Crimes of the Holocaust
The Law Confronts Hard Cases
2005 | 320 pages | Cloth $59.95
View main book page
Table of Contents
Chapter 1. Nuremberg
Chapter 2. Eichmann
Chapter 3. John Demjanjuk and Ivan the Terrible
Chapter 4. Imre Finta
Chapter 5. Prospects for the Prosecution of Genocide Perpetrators
Excerpt [uncorrected, not for citation]
In the face of the horrors of the Second World War the international community struggled to come to grips with a radically new crime: genocide — the deliberate attempt to exterminate an entire people. This book traces the world's halting development of a courtroom response to the Nazis' effort to destroy all of Europe's Jews in what has come to be referred to as the Holocaust. It analyzes the strengths and limitations of four of the most prominent proceedings conducted against alleged Nazi criminals using the tools of the Anglo-American legal tradition, and considers their significance for contemporary national and international tribunals.
The book begins in 1945 with the International Military Tribunal prosecution at Nuremberg, which focused on crimes committed by Adolph Hitler, the National Socialist Party, the Third Reich, and numerous followers who conducted a war of aggression and carried out their leaders' commands to murder all of Europe's Jews. The Nazis' genocidal program was comprised of millions of criminal acts undertaken by tens or perhaps hundreds of thousands of henchmen. With the defeat of Germany, the world faced the unprecedented challenge of deciding how to deal with those perpetrators who had survived the death of their Führer and his Thousand Year Reich. The victorious Allied powers decided to use the apparatus of the criminal law, rather than summary executions, and thereby expressed their desire for a new and, it was hoped, more effective response to the misdeeds of those who had committed among the most heinous and depraved acts in human experience. Equally important, they decided to establish an international tribunal as the forum to pursue their objective.
The legal systems of the United States, Great Britain, France, and the Union of Soviet Socialist Republics (which apart from France, constituted the victorious World War II allies) offered few precedents for dealing with crimes of such magnitude, especially when committed by people of other nations in their own land or on occupied territory. The International Military Tribunal's prosecution drew upon pre-existing national justice systems (most particularly those of America and England), but converting them into mechanisms suited to the adjudication of the Nazis' gravest crimes proved exceedingly difficult both because the crimes lacked a single geographical or political locus and because they involved the operations of an entire government's bureaucratic apparatus. The Nuremberg trial did establish an indelible record of Nazi wrongdoing, and its verdict properly held individuals and groups responsible for war crimes and crimes against humanity. Yet the process was complicated by the contradictions inherent in treating defendants not only as individuals but as representatives of entire groups; by the abandonment of traditional rules of evidence and their replacement by ad hoc procedures for the admission of documentary evidence and the examination of witnesses; and by the unequal resources allowed to the prosecution and the defense. Judged by the criteria of Anglo-American criminal justice, the Nuremberg trial was lacking in fundamental elements of fairness. These shortcomings did not much worry the world in 1945, in part because the judges who presided at Nuremberg provided salutary correctives to the procedural problems. But the problems that marked the Nuremberg trial set unfortunate precedents for subsequent criminal prosecutions of individuals suspected of participating in the Nazis' genocidal war against the Jews.
The successor trials of Adolf Eichmann in 1961 and of John Demjanjuk in 1986, both conducted in Israel, and the 1990 prosecution of Imre Finta in Canada have posed troubling questions. For the most part, each trial built on the approaches used at Nuremberg without significant reflection on the problems inherent in them. The trajectory of development has actually heightened difficulties in prosecuting genocidal acts. Each successive trial was more problematic and yielded less satisfactory results, notwithstanding the acquittal of defendants who were not proven to have committed the particular crimes for which they were charged.
A critical analysis of this record yields valuable insights as the world struggles to grapple with the challenge of genocide, which appeared in new forms toward the end of the twentieth century. The final chapter of this book concentrates most of its attention on the international legal response to more recent acts of genocidal violence and the world's attempts to create international forums to address such criminality. International Criminal Tribunals with significant resemblance to the International Military Tribunal at Nuremberg have been created in response to genocidal campaigns in the former Yugoslavia and Rwanda. The final chapter considers the strengths and weaknesses of these new initiatives in light of the world's pursuit of Nazi criminals. It then turns its attention to the International Criminal Court designed to extend the reach of international justice to a range of infamous misconduct.
The world's effort to respond to genocide has been one of the most significant legal developments in the last fifty years. It has been profoundly influenced by the Anglo-American approach to adjudication through adversarial proceedings. As an American trial lawyer, legal academic, and Jew, I felt it was important to examine these developments and to ask whether we have succeeded in fashioning a system that is effective in prosecuting genocide and providing reasonable assurance regarding the punishment of those who commit it. I could think of no better way to approach that task than carefully to examine the records of the trial proceedings in what, by consensus, have been viewed as among the most significant adversarial proceedings against accused Nazi henchmen.