The Holocaust, Genocide and the Law
***Fall 2008***
Professor Michael Bazyler
Whittier Law School
Professor Stephen Feinstein
University of Minnesota
INTRODUCTION .................................................................................................. 8
CHAPTER 1: THE HOLOCAUST – HISTORY, DEFINITIONS AND CONCEPTS
............................................................................................................................ 12
1.1. A Brief History of the Holocaust .........................................................................................................12
1.2. The Language of the Holocaust: Uses and Misuses of Holocaust Terminology and Imagery .....22
1.3. Is the Holocaust Unique? ....................................................................................................................29
CHAPTER 2: GENOCIDE – HISTORY, DEFINITIONS AND CONCEPTS ........ 38
2.1. Introduction ..........................................................................................................................................38
2.2. The Historical Background of the Term Genocide ............................................................................40
2.3. The Genocide Convention ....................................................................................................................46
2.4. Prosecutions ..........................................................................................................................................48
2.4.1. Legal Procedures for Prosecution of Genocide 48
2.4.2. Prosecutions for Genocide 50
2.5. The Elements of the Crime of Genocide ............................................................................................56
2.5.1. The actus reus of genocide 56
2.5.2. The mens rea of genocide 58
2.5.3. Proving the Legal Elements of Genocide
65
2.6. Other Genocide-Related Crimes ........................................................................................................68
2.6.1. Conspiracy to Commit Genocide
68
2.6.2. Incitement to Commit Genocide
70
2.6.3. Attempted Genocide
72
2.6.4. Complicity in Genocide
72
2.6.5. War Crimes and Crimes Against Humanity
74
2.6.6. Ethnic Cleansing 77
CHAPTER 3: GENOCIDE – ONGOING LEGAL CONTROVERSIES ................ 79
3.1. Introduction .........................................................................................................................................79
3.2.
Defining the Parameters of the Mens Rea Element of Genocide: The Meaning “With Intent
to Destroy, In Whole Or In Part” ..............................................................................................................80
3.3. Defining the Parameters of the Actus Reus Element of Genocide: Must the Destruction Be
Systematic?...................................................................................................................................................82
3.4. Group Definitions and Exclusions of Political Groups from the Protection of the Genocide
Convention ...................................................................................................................................................84
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3.5. Should “Cultural Genocide” Be Considered Genocide? ..................................................................90
3.6. Using the “G-word for Historical Atrocities: When Is It Proper To Do So? ................................92
3.7. “Never Again” – The Cry of the Holocaust and the Language of Genocide Prevention ..............97
CHAPTER 4: LEGAL SYSTEM IN NAZI GERMANY: LEGAL BARBARISM . 105
4.1. Lawful Barbarism ..............................................................................................................................105
4.2. Lawful Barbarism - Holocaust Memorial Museum ........................................................................113
4.3 Lawful Barbarism Hypotheticals - Michael Bazyler ........................................................................122
4.4. Resistance by Lawyers to Legal Barbarism ....................................................................................122
4.4.1. The Case of Pakistan
122
4.4.2. The Case of Iran
125
4.5. The Torture Memos: Civil Rights vs. National Security .................................................................129
4.5.1. Professor John Yoo: Los Angeles Times 2005 129
4.5.2. Professor John Yoo: California Lawyer 2007 134
4.6. Civil Rights vs. National Security: DOJ Lawyers Revolt ................................................................144
CHAPTER 5: CRIMINAL LAW: PROSECUTION OF NAZI WAR CRIMINALS
AFTER WWII .................................................................................................... 152
5.1 Nuremberg Trial – Introduction and Documents ............................................................................152
5.1.1 How the Nazi Trials Helped Spawn Modern Justice
152
5.2. Charter of the International Military Tribunal at Nuremberg ......................................................155
5.3. Court TV Nuremberg Overview .......................................................................................................157
5.3.1. The Creation of the Tribunal and the Law Behind It
158
5.3.2. Who's Who
159
5.3.3. The Indictments
163
4. The Defendants
166
5.3.5. The Trial's Legacy 168
5.4. The Eichmann Trial in Israel ............................................................................................................170
5.4.1. The Nazi and Nazi Collaborators (Punishment) Law of 1950 170
5.4.2. The Banality of “the Banality of Evil”
173
5.5. De-naturalization Proceedings in U.S. ..............................................................................................176
5.5.1. Pursuing evil to the grave - Demjamjuk
176
CHAPTER 6: CIVIL LAW: HOLOCAUST RESTITUTION LITIGATION IN THE
UNITED STATES ............................................................................................. 179
6.1. Dresdner Bank ....................................................................................................................................179
6.2. Nazi Looted Art Overview .................................................................................................................183
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CHAPTER 7: HOLOCAUST DENIAL AND THE LAW – CRIMINAL AND CIVIL
RESPONSES.................................................................................................... 190
7.1.1. Introduction
190
7.1.2. What Is Holocaust Denial?
193
7.2. European Anti-Holocaust Denial and Related Criminal Legislation ............................................204
7.2.1 Germany 205
7.2.2. The Law 206
7.2.3. Application
212
7.2.4. Growing Problem of Neo-Nazism in Germany and Continuing Need for Holocaust Denial
Criminal Legislation
216
7.2.5. The Internet
227
7.2.6. EU-wide law
228
7.3. Holocaust Denial and Civil Litigation: David Irving v. Deborah Liptstadt ..................................232
7.3.1. Irving threatens to sue Jewish paper 244
CHAPTER 8: LEGAL LEGACY OF THE HOLOCAUST .................................. 249
8.1. Introduction ........................................................................................................................................249
8.1.1. Michael Igantieff, The Danger of a World Without Enemies
249
8.2. The Economist, War Crimes Tribunals ............................................................................................255
8.3. Christian Science Monitor: Why Genocide is Difficult to Prosecute .............................................262
8.4. ICTY – Primary Sources ...................................................................................................................266
8.4.1. Amended Statute of The International Tribunal 266
8.5. ICTY Tribunal: How It Works .........................................................................................................278
8.6. ICTY – News Articles .........................................................................................................................279
8.6.1. Life in Prison for Dr. Milomir Stakic 279
8.6.2. Srebrenica: Officers Say Bosnian Massacre Was Deliberate
280
8.6.3. Milosevic Cheats Justice Through Death
284
8.7. Excerpts from U.N. indictment against Milosevic ...........................................................................286
8.8. ICTR - Primary Sources ....................................................................................................................287
8.7.1. Statute Of The International Criminal Tribunal For Rwanda
287
8.9. ICTR - News Articles .........................................................................................................................300
1. Gacaca courts in Rwanda: Can the Gacaca Courts Deliver Justice?
301
Can the Gacaca Courts Deliver Justice?
303
8.10. ICC.....................................................................................................................................................306
8.10.1. Benjamin Ferencz: Heed the Lesson of Nuremberg: Let No Nation Be Above the Law
306
8.10.2. Nuremberg Trials and the ICC
309
8.10.3. An Argentine Prosecutor Turns Focus to New War Crimes Court
311
8.10.4. War Crimes Tribunal Becomes Reality, Without U.S. Role
314
8.10.5. ICC Prosecutor Names Darfur Suspects
317
8.10.6. 2 Face Trials at The Hague Over Darfur
322
8.10.7. Sudanese Pair Accused of War Crimes
325
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8.11 Saddam Hussein Trial in Iraq ..........................................................................................................327
INTERVIEW WITH SADDAM HUSSEIN'S PROSECUTOR 334
"The Execution Was Done Correctly"
334
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"In Germany first they came for the Communists and I did not speak out - because I was
not a Communist.
Then they came for the Jews and I did not speak out - because I was not a Jew.
Then they came for the trade unionists and I did not speak out - because I was not a trade
unionist.
Then they came for the Catholics and I did not speak out - because I was a Protestant.
Then they came for me - and there was no one left to speak out for me."
Pastor Martin Niemoller
(1892-1984)
"I come from people who gave the Ten Commandments to the world. Time has come to
strengthen them by three additional ones... Thou shalt not be a perpetrator; thou shalt not
be a victim; and act never, be a bystander."
Professor Yehuda Bauer
January 26, 2000
The only thing necessary for the triumph of evil is for good men to do nothing.
Edmund Burke
Long is the way and hard, that out of hell leads up to light.
John Milton, Paradise Lost
"The Nazi murder of the Jews was unique because never before has a state decided and
announced, on the authority of its responsible leaders, that it intended to kill in its
entirety, as far as possible, a particular group of human beings, including its old people,
women, children and infants, and then put this decision into action with every possible
instrument of state power."
Eberhard Jackel, German Historian
To attain its heavenly Hell on earth the German dictatorship launched a war that engulfed
the whole world, Over 35 million people were killed, more than half of the civilians. On
the battlefields 1 out of every 22 Russians was killed, 1 out of every 25 Germans, 1 out of
every 150 Italians and Englishmen, and 1 out of every 200 Frenchmen. The human cost
of 12,191 days of war surpassed the losses of any previous war in the world. That war
brought death to nearly 6 million Jews, to 2 out of every 3 European Jews. Though onethird of them managed to survive, though the Jewish people and Judaism have outlived
the Third Reich, the Germans nevertheless succeeded in irrecoverably destroying the life
and culture of East European Jewry.
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Lucy Davidowicz, The War Against The Jews: 1933-45
"World War II is a story of how 'a grossly delusional view of the world, based on
infantile fears and hatreds, was able to find expression in murder and torture beyond all
imagining. It is a case-history in collective psychopathology, and its deepest implications
reach far beyond anti-Semitism and the fate of the Jews."
Norman Cohn, Warrant for Genocide (1966)
(a study of European anti-Semitism in the years before World War II).
Eberhard Jackel, German Historian
"You used to be head of state. You are a defendant now."
Chief Judge Raouf Abdel-Rahman
March 2006
(Admonishing Saddam Hussein during his trial for crimes against humanity)
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Introduction
Michael J. Bazyler and Sam Garkawe
During World War II, Nazi Germans and their collaborators murdered
approximately six million Jewish men, women and children. The persecution of the Jews
began in Germany in January 1933, upon the Nazis taking power under the leadership of
Adolf Hitler. It reached its crest between 1939-1945, marking the official years of World
War II. By the end of the war, over two thirds of the eleven million Jews of Europe had
been murdered, 1.5 million of them children. This event is known today as the
Holocaust.
More than a half-century has passed since the end of World War II, and interest in
the Holocaust remains greater than ever. Films, novels, and historical studies about the
events of World War II seem never-ending, with the public in the United States, Europe,
and other parts of the world continuing to display keen interest in both newly discovered
historical data or some fictional renderings based on real-life Holocaust events. More
news stories about the Holocaust have been published in the last ten years than in the
previous fifty years.
Moreover, just when it appears that we have learned all we can about the
Holocaust, new information is discovered that sheds new light on the subject. In the
1990s, historians and the media began taking great interest in the financial misbehavior
during and in the aftermath of World War II. As a result of numerous lawsuits filed in the
United States, political pressure, and new historical studies issued by European
governments and private corporations, the extent of the theft of Jewish and non-Jewish
assets by the Nazis and their collaborators began for the first time to be fully appreciated
sixty years after the events took place. Consequently, beginning in 1998 over $8 billion
was paid out by European governments and private entities for their wartime and postwar
nefarious behavior. German industry was forced to pay billions of dollars in
compensation for using both Jewish and non-Jewish victims as slaves during the war and
profiting from their labor. German pharmaceutical companies were accused of
participating in gruesome medical experiments that took place in Nazi-run concentration
camps and likewise participated in the German settlement. Various European insurance
companies were found to have failed to honor insurance policies issued to their Jewish
policyholders before the war. Swiss banks, followed by their German, Austrian, and
French counterparts were accused of confiscating bank accounts of their Jewish
depositors; the banks finally began returning these moneys to depositors or their heirs
sixty years after the war. Art looted by the Nazis and discovered to have been in the
collections of the most prominent museums in the world, galleries and private hands for
the last half-century also began to be returned to their rightful owners and heirs at the end
of the 1990’s and continues to this very day. In 2006, after six years of American
litigation and a successful victory before the United States Supreme Court a year earlier,
the North American heirs of a prominent Jewish family from pre-war Austria recovered
8
from the Austrian National Gallery five artworks by Gustav Klimt stolen from the family
by the Nazis. The heirs sold one of the works to a New York museum for a reported $135
million, then the highest price ever paid for a single work of art. The four other Klimts
were later sold through auctions for a total of $192 million. A year earlier, an American
federal judge in Brooklyn, New York awarded the same family $21.8 million as
compensation for a Swiss bank’s failure sixty-seven years earlier to protect their assets
after the Nazi takeover of Austria in 1938. The 2005 award was the largest in a stillongoing claims process that is distributing $1.25 billion paid by Swiss banks in 1998 to
settle class-action litigation against them. The so-called Holocaust restitution movement
led to the realization that the Holocaust was not only one of the greatest murders in
human history, but also one of the greatest thefts.
In the 21st century, we are likewise discovering new facts about the Holocaust. In
2006, the Red Cross finally agreed to release a treasure trove of documents produced and
collected by the Germans during the war detailing their brutalities. The Allies turned over
these records to the Red Cross after the war to help survivors locate their relatives or to
learn the fate of those who perished during the war.
The Bad Arolsen archives, named for the ancient small town in northern Germany
where the Red Cross’ International Tracing Service has been storing the materials for the
last half-century, contain the largest collection of data detailing the Nazi machinery of
persecution, numbering approximately fifty million pages of documents and relating to
about seventeen million victims. Stored over the last sixty years in six buildings, the
archive will now become available for the first time to researchers and eventually the
general public. These documents are expected to produce new insights not only about the
Holocaust, but also about the murder and persecution of other groups targeted by the
Nazis.
An important symbol of the continuing vitality of the memory of the Holocaust in
human history is the adoption by the United Nations General Assembly in November
2005 of a resolution designating January 27 – the day in 1945 when the Auschwitz death
camp was liberated by the Soviet Army – as “International Day of Commemoration in
Memory of the Victims of the Holocaust.” At the commemoration ceremony, U.N.
Secretary-General Kofi Annan noted that the Holocaust was the impetus for the
establishment of the United Nations, created as a means to help prevent future acts of
genocide. This move by the General Assembly followed on the heels of several nations –
such as the United Kingdom, Germany, Italy and Poland – which had earlier officially
designated January 27 as a day to specifically remember the genocide of the European
Jews.
Memory of the Holocaust is also being maintained by the various Holocaust
museums and memorials established in the various cities throughout the world. Israel
officially established the Yad Vashem Holocaust memorial institution and research center
in 1953. In the following decades, many additional memorial sites and museums were
erected worldwide. In 2003, the United States Holocaust Memorial Museum marked its
tenth anniversary, and the museum still continues to be one of the most visited tourist
sites in Washington D.C. In May 2005, on the sixtieth anniversary of the end of World
War II, the “Memorial To The Murdered Jews of Europe” opened in Berlin, in the
shadow of the razed Reich Ministry where Hitler and his cohorts plotted the
extermination of European Jewry.
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The Holocaust has become a near-universal paradigmatic event representing evil.
This is reflected in the use of terms like “Hitler,” “Nazi” and “fascism” as epithets
connoting supreme wickedness. Analogies referring to some current event as being
“another Holocaust” abound. The post-Holocaust cry of “Never Again” has entered the
vocabulary of humankind.
In the educational field, courses on the Holocaust are oversubscribed, and student
enrollment is diverse. As originators of an innovative law school course specifically
dedicated to the legal aspects of the Holocaust, “The Holocaust, Genocide and the Law,”
our personal experiences teaching the course have borne this out. We are constantly
surprised and gratified that the majority of students in the course– taught on three
continents over the last six years– come from a variety of backgrounds, and all are drawn
to the study of the greatest crime of the twentieth century.
It seems that the further we move away in time from the events of the Holocaust,
the stronger the pull is to those events. Holocaust historian Omer Bartov comments on
the centrality of the Holocaust in the 21st century as follows:
More than fifty years have passed since the final defeat of Nazism, and yet its
presence in our minds seems to be stronger than ever. This demands an
explanation. After all, public interest in events of the past normally diminishes as
they recede in time. . . .But the case of Nazism, and especially the Holocaust, is
different. There are episodes in history whose centrality can be only be
recognized from a chronological distance. The mass of inexplicable, often
horrifying details is endowed with sense and meaning only retrospectively, after it
passed. Gradually such events come to cast a shadow over all that had previously
seemed of greater significance, reaching backward and forward, until they finally
touch our normal lives, reminding us with ever growing urgency that we are the
survivors of cataclysms and catastrophes that we never experienced. The
Holocaust is such an event.1
Along with heightened interest in examining the fate of the Jews and other
persecuted minorities during World War II, there has been a greater awareness of other
genocides and genocidal-scale events perpetrated subsequent to the Holocaust: the
murder of over 1.5 million Cambodians by the Khmer Rouge regime that took over the
country during the mid-1970’s; the murders of thousands in the 1990’s in the aftermath of
the breakup of Yugoslavia; the 1994 genocide in Rwanda when hundreds of thousands of
Tutsis and Hutu moderates were murdered by Hutu extremists over a period of one
hundred days. A distressing reality confronting students studying the Holocaust is that
“Never Again” has sadly turned into the reality of “Again and Again.” As Israeli
Holocaust historian Yehuda Bauer puts it, “[The Holocaust] happened because it could
happen…And because it happened once, it can happen again. . . .Although no event will
ever be repeated exactly, it will, if it is followed by similar events, become the first in a
line of analogous happenings.” 2 In studying it, Bauer expresses hope that the “Holocaust
can be a precedent, or it can become a warning. My bias is, in a sense, political. I believe
we ought to do everything in our power to make sure it is a warning, not a precedent.”3
Omer Bartov, Germany’s War and the Holocaust: Disputed Histories (Ithaca, NY: Cornell U. Press,
2003), p. 192.
2
Yehuda Bauer, Rethinking the Holocaust, (New Haven, Conn: Yale University Press, 2001), p. 3.
