in Auschwitz. Vaillant-

Couturier described the gassing at Auschwitz and the women and children being made to “brutally

undress” before they were given towels to enter the so-called shower room).

150 Aolain, supra note 10, at 320.

151 Id.

152 Goldenberg, Testimony, Narrative, and Nightmare, supra note 147, at 101.

153 Myrna Goldenberg, Different Horrors, Same Hell: Women Remembering the Holocaust, in

THINKING THE UNTHINKABLE: MEANINGS OF THE HOLOCAUST 150, 154-55 (Roger S. Gottlieb ed.,

Paulist Press, 1990) [hereinafter Different Horrors, Same Hell].

154 Id. at 155.

155 Goldenberg, Testimony, Narrative, and Nightmare, supra note 147, at 101 (citing SARA

NOMBERG-PRZYTYK, AUSCHWITZ: TRUE TALES FROM A GROTESQUE LAND 13-16 (1985)).

156 Goldenberg, Different Horrors, Same Hell, supra note 153.

157 Id.



ships without food or water.158 In Piraeus, the women were “forced to strip in front of SS men” and undergo body searches.159 The SS men “beat [them] with sticks and pulled women by the hair and . . . the breasts.”160 In Athens, the deportees were boarded on cattle cars for Auschwitz, and after a fifteen-day trip, they were separated by gender and “selected.”161 “Again, the women were forced to undress in front of the SS, and completely naked . . . ‘were led into a different room, where female barbers shaved their entire body.’ They were ‘disinfected with a rag soaked in kerosene, which heavily irritated the freshly shaved skin.’”162 Kaiserweld survivor Frances Penney highlighted the seriousness of these degrading experiences:

It is, with hindsight, hard to comprehend what a blow to our morale this

German tactic of shaving off women’s hair, the symbol of their womanhood,

was . . . . [S]ince each of us, at any minute of the day, could have been

annihilated in a variety of fashions. We could have been shot, gassed, or put

into the ovens. And yet, this single act of German brutality constituted a

sacrilegious act on our bodies, our only possessions.163

These examples present the unique experiences of gendered assaults

against women during the Holocaust.164 Current historical research fully considers the differences between the experiences of women and men survivors.165 Brutalized “separately and equally,” men and women had similar though different experiences; the women’s differ from the men’s primarily because of their female context.166 Gender studies, and a variety of other studies rooted in the specific, illuminate our understanding of the dimensions of the Final Solution.167 We are obliged to examine, separately, the lives of women and of men to determine the differences and the similarities in how they were treated and how they responded.168 However,

158 Goldenberg, Testimony, Narrative, and Nightmare, supra note 147, at 96.

159 Id.

160 Id.

161 Id.

162 Id.

163 Goldenberg, Different Horrors, Same Hell, supra note 153, at 155 (emphasis added).

164 These separate experiences highlight the fact that in time of war women defend themselves from

two kinds of battles: inter-ethnic and inter-gender. See HAGAY-FREY, supra note 8, at xii-xiii.

165 Id.

166 See Goldenberg, Different Horrors, Same Hell, supra note 153, at 150-51 (describing particular

humiliations of women in the concentration camps).

167 On the importance of hearing women’s stories in their own voices, see MACKINNON, FEMINISM

UNMODIFIED, supra note 135, at vii-xi; cf Kaplan’s account of the “unfortunate tendency among

historians to view a history of Jewish men as Jewish history but a history of Jewish women as women’s

history[,]” thereby marginalizing women’s lives and history. KAPLAN, supra note 135.

168 See MACKINNON, FEMINISM UNMODIFIED, supra note 135.



these perceptions could clearly not be shared by the Nuremberg Tribunal.169

VII. THE NUREMBERG TRIBUNAL’S SILENCE ON SEXUAL CRIMES AGAINST

WOMEN

Human suffering, though emphasized less than the other objectives of the Tribunal, was not ignored by the Nuremberg Tribunal.170 Moreover, the prosecutors made a great effort to underscore the “systematic, wholesale, consistent”171 character of the new legal concept of crimes against humanity. The French Chief Prosecutor, Francois de Menthon, even coined the phrase “crimes against the human status.”172

Yet, the “human status” seemed to be understood as entirely masculine, and, in the words of the British Prosecutor, Sir Hartley Shawcross, the “ignominy inflicted upon man-man created in the image of God[.]”173 Despite the illuminating, innovative reflection on the meaning of the human status and the crimes committed against it as annihilating “the dignity of the human being considered in each and every person individually . . . and . . . the permanence of the human being considered within the whole of humanity[,]”174 it is still the “conception essential to the nature of man”175—so that the nature of woman is not accounted for.

As we have seen in Section D, during the era of silence in which the Nuremberg trials took place, sexual crimes were inevitable aspects of war and therefore went unpunished. However, added to this was a further obstacle: the prosecutors shied away from the subject as if it were simply too distasteful.176 When the French prosecutor at the Nuremberg trials was asked about the rape of “54 women or young girls from 13 to 50 years of age . . . by maddened soldiers” during the summer of 1944,177 he responded: “The tribunal will forgive me if I avoid citing the atrocious

169 HAGAY-FREY, supra note 8, at 64.


171 Id. (quoting Sir Hartley Shawcross, International Military Tribunal, 19 TRIAL OF THE MAJOR

WAR CRIMINALS BEFORE THE INTERNATIONAL MILITARY TRIBUNAL, NUREMBERG, 14 NOVEMBER

1945 – 1 OCTOBER 1946, at 467 (Nuremberg International Military Tribunal, 1947).

