'The Accidental Birth of Hate Crime in Transnational Criminal Law: 'Discrepancies' in the Prosecution for "Incitement to Genocide" during the Nuremberg Process involving the cases of Julius Streicher, Hans Fritzsche and Carl Schmitt.'

Abstract

This volume of three interrelated studies aims to explore the various contingencies through which individuals responsible, to various degrees, for promoting expressions of racist hate were subjected to markedly different types of legal responses within the landmark Nuremberg trials programme. These contingencies, together with loose judicial reasoning, complicate scholarly efforts to identify the historical emergence of this type of transnational hate crime, and to illustrate the complications that arise when seeking to ascertain its implications as a precedent.
It needs to be emphasised at the outset that what follows is not a comprehensive study of the origins of the criminalisation of hate speech in general as this would have to include a full comparative survey of all domestic laws and their judicial interpretation, application and institutional enforcement. In addition, the interaction between domestic, regional and international criminalisations would also have to be addressed in what would amount to a massive multi-volume study, beyond the scope of this study. It is acknowledged that a strong case can be made for a more comprehensive approach, placing the contents of what follows within this wider context of transnational regulation. For example, there has clearly been a measure of interaction, albeit of an inconsistent type, between US immigration and naturalisation law and practice, and international criminal law relating to hate speech, with the Streicher case expressly referred to as a precedent for the idea that "persecution," as a subset of crimes against humanity, can include racist and anti-Semitic propaganda.