3
Id.
1
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Together with the sense of reassurance that interest in the Holocaust remains so
high – and with it a desire to prevent a repeat of such events – comes also sadness from
the knowledge that in the next two decades the last of those who personally experienced
the Holocaust and survived it will no longer be alive. Holocaust survivors are dying at
the rate of ten percent a year. Those who were eighteen years old upon liberation and still
alive are now in their eighties and those who were thirty are now in the early nineties.
This means that the memory of the events of 1933-45 will soon be perpetuated by those
who only know about these events from reading and research, as opposed to living
testimony. Soon our own generation will be responsible for passing on the memory of the
Holocaust and confronting those that either deny or minimize the event.
Despite widespread interest in the Holocaust and an abundance of courses on the
subject, there is one glaring gap: the subject is little studied in law school or examined
through the prism of the law. We regard this as odd, since a closer examination reveals
that both the Holocaust and the world’s reaction to the horrors to the Holocaust are very
much tied to the law. The persecution of the Jews of Germany upon the Nazis taking
power in 1933 began with legal decrees excluding Jews from the daily life of society and
stripping them of their rights as German citizens. Between 1933 and 1935, Hitler and his
fellow Nazis consolidated their dictatorship through various legal measures. With
Germany’s subsequent invasion of most of Europe beginning in 1939, Nazi-issued laws,
decrees, and other legal measures in the occupied territories became the primary means
by which Jews and other persecuted groups were arrested and then subjugated. The
persecution through legal means paved the way for the murder of the millions that
followed. Law became one of the leading instruments by which Jews and other victims
were stripped of their assets, then their dignity, and eventually their lives. It laid the
groundwork for the German people both to accept and to participate in the increasing
scale of persecution that made the creation of human death factories such as Auschwitz
possible. At the infamous Wannsee Conference in 1942, where the decision to implement
the “Final Solution to the Jewish Problem in Europe ” was coordinated among the various
branches of the German government and the military, seven of the fifteen men around the
table were lawyers. The defeat of Germany led the Allies to create an international legal
tribunal at Nuremberg to try those responsible for the horrors of World War II. The
legacy of Nuremberg permeates today the current rules of international criminal law.
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Chapter 1: The Holocaust – History, Definitions And Concepts
1.1. A Brief History of the Holocaust
1.2. The Language of the Holocaust: Uses and Misuses of Holocaust
Terminology and Imagery
1.3. Is the Holocaust “Unique”?
1.1. A Brief History of the Holocaust
It is often said that Adolf Hitler came to power in Germany through democratic
means, and this fact is cited as an example of how democracies can vote dictatorships
into power. In actuality, the scenario was a bit more complex. The Weimar Republic of
prewar Germany, the democratic republic that succeeded the German Empire defeated in
World War I, was a fractious parliamentary democracy. A slew of political parties
competed for power, with no party able to receive a majority in the German parliament.
One of those was the Nazi party, formally known as the National Socialist German
Workers Party (Nationalsozialistische Deutsche Arbeiterpartei or NSDAP in German).
Its ideology and party platform was based in large part on hatred of the Jews, blaming
both German Jews and Jews worldwide for Germany’s economic troubles and defeat in
World War I. The Nazis’ targeting of Jews was an intergral part of their racist vision that
saw the German “Aryans” as the master race, the Europeans living to the east of
Germany as subservient and inferior, and the Jews as the major threat to German
supremacy. 4
On the eve of Hitler’s ascendancy, the economic effects of the worldwide Great
Depression of 1929 made Weimar Germany even more politically unstable. In the
elections that took place in July and once again in November of 1932 no political party
won a majority of seats in the Parliament. The NSDAP, with a party platform that
promised to reform the moribund democratic system and heavily laden with anti-Jewish
propaganda, won the largest number of seats (more than a third). In view of the fact that
the opposition Communists, who had also won bigger support, and the Nazis held more
than fifty percent of the seats, no stable coalition could be formed. Finally, conservative
President Paul von Hindenburg, who personally disliked Hitler, was convinced by his
allies to give the NSDAP the right to form a minority government through an alliance
with other conservative politicians. They gambled that once in office, Hitler would
moderate his views and that, as experienced politicians, they could also control Hitler.
As a result, on January 30, 1933, Adolf Hitler became Chancellor, or prime minister, of
The word “Aryan” comes from ancient India and Persia (hence “Iran”) and was a self-designated term
used by some of the tribes ruling over the region. In the early part of the 20th century, European racial
theorists began categorizing humans into biologically distinct races and used the term “Aryan race” to refer
to white Europeans. This terminology was appropriated by the Nazis to refer to Western European
Caucasians of non-Jewish descent.
4
12
Weimar Germany. This date marks the beginning of the Nazi or National Socialist
period in German history.
It should be remembered that the National Socialists never achieved a vote of
more than thirty-seven percent (in the July 1932 elections) in any free election.
According to Allan Bullock, author of Hitler: A Study in Tyranny, the only reason Hitler
was able to come to power was “the division[] and ineffectiveness of those who opposed
him, and the willingness of the German Right to accept him as a partner in government.”5
Bullock’s reference to the German Right refers to the conservative politicians and
business elite who were willing to support Hitler as a bulwark to the perceived danger of
a Soviet-style communist regime taking power in Weimar Germany.
Hitler and his Nazi cohorts soon consolidated their rule and established a
dictatorship through various political machinations. Upon taking power, Hitler’s main
concern was to eliminate all political opposition. On February 27, 1933, less than one
month after Hitler took office, the German parliament, the Reichstag, was set aflame and
burned down under suspicious circumstances. Hitler blamed the so-called Reichstag fire,
which many suspect was set by the Nazis, on his Communist opponents, and then used
this as an excuse for a further wave of political repression. The German Weimar
Constitution, which contained many guarantees of civil liberties, was soon suspended.
New elections for the Reichstag were called for on March 5, 1933 and this time the Nazis
together with an allied party, the German National People’s Party (the DNVP), won a
slight majority in the German parliament (The NSDAP itself gained forty-four percent of
the vote).
Following the elections, on March 24, 1933, the Nazis were able to pass in the
German parliament the “Law for Removing the Distress of the People and the Reich.”
Commonly known as the “Enabling Act,” this law gave Hitler the authority to rule by
decree for four years. The state reverted to laws now being issued in a classic dictatorial
manner – mostly through decrees issued by Hitler or his inner circle. Two days earlier,
the Nazis established on the grounds of an old munitions factory in Dachau, near Munich
in southern Germany their first major concentration camp to house political opponents
they arrested. Dachau remained a concentration camp for the entire twelve years of
Hitler’s reign.6
On July 14, 1933, one-party rule became a reality when the Nazi-dominated
German parliament enacted the “Law Against the New Formation of Parties,” enshrining
the monopoly of power to the NSDAP. By that time, many of the Nazis’ political
opponents had been arrested and sent to concentration camps, exiled or murdered.
While German President von Hindenburg was still nominally functioning as head of
state, his failing health removed him as an effective counterweight to Hitler. After von
Hindenburg died on August 2, 1934, Hitler combined the positions of President and
Reich Chancellor. Hitler was now no longer just the German chancellor but the
5
Allan Bullock, Hitler: A Study in Tyranny, (New York: Penguin Books, 1962), p. 253.
During its twelve-year existence, Dachau housed approximately 200,000 prisoners from over thirty
countries, one-third of them being Jews. At least 32,000 died of starvation, disease, and the gruesome
medical experiments conducted on the prisoners. After its liberation in April, 1945, Dachau became the
site of the first trial of German perpetrators held under American military command. On Nazi trials, see
Chapter 5.
6
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“Führer”—the supreme leader—and all laws, including the Constitution, were subsumed
to the will of Hitler under the so-called “Führer principle” (Führerprinzip).7
As a result, within a year, Hitler was able to announce the end of the Weimar
Republic and the beginning of the “Third Reich,”8 the supposed successor to the two
earlier glory eras of German history – the medieval Holy Roman Empire and the German
Empire of 1870-1918. The Nazis also called their rule the beginning of “The Thousand
Year Reich.” The Third Reich lasted for a little over twelve years, until Nazi Germany’s
defeat in May 1945.
The twelve-year Nazi reign is usually divided into two six year periods: 19331939 and 1939-1945. During the first six years, Hitler consolidated his power in
Germany, annexed Austria into the Third Reich through the so-called Anschluss (union
with Germany) in March 1938, and took over a part of Czechoslovakia (the Sudetenland)
also in March 1938, and then the remainder of the Czech portion of the Czechoslovak
Republic (Bohemia and Moravia). Slovakia, allowed to be nominally independent,
became in reality a satellite state of of Nazi Germany. Great Britain and France had
consented to the ceding of the Czech territory to Germany in the Munich Pact of 1938 as
a means of appeasing Hitler and avoiding another catastrophic war in Europe. The second
period, 1939-1945, began with the German military invasion of Poland on September 1,
1939, which is considered the beginning of World War II. With this act of aggression,
Great Britain and France recognized the policy of appeasement to be a failure and
declared war on Germany.
Part and parcel of the military campaigns conducted by the Nazis was the war
against the Jews. As explained by Holocaust historian Saul Friedländer:
Only one group was hounded all over the continent, to the very last individual, to
the very last day of German presence: the Jews. . . . [I]dentifying the Jews as the
enemy of humankind [was] preached by the bearer of all authority: Adolf Hitler.
His message may not have been shared by all, but his were the guidelines for the
policies of total extermination . . . .[W]e are brought back to a peculiar brand of
apocalyptic antisemitism, the extraordinary virulence of which remains the only
way of explaining both the physical onslaught against all Jews living within the
German reach and against any part of human culture created by Jews or showing
any trace of the Jewish spirit…. Hitler’s goals, mainly his vision of an
apocalyptic final struggle against the Jews, were metapolitical. This vision
invested the core of his movement with the fervor of a crusading sect.”9
Nonetheless, no master plan existed to murder all Jews of Europe upon Hitler
coming to power, nor was a single master plan ever put in place. For this reason, no
single document exists recording Hitler’s order to exterminate European Jewry. The
process leading to the extermination of the Jews was not linear, but took place in fits and
starts and developed out of the military circumstances that brought an increasing number
7
On the Nazi legal system, see Chapter 4.
The term “Empire” is translated as “Reich” into German.
9
Saul Friedländer, “Ideology and Extermination: The Immediate Origins of the Final Solution,” in Lessons
and Legacies: The Holocaust and Justice (Ronald Smelter, ed)(Evaston, Ill: Northwestern U. Press, 2004),
p. 34 (emphasis in the original). For Friedländer’s excellent two-volume history of the Holocaust, see Nazi
Germany and the Jews: Volume 1: The Years of Persecution 1933-1939 ( New York: Harper Collins, 1996)
and The Years of Extermination: Nazi Germany and the Jews, 1939-1945 (Nazi Germany and the Jews)
(New York: Harper Collins, 2007).
8
14
of Jews under Nazi control. Karl A. Schlenues aptly describes it as “the twisted road to
Auschwitz.”10 Israeli Holocaust historian Dan Michman explains that “the idea of
annihilating the Jews existed only in potential; it was neither a clearly elucidated and firm
goal from the beginning of Hitler’s career nor a built-in inevitable outgrowth of the Nazi
doctrine as such.”11 Michman points out that “despite the unequivocal centrality of the
‘Jewish question’ in the regime, no ‘ministerial committee’ or ‘special committee’ was
set up to confront the ‘problem’ in a consistent, coordinated, and planned manner. Hitler
himself closely monitored the policy, but did not steer it in the administrative sense.”12
We divide the history of the Holocaust, as many have done, into four stages,
most commonly described as “identification and definition” (1933-1935), “expropriation
and emigration” (1935-1939), “concentration” or “ghettoization” (1939-1941) and
“extermination” or “annihilation” (1941-1945). The recognition of the Holocaust as a
gradual process conducted in stages was first set out in 1961 by political scientist Raul
Hilberg in his classic study of the Holocaust, The Destruction of the European Jews.13
Upon coming to power, the Nazis began the process of identifying the Jews of
Germany and separating them from public life. In March, 1933, a few months after
assuming office, Hitler called for a general boycott of Jewish-owned businesses. It is in
this period that Nazi storm troopers (Sturmabteilung or SA) begin to mark the window
displays of shops owned by Jewish shopkeepers with a Jewish Star of David or the word
“Jude” [Jew], often seen today in photographs or Holocaust documentaries.
On April 7, 1933, laws barring Jews from government service were enacted.
These laws also banned Jews from being professors at public universities, teachers at
public classrooms, and doctors at state medical institutions. One of the laws prohibited
Jewish students from entering the legal profession. The same month, the Interior Ministry
imposed a quota limiting admission of “non-Aryans” (directed primarily at Jews) to
German schools and universities to 1.5%. On May 10, 1933, books by Jewish authors
and other “degenerate” writers were burned at mass rallies.
Despite the discriminatory laws introduced against Jews, actual violence against
Jews was not yet widespread or systematic. Nevertheless, life for Jews in Germany was
becoming more precarious. Victor Klemperer, a Jewish convert to Christianity who
nevertheless was considered a Jew under Nazi race laws and who survived the war in
Germany because he was married to a non-Jew, records in his diary at the time of
“special bulletin boards” on the streets of Berlin displaying such slogans as “the Jews are
our misfortune” and “whoever knows a Jew, knows the devil.”14
10
Karl A. Schlenues, The Twisted Road to Auschwitz: Nazi Policy Toward German Jews, 1933-1939
(Champagne, Ill: U. Illinois Press, 1970).
11
Dan Michman, Holocaust Historiography: A Jewish Perspective (London: Valentine Mitchell, 2003), p.
96.
12
Ibid, p. 97.
13
Raul Hilberg, The Destruction of the European Jews (New Haven, Conn: Yale University Press, 2003,
revised hardcover edition).
14
Victor Klemperer, I Will Bear Witness: A Diary of the Nazi Years 1933-1941 (New York: Random
House, 1999) (Martin Chalmers (Translator)), p. 118. After the war, Klemperer became a literature
professor in East Germany. He died in 1990, and his diaries detailing daily life and persecution in Nazi
Germany were published posthumously. The diaries provide an exceptional account of the struggle to
survive under Nazi rule.
15
In May, 1935, the German army was declared “all-Aryan,” meaning free of
those the Nazis considered Jews. The next year, the Nazis banned Jewish veterans of
World War I from engaging in any political activities. Other laws making life difficult for
Jews followed. Under a decree of August 1938, Jews were compelled to add a middle
name to their name: “Israel” for Jewish males and “Sarah” for Jewish females and for
such a name to appear in all identifying documents. In October of that year, passports of
German Jews were marked with the letter “J” for Jude [Jew].15 The same month,
another decree completed an earlier process by forbidding Jews from practicing law in
Germany.
The aim first appearing during the next stage was to make Germany – and later
the conquered territories annexed into the German Reich – Judenrein (“Free of Jews”)
through forced emigration. During this second period, a series of mob actions against
Jews took place in several German cities. Following the violence, there usually appeared
a new round of anti-Jewish legislation, further crippling Jewish life in Germany (which in
after March 1938 included Austria and annexed Czech territories). The increasing
violence culminated on the night of the November 9, 1938, infamously known as
Kristallnacht (“Night of the Broken Glass”), a pogrom (mob action) instigated by the
Nazi party and executed by the police and state agencies, the SA and the SS. The Nazis
characterized Kristallnacht as ostensibly a spontaneous response to the assassination of
the German diplomat Ernst vom Rath in Paris by a young Polish Jewish refugee whose
parents had been summarily expelled Germany along with thousands of other Polish
Jews.
Preceded by a series of sporadic violent attacks on Jews started a few weeks
earlier, the more radical elements in the Nazi party took the initiative on Kristallnacht to
organize the burning of synagogues and the destruction and looting of Jewish-owned
shops. According to official reports, ninety-one Jews were killed and about 30,000 were
sent to concentration camps. Over a thousand synagogues were set on fire and 7,500
shops looted. On November 12, 1938, the Nazi government imposed a collective fine of
one billion Reich marks on the German Jewish community as a so- called “indemnity”
for the killing of the German diplomat.
Of the anti-Jewish legislation enacted during the first two stages, the most
infamous were the Nuremberg Laws, decreed on September 15, 1935 during a Nazi Party
convention held at Nuremberg. The “Reich Citizenship Law” took away civil rights from
Jews by declaring that only persons of German or “kindred” blood can be citizens of
Germany. The “Law for the Protection of German Blood and German Honor” prohibited
marriages and extramarital relations between Jews and Germans.
Shut out from normal social and economic life, thousands of Jews emigrated from
Germany and its annexed territories during this time period, with their significant
possessions confiscated or left behind. Further legislation during this time was used to
pressure Jews to emigrate from Germany. In September1937, a Nazi decree freed Jews
15
The Germans enacted the measure at the behest of the Swiss government, which wanted to differentiate
German Jews from non-Jews seeking to cross the border into Switzerland. While non-Jewish Germans
could enter Switzerland, German Jews, seeking refuge and whose identity was now clearly marked on their
passports, were barred from crossing the border. In 1998, a financial settlement with Swiss banks created a
compensation fund for the still-living Jewish survivors whom the Swiss denied entry sixty years earlier or
who were send back to Nazi Germany after illegally entering Switzerland. See Chapter 6.
16
from “protective detention” if they emigrated. In October 1937, Heinrich Himmler, head
of the SS and German interior minister, announced that Jews returning to Germany would
be sent to concentration camps.
The above-described initial two stages of the persecution of the Jews were critical
in preparing the German public for what was to come. Having become acclimated to the
widespread persecution of their Jewish neighbors and the eventual elimination of Jews
from everyday life, made the subsequent large-scale deportation and murder of the Jews
appear quite normal to the non-Jewish Germans.