172 Id. at 190.

173 Id. at 159 (emphasis added) (quoting Sir Hartley Shawcross, International Military Tribunal,

supra note 171).

174 Id. at 191.

175 Id. (emphasis added).

176 HAGAY-FREY supra note 8, at 64.

177 This event occurred when the Germans staged a “surprise” raid on June 15, 1944, on the village

of St. Donat. BROWNMILLER, supra note 92, at 56.



details[.]”178 Rape, unlike other crimes, was regarded as “something too ‘atrocious’ to prosecute[.]”179

The patriarchal formulations of the concept of crimes against humanity at the Nuremberg Tribunal are rooted in the historical sociological and legal background that marginalized women’s suffering in war and women’s place in society. As a result of this context, sexual assault, even in its most conspicuous form of rape, was not included in the Nuremberg Charter. While Article 6 of the Charter did include “other inhumane acts committed against the civilian population” in its definition of crimes against humanity,180 the absence of explicit reference to sexual offenses is undoubtedly telling.

In fact, the disregard of sexual assaults against women, which were often committed by rank and file Nazi criminals in the concentration and death camps, can ultimately be explained by the patriarchal attitudes of that era. The other factors that generated the silence—the Tribunal’s objectives, its focus on the broad political context rather than the human perspective, and the difficulty of collecting evidence or counting on live testimonies to prove Nazi atrocities—are all interwoven into one picture that is depicted solely by men. The fact that the tribunal’s prosecutors and the judges were all men181 led naturally to a masculine perception and expression of what was “important” and what should be taken into consideration The result was the conspicuous absence of particularly violent gendered offenses in the presence of other violent acts referred to specifically as representing crimes against humanity.182

VIII. SUMMARY

This paper located the establishment of the IMT in the “era of silence” with regard to the criminalization of sexual crimes against women in international criminal law. We showed that the Tribunal’s main aim was

178 Id.

179 Sita Balthazar, Gender Crimes and the International Criminal Tribunals, 10 GONZ. J. INT’L L. 43,

44 (2006). 180 Charter of the IMT, supra note 11.

181 See The Nuremberg Trials, PBS (Jan. 3, 2006),

http://www.pbs.org/wgbh/amex/nuremberg/peopleevents/p_prosecutors.html (listing the chief

prosecutors as Robert H. Jackson for the United States; Hartley Shawcross for the United Kingdom;

General R. A. Rudenko for the Soviet Union; and François de Menthon and Auguste Champetier de

Ribes for France).

182 This conclusion is fortified by the telling fact that Control Council Law No. 10, which was

enacted by the Germany’s Control Council to facilitate the prosecution of Nazi war criminals and other

similar offenders who could not be dealt with by the Nuremberg Tribunal, did specify rape as an act

constituting crimes against humanity; yet this specific offense did not serve as a basis for any

indictment according to this law. See Nuremberg Trials Final Report Appendix D, Control Council Law

No. 10, (1949) (The Avalon Project, Yale Law Library), available at

http://avalon.law.yale.edu/imt/imt10.asp.



condemnation of the Nazi regime in general, and that this was achieved by forming the criminal offense of “crimes against peace” in the Nuremberg Charter and focusing less on the processing and overcoming of individual suffering. We tied this observation to a feminist analysis of the Nuremberg Charter’s non-inclusion of sexual offenses against women during the Holocaust, and claimed that the silence was not only that of international law but also encompassed international society and even language itself.183

Nevertheless, it is interesting to note that the focus of the Nuremberg legacy has currently shifted from “crimes against peace” (i.e., against other states) to “crimes against humanity” (i.e., against people). The perceived aim of war crimes prosecutions has also shifted from deterring aggressive war to pursuing justice for victims and promoting transition from the old regime.184 This process, connected to the concept of transitional justice, has also led to an impressive development with regard to the criminalization of sexual assaults against women and other victims during armed conflicts. The ICTY and the ICTR Statutes and dicta include specific references to sexual assaults including rape, as does, albeit to a lesser extent,185 the ICC.

Fortunately, both international law and the international community have undergone a conspicuous cultural and conceptual change in the legal regulation of sexual crimes during armed conflicts that has led to their inclusion under the definition of international core crimes. Indeed, more remains to be achieved in the regulation of sexual crimes as international core crimes. For example, more crimes of that nature should be regulated under the existing categories of core crimes in the ICC Statute, and other improvements could be considered as well, but these lie beyond the scope of this paper. However, the greatest achievement has already been reached: these stories no longer remain unspoken war crimes.

183 See also Aolain, supra note 10, at 313-14.

184 FUTAMURA, supra note 13, at 41.

185 Sex and gender crimes are not included in the two major crime categories of the ICC Statute:

Genocide (Art. 6 of the ICC Statute) and the Grave Breaches of the Geneva Conventions (1949) (Art.

8(2)(a) of the ICC Statute). See ICC Statute, supra note 115, at art. 6, 8(2)(a).