The third stage leading up to the Holocaust – which lasted from the invasion of
Poland in 1939 to the invasion of the Soviet Union in 1941 – can be described as one of
“concentration” and is sometimes called the “ghettoization” stage. Following the
takeover of Poland, an additional two million additional Jews came under formal German
domination and hence under Nazi control virtually overnight. The Nazi planners decided
to concentrate these Jews inside of Jewish “ghettos.” These ghettos were to be located
near railway junctions, in order to facilitate subsequent removal measures, such as
deportation. The Nazis ordered most Jewish communities to establish Jewish Councils,
known as Judenrat, as a means to implement Nazi orders directed against the Jews.
During this period it appeared that Nazi authorities were still undecided what they
would do with all the millions of Jews under their control, although some historians
would argue that the plan all along was to murder all Jews. In a January 30, 1939 speech
before the Reichstag, Hitler seemed to have signaled this ultimate intention. Speaking in
apocalyptic terms, Hitler warned, “If the international Jewish financiers inside and
outside of Europe should again succeed in plunging the nations into a world war, the
result will not be the Bolshevization of the earth and thus the victory of Jewry, but the
annihilation of the Jewish race throughout Europe.”16
The numbers of Jews under German Nazi occupation kept expanding with every
military success, as Norway, Denmark, France, Belgium, the Netherlands and southern
Europe fell under Nazi control.
One possibility seriously discussed by the Nazi political leaders in this period was
to forcibly relocate the entire Jewish population of Europe to other parts of the world, in
effect making entire Europe Judenrein. The “Lublin Reservation” scheme of September
1939 following Germany’s victory over Poland in that month, by which Jews were to be
deported to areas in occupied Poland, and the so-called Madagascar Plan for the creation
of one “super-ghetto” in the French island colony of Madagascar, off the coast of Africa
– raised after the rapid victory over France in summer 1940 – ultimately came to nothing.
In the meantime, the ghettos in German-occupied Poland and the living conditions for
Jews in other occupied countries (except for Denmark) had become terrible places,
ravaged by starvation, disease, poverty and death.
The Holocaust, the systematic, state sponsored murder of the Jews, began with the
invasion of the Soviet Union in June 1941 and ended with the collapse of the Third Reich
itself in 1945. This was the extermination stage, and the one usually thought of when
mention is made of the Holocaust. To the Nazis, the Jews became Lebensunwertig, “life
unworthy of life.”
16
For a recent detailed study of the radicalization of Nazi policy leading to the Holocaust, see Browning,
The Origins of the Final Solution, supra.
17
Germany’s surprise invasion of the Soviet Union in June 1941 was in breach of a
secret non-aggression treaty signed by the two countries in 1939. The invasion was
perceived by Hitler as the beginning of a cataclysmic ideological war waged against
“Judeo-Bolshevism.”
The murder of millions of Jews by brutal murder or by gassing in human
slaughterhouses such as Auschwitz was also reached in stages. During the invasion of the
Soviet Union, special action murder squads known as the Einsatzgruppen followed the
regular German army into newly conquered territory. Operating just behind the
advancing German troops, these mobile killing squads would round up and murder all the
Jews and other “undesirables” such as the Roma and the Sinti (commonly known as
Gypsies), perceived communist political leaders, professionals, and “criminals,” often
with assistance from the local populace. The German army, known as the Wehrmacht,
also was heavily involved in the killings. Later on, police battalions – initially organized
to keep order in the occupied territories – joined in the killing process.17
The people rounded up were transported either by foot or by truck to a remote
location, ordered to dig pits to serve as mass graves, forced to strip naked, and shot at
close-range. By such means, the Einsatzgruppen squads and their local collaborators
managed to murder approximately 1.4 million Jews as well as members of other
religious, national, and political groups. They murdered these men, women and children
one by one, bullet-by-bullet, town-by-town, and city-by-city. These massive killings
lifted the scale of Nazi atrocities to totally new levels.
One of the most notorious of such massacres took place at Babi Yar, a ravine
outside the city of Kiev. Shortly after their capture of Kiev in September 1941, the Nazis
ordered all Jews of Kiev to appear at a particular morning at a specific location in the
city. From there, the Jews were forcibly transported in groups of ten or more to Babi Yar.
The men, women, and children were stripped of their clothes, ordered to lie face down on
the edge of the pit, and riddled with machine gun fire. After the riddled bodies were
covered with a thin layer of earth, the next group was ordered to lie over them and was
similarly shot. Over the next two days, a unit of the Einsatgruppen and with the support
17
The leading study analyzing the involvement of these non-army police battalions in the Holocaust is by
Christopher Browning, Ordinary Men: Reserve Police Battalion 101 and the Final Solution in Poland
(New York: HarperCollins, 1992). In Ordinary Men, Browning examined how a police battalion of
reservists composed of five-hundred German middle-aged men too old or unsuitable for the army – and not
even part of the regular police force – became involved in systematically murdering Jews in Poland. Police
Battalion 101, by Browning’s account, was responsible for the shooting of over 38,000 Jews and the
deception of another 45,200 to the Treblinka concentration camp. Browning’s thesis is that seemingly
normal individuals can be transformed into ruthless killers.
In 1996, Daniel Jonah Goldhagen published Hitler's Willing Executioners: Ordinary Germans and
the Holocaust (New York: Knopf Publishing Group, 1996). Largely written to rebut Browning's book, and
examining also the work of the police batallions, Goldhagen argued that most of the German population
was infused with what he calls "eliminatory" antisemitism, a uniquely German hatred of Jews so strong that
it led the majority of Germans under Hitler to support Nazi measures to eliminate Jews from German
society. Without such a rabid eliminatory antisemitism, according to Goldhagen, the Holocaust would not
have been possible. Goldhagen’s book caused a sensation, and its thesis has been widely debated and
discussed both in the general public and within the community of scholars. In Germany, it led to a
reexemination of the role of ordinary Germans during the Holocaust. Most Holocaust scholars today
accept Browning’s thesis and reject Goldhagen’s, but the debate is by no means settled.
18
of a battalion of Waffen-SS soldiers, the military arm of the Nazi Party, and local
Ukrainian collaborators systematically shot dead by machine gun fire over 33,000 Jews.
Operational Situation Report No. 101, sent from the field to Berlin and captured after the
war, states that at least 33,771 Jews from Kiev were killed at Babi Yar on September 29
and 30, 1941.
The firing squads proved to be an inefficient method of killing. Moreover, they
were having a negative psychological effect on the troops, especially when it came to
large-scale murders of defenseless women, children, and babies. In the days soon after
the war started, Hitler had authorized – and backdated to September 1, 1939 to give it the
appearance of a wartime measure – the so-called T-4 euthanasia program, by which an
estimated 70,000 mentally and physically handicapped Germans were gassed to death
between 1939 and 1941 as part of Hitler’s plan to “purify” the German master race. This
method of killing was now taken up during the invasion of the Soviet Union, with the
gassing done in mobile killing vans. The Nazis first tested gas vans on Soviet prisoners of
war in September 1941 at the Sachsenhausen concentration camp, located north of Berlin.
By the next year, approximately fifteen gas vans had fanned out throughout Germanoccupied Soviet territory to kill Jews and other “undesirables.” The victims were packed
into the back of closed vans where they were murdered by the use of gas, usually carbon
monoxide piped into the closed space of the van through a hose attached to the van’s
tailpipe. The bodies were then unloaded from the vans, and either buried in mass graves
or incinerated in open flames. The Nazis murdered approximately 700,000 persons
through this method, with roughly half on occupied Soviet territory and the rest in camps
solely devoted to mass murder, such as Chelmo in German-occupied Poland.
Mobile van gassings, however, proved an inefficient method for the murder of
millions. As with the mass shootings, the executioners were also still being traumatized,
this time either when the doors of the vans were opened and bodies taken out, or from the
screams of the victims during the piping of the gas. The gas vans also frequently suffered
mechanical failure and so the murder process did not go smoothly. The stationary human
slaughterhouses located in occupied Poland – Auschwitz-Birkenau, Majdanek, Chelmo,
Sobibor, Treblinka, and Belzec – proved to be the means by which the Nazis
implemented what they called the “Final Solution to the Jewish Problem in Europe.”
An important marker in the road to the “Final Solution” as a state policy of Nazi
Germany was the Wannsee Conference, a seemingly ordinary meeting of high-level
bureaucrats that took place on January 20, 1942 at a villa just outside Berlin. At this
meeting, convened by Reinhard Heydrich, the head of the Reich Security Main Office,
and assisted by Adolf Eichmann, one of the chief architects of the Final Solution, the
participants were informed of the plan to murder all eleven million Jews of Europe.
Heydrich called the meeting of the heads of the main German ministries to coordinate the
mechanics of preparing and carrying out the mass murders. The brutality of the Final
Solution contrasts with the seeming sophistication of the individuals who acceded to it.
As we noted earlier, of the fifteen participants at Wannsee, seven had advanced law
degrees. These men were the “best and the brightest” of Germany.
The death camps were one of the most unique aspects of the Nazi regime. There,
Jews and other persecuted groups brought by trains from all over Europe after being
systematically rounded up, were either murdered immediately upon arrival in gas
chambers (usually children and babies, the infirm and the elderly), or selected for work,
19
from which they were expected to perish through extermination-through-labor
(Vernichtung durch Arbeit in German).
The Zyklon-B poison gas used in the gas chambers of Auschwitz – a common
pesticide especially modified for its nefarious purpose – was manufactured, supplied and
delivered by the German company Degesch, controlled by German chemical companies
Degussa and I. G. Farben. The crematoria where the dead bodies were burned was
constructed by another German company, Tesh & Stabenow, and modified from the
standard crematoria used for cremation of a deceased, whose ashes are then segregated
and returned to the deceased’s family. These crematoria were specifically designed for
mass murder and operated continuously in order to dispose of hundreds of thousands of
bodies.
The slaves worked not only for the SS and the Nazi military machine, but also
toiled under the most horrific conditions for German private industry, supplying it with
free labor. German companies large and small, utilized this slave labor, and included such
notable firms as Mercedes-Benz, Volkswagen, BMW, and Siemens. The I.G. Farben
Company, a leading German chemical company broken up after the war because of its
intimate involvement with the Nazis, built the Buna factory in nearby Monowitz near the
Auschwitz complex to exploit this slave labor. Thousands of Jews died while working for
I.G. Farben. Overall, between eight million and ten million people – both Jews and nonJews – were forced to work as slaves durng the Nazi era.18
The death and concentration camp system was aimed to murder as many Jews as
possible with the minimum number of Germans involved in the process. Although
Auschwitz, where over a million people were murdered was the most infamous of the
Nazi camps, it did have factories and other industries, whereas death camps like Sobibor,
Treblinka and Belzec were constructed solely for the purpose of killing.
On May 9, 1945, after the capture of Berlin by the Soviet Red Army, Germany
agreed to an unconditional surrender. A week earlier, Hitler committed suicide in his
underground bunker. Europe now lay in ruins and its population decimated. Political
scientist R. J. Rummel, in his now-classic Death By Government, estimates, “The Nazis
murdered from about 15,000,000 to over 31,6000,000 people, most likely closer to
twenty-one million men, women, handicapped, aged, sick, prisoners of war, forced
laborers, camp inmates, critics, homosexuals, Jews, Slavs, Serbs, Italians, Poles,
Frenchmen, Ukrainians and so on.” 19
The figure usually cited for the number of Jews murdered by the Nazis and their
supporters is six million. This round number is an approximation, which appeared
immediately after the war at the Nuremberg trials (the Nuremberg indictment used the
figure of 5.7 million and described it as a conservative estimate), and was later verified
through several calculations. According to German Holocaust historian Wolfgang Benz,
writing in the The Holocaust Encyclopedia, “The best estimate of the death toll of
European Jews in the Holocaust, on the basis of the latest research, is that at least 6
18
For criminal liability of German industrialists, see Chapter 5; for civil liability and the recent spate of
litigation against German industry and other European companies which profited from the Holocaust, see
Chapter 6.
19
R.J. Rummel, Death By Government (New Brunswick, N.J.: Transaction Publishers, 1994), pp. 112-113.
At the end of the war, eight million people were also displaced throughout Europe.
20
million persons were murdered by gas or shoootings or died of starvation and physical
abuse.”20
Estimates for other persecuted groups are: between 90,000 – 200,000 Roma and
Sinti (commonly known as the Gypsies); between 200,000-300,000 people with
disabilities; between 5,000-10,000 gay men; and approximately 2,500 Jehovah’s
Witnesses. Other large-scale victims of the Nazi killng machine include over three
million Soviet POWs and approximately 1-1.5 million political dissidents.
The death toll caused by the Nazis and their collaborators during their twelve year
reign was unprecedented in human history.
Wolfgang Benz, “Death Toll,” The Holocaust Encyclopedia (Walter Lacqueur, ed.) (New Haven, Conn:
Yale University Press, 1991), p. 145. Lacquer points out that it is “improbable that the exact number of
victims will ever be established. This will come as a surprise only to those unfamiliar with the limits of
statistical accuracy in the twentieth century, especially in wartime. The German authorities to this day do
not know the number of German wartime casualties, civilian and military, despite the fact that German
statistics were more complete and reliable than those of other countries.” Walter Lacqueur, “In Place of a
Preface,” Ibid, pp. xiii-xiv.
20
21
1.2. The Language of the Holocaust: Uses and Misuses of Holocaust Terminology and
Imagery
Noted University of Chicago philosopher Leo Strauss (today the spiritual guide
of neo-conservatism in the United States) first warned against the tendency to make
comparisons to events of World War II when, in 1950, he coined the term “reductio ad
Hitlerum.” Strauss explained:
In following this movement towards its end we shall inevitably reach a point
beyond which the scene is darkened by the shadow of Hitler. Unfortunately, it
does not go without saying that in our examination we must avoid the fallacy that
in the last decades has frequently been used as a substitute for the reductio ad
absurdum: the reductio ad Hitlerum. A view is not refuted by the fact that it
happens to have been shared by Hitler.21
Despite Strauss’ admonition, the resort to the “Hitler card” or the “Nazi card” has
continued in the last half-century, with no signs of abating. Most recently, the various
discussion groups on the Internet have become fertile grounds for the use of the
Holocaust/Hitler/Nazi analogy. The widespread use of the analogy on the Internet has
led to a maxim in cyberspace called Godwin's Law (after Mike Godwin, a lawyer who
coined the maxim in 1990), which posits that the longer an online discussion persists, the
more likely it is that someone will compare some entity to the Nazis or someone to
Hitler.22
American political discourse has become filled with the Nazi comparisons.
During the 2004 U.S. presidential campaign, MoveOn.org, an independent advocacy
group supporting the candidacy of John Kerry, ran a video that began with a Hitler
speech that segued into a photo of George W. Bush. Another MoveOn.org ad carried the
message, "What were war crimes in 194523 is foreign policy in 2003." The comparison
of Bush to Hitler did not end with the 2004 campaign. In a March 2005 National Review
Online column, commentator Victor Davis Hanson wrote that a Google search of “Hitler
+ Bush” yielded over 1.3 million hits.24 By July 2006, according to the Los Angeles
Times, a “Bush + Nazi” Google search yielded 17.1 million hits.25
In the United States, the “like the Nazis” comparisons do not just come from the
left. On the right, Fox News commentator Bill O’Reilly has compared both filmmaker
and Bush critic Michael Moore and liberal radio commentator Al Franken to Nazi
propaganda chief Joseph Goebbels.26 Sterling Burnett, a senior fellow at the National
Center for Policy Analysis and a Fox News guest, likened Al Gore’s documentary on
21
Leo Strauss, Natural Right and History, (Chicago, Ill: U. Chicago Press, 1950), p.42.
Godwin’s law specifically reads: "As a Usenet discussion grows longer, the probability of a comparison
involving Nazis or Hitler approaches one." Wikipedia entry “Godwin’s Law,” available at
<www.wikipedia.com >
23
The reference is to the Nuremberg trials of the Nazi high-ranking criminals that began in the German city
of Nuremberg 1945. See Chapter 5.
24
Victor Davis Hanson, “Little Eichmanns” and “Digital Brownshirts”: Deconstructing the Hitlerian Slur,
National Review Online, Mar. 18, 2005, available at <www.nationalreview.com >
25
Ann-Marie O’Connor, “A Wealth of Criticism,” LA Times, Jul. 29, 2006.
26
Media Matters for America, “O’Reilly Labeled Air America ‘The Joseph Goebbels Network,’” Aug. 26,
2005, available at < www.mediamatters.org >
22
22
global warning to Nazi propaganda.27 O’Reilly equated donating money to MoveOn.org
with funding the Nazi party,28 and those calling for the U.S. withdrawal from Iraq as Nazi
appeasers.29 Conservative commentator Rush Limbaugh has labeled women’s rights
activists as "feminazis."30 Some opponents of stem cell research liken it to the gruesome
experiments carried out by the Nazis on live subjects, and abortion opponents have
likened doctors performing abortions to German doctors complicit in the mass murder of
Jews during World War II.
In a reference that resulted in much criticism, even from his like-minded
colleagues, Democratic Senator Dick Durbin in June, 2006 likened the U.S. military’s
Guantanamo prison facility in Cuba to a Nazi concentration camp.31 Durban later
apologized for his remarks. Durban’s comments, and those of other American politicians
and commentators invoking the Nazi analogy, prompted Washington Post writer Mark
Leibovich to make the following suggestion: “Someone should post a sign in the Senate
cloakroom or wherever Important People Who Should Know Better will see it. The sign
would warn politicians against comparing anything to the Nazis or Hitler or the
Holocaust. These comparisons are not a good idea. Repeat: Not a good idea.”32
Leibovich points out that such comparisons invariably result in “a familiar Kabuki in
American political discourse: Someone invokes the behavior of Nazis in some nongenocidal context. This is followed by an outcry (in which members of the opposing
party are "saddened"), condemnation from the Anti-Defamation League, futile attempts
by the speaker to ‘clarify’ his remarks, repeated calls for him to apologize and,
inevitably, some acknowledgment of regret, often tearful.”33 Even President George W.
Bush got into the act when he pronounced, in the aftermath of the foiled plot to blow up
commercial airplanes flying from Great Britain to the United States in August 2006, that
''this nation is at war with Islamic fascists.''34 This predictably led to the Islamic
community in the United States criticizing the president for stamping the whole of the
religion of Islam with the wicked label of “fascism.”
One of the most infamous instances of the misuse of both Holocaust terminology
and imagery occurred in the late 1990’s by the animal rights group People for the Ethical
Treatment of Animals (PETA), which launched the “Holocaust On Your Plate”
campaign. Urging the cessation of consumption of meat, PETA’s pro-vegetarian
Media Matters for America, “Fox Guest Likened Al Gore’s An Inconvenient Truth to Nazi Propaganda
Films, May 24, 2006, available at < www.mediamatters.org >
28
Media Matters for America, “O’Reilly Equating Giving Money to MoveOn.org with Donating to Nazi
Party,” Oct. 25, 2005, available at < www.mediamatters.org >
29
Media Matters for America, “Today Hosted O’Reilly Again Despite Smearing War Opponents in Last
Appearance,” Jan. 24, 2006, available at < www.mediamatters.org >
30
See Media Matters for America, “Limbaugh’s Sexist Trifecta: Called Justice Souter ‘A Girl’ and Jack
Carter ‘Castrated’; Returned to Disavowed Term ‘Feminazis,’” Feb. 23, 2006, available at
< www.mediamatters.org >
27
31
Lynn Sweet, “Durbin gets eyeful at Guantanamo,” Chicago Sun-Times, Jul. 13, 2006.
Mark Leibovich, “The Comparison That Ends the Conversation,” Washington Post, Jun. 22, 2005 (italics
in original)
32
33
34
Id.
“Bush Focuses on ‘Islamic Fascists,’” New York Times, Aug. 10, 2006.
23
campaign likened the annual killing of millions of animals for food to the slaughter of the
millions of Jews by the Nazis. See Illustration 1.
Illustration 1
One arena of political discourse where Holocaust terminology is bandied about
freely is by those seeking to besmirch Israel. Strange that a nation formed out of the
ashes of the Holocaust, where Jewish survivors of the Nazi horrors would find refuge
after the war, and which still has the largest population of Holocaust survivors, would
now be so often and so inaccurately accused of acting like the Nazis. Though such
comparisons usually come out from the Arab world, with such Jewish symbols as the
Jewish Star of David conjoined with the Nazi swastika, the resort to the Nazi analogy has
become common in Europe, the site of the Holocaust. (Some explain this phenomenon in
psychological terms, seeing it as a way for the Europeans to purge themselves of their
wartime guilt by accusing the Jewish state of acting like the Nazis). A few examples will
suffice.
In 2002, the Portuguese writer and Nobel laureate José Saramago declared after
visiting the West Bank, “[T]hough there are differences of time and place, what is
happening here is a crime that may be compared to Auschwitz. They are turning this
place into a concentration camp.”35 When confronted with this opprobrium by being
asked, “If this is Auschwitz, where are the gas chambers?,” Saramago replied, “There
aren’t any yet.”36 In 2007, after a visit by a delegation of German Catholic bishops to the
Yad Vashem Holocaust Museum in Jerusalem, the bishop of Eichstätt, Gregor Maria
Hanke remarked, “This morning in Yad Vashem [we saw] the photos of the inhuman
Warsaw Ghetto, and this evening we travel to the ghetto in Ramallah.”37 Israel's
ambassador to Germany, Shimon Stein, countered that those who use the term "Warsaw
Leon Wieseltier, “After Peace: The First Palestinian-Israeli War,” The New Republic, Apr. 12, 2002, p.
20.
35
36
37
Id.
“German Bishops Accused of Antisemitism,” Spiegel, Mar. 7, 2007.
24
Ghetto" in connection with Israeli or Palestinian politics, had either "forgotten
everything, or learned nothing, or failed morally."38
The use of the Nazi analogy towards Israel is often seen in political cartoons, and
is not confined only to Arab cartoonists. In July 2006, Dagbladet, a mainstream
Norwegian newspaper, published a cartoon depicting Israeli prime minister Ehud Olmert
as a Nazi concentration camp commander standing at a balcony and indiscriminately
shooting below at Palestinian Arabs. See Illustration 2. The allusion was to the famous
scene in the film Schindler’s List, where the sadistic Nazi camp commandant shoots Jews
at random while standing at a balcony.
Illustration 2
It did not take long after the summer 2006 conflict with Hezbollah in Lebanon for
Israel being branded with the Nazi stamp. The English-language daily Arab News, in an
editorial titled “Lebanon Holocaust,” announced: “What has happened is nothing less
than Lebanon’s own Holocaust. The descendants of those who fled the European
Holocaust are ironically resorting to greater savagery than the Nazis.”39 In Europe,
veteran British parliamentarian Sir Peter Tapsell of the Conservative Party likened
Israel’s actions in Lebanon “gravely reminiscent of the Nazi atrocity on the Jewish
quarter of Warsaw,”40 referring to the murder by the Nazis of nearly 400,000 Jews of the
Warsaw Ghetto through starvation, deportation and gassing. Yad Vashem, the Holocaust
38
Id.
“Lebanon Holocaust,” Arab News, Jul. 31, 2006.
40
“MP: Lebanon raid reminiscent of Nazi atrocity on Warsaw ghetto,” Haaretz, Jul. 25, 2006.
39
25
Museum in Israel, harshly condemned Tapsell’s statements. "Whereas it is legitimate to
disagree with Israeli policies and actions, it is grossly illegitimate and malicious to
compare them to the most evil and massive crime in modern history. . . . Tapsell's
remarks, and indeed, similar comparisons between Israel and the Nazis, illustrate a
woeful ignorance of history and a warped sense of perspective.”41 This did not stop
Venezuelan President Hugo Chavez shortly thereafter to throw out both the “Nazi” and
“fascist” cards towards Israel by characterizing Israel's military action as an "unjustified
aggression that is being carried out in the style of Hitler, in a fascist fashion." 42 AntiDefamation League National Director Abraham Foxman noted that “[c]learly, President
Chavez needs a reality check when it comes to the Middle East conflict.”43 Fifty-three
leading Holocaust scholars from around the world also sent a letter to Chavez,
denouncing his statements and noting that “[a]ny comparison between Israel and the
Nazis outrageously distorts Israel’s actions and trivializes the enormity and nature of the
Holocaust.”44
As the Yad Vashem statement above notes, critics of Israeli policies, of course,
are not necessarily antisemites, but when such criticism includes a reference to Nazism, it
is correct to label those statements as antisemitic speech. Noted historian and
antisemitism45 expert Robert Wistrich explains why the anti-Zionism and Nazism link is
often made.
[A]nti-Zionists who insist on comparing Zionism and the Jews with Hitler and the
Third Reich appear unmistakably to be de facto anti-Semites, even if they
vehemently deny the fact! This is largely because they knowingly exploit the
reality that Nazism in the postwar world has become the defining metaphor of
absolute evil. For if Zionists are "Nazis" and if Sharon really is Hitler, then it
becomes a moral obligation to wage war against Israel. That is the bottom line of
much contemporary anti-Zionism. In practice, this has become the most potent
form of contemporary antisemitism.46
It is interesting that even within Israel, critics are not shy from evoking the
Holocaust to make their point. During the summer 2005 evacuation of Gaza, a far-right
Israeli group likened the government’s planned evacuation of Jewish settlers to Nazi
deportations. Some Gaza settlers and their supporters even threatened to wear during the
evacuation orange Star of David badges akin to the yellow star badges forced on
European Jews by the Nazis.
Even outside Israel, Jewish leaders have not shied away from playing the Hitler or
Nazi card. In reaction to the rising antisemitism in Europe, many in Jewish community—
Edgar Lefkovits, “Yad Vashem Slams British MP for Nazi Comparison,” Haaretz, Jul. 27, 2006
“ADL: Chavez comparison of IDF and Hitler is outrageous,” Haaretz, Aug. 9, 2006.
43
Id.
44
“Press Release,” The David S. Wyman Institute for Holocaust Studies, Aug. 11, 2006.
45
The term can be spelled either “anti-Semitism,” “anti-semitism” or “antisemitism” and means hatred or
prejudice against Jews. We prefer the last spelling, now increasingly more common, since it is more
accurate. As succintly explained by one organization focusing on the issue of Jew-hatred: “The problem
with [the spelling ]Anti-Semitism is that it's not actually against Semitism. Never has been. Semitic is the
name of a language group including Hebrew and Arabic. Antisemitism is however not against people who
speak these languages, it is specifically against Jews.” “Anti-Semitism vs. Antisemitism,” available at
< www.zionismontheweb.org >
46
Robert Wistrich, “Anti-Zionism and Antisemitism,” Jewish Political Studies Review, v. 16, nos. 3-4 (Fall
2004).
41
42
26
especially in the United States– began raising the specter of the return of persecution of
Jews on the scale existing in pre-war Europe. Abraham Foxman, head of the AntiDefamation League and himself a Holocaust survivor, wrote a book on the subject using
the motto of the Holocaust “Never Again” in the title and arguing that currently Jews face
as great a threat to their safety as those faced in the 1930s.47 (It is ironic that Foxman
himself would raise the comparison, since he has been on the forefront in the efforts to
stamp out the use of Nazi analogies). Holocaust historian Michael Berenbaum issued a
call to stop the comparisons. In an article entitled “In 2003, We Are Strong, In 1933, We
Were Weak,”48 Berenbaum pointed out:
The vulnerability of the 1930s cannot be compared with contemporary Jewish
vulnerability. It was different. And we are different. The Holocaust was unique.
Not every Jewish vulnerability is the vulnerability of the Holocaust, and not every
enemy is Adolf Hitler. . . . Comparing the contemporary situation to the 1930s is
to cede to our enemies a power they do not have, an intent they may not share and
to disparage the great achievement of the Zionist revolution that the Jews become
actors in history rather than its passive victims. It is to invite upon ourselves not
only a nightmare of our own times but the absolute darkness of another time and
another place that is not our own, and bears no resemblance to our own. Those
who do so manifest considerable ignorance of those times and misinterpret our
own.49
Literary critic Leon Wieseltier agrees. In an article in the New Republic titled “Hitler is
Dead,” Wieseltier noted: “The acknowledgment of contemporary antisemitism must be
followed by an analysis of contemporary antisemitism, so that the magnitude of the
danger may be soberly assessed. Is the peril "as great, if not greater" than the peril of the
1930s? I do not see it.”50
Are there instances where analogizing to the Holocaust is proper? Foxman
contends that such instances do and can arise. “[T]he Nazi analogy is appropriate when
someone is talking about an alleged mass murderer – say, Saddam Hussein, whom
supporters of both Iraq wars compared repeatedly to Hitler. ‘It doesn't have to be taboo in
all cases.’” Berenbaum argues otherwise, at least for the use of the Holocaust to describe
other current or future dangers facing the Jewish people. According to Berenbaum, “L]et
us declare a moratorium on Holocaust analogies. Let us find another way to arouse the
interest of our community and to impress upon them the urgency of the contemporary
situation.” 51
We would extend Berenbaum’s proposed moratorium to all uses of Holocaust
analogies. The rampant misuse of the Holocaust comparisons has, in any event,
cheapened its use and is unlikely to lead the audience reading or hearing the comparison
to take the situation more gravely than an accurate description of the actual situation for
which the Holocaust comparison is applied. With all due respect to Foxman, not every
47
Abraham H. Foxman, Never Again?: The Threat of the New Antisemitism, (New York: Harper Collins,
2003).
48
Michael Berenbaum, “In 2003, We Are Strong, In 1933, We Were Weak,” Jewish Journal of Los
Angeles, Dec. 5, 2003.
49
Id.
50
Leon Wieseltier, “Hitler is Dead,” New Republic, May 27, 2002.
51
Berenbaum, supra.
27
mass murderer is another Hitler, and the crimes of Saddam Hussein are not diminished or
seen as less egregious if they are accurately described and the Hitler analogy is left out.
We recognize, of course, that, as lawyers are apt to say, “hard cases” are bound to
come up. Many today liken Iranian President Mahmoud Ahmadinejad’s repeated calls to
“wipe Israel off the map” to Hitler’s calls for the destruction of European Jewry. These
commentators expressly acknowledge that they are making such comparisons to warn the
world of the dangers posed by such statements and the disastrous consequences that
followed the failure of both European leaders and the worlwide Jewish community itself
to take Hitler’s statements seriously. As pointed out by one commentator who has called
Ahmadinejad “a modern Hitler”: “[This is] a not unreasonable comparison, given that
one wanted to exterminate all the Jews while the other wants to wipe Israel off the
map.”52 Nevertheless, as malevolent as Ahmadinejad is, calling the Iranian President a
“modern Hitler” crudely mischaracterizes the situation and ignores critical differences
between the current danger to Israel from Iran and the danger posed by the Jews from
Hitler.
Essayist Josie Appleton, in an appropriately tiled article on the subject, “I’m Right
Because…You’re a Nazi,”53 explains how resort to the Holocaust/Hitler/Nazi analogy
adds nothing to a balanced and cogent discussion.
The use of the Holocaust [analogy]… in arguments about everything under the
sun reflects a culture that cannot handle rational debate. In one sense, it is a return
to the unthinking sanctimoniousness of the Middle Ages. We have opinions - on
abortion, state intervention, animal rights - because we believe they are right, full
stop. We are not prepared to have them challenged or to defend them through
rational argument (perhaps because we are not sure about them ourselves). Except
now, unlike the Middle Ages, there is no God to call upon as the arbiter of moral
absolutes. As the ultimate symbol of evil, the Holocaust gets dragged in as a postreligious substitute. But because the Holocaust is bandied around by anybody
with a cause, it cannot truly inspire the fear of God in people. Rather, the tactic
often just looks childish - it is a kind of, 'I am right because…you're a Nazi!'.
Ultimately, it is a foot-stamping, self-righteous refusal to engage with other
people in debate. It is the cheapest of cheap shots.54
Yad Vashem comes to the same result by noting that that such comparisons desecrate
both the history of the Holocaust and demeans the memory of the victims of the
Holocaust.
Yad Vashem urges all people to keep the Holocaust out of cheap
political exploitation and demagoguery. Such use of the Holocaust
misrepresents both today's reality as well as that of the Shoah,
distorts historical facts and context, and diminishes the memory of the
Holocaust's victims and events.55
Bernard Goldberg, “The Grand Inquisitor Confronts…Mr. Rogers,” The Wall Street Journal, Aug. 14,
2006, p. D6.
53
Josie Appleton, “I’m Right Because…You’re a Nazi,” Jan. 24, 2002, available at < www.spikedonline.com >
54
Id.
55
Edgar Lefkovits, “Yad Vashem Slams British MP for Nazi Comparison,” Haaretz, July 27, 2006.
52
28
1.3. Is the Holocaust Unique?
We examined above the language of the Holocaust and the various controversies
regarding terminology, including the term “Holocaust” itself. A related controversy
involves the issue of classification: how do we catalog the Holocaust among the various
genocides that have both preceded and succeeded it in human history? While this is not
strictly a legal issue, it nevertheless involves the use of terminology and so must be
discussed in a legal text focusing on the Holocaust.
The classification issue has appeared through the singular question: Is the
Holocaust unique? Or, to put another way, was the murder of the six million Jews by the
Nazis and their collaborators such an exceptional event that it cannot be compared to any
other atrocity committed in human history? The Latin descriptive term, often used in
law, for such an event or occurrence is to call it sui generis [“of its own kind” or “in a
class of its own”]. The sui generis controversy has been so heated that an entire book, Is
the Holocaust Unique?56 and now in its second edition, has been written on the subject.
Not unsurprisingly, its publication did not put the issue to rest, and it continues still to be
debated today.
The debate about the uniqueness of the Holocaust is also related to another debate
discussed in the next section: what other mass killings in human history, both ancient and
contemporary, should likewise be called “genocide.” For groups seeking to have the
horrors committed against their brethren recognized as genocide, no other word –
whether “atrocity, “massacre,” or even the qualifying “genocidal-like massacre”— will
do. They seek recognition of the wrong as a “genocide” and nothing less. Similarly, for
those seeking to label the Holocaust as “unique,” cataloging the Holocaust as yet another
genocide committed throughout human history also will not do. The Holocaust, they
argue, was not “just another genocide.” It was a unique genocide, different from all
genocides that both preceded and followed it. Failure to label the Holocaust as “unique,”
for these advocates, somehow diminishes its significance.
The first great book on the Holocaust, Raul Hilberg’s The Destruction of the
European Jews57, published in 1961, confronted the question of how to classify the
Holocaust among the countless atrocities committed throughout human history. Hilberg
did not call the Holocaust unique—rather, the term he employed is “unprecedented.”
The destruction of the European Jews between 1933 and 1945
appears to us now as an unprecedented event in history. Indeed, in its dimensions
and total configuration, nothing like it had ever happened before.58
Hilberg’s characterization of the Holocaust as an unprecedented event in human
history has not been sufficient for many. Rather, the term “unique” is still often used to
describe the Holocaust. It would be fair to say that it has been Holocaust survivors,
naturally, who have been the major proponents of this view. However, they have had
support also from numerous Holocaust and genocide scholars. Yehuda Bauer, one of the
most preeminent authorities on the Holocaust, advocated this point for some thirty years,
although as will be shown later, he has recently modified his position. Elie Wiesel, the
56
Is the Holocaust Unique?: Perspectives on Comparative Genocide (Alan S. Rosenbaum, ed.) (Boulder,
Col: Westview Press, 2d ed., 2001).
57
Hilberg, supra.
58
Ibid, p. 3.
29
Nobel Peace Prize-winner who survived the Holocaust, in a famous passage, called the
Holocaust “the ultimate event, the ultimate mystery, never to be comprehended or
transmitted.”59
Stuart Stein, who in a 2005 article in the Journal of Genocide Research, labeled
the Holocaust the “paradigmatic genocide”, illustrates a good example of putting the
Holocaust in a category of its own.60 Stein distinguishes the Holocaust from other
genocides by classifying the slaughter of human beings into four categories:
1. The paradigmatic genocide: the Holocaust;
2. other genocides;
3. genocide-like series of events (genocide scholar Helen Fein calls these “genocidal
massacres”);
4. and other mass killings (perhaps not fulfilling the definition of genocide as none
of the protected groups under the definition of genocide were intentionally
targeted) (see discussion below).
Descriptions of the Holocaust as unique have also come from prominent international
figures. In January 2007, during the second annual UN International Holocaust
Remembrance Day, current Secretary-General Ban Ki-moon called the Holocaust "a
unique tragedy.”61 His predecessor, Kofi Annan, a year earlier during the inaugural
commemoration of the memory of the Holocaust at the UN, characterized the Holocaust
as “a unique evil.”62
What forms the basis for the claim of uniqueness? In its simplest form, it derives
from the sheer scale of the Holocaust: the number of people murdered (about six
million), the rate of killing during the Holocaust, the number of countries in which the
murders took place and the magnitude of the Nazi enterprise. It is also based upon the
fact that the term “genocide,” as we discuss in the next section, was created in reaction to
the Nazi atrocities, primarily against Jews, and so the Holocaust, as Stein above classifies
it, is viewed as “the paradigmatic genocide.”
In this sense, the title of this text – “The Holocaust, Genocide and the Law” –
follows Stein’s formulation, since we likewise separate “The Holocaust” from other
genocides. In doing so, we take no position on the uniqueness controversy; our aim in
giving “The Holocaust” a separate designation serves as an acknowledgement that the
international legal norms criminalizing genocide arose out of the postwar abhorrence to
the atrocities committed by the Nazis against the Jews. As British social scientist Martin
Shaw, in his treatise What Is Genocide?, explains: “[Our] understanding of genocide,
born of the Nazi era and defined in its aftermath, remains in the shadow of what has come
to be called the Holocaust.”63 As a result, explains Shaw, “[T]he Holocaust has assumed
Elie Wiesel, “Trivializing the Holocaust,” New York Times, Apr. 16, 1978.
Stuart D. Stein, “Conceptions and Terms: Templates for the Analysis of Holocaust and Genocides,”
Journal of Genocide Research, v. 7, no. 2 (Jun. 2005).
59
60
61
Shlomo Shamir, “Israel welcomes UN resolution condemning Holocaust denial,” Haaretz, Jan. 28, 2007.
UN News Service, “General Assembly designates International Holocaust Remembrance Day,” Jan. 28,
2006.
63
Martin Shaw, What Is Genocide? (Cambridge, UK: Polity Press, 2007), p. 64.
62
30
a position of overriding importance, universally commemorated and increasingly the
dominant theme of World War II.”64
If the uniqueness claim would be based simply upon the numbers killed, the
validity of this assertion becomes problematic when we begin to examine other historical
events. For example, it is accepted that about ten million Ukrainians starved to death in
the 1932-1933 Soviet government-sanctioned famine, known by Ukrainians as the
Holodomor. Stalin’s entire reign of terror and Mao’s rule over China also resulted in
more deaths – approximately thirty-five million in each instance – than during the
Holocaust.
The Ukrainian famine with about ten million people killed in two years, also
contradicts another ground for uniqueness: that the rate of killing during the Holocaust
was so high that it made the Holocaust distinctive. During the 1994 genocide in Rwanda,
the rate of killings also surpassed that of the Holocaust. The figure usually cited is that at
least 800,000 Rwandans were slaughtered in a period of about one hundred days, a far
greater rate of killings than the rate of Jews murdered in the Holocaust.
Another claim for uniqueness is based upon the number of countries where the
murders took place. However, the African slave trade, during which millions of people
from West Africa were forcibly transported by Europeans to the New World of the
Americas and made slaves, also covered vast amounts of territory. Clearly, the slave trade
also involved vast numbers of people65, was organized on a grand scale with atrocities
occurring in many nations and continents of the world, and persisted over a prolonged
time period (it took place between the sixteenth and nineteenth centuries), thus making
the claim of uniqueness of the Holocaust based on these factors alone problematic.
Another possible claim for uniqueness is based upon the Nazis’ utilization of state
power to refine and improve their killing methods, invoking the best knowledge of
science and technology to achieve their murderous aims. The Nazis “industrialization of
killing” has led John G. Heidenrich to assert: “Even today, the Holocaust remains the
most systematic, most industrialized genocide ever inflicted, in many ways rendering it
unique, so unique that any comparisons to it risk belittling how monstrous the Holocaust
actually was.66 Yad Vashem, the Holocaust Martyrs' and Heroes' Remembrance
Authority of Israel, in arguing for uniqueness, likewise notes on its website that the Nazis
“invoked a modern government bureaucracy to accomplish their goal.”67
It remains undisputed that the Nazis utilized and developed the available
technology at their disposal for the murder of the Jews; however, other genocides have
64
Id.
Estimates of the numbers of Africans pressed into slavery between the 16 th and 19th centuries vary
considerably, from an upper limit of one-hundred million by well-known African-American scholar W.E.B.
Du Bois (in his book Darkwater: Voices from within the Veil (NY: Harcourt, Brace, 1920)), through to
much lower estimates of between ten to twelve million by Henry Gates of Harvard and Philip Curtin (See
Philip Curtin, The Atlantic Slave Trade: A Census (Madison, Wis: U. of Wisconsin Press, 1969)). A more
commonly accepted figure is that of between fourteen to twenty-one million. See Howard French, “The
Atlantic Slave Trade: On Both Sides, Reason for Remorse,” New York Times, Apr. 15, 1998, reproduced in
Roy Brooks, When Sorry isn’t Enough: The Controversy over Apologies and Reparations for Human
Injustice (New York: New York U. Press, 1999), pp. 355-356.
66
John G. Heidenrich, How To Prevent Genocide: A Guide for Policymakers, Scholars, and the Concerned
Citizen (Westport, Conn: Praeger, 2001), p. 6.
67
“FAQs About the Holocaust: Is the Holocaust A Singular Event In History?” available at
< www.yadvashem.org >
65
31
also utilized what was available to the regime at the time for the machinery of death. The
only real difference, of course, is that the Nazis had the benefits of more advanced
technology than genocides occurring both before and even subsequent to the Holocaust.
Moreover, one might also question whether it really makes much difference if mass
killing is achieved by modern industrial methods (as in the Holocaust), or by primitive
weaponry, such as the use of machetes in Rwanda. This difference certainly did not
make the rate of killing in Rwanda any less than that of the Holocaust.
A more sophisticated argument in favor of the uniqueness, also found on Yad
Vashem web site, is that “unlike their policies toward other groups, the Nazis sought to
murder every Jew everywhere, regardless of age, gender, beliefs, or actions.”68 A
monograph published by Yad Vashem in 2002, entitled How Was It Humanly Possible?69
and calling the Holocaust “regrettably unique” more fully explains this uniqueness
formulation.
[R]egrettably something set this genocide apart, not because of its scale alone but
because of its intent. The uniqueness of the Holocaust is rooted in the form,
function and determination of the Nazi ideology that brought it about. Adopting
an extreme version of Antisemitism, based on racial theories, Nazi ideology
depicted the Jews not only as an inferior race, but also the root of all evil, whose
threat would only be removed with the removal of the Jews themselves. . . .
According to Nazi thinking, the absolute evil of the Jews had to be totally
eradicated from the face of the earth. This applied not only for adults, to leaders
or to bearers of Jewish culture and religion. Nazi genocidal ideology was global in
its goal. Jews were condemned to death without a single exception: all Jews,
young and old, children, even newborns, wherever they were to be found, were
sentenced to die. This sentence was imposed upon them not as a result of their
religion or nationality, but because of their alleged racial and genetic evil. It is this
more than anything that makes the Holocaust a unique historical event.70
For Yad Vashem, therefore, the uniqueness of the Holocaust stems not
simply from the numbers murdered, its rate of murder, or the vastness of the
enterprise but from the mindset of the perpetrators.71
Steven T. Katz, one of the strongest proponents of the uniqueness
argument and long-time professor of Jewish History at Cornell University and
currently Director of the Elie Wiesel Center for Judaic Studies at Boston
University, makes the same point.
The Holocaust is phenomenologically unique by virtue of the fact that
never before has a state set out, as a matter of principle and actualized policy, to
annihilate physically every man, woman and child belonging to a specific
people... It is this unconstrained, ideologically driven imperative that every Jew
be murdered that distinguishes [the Holocaust] from prior and to date subsequent,
however inhumane, acts of collective violence, ethnocide, and mass murder. . . .
68
Id.
Irena Steinfeld, How Was It Humanly Possible? (Jerusalem: Yad Vashem, 2002).
70
Ibid. p. 9.
71
Daniel Goldhagen, in his Hitler’s Willing Executioners, likewise states that German antisemitism
“because of its fantastical construction of Jewry, demanded, unlike other genocides, the total extermination
of the Jews.” Goldhagen, supra.
69
32
[T]he Holocaust would not be the Holocaust if the property of intentionally
pursuing the physical annihilation of a people without remainder were not
present.72
Katz goes so far as to label the Holocaust the only example of a true genocide in history
and has written a three-volume study to prove his point.73 Likewise, the eminent Jewish
philosopher Emil L. Fackenheim explains:
The "Final Solution" was designed to exterminate every single Jewish man,
woman and child. The only Jews who would have conceivably survived had
Hitler been victorious were those who somehow escaped discovery by the Nazis.
Furthermore, Jewish birth (actually mere evidence of "Jewish blood") was
sufficient to warrant the punishment of death.74
Fackenheim noted that this feature distinguished Jews from Poles and Russians
who were killed because there were too many of them, and from "Aryans" who were not
singled out unless they chose to single themselves out by, for example, opposing the Nazi
regime. As Fackenheim point out, with the possible exception of the Roma and the Sinti
(and commonly known as Gypsies), the Jews were the only people killed for the "crime"
of existing. In other words, no matter what Jews said or did, such as renounce their
religion, swear their allegiance to Hitler, it could not save them. During the long-running
history of antisemitism in Europe, Jews could almost always avoid death by becoming
Christians. Not this time; as Chapter 4 will discuss, under the Nazi race laws, even longstanding Christians were condemned to death if, under the Nazi legal regime, they were
considered to have sufficient Jewish ancestry to be legally characterized as Jews.
One might well ask: Why did the Nazis harbor such hatred of the Jews that they
intended to make Jewish people extinct? As explained by Yehuda Bauer:
[T]he Jews were, in the Nazi eyes, the central enemy, the incarnation of the Devil.
I would argue that the Nazis externalized their concepts of absolute good and
absolute evil into their notion of the Germanic, or Nordic, peoples of the Aryan
race and the nonhuman Jewish anti-race. . . .The Nazi motivations for killing the
Jews consisted of, first, their view of them as Satan incarnate, out to control the
world; second, their view of them as corrupting parasites and viruses whose
elimination was a problem of world racial hygiene, in other words a medical
problem; third, the utopian dream of a new kind of humanity that would arise
once the Jews were eliminated.”75
The Nazi mindset, according to Bauer, distinguishes the Holocaust from other genocides.
“No genocide to date had been so completely on myths, on hallucinations, on abstract,
72
Steven T. Katz, The Holocaust in Historical Context, Vol. 1: The Holocaust and Mass Death Before the
Modern Age (Oxford U. Press, 1994), pp. 10, 28.
73
Id. and Steven T. Katz, The Holocaust in Historical Context: The Holocaust and Mass Death before the Modern
Age, Vols. 2 and 3 (Oxford: Oxford U. Press, 2007).
74
Emil Fackenheim, To Mend the World: Foundations of Post-Holocaust Jewish Thought (Bloomington,
Ind: Indiana U. Press, 1994), p. 12.
75
Bauer, supra, pp. 44-45.
33
non-pragmatic ideology – which was then executed by very rational, pragmatic beings.”76
This possible aspect of uniqueness clearly relates to Fackenheim’s statement that
a Jew was targeted to die for “the mere act of existing”. If one considers the Rwandan
genocide, however, this last aspect of uniqueness (at least for events postdating the
Holocaust) may be questioned, since it appeared that a Tutsi in Rwanda at the height of
the genocide could also do little (other than to hide) to escape death. The ideology of the
Hutu extremists driving the genocide of the Tutsis was the belief that the Tutsis were not
human beings but instead, in their words, “vermin.” As explained by one of the
prosecutors at the International Criminal Tribunal for Rwanda, “[For the Hutu
extremists], killing [a Tutsi] was not like killing a human being. You were getting rid of
a cockroach. That is why it was very easy for you to take up a machete, kill somebody,
and go back home, and talk to your children. It was like getting rid of a snake.”77
Another perspective on uniqueness comes from the well-known Harvard law
professor, writer and commentator Alan Dershowitz, who argues:
The uniqueness of the Holocaust was not the Nazis’ determination to kill the Jews
of Germany and even of neighboring Poland. Other genocides, such as those by
the Cambodians and the Turks, sought to rid particular areas of so- called
undesirables by killing them. The utter uniqueness of the Holocaust was the Nazi
plan to "ingather" all the Jews of the world to the death camp and end the Jewish
"race" forever. It almost succeeded. 78
It is difficult to think of another historical genocide where the perpetrators had a
grand plan to “ingather” and then kill all the targeted victim population from wherever
they were in the world. Such a plan could only be made in conjunction with a plan to
conquer the world, and in few situations of genocide did those in power also have such a
plan. Furthermore, until modern times there have been few people so dispersed like the
Jews, making the possibility of “ingathering” of a different targeted population remote.
From this perspective one could probably correctly say that the Holocaust was unique,
but perhaps one can also say this was because of the special situation that existed: a
persecuted people scattered around the world, with a strong military power intent on
world domination and ability to “gather in” the persecuted people it targets for total
annihilation.
Yet another argument for uniqueness is perhaps more psychological than
historical or political. As well explained by Gunnar Heinsohn in an article entitled “What
makes the Holocaust a unique genocide?” 79:
The Holocaust was “uniquely unique” … because it was a genocide for the
purpose of reinstating the right to genocide. . . . To Hitler the sanctity of life was
the ultimate Jewish [value] which could be eliminated like any other ideology ….
76
Id, p. 48.
Statement of Prosecutor Charity Kagwi (Kenya), Symposium: Journalism as Genocide: The Media Trial,
available at <www.rwandainitiative.ca >
78
Alan M. Dershowitz, “Hezbollah’s Final Solution,” FrontPageMagazine.com, Aug. 11, 2006,
available at <www.frontpagemagazine.com >
79
Gunnar Heinsohn, “What makes the Holocaust A Unique Genocide?, Journal of Genocide Research v. 2,
no. 3 (2000), p. 411-430.
77
34
In the cold language of the computer age one could say that Hitler smashed the
hardware – Jewish men, women and children – to destroy the software – the
Jewish code of ethics.80
In very simple terms, what Heinsohn is saying is that Hitler wanted to do away with the
concept that murder is wrong, in other words to “murder the crime of murder.” This
value had to be smashed by killing both Jews and anyone else who stood up for these
values. Bauer makes a similar point.”[T]here was an internal logic to the Nazi attack on
the Jews, who were the symbolic surviving remnant of the values and the heritage the
Nazis wanted to destroy.”81
Last, the Holocaust can be held to be unique on the basis of its impact. As
discussed in the introductory portion of this volume and illustrated earlier in this chapter,
it is an event that pervades our everyday human discourse and concurrently holds a
prominent position in many disciplines, law included. Adam Jones, in his introductory
treatise on genocide, makes this point when discussing the impact of the Holocaust on the
creation of the discipline of genocide studies. Concurring with Shaw’s statement above
about the overriding importance of the Holocaust for understanding of genocide, Jones
notes that this role of the Holocaust also gives it a unique characteristic. “[T]he Jewish
Holocaust holds a unique place in genocide studies. Among all the world’s genocides, it
alone produced a scholarly literature that spawned, in turn, a comparative discipline.
Specialists on the subject [of the Holocaust] were also central in constituting the field [of
genocide studies] and its core institutions….82
Critics of the concept of the Holocaust being unique have included a variety of
genocide scholars, Holocaust historians and other historians. Opponents disagree that the
Holocaust was so dissimilar to other historical genocides that it makes the Holocaust
unique in history; some of these writers have accused those advocating uniqueness to be
ignorant of other genocides. Israeli professor Benyamin Neuberger, writing in 2006,
summarizes the position of the uniqueness opponents.
In Israel, there is a conviction that the Holocaust is unique, that it cannot be
compared to any other case of genocide. This perception is irrational, problematic
from the moral perspective and also contrary to its aim - the intensification of
Holocaust awareness because after all, it is forbidden to compare…. The time has
come to say that the approach that negates comparison does not stand the test of
reason. After all, anyone who says that it is forbidden to compare says this after
he has made the comparison. Comparison does not mean that everything is
identical - but rather that there is a similarity, and there could also be a difference.
. . [Moreover,][t]he fight to isolate the Holocaust and disconnect it from the
slaughter of other peoples is in any case a lost cause. More and more books are
being published that deal with comparisons.83
In a similar vein, Israel Charny, psychologist and noted genocide scholar, in his
Preface to Is the Holocaust Unique? contends: “I believe that all cases of genocide are
similar and different, special and unique, and appropriately subject to comparative
analysis. For each person whose loved ones were killed in any genocide, for each people
80
Id., p. 426.
Bauer, supra, p.55.
82
Adam Jones, Genocide: A Comprehensive Introduction (New York: Routledge, 2006), p. 163.
83
Benyamin Neuberger, “Our Holocaust – And Others,” Haaretz, Apr. 28, 2006.
81
35
whose co-nationals were variously persecuted, tortured, driven into exile, and/or
murdered, each genocide is inherently unique.”84
Opponents of the uniqueness argument also criticize that such a view diminishes
the suffering of other victim groups during World War II, primarily the Romani peoples
(Gypsies). As Ian Hancock, a historian of Romani (Gypsy) background, explains:
It is abundantly clear that some historians see only what they want to see, that a
very blind eye is being turned in the direction of the Gypsy history, and that
where the Romani genocide in Nazi Germany is acknowledged, it is kept, with the
fewest of exceptions, carefully separated from the Jewish experience.85
Some writers, such as David Stannard, have expressed the view that other
historical genocides, and especially the treatment by European colonial rulers of
indigenous peoples, such as the Native Americans, have also been ignored by the
uniqueness proponents, and this also diminishes the suffering of the victims of these
genocides.86 These other genocides, Stannard and others agrue, have been equally
murderous.
Stannard also attacks the uniqueness argument based on the intention of the
German Nazis to exterminate all Jews by claiming that “there is still no evidence
whatsoever of any Nazi effort or ‘plan’ (as distinct from bombastic public oratory) to kill
every Jew on earth.”87 Most Holocaust historians would disagree. As explained by
Yehuda Bauer: “Because the Germans fully intended to control not just Europe but the
world, whether directly or through allies, this meant that Jews would ultimately be hunted
down all over the world. . . .The Nazis were looking for Jews, for all Jews. . .[who] were
sentenced to death for the crime of being born. Such a policy has never been applied in
human history before and would have undoubtedly been applied universally if Germany
had won the war…This global character of the intended murder of all Jews is
unprecendented in human history”88
We note, of course, that it is possible to assert the uniqueness of the Holocaust
without necessarily diminishing the suffering of the victims of other genocides (both
during World War II and others). One can legitimately take the point of view that the
Holocaust was unique because there were aspects of it that made it unique (see the many
arguments set out above), but this is not necessarily saying that the Holocaust is more
important than other genocides or that the suffering of the victims of the Holocaust was
any more severe that victims of other genocides.
It is perhaps of some significance that the original pioneer of the “uniqueness”
viewpoint and one of the most eminent authorities of the Holocaust, Yehuda Bauer, has
recently had a change of heart. Bauer had argued for some three decades that the
Holocaust was unique, but admits that he has changed his view. Referring to his most
recent book, Rethinking the Holocaust, Bauer explained in a 2006 “Letter to the Editor”
to the Journal of Genocide Studies:
Israel Charny, “Preface” in Rosenbaum, supra, p. xi.
Rosenbaum, supra, p. 40.
86
David E. Stannard, “Uniqueness as Denial: The Politics of Genocide Scholarship,” Is the Holocaust
Unique?, supra, pp. 255-265.
87
Id., p. 271.
88
Id.
84
85
36
[In Rethinking the Holocaust], I explicitly distanced myself from the term
‘uniqueness’—which I had been using for three decades, because it implies an
ahistoric approach, namely, that the series of events we know as the genocide of
the Jews was caused, presumably, by a meta-historical force, and that it cannot be
repeated. I do not think a meta-historical force exists; and that the Holocaust was
caused by humans, for reasons that can be understood, because they are human
reasons. And I think that the form of genocide we call the Holocaust can, in
principle, be repeated, just as any human action can be repeated, never exactly in
the same form, but in a very similar or analogous form. I therefore advocated [in
Rethinking the Holocaust] the use of the admittedly awkward phrase
‘unprecedentedness.’ I also explained why there were, in addition to the totality of
the German intent, other elements of unprecedentedness in case of the genocide of
the Jews. . . . The Holocaust was not a super-genocide, but the most extreme form
of genocide we know, to date….89
Why abandon the term “unique” to characterize the Holocaust? As Bauer
explains, he discards the term because it implies that the event was beyond behavior
capable of being committed by humans (what he calls a “meta-historical force) – which
surely it was not, since the Nazis and their cohorts were human beings. Bauer also wants
to stress that because the Holocaust was a human event, it can occur again – whether
against Jews or some other victim group. As he explains in Rethinking The Holocaust,
“[T]he Holocaust can be repeated, not to be sure in exactly the same way, not by
Germans, not toward the Jews, but by anyone toward anyone. . . What is frightening is
the thought that if it could happen in Germany, it can happen elsewhere.”90
One may well ask whether the language of “unprecedented” or “most extreme” is
only a semantic reformulation of “uniqueness” that makes very little difference in
practice. The editor of the Journal of Genocide Research claims that this terminology is
a “back door” method of bringing back the “uniqueness” claim: “… the more one
attaches the label ‘unprecedented’ to aspects of the same genocide, the more will the
cumulative affect be tantamount to uniqueness. … [W]ith sufficient use of the
unprecedented tag, the ghost of uniqueness returns.’91
There is, however, one significant difference between the term “uniqueness” and
“unprecedented”. “Uniqueness” is a greater claim because it says no other genocide,
either before or after the Holocaust, has the same or similar characteristics as the
Holocaust. However, “unprecedented” implies that there was no genocide before the
Holocaust that can compare; it does not exclude later genocides from having similar
characteristics to the Holocaust.
89
Note that Bauer in 2006 returns to the original formulation set out by Hilberg in 1961: the Holocaust
should not be called “unique” but “unprecedented.”
90
91
Bauer, supra, pp. 42, 46.
Henry Huttenbach, Editor’s Column, Journal of Genocide Studies, v. 3, no. 2 (2001), p. 185.
37
Chapter 2: Genocide – History, Definitions And Concepts
Michael J. Bazyler and Sam Garkawe
2.1.
2.2.
2.3.
2.4.
Introduction
The Historical Background of the Term Genocide
The Genocide Convention
Prosecutions
2.4.1. Legal Procedures for Prosecutions of Genocide
2.4.2. Prosecutions for Genocide
2.5. The Legal Elements of the Crime of Genocide
2.5.1. The Actus Reus of Genocide
2.5.2. The Mens Rea of Genocide
2.5.3. Proving the Legal Elements of Genocide
2.6. Other Genocide-Related Crimes
6.1. Conspiracy to Commit Genocide
2.6.2. Incitement to Commit Genocide
2.6.3. Attempted Genocide
2.6.4. Complicity to Genocide
2.6.5. War Crimes and Crimes Against Humanity
2.6.6. Ethnic Cleansing
2.1. Introduction
At the outset, we need to readily admit that the field of genocide studies is in a
muddle. Those who call themselves genocide scholars have argued, and continue to argue
seemingly without any satisfactory resolution, about the meaning of the term “genocide,”
its parameters, and the consequences of labeling an event with the dreaded “g-word.” As
with the other terminology arising out of World War II (see discussion above), the word
“genocide” is sloppily used and its meaning downgraded in political discourse. It appears
to include virtually any nasty incident that costs people their lives. The term has also been
used to describe events where no lives have been lost, thereby futher devaluing it by such
misuse. Michael Ignatieff, former director of the Carr Center for Human Rights Policy
at Harvard and current member of the Canadian parliament, explains, “The word
…‘genocide’ is now so banalized, so misused, so tossed-around, that it has lost all
definition. . . .Those who should use the word genocide never let it slip their mouths.
Those who unfortunately do use it, banalise it into a validation of every kind of
victimhood." 92 Ignatieff elucidates:
Slavery for example, is called genocide when. . .it was a system to exploit, rather
than to exterminate the living. Aboriginal peoples in my own country speak of a
microbial genocide – the tremendous hecatomb of aboriginal victims to European
diseases in the sixteenth and seventeenth centuries. You can't use the word
"microbial genocide" and understand what genocide is, since microbes don't have
intentions. Genocide, as a word, turns on a genocidal intention. "Genocide" has no
92
Michael Ignatieff, The Legacy of Raphael Lemkin, Lecture at United States Holocaust Memorial
Museum, Dec. 13, 2000, available at <www.ushmm.org/conscience>
38
meaning whatever unless the word can be connected to a clear intention to
exterminate a human group, in whole or in part.93
As with the other Holocaust-era terminology and imagery, the proper use of the term is
important, and not just for the simple reason that misuse of terminology amounts to
telling lies but also on practical grounds. As Ignatieff points out, “All these rhetorical
issues are of some importance because calling every abuse or crime a genocide makes it
steadily more difficult to rouse people to action when a genuine genocide is taking
place.”94
This section aims to bring some clarity to the discussion and to do so from the
point of view of the law. Of course, this is not the first attempt to do so.95 The hope here
is that bringing the type of rigorous analysis coming from the field of law – which is part
and parcel of legal reasoning – can add a fresh understanding about what it is that we are
talking about, and not talking about, when we use the term “genocide.”
In conducting our legal discussion below, we realize the risk of intellectualizing
the subject of genocide. As you read the analysis below, keep in mind that we are
speaking about the most horrible kinds acts committed by human beings against each
other. We write in the first decade after the conclusion of the 20th century, the bloodiest
century of humanity’s existence on this planet. Writing in 1994, with the impending
genocides in Rwanda and the former Yugoslavia still in the future, Rudolph Rummel, in
his Death by Government, tallied the mass murders committed by governments against
civilians:
In total, during the first eighty-eight years of this century, almost 170 million
men, women and children have been shot, beaten, tortured, knifed, burned,
starved, frozen, crushed, or worked to death; buried alive, drowned, hung,
bombed, or killed in any other of the myriad ways governments have inflicted
death on unarmed, helpless citizens and foreigners. The number of dead could
conceivably be nearly 360 million people. It is as though our species had been
devastated by a modern Black Plague. And indeed it has, but a plague of Power,
not germs.96
Unfortunately, Rummel’s words are as accurate today as in 1994, with another genocide
presently raging in the Darfur region of Sudan instigated by the Sudanese government. In
Darfur, government-backed Arab militias since 2003 have murdered, raped and
plundered the predominately black population of the region, with about 2.5 million
93
Id. Alain Destexhe, former Secretary-General of Medicins Sans Frontieres [Doctors Without Borders]
expresses the same frustration: “Thus the word genocide fell victim to a sort of verbal inflation.... It has
been applied freely and indiscriminately to groups as diverse as the blacks of South Africa, Palestinians and
women, as well as in reference to animals, abortion, famines and widespread malnutrition, and to many
other situations. The term genocide has progressively lost its initial meaning and is becoming dangerously
commonplace. In order to shock people and gain their attention to contemporary situations of violence or
injustice by making comparisons with murder on the greatest scale known in this century, ‘genocide’ has
been used as synonymous with massacre, oppression and repression, overlooking that what lies behind the
image is the attempted annihilation of the entire Jewish race." Alain Destexhe, Rwanda and Genocide in
the Twentieth Century (London: Pluto Press, 1995), p. 6.
94
Id.
95
For an excellent attempt by a social scientist to provide both a “bird’s eye” view of genocide and its
study see Scott Straus, “Contested meanings and conflicting imperatives; a conceptual analysis of
genocide,” Journal of Genocide Studies, v. 3, no. 3 (2001), pp. 349-75.
96
R.J. Rummel, Death by Government, (New Brunswick, N.J.: Transaction Publishers, 1994), p. 9.
39
people displaced and more than 200,000 civilians dead. The total death toll of human
beings at the hands of governments continues to rise.
2.2. The Historical Background of the Term Genocide
Because the word “genocide” is so readily known and both used and overused,
those first confronting its etymology are surprised to learn that it is of relatively recent
origin. Though human history is sadly full with cases of one nation, tribe or group of
people being completely wiped out by another nation, tribe or group,97 the word
“genocide” itself did not even exist before World War II and arose directly out of the
Holocaust. Its inventor, Raphael Lemkin, was a Jew. He was also a lawyer.98 It is the
legalistic background of its inventor and the purpose for the invention of the term – to
make certain group behavior an international crime recognized by the community of
nations as illegal through a multilateral treaty—that puts the term “genocide” solidly
within a legal framework.
Raphael Lemkin (photo
Memorial Museum)
courtesy of United States Holocaust
Raphael Lemkin was born in 1900 in Poland and died in the United States in
1959. Originally a linguistics student, he switched his university studies to law after
developing a keen interest in cases of historical massacres. According to Lemkin’s
unpublished autobiography99 discovered among his papers after his death, Lemkin was
influenced at an early age by reading Quo Vadis, where the Polish writer Henryk
Sienkewicz in his Nobel Prize-winning novel described in detail the massacres of
Christian converts during the reign of the Roman Emperor Nero. Lemkin was both
absorbed with and aghast at the inhumanity of these acts and the cheering of the
Coliseum crowd as the Christians were fed to the lions. He began studying other acts of
man’s inhumanity towards his fellow human beings, and as a young university student
97
For a comprehensive history, see Ben Kierman, Blood and Soil: A World History of Genocide from
Sparta to Darfur, (New Haven: Yale U. Press, 2007). The author is the director of the Genocide Studies
Program at Yale University.
98
Michael Ignatieff explains how being a Jew in a pre-war Poland rife with antisemitism led Lemkin to
take up the law: “[Lemkin]was never secure in the Poland of his birth. Because of that, he sought a very
particular kind of belonging, a belonging in the law. He was one of those Jews of the inter-war period for
whom the only place you could belong was in the imaginary kingdom of the law. . . . In some
psychological sense, [Lemkin]… found no home but in the law. The passion for the law was an expression,
in a sense, of [his] homelessness.” Ignatieff, supra.
99
Raphael Lemkin, Totally Unofficial: The Autobiography of Raphael Lemkin, unpublished undated
manuscript, New York Public Library, Manuscript and Archives Division, The Raphael Lemkin Papers,
Box 2: Bio- and Autographical sketches of Lemkin.
40
was distressed to learn that even in the 20th century the still-living Turkish perpetrators of
what later became known as the Armenian genocide were never punished for their acts.
Lemkin turned to the study of law because, in his words, he “thought that this
profession would best qualify [him] for [his] task of making the destruction of groups of
human being punishable.”100 Told by one of his university professors that international
law does not concern itself with acts committed by rulers within their own territory
because these rulers are protected by the notion of state sovereignty, Lemkin demurred:
“Sovereignty implies conducting an independent foreign and internal policy, building of
schools, construction of roads. . . all types of activity directed towards the welfare of
people. Sovereignty cannot be conceived as the right to kill millions of innocent
people.”101
Lemkin’s response was to propose an international crime for which individuals
committing such acts against a group of people – whom he labeled as “a collectivity”—
could be punished irrespective of national boundaries. In effect, Lemkin was proposing
the now-recognized rule of universal jurisdiction by which individuals committing certain
heinous crimes are considered hostis humani generis— outlaws of all mankind – and can
be prosecuted by any national court regardless of where the crime was committed.102
After graduation from law school in 1926 at the University of Lvov (then part of
Poland and today in the Ukraine), Lemkin taught criminal law at the Free University of
Warsaw. In 1928, he went to work as a Warsaw criminal prosecutor. A domestic
criminal lawyer by day, Lemkin still dabbled in international law in his off-hours. At a
League of Nations-sponsored international law conference held in Madrid in 1933, the
Fifth International Conference for the Unification of Penal Law, the thirty-three year old
young Polish lawyer first publicly introduced his international law crime, which he then
called the crime of “barbarity” and was a forerunner of the new word “genocide.”
According to his conference paper: “Whosoever, of out of hatred towards a racial,
religious or social collectivity, or with a view to the extermination thereof, undertakes a
punishable action against the life, bodily integrity, liberty, dignity or economic existence
of a person belonging to such collectivity, is liable for the crime of barbarity…The above
crime[] will be prosecuted and punished irrespective of the place where the crime was
committed and of the nationality of the offender, according to the law of the country
where the offender was apprehended.”103
The proposal went nowhere. While the winds of war were already blowing in
Europe with Hitler’s rise to power earlier that year, the law delegates in Madrid and at
Lemkin, Totally Unofficial, supra, cited and quoted in “From the Guest Editors: Raphael Lemkin: the
‘founder of the United Nation’s Genocide Convention’ as a historian of mass violence,” Journal of
Genocide Research, v. 7, no. 4 (2005), p. 447.
101
Lemkin, Totally Unofficial, supra, cited and quoted in Samantha Power, “A Problem From Hell”:
America and the Age of Genocide, (New York: Basic Books, 2002), p. 19.
102
The principle of universal jurisdiction is set out in the Restatement (Third) of Foreign Relations, Sec.
404. See also Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes Under
International Law (Stephen Macedo, Ed.), (Philadelphia: University of Pennsylvania Press, 2006).
103
Lemkin’s proposal in Madrid also included a second crime of universal jurisdiction, which he called
“vandalism” and which made criminal acts aimed at destruction of “cultural or artistic works” of a
collectivity. The full proposals are available at <www. preventgenocide.org>
100
41
subsequent legal conferences where Lemkin continued to present his proposal ignored his
pleas.
Lemkin, of course, exhibited prescience. Despite efforts by Great Britain and
France to placate Hitler by giving in to his demands for more territory, war could not be
avoided. After the German invasion of Poland in 1939, which plunged the European
continent into a path of destruction unprecedented in history, Lemkin was drafted into the
Polish Army. Following Poland’s rapid defeat to Nazi Germany, Lemkin fled Poland and
eventually made his way to the United States. Left behind in Poland were his parents,
whom he never saw again. Ultimately, about fifty members of his family perished during
the war. No longer just a student of mass murder and group violence, he was now
experiencing it personally.
An émigré in the United States, Lemkin first taught at Yale and Duke and then
joined President Roosevelt’s War Department. In 1944, he published his now-classic
book, Axis Rule in Occupied Europe, where he described the brutalities inflicted by Nazi
Germany upon the occupied nations of Europe. Winston Churchill in a speech broadcast
in August 1941 over the BBC remarked, “We are in the presence of a crime without a
name.” In Axis Rule, Lemkin gave that crime a name by coining a new word: “genocide.”
Ignatieff points out Lemkin’s extraordinary achievement was to coin the term “before
anybody had the faintest idea of the reality of genocide itself. . . . fully two years before
the world knew the words ‘Auschwitz,’ ‘Buchenwald,’ ‘Belsen’ [and] ‘Dachau.’”104
The crime of genocide described in Axis Rule was partially based on Lemkin’s
presentation in Madrid, made a decade earlier when he sought to outlaw his proposed
crime of “barbarity.” Returning to his days as a student of linguistics, and influenced
(according to Samantha Power) by the “power of naming” from his childhood Torah
studies,105 Lemkin now invented a completely new word for the crime. “By ‘genocide,’ ”
he wrote in 1944, “we mean the destruction of a nation or of an ethnic group. This new
word is made from the Greek word genos (race, tribe) and the Latin cide (killing).”106
Genocide, said Lemkin, is “a coordinated plan of different actions aiming at the
destruction of essential foundations of the life of national groups, with the aim of
annihilating the groups themselves.107
Lemkin argued that an international treaty should prohibit genocide, both in
times of war and in times of peace. Moreover, as Lemkin explained in a later article in
the American Scholar, genocide did not only impact the victim group but produced “an
immediate and direct detrimental effect upon countries other than those in which it was
practiced.”108
While Axis Rule is known today for Lemkin’s debut of the term “genocide,” that
was not the main thrust of the book. Rather, Lemkin’s goal was to show Nazi brutality
through law. In his study, Lemkin compiled an exhaustive list of laws numbering
104
Ignatieff, supra.
Power, supra, p. 21.
106
Ibid, p. 19.
107
Raphael Lemkin, Axis Rule in Occupied Europe: Laws of Occupation; Analysis of Government;
Proposals for Redress (Washington, D.C.: Carnegie Endowment for International Peace, 1944), p. 79,
reprinted in Raphael Lemkin, Axis Rule in Occupied Europe: Laws of Occupation; Analysis of
Government; Proposals for Redress (Introduction by Samantha Power) (Clark, N.J.: Lawbook Exchange,
2005).
108
Raphael Lemkin, “Genocide,” American Scholar, v. 15, no. 2 (1946), p.363
105
42
hundreds of pages enacted by the Nazis for the persecution of the conquered population
of Europe in seventeen countries. Why compile such laws and discuss them in detail? As
explained in a recent article:
Lemkin was convinced that many of his potential readers were inclined to believe
that the Axis regimes could not possibly be as cruel and ruthless as they had been
told so far. It was therefore important to show the readers that the occupation of
large parts of Europe had been marked by grave outrages against humanity and
international law as well as against human rights, morality and religion and that
the occupants had not even refrained from using law to commit their crimes. The
publication of a collection of occupation laws was essential, Lemkin believed, for
a clear understanding of the Axis regimes. To a large extent Lemkin’s book was
therefore a collection of those laws and decrees…. Dealing with administration,
police, law, property, finance and labour, Lemkin wanted to show his reader how
the German authorities had organized their occupation in violation of international
law and that. . .they had used a unilaterally utilitarian conception of law – law is
what is useful to the German nation – to give the impression of a legal
behaviour.109
Ignatieff explains the uniqueness of Lemkin’s analysis.
No one had studied the German occupation as a form of jurisprudence. Here's a
lawyer who looks at this horror and tries to understand it as a system of law. His
key insight was that occupation, not just in Poland but right across Europe, had
inverted the whole tradition of European jurisprudence. So, that you have these
incredible insane decrees. Food distribution, for example, in Poland, is entirely
racialized. You get food depending on your racial category. Jews get almost no
food at all. Other examples: marriage law in occupied Holland was organized on
racial grounds. Germans responsible for getting Dutch women pregnant were not
punished, as would be the case in any normal code of military justice or honor.
They were rewarded because the resulting child would be a Nordic Aryan
addition to the master race. Lemkin was the first scholar to notice the insanity of
this kind of jurisprudence, to understand its unremitting racial bias, and to see that
the extermination of groups that he begins to pick up evidence of is not an
accidental or incidental cruelty of occupation, but the very essence of the whole
program.110
In compiling Nazi occupation laws and analyzing the policies undertaken by the
Nazis over the occupied territories, Lemkin was not just focusing on persecution of the
Jews, what after the war became known as the “Holocaust.” His study analyzed how Nazi
laws likewise were used to persecute the general populace of the occupied nations. As a
Pole, Lemkin especially lamented and described in detail in Axis Rule how the German
occupier was destroying the Polish nation. Ultimately, Lemkin can be described as a
universalist, lamenting the suffering of all groups as a result of genocide. As noted by
Tanya Elder, “Lemkin’s idea of genocide reached far beyond the Jewish people. Jews
Daniel Marc Segesser and Myriam Gessler, “Raphael Lemkin and the international debate on the
punishment of war crimes (1919-1948),” Journal of Genocide Research, v. 7, no. 4 (Dec. 2005), p. 461.
110
Ignatieff, supra.
109
43
may have suffered the largest and most systematic of abuses, but genocide, to Lemkin,
reached back to antiquity through to the modern era and affected scores of people.”111
Axis Rule was well received, including a front-page review in the New York Times
Book Review.112 On October 18, 1945, “genocide” entered the English, French, Russian
and German languages when the neologism appeared, without attribution to its inventor,
in a public document. World War II ended in May, 1945, and Lemkin was by then in
London, working with the American team of lawyers drafting the London Charter
(officially known as the “Charter of the International Military Tribunal for the Trial of the
Major War Criminals”) for the upcoming trial of the senior Nazi leaders before the
International Military Tribunal at Nuremberg. In charging the Nazi leaders with Count 3
– war crimes – the Nuremberg indictment explained that the Nazis, in the course of
committing such crimes, “conducted deliberate and systematic genocide – namely, the
extermination of racial and national groups. . . .”113 Since Lemkin was working on the
committee charged with drafting the portion of the indictment dealing with war crimes,
his presence on the committee undoubtedly led to the appearance of the term genocide in
the London Charter. According to James Fussell, a biographer of Lemkin: “After
October 1945, it was a word belonging to the world – a way of comprehending the ‘Final
Solution’ as a massive crime paralleling homicide, but on the scale of the destruction of
entire groups.”114
Although genocide was never expressly identified as a crime in Nuremberg, it
continued to make later appearances as a descriptive term for the events which took place
during World War II. Thus, during the subsequent zonal trial in Nuremberg conducted by
the Americans of the German generals in the Einsatzgruppen case – the Nazi mobile
killing squads responsible for the murder of over one million Jews in the aftermath of the
Nazi invasion of the Soviet Union – chief prosecutor Benjamin Ferencz in his opening
statement explained to the three-judge panel: “We will show that these deeds of men in
uniform were the methodical execution of long-range plans to destroy ethnic, national,
political and religious groups which stood condemned in the Nazi mind. Genocide, the
extermination of whole categories of human beings, was a foremost instrument of the
Nazi doctrine.”115 Although the German generals were charged with committing “crimes
against humanity” – the crime formally enunciated and defined in the Nuremberg Charter
– their conduct was described as “genocide.” The final judgments finding the defendants
guilty and sentencing most to death likewise described their behavior as genocide. The
new word was beginning to enter the legal vocabulary.
Following the establishment of the United Nations in 1945, Lemkin worked
relentlessly to have the international community of that time enact a multinational treaty
that would criminalize his new crime.116 His efforts were a continuation of the proposal
Tanya Elder, “What you see before your eyes: documenting Raphael Lemkin’s life by exploring his
archival Papers,1900-1959,” Journal of Genocide Research, v. 7, no. 4,Dec. 2005, p. 474.
112
Books and Authors, New York Times, Nov. 17, 1944, p. 17
113
Nuremberg Trial Proceedings Vol. 1 Indictment: Count Three, available at
<www.yale.edu/lawweb/avalon> (Yale’s University Avalon Project is a valuable resource containing
complete transcripts of the Nuremberg trials proceedings).
114
Email from Jim Fussell to Michael J. Bazyler, Jun. 12, 2005, on file with the authors.
115
USA v. Otto Ohlendorf et al. (Case No. 9), Trial of War Criminals before the Nuremberg Military
Tribunals under Control Council Law No. 10, v. 4, (U.S. Govt. Printing Office, 1949), p. 39.
116
This is reflected in Lemkin’s later writings. See Lemkin, “Genocide,” supra, p. 227; Raphael Lemkin,
111
44
he first introduced in Madrid in 1933. Post-1945 Europe, however, was a quite different
place than 1933. While in 1933, his proposal to criminalize “barbarity” received short
shrift, with one delegate in Madrid dismissing it as occurring “too seldom to legislate,”117
the postwar Europe in ruins and the United States were receptive to his ideas.
In 1946, the General Assembly of the newly created United Nations unanimously
passed the Declaration on Genocide in the form of a resolution describing genocide as “a
denial of the right of existence of entire groups, as homicide is the denial of the right to
live of individual human beings.”118 It noted that such an occurrence “shocks the
conscience of mankind” and recognized genocide as a “crime under international law.”119
Since a General Assembly resolution has no binding effect, Lemkin continued to
lobby for his original dream: to outlaw genocide through a binding international treaty to
which nations would join apart from their membership in the United Nations. In 1948,
two years later, his dream of codifying genocide as an international crime began its
process of being reality when the UN General Assembly issued the prohibition in the
form of a draft treaty, the Convention on the Prevention and Punishment of the Crime of
Genocide (“Genocide Convention”), which states now had to ratify by joining it as
parties. In 1951, the Genocide Convention went into force when the requisite number of
states ratified the treaty, making the treaty binding international law. As of this writing,
140 states are parties to the Genocide Convention.
Lemkin’s singular efforts to criminalize genocide took their toll on his health.
Falling gravely ill in 1948 following passage by the United Nations of the Genocide
Convention, Lemkin’s self-diagnosis of his illness was “Genociditis, exhaustion from
work on the Genocide Convention.”120 Despite his enormous contribution to international
law, Lemkin died impoverished and despondent in a New York hotel room in 1959. His
gravestone records his success as the “Father of the Genocide Convention.”
While Lemkin’s legacy has long been known and recognized by Holocaust
historians and genocide scholars, his name remained obscure to the general public and to
the legal profession for most of the half-century after the end of World War II. In 2002,
Lemkin’s contribution became more publicly known with the publication of Samantha
Power’s Pulitzer Prize-winning study on genocide, A Problem From Hell.121 While the
New York-based Institute for the Study of Genocide and the International Association of
Genocide Scholars have jointly issued the annual Raphael Lemkin Prize for the best work
on the subject of genocide, the Journal of Genocide Studies did not devote a special issue
to Lemkin until 2005 in its seventh year of existence.122 A comprehensive biography of
Lemkin has yet to be published. As explained by Elder: “The general public…is
oblivious of him. The public may be able to tell you that acts of genocide had happened
throughout history, but none would surmise that no specific word existed for this crime
“Genocide As A Crime Under International Law,” The American Journal of International Law, v. 42
(Jan.15, 1948), p. 145.
117
Power, supra, p. 22.
118
GA Res. 96 (1946).
119
Ibid.
120
Quoted in Elder, supra, p. 484.
121
Samantha Power, “A Problem From Hell”: America and the Age of Genocide, (New York: Basic
Books, 2002).
122
See “Special Issue: Raphael Lemkin: The ‘Founder of the United Nation’s Genocide Convention’ As A
Historian of Mass Violence,” Journal of Genocide Studies, v. 7, no. 4, Dec. 2005.
45
prior to the Jewish Holocaust or possibly for some, that such crimes actually occurred
prior to World War II.”123
Lemkin’s word, genocide, however, has achieved recognition beyond his dreams.
Genocide has now become synonymous with extreme evil and, as noted by William
Schabas in his legal treatise on genocide, the “crime of crimes.”124 A Google search
today yields over twenty-six million entries for the term.
Nevertheless, Lemkin’s naming “the crime of crimes” and being instrumental in
outlawing it under international law could only go so far. As Omer Bartov explains,
“Lemkin was an extraordinary man. . . and he did show that if you are committed and as
obsessed—and he indeed was a lonely, obsessed, compulsive person—you may, under
the right circumstances,. . . be able to make a huge difference. . . [but] doing that alone
did nothing as such; it was a beginning, not an end.”125
2.3. The Genocide Convention
The only legally authoritative definition of genocide is found in the Lemkininspired and UN-originated Convention on the Prevention and Punishment of the Crime
of Genocide (Genocide Convention), the multilateral treaty which, as its title suggests,
aims both to 1) prevent genocide and 2) punish criminally those who perpetrate it. The
one-word designation, currently in increasing use, for a perpetrator of genocide is the
French word genocidaire and sometimes spelled génocidaire to conform to the French
génocide.
The Genocide Convention begins with the inspiring language in its Preamble
calling for international cooperation “to liberate mankind from such an odious scourge.”
These words were penned in 1948 keeping in mind the recent genocide of the Jews, the
Holocaust. The Preamble also recognizes that this odious scourge has “at all periods of
history. . .inflicted great losses on humanity.”
It is a brief document, consisting of nineteen articles, with only the first ten setting
out substantive law.126 Article I makes genocide, whether committed in time of peace or
war, “a crime under international law, which [signatories to the Genocide Convention]
undertake to prevent and to punish.” Article II, by far the most-cited and quoted and
123
Elder, supra, p. 470.
William A. Schabas, Genocide in International Law: The Crimes of Crimes (Cambridge: Cambridge U.
Press, 2000). p. 9. The phrase “crime of crimes” comes from opinions issued in two genocidal trials before
the International Criminal Tribunal for Rwanda. Ibid.
125
Omer Bartov Podcast, supra.
126
As Jerry Fowler explains, “[T]he last nine [articles] are more technical than substantive, dealing with
matters such as where states that become parties to the convention shall deposit their instruments of
ratification or accession (with the secretary-general of the United Nations); how many states must become
parties before the convention comes into force (twenty a number reached in late 1950); and where the
original copy of the convention would be held (in the UN archives). Jerry Fowler, “A New Chapter of
Irony: The Legal Implications of the Darfur Genocide Determination,” Genocide Studies and Prevention, v.
1, no. 1 (2006), p. 30.
124
46
criticized127 provision of the Genocide Convention, goes on to define what exactly is the
international crime of genocide. It reads:
In the present Convention, genocide means any of the following acts committed
with intent to destroy, in whole or in part, a national, ethnical, racial or religious
group, as such:
a. Killing members of the group;
b. Causing serious bodily or mental harm to members of the group;
c. Deliberately inflicting on the group conditions of life calculated to bring
about its physical destruction in whole or in part;
d. Imposing measures intended to prevent births within the group;
e. Forcibly transferring children of the group to another group.128
The first impression one gets from reading Article II is both how simple and
complex the drafters have made the crime of genocide. Lawyers examining the definition
readily note the imprecision and ambiguity of the definition. In fact, as will be shown
below, the judges of the international ad hoc tribunals for the former Yugoslavia and
Rwanda who utilize the Article II legal definition to determine guilt or innocence of
accused genocidaires, have been struggling for the last decade to make the definition
workable.
Despite these problems, the Article II definition is the one that lawyers, jurists and
legal scholars must live with and interpret, since it is the only authoritative definition of
the crime of genocide under international law. Genocide scholars outside of the legal
profession have attempted to improve on the Article II definition,129 but all also recognize
Martin Shaw notes that “[c]riticizing] the Convention has been a major industry in genocide studies.”
Martn Shaw, What is Genocide? (Cambridge: Polity Press, 2007), p. 28. Almost all of the criticism has
been directed at the provisions of Article II. See Chapter 3 for further discussion.
128
Convention on the Prevention and Punishment of the Crime of Genocide, 78 United Nations Treaty
Series, v. 78, p. 277 (1948), Article II. Currently, the more common term for the adjective “ethnical” is
“ethnic.” The use of either term is proper.
129
The Institute for the Study of Genocide, created by genocide scholar Helen Fein, sets out on its website
some of the most prominent alternative definitions:
Social scientists have different definitions of genocide from each other and from the definition in
international law (the UN Genocide Convention). These differences are both because of the
differences between generic concepts and legal definition (legal definitions are more specific),
differences in purpose of the definer, and because of the political and group processes involved in
drawing up an international convention. . . .
Definitions of social scientists and historians Frank Chalk and Kurt Jonassohn: "Genocide is a
form of one-sided mass killing in which a state or other authority intends to destroy a group, as
that group and membership in it are defined by the perpetrator" (The History and Sociology of
Genocide , 1990).
Israel W. Charny: "Genocide in the generic sense is the mass killing of substantial numbers of
human beings, when not in the course of military forces of an avowed enemy, under conditions of
the essential defenselessness and helplessness of the victims". (in Genocide: Conceptual and
Historical Dimensions ed. George Andreopoulos, 1994).
Helen Fein: "Genocide is sustained purposeful action by a perpetrator to physically destroy a
collectivity directly or indirectly, through interdiction of the biological and social reproduction of
group members, sustained regardless of the surrender or lack of threat offered by the victim".
(Genocide: A Sociological Perspective, 1993/1990).
127
47
that their formulations are not legally binding. As Schabas puts it: “The 1948 definition
has stood the test of time.”130 Moreover, the 1948 definition recently was included
without significant change in the statutes of the ad hoc tribunals for the former
Yugoslavia and Rwanda and the Rome Statute of the International Criminal Court.
“Implementing legislation of the Rome Statute adopted in many countries has confirmed
the dominance of the 1948 definition in national criminal law as well.”131 Legislation
creating the mixed international/domestic tribunals for East Timor and for Cambodia
likewise adopts the Genocide Convention definition.132
Ultimately, we need to recognize that any definition will be subject to criticism.
As Irving Louis Horowitz has noted: “The concept of genocide in empirically ubiquitous
and politically troublesome. Formal definitions are either too broad to invite action or
too narrow to require any; political definitions invariably mean what other nations do to
subject populations, never what one’s own does to its subjects or citizens.”133
2.4. Prosecutions
2.4.1. Legal Procedures for Prosecution of Genocide
Perpetrators of genocide (genocidaires) can be prosecuted for their actions before:
(1) domestic courts of states where they are nationals; courts of states where the genocide
occurred; and courts of states where the victims are from and (2) international criminal
tribunals whose jurisdiction encompasses the crime of genocide.
Under the rule of complementarity of international law,134 domestic prosecution is
almost always preferred and an international criminal court is likely to exercise
Barbara Harff and Ted R. Gurr: "By our definition, genocides and politicides are the promotion
and execution of policies by a state or its agents which result in the deaths of a substantial portion
of a group. The difference between genocides and politicides is in the characteristics by which
members of the group are identified by the state. In genocides the victimized groups are defined
primarily in terms of their communal characteristics, i.e., ethnicity, religion or nationality. In
politicides the victim groups are defined primarily in terms of their hierarchical position or
political opposition to the regime and dominant groups" ("Toward empirical theory of genocides
and politicides," International Studies Quarterly 37, 3 [1988]).
Steven T. Katz: "[T]he concept of genocide applies only when there is an actualized intent,
however successfully carried out, to physically destroy an entire group (as such a group is defined
by the perpetrators)" (The Holocaust in Historical Perspective, Vol. 1, 1994) (emphasis in
original) available at: <www.isg-iags.org>
130
William A. Schabas, “The ‘Odious Scourge,’ Evolving Interpretations of the Crime of Genocide,”
Genocide Studies and Prevention, v. 1, no. 2 (Fall 2006), p. 97.
131
Id. (endnotes omitted).
132
The mixed tribunals for Sierra Leone and for Kosovo are not empowered to try individuals for genocide.
See Chapter 10 for discussion of these mixed tribunals.
133
Irving Louis Horowitz, Taking Lives: Genocide and State Power (New Brunswick, N.J.: Transaction
Publishers, 4th ed., 1997), p.12.
134
In international law, the principle of complementarity means that an international judicial tribunal
obtains jurisdiction over a case only in those instances where the national or domestic legal system has
failed to prosecute a crime. The preferred prosecution is by a domestic court, which gets the “first shot” at
the prosecution. This is the principle under which the newly-estabIished International Criminal Court
operates. See Chapter 9. Complementarity is not universal. For example, the UN Security Council
established the ad hoc tribunals for the former Yugoslavia and Rwanda to operate on the principle that
48
jurisdiction only when the domestic tribunal cannot, or is unwilling to because of political
considerations or deficiencies in its legal system, to prosecute the case. In addition, it is
possible for one nation to sue another nation before the International Court of Justice
(“ICJ”), the judicial arm of the United Nations and popularly known as the World Court,
for genocide. Such an action is possible where both the plaintiff and defendant states are
parties to the Genocide Convention, since Article IX of the Convention states that
“disputes between contracting parties . . .including those relating to the responsibility of a
state for genocide. . .shall be submitted to the ICJ at the request of any of the parties to
the dispute.”135 This is akin to a civil lawsuit rather than a criminal prosecution and
remained only a theoretical possibility until 1993, when Bosnia-Herzegovina sued Serbia
for genocide in the ICJ arising out of the war following the breakup of Yugoslavia. In
2007, the ICJ held that Serbia is not legally responsible for genocide, though finding that
Serbia was responsible of other international law violations and had not done enough to
prevent genocide from being carried out by the Bosnian Serb forces.
..
Most state parties to the Genocide Convention have made genocide a crime under
their domestic law. Some have done so by incorporating verbatim the Article II definition
of genocide into their local penal code, and then designating punishment usually akin to
punishment set out for such serious domestic crimes as treason or murder. In those states
that still recognize capital punishment, the penalty for genocide may be death.136 Other
states do not even bother to set out a definition, but instead only refer to the Article II
definition as the source of the elements of the domestic crime. Finally, some states in
their national penal codes have broadened the definition by either making other acts
punishable as genocide or adding other victim groups within the categories of protected
groups. An example of the first type is Spain’s domestic genocide statute, which adds
“sexual assault” and “forced resettlement.” to the list of acts constituting genocide.137
According to John Quigley, “The addition of these terms was attributed to the fact that
Spain’s parliament acted shortly after the Bosnian war, in which sexual assault and forced
removal against groups were widely practiced. . . .Spain’s parliament has considered
sexual assault a sub-category of ‘serious bodily or mental harm.’”138 In light of the
severe criticism of the exclusion of political groups from the list of protected groups
under the Genocide Convention,139 the most common addition to the list of protected
groups in local genocide statutes are “political groups.”
One last group of states did not enact a domestic genocide statute after becoming
a state party to the Genocide Convention on the ground that such legislation was
unnecessary since the acts constituting genocide were already covered under existing
these courts are superior to domestic Yugoslav and Rwandan courts and are empowered to take over
prosecutions from domestic courts. See Chapter 8.
135
Genocide Convention, supra, Article IX.
136
See e.g. Penal Code of Ethiopia, Article 281 (punishment for genocide is “rigorous imprisonment from
five years to life, or, in cases of exceptional gravity, with death.”), available at
<www.preventgenocide.org>
137
Penal Code of Spain, Article 607, available at <www.preventgenocide.org>
138
John Quigley, The Genocide Convention: An International Law Analysis (Burlington, VT: Ashgate
Publishing, 2006), pp. 16-17.
139
See discussion in Chapter 3.
49
penal statutes, i.e. murder. Of these states, some recently made genocide a crime under
domestic law after becoming a state party to the International Criminal Court.140
2.4.2. Prosecutions for Genocide
Despite an imperfect but workable set of mechanisms for prosecutions of
genocide, most perpetrators have gotten off scot-free. Impunity for genocide seems to be
the norm and prosecution and punishment the exception. And we are not speaking about
impunity only for those who physically carried out the actual murders – the killers,
whether they be soldiers of a regular state army or members of a rag-tag paramilitary
group – but also the desk murderers who actually planned the policy of genocide and set
the genocidal behavior into motion. Reaching back into history, the desk murderers
escaping punishment include not only those who took their own lives to avoid
prosecution, like German Nazi dictator Adolf Hitler,141 or those who died while being
prosecuted, like former Yugoslav president Slobodan Milosevic, but also those who died
peacefully in their beds. These include some of the most bloody tyrants of the 20th
century: the Soviet Union’s Josef Stalin, China’s Mao Zedong, Cambodia’s Pol Pot, and
Uganda’s Idi Amin, among others.
While the “big fish” might have gotten away, a very limited number of
individuals have been found guilty of the gravest state crime known to mankind –
genocide – and branded with the most repugnant label to be placed upon a criminal:
perpetrator of genocide (or the increasingly used term genocidaire.) In this section, we
provide an introductory overview of genocide prosecutions before international and
domestic courts in the aftermath of the Genocide Convention, with Chapters 8 and 9
analyzing in detail the mechanisms of such prosecutions and their impact on international
criminal law.
Even though the Genocide Convention came into being in 1951, and signatories
to the Convention began soon thereafter promulgating domestic legislation criminalizing
genocide under their local laws, the first domestic prosecution of an individual for the
crime of genocide did not take place until ten years later when Adolf Eichmann was tried
in Israel in 1961 under its “Nazi and Nazi Collaborators” law. One of the articles of the
Israeli law includes “crimes against the Jewish people” committed during the Nazi era, in
effect genocide committed against Jews – or the Holocaust.142 Eichmann was found
140
Both the United Kingdom and Australia are examples of such states. For the UK see United Kingdom
Statute 2001 Chapter 17 Part 5 Section 51; for Australia, see the Criminal Code Act 1995 (Cth), ss 268.3268.7 and International Criminal Court (Consequential Amendments) Act 2002 (Cth) available at
<www.preventgenocide.org>
141
Hitler, if captured, technically could not have been prosecuted for genocide since his murderous acts
took place before the Genocide Convention took effect in 1951. As discussed in Chapter 5, genocide was
not one of the crimes charged at the Nuremberg trials of the Nazi defendants.
142
The Nazi and Nazi Collaborators (Punishment) Law of 5710/1950 of Israel subjects to the death penalty
persons who “during the period of the Nazi regime” committed “an act constituting a crimes against the
Jewish people.” Taking both its inspiration and also some of its text from the Genocide Convention, the
1950 law in section (b) defines “crimes against the Jewish people” as:
50
guilty of the crime even though his acts took place before the creation of the State of
Israel in 1948 and the promulgation of the Genocide Convention in 1951.143 Eichmann,
therefore, became the first person to be found guilty of genocide by a domestic court or
by any court, for that matter.144
Since Eichmann, other individuals have been convicted of genocide by domestic
tribunals under their local statutes. In 2001, for example, a court in Lithuania convicted a
ninety-three year old man of genocide who, as a member of the Lithuanian Security
Police, participated in the murder of the Jews during the Nazi occupation. The defendant,
Kazys Gimzauskas, immigrated as a refugee to the United States in 1956 and resided in
Florida until the mid-1990’s, when he lost his U.S. citizenship for failing to disclose his
wartime activity upon arrival forty years earlier. He was then deported back to Lithuania.
To date, Gimzauskas has been the only person found guilty of genocide by a Lithuanian
court. The court, however, did not imprison Gimzauskas due to his poor health. In
neighboring Latvia, local courts convicted three individuals between 1995 and 2001 of
genocide for acts committed by these individuals during the Soviet-era.145
Other domestic prosecutions for genocide appear to reflect a desire by the local
authorities to demonstrate the opprobrium towards the acts committed by the defendants.
For this reason, the indictment often charges genocide rather than crimes against
humanity or war crimes, or genocide and either one or both of the other two crimes.
In September 1997, a German higher trial regional court (Oberlandesgericht) in
Düsseldorf convicted of genocide Nikola Jorgic, a Bosnian Serb leader of a paramilitary
group that killed Bosnian Muslims in newly-independent Bosnia in the aftermath of the
breakup of Yugoslavia. Jorgic, who had lived in Germany for many years both prior and
after his crimes, was sentenced to four terms of life imprisonment. In 1999, the
Bundesgerichtshof, the Federal Supreme Court of Germany, affirmed his conviction.146
any of the following acts, committed with intent to destroy the Jewish people in whole or in
part:(1) killing Jews; (2) causing serious bodily or mental harm to Jews; (3) placing Jews in living
conditions calculated to bring about their physical destruction; (4) imposing measures intended to
prevent births among Jews; (5) forcibly transferring Jewish children to another national or
religious group; (6) destroying or desecrating Jewish religious or cultural assets or values; (7)
inciting to hatred of Jews.
The statute, therefore, punishes those who committed genocide of the Jews during the period of Nazi rule
(1933-1945). Another law, the Crime of Genocide (Prevention and Punishment) Law, 571-1950, punishes
genocide committed against other groups by incorporating the language of the Genocide Convention into
Israeli domestic law. While Eichmann, therefore, was not convicted under Israel’s general genocide penal
statute, his conviction for “crimes against the Jewish people” under the specific Nazi and Nazi
Collaborators (Punishment) Law in effect makes him the first person to be convicted by any court for
genocide.
Chapter 5 explains how Eichmann’s prosecution in Israel under Israeli domestic criminal law was
possible, and the critiques of the prosecution.
144
In 1988, Israel also convicted and sentenced to death under the same law the Ukrainian-born John
Demjanjuk, deported from the United States to Israel for trial, but Supreme Court of Israel in 1993
overturned that conviction. See Chapter 5.
145
For summary of these convictions see <www.preventgenocide.org/punish/domestic> (Latvia).
146
Note that Germany could not prosecute any former Nazis specifically for genocide since the crime did
not exist during World War II. For German domestic prosecutions of former Nazis, see Chapter 3.
143
51
Since Jorgic’s convictions, three other Serbs living in Germany have been convicted of
genocide or genocide-related crimes by German courts.
In a similar vein, Canada put on trial in 2007 a Rwandan who fled to Canada ten
years earlier after allegedly participating in the Rwandan genocide. Desiré Munyaneza, a
former Hutu militia commander, was accused in a Montreal court of committing murder,
sexual violence and psychological terror against Tutsi victims. In addition to genocide,
Munyaneza is also facing charges of crimes against humanity and war crimes related to
the atrocities committed against at least 800,000 Rwandans in 1994. As of this writing,
the trial in the Quebec Superior Court continues.
In 2005, Spanish authorities charged former Argentine naval officer Ricardo
Miguel Cavallo with genocide, among other crimes, arising out of his alleged
participation in the “dirty war” in Argentina after a military coup in 1976. Cavallo was a
military officer at the notorious Navy School of Mechanics in Buenos Aires, a detention
center in which hundreds of people were tortured and killed. Spanish authorities sought to
try Cavallo in a Spanish court based on the fact that approximately six hundred Spanish
citizens in Argentina were forcibly kidnapped or “disappeared” during the years of
Argentine military rule. Cavallo, who had been living in Mexico, was extradited in 2003
to Spain to face trial. In December 2006, however, Spain’s High Court ruled that
Cavallo must be tried in Argentina, and Spanish prosecutors are seeking to return him to
Argentina to face charges. As of this writing, Cavallo is still sitting in a Madrid jail
awaiting his fate.
In 2006, Brazil’s highest court, the Federal Supreme Court, upheld the conviction
of genocide against four Brazilian gold miners who, while exploring illegally for gold in
neighboring Bolivia, murdered sixteen indigenous Yanomami Indians, including women
and a baby. The miners received sentences ranging between nineteen to twenty years.
Former rulers fallen from power are attractive targets for genocide charges. It is
doubtful whether the accusations of genocide in most of these instances are even proper
under either international law or the local penal genocide statute. Nevertheless, the
former ruler is charged with genocide – the most heinous state crime – as a means to
communicate the repulsion exhibited against the former regime by the successor
government.
After the overthrow of President Nicolae Ceausescu in 1989 in Romania, for
example, the long-time Communist dictator and his wife were put on trial before a local
criminal court for, among other charges, genocide. In a trial that took only a few hours,
the Ceausescus were summarily convicted and then immediately executed.
In 1993, the Supreme Court of Bolivia, acting as a trial court, convicted in
abstentia former Bolivian military dictator Luis Garcia Meza Tejada of genocide for the
killing of eight political opponents in 1981. In 2006, Garcia Meza was extradited from
Brazil to Bolivia, and is presently serving a thirty-year sentence.
In 2005, Gonzalo Sanchez de Lozada, another former Bolivian president who
resigned in 2003, was charged with genocide for killings of demonstrators during his
rule. As of this writing, this prosecution continues.
The same year, a local Mexican prosecutor charged former president Louis
Echeverria of genocide arising out of the killings by the police of approximately six
hundred student political protestors in 1968 during Echeverria’s tenure as Minister of
52
Interior. The charges were dismissed by a later court on grounds of statute of limitations,
but then reinstated in 2006.
The genocide prosecutions in Bolivia and Mexico are good examples of improper
prosecutions, since the domestic genocide statutes in those states do not cover political
groups but rather limit genocide to destruction of ethnic, racial or religious groups. 147
As a result, the killing of the protesters in Bolivia and Mexico cannot amount to genocide
under the statutes. Such prosecutions illustrate the power of the genocide charge;
indicting these reviled individuals simply for murder, even mass murder, is not viewed as
grave enough. To illustrate revulsion against the defendant and his supposed crimes, the
prosecutor files an indictment for genocide even when the law might not support the
charge.
In 2006, a Spanish judge called for the indictment of former Guatemalan dictator
Efrain Rios Montt for genocide, arising out of his alleged role in the killings and
disappearances of Spanish citizens in Guatemala during his rule in the early 1980’s.
Local Guatemalan authorities likewise considered filing genocide charges against Rios
Montt for the deaths of approximately 200,000 Guatemalans, mostly belonging to the
indigenous Mayan population. Rioss Montt, to date, is still free and living in Guatemala.
In 2006, an Ethiopian court convicted in abstentia former dictator Mengistu Haile
Mariam of genocide and sentenced him to life in prison. During his “Red Terror” regime,
tens of thousands of Ethiopians were either murdered, went missing, or starved to death
from a famine exacerbated by Mengistu’s policies. Zimbabwe, where Mengistu has lived
in exile since 1991 when he was ousted as president of Ethiopia, is being protected by the
regime of President Robert Mugabe, and Zimbabwe has refuses Ethiopia’s request to
extradite Mengistu back to his native country.
As of this writing, the last prosecution for genocide by a domestic court is that of
Saddam Hussein and his fellow Baathist leaders before the Iraqi High Tribunal. In April
2006, the special tribunal charged the ex-president and his cousin, Ali Hassan al-Majid
and also known as “Chemical Ali,”with genocide. Saddam and his cousin were accused
of attempting to annihilate the ethnic Kurds in northern Iraq in 1988. During the so-called
Anfal military campaign, the Iraqi army, through the use of chemical weapons, among
other means, killed at least 50,000 civilians and destroyed thousands of Kurdish villages.
For Saddam, the case for genocide never reached a verdict, since he was executed on
Article 138 of the Bolivian Penal Code reads: “The one that with purpose of destroying total or partially
a national, ethnic or religious group, will give death or cause injuries to the members of the group, or will
put under them conditions of cruel subsistence, or will impose on them measures destined to impede their
reproduction, or will carry out with violence the displacement of children or adults to other groups, will be
sanctioned with military prison for ten to twenty years.” (emphasis added)
Article 149 of the Mexican Penal Code reads: “One who commits the crime of genocide with the
intention to destroy, totally or partially, one or more national groups of a ethnic, racial or religious
character, to perpetrate by any means, crimes against the lives of members of those said groups, or to
impose massive sterilization with the purpose of preventing the reproduction of the group. For such crime
they are sentenced to twenty to forty years in prison and fines of fifteen thousand to twenty thousand
pesos.” (emphasis added).
Both statutes, in Spanish and in English translation, are available at <www.prevent.genocide.org>
This site contains domestic genocide statutes of most states that have enacted such statutes.
147
53
earlier charges for crimes against humanity arising of the Dujail murders committed by
his forces. As of this writing, the genocide case against “Chemical Ali” continues.148
While the United States Congress promulgated a domestic statute criminalizing
genocide in 1988,149 no one has been prosecuted for genocide to date in the United States.
The same goes for the United Kingdom.
International prosecutions for genocide did not begin until the 1990’s, when the
U. N. Security Council established two ad hoc criminal tribunals: the International
Criminal Tribunal for the former Yugoslavia (ICTY) in May 1993, in the aftermath of the
breakup of Yugoslavia; and the International Criminal Tribunal for Rwanda (ICTR) in
November 1994, in the aftermath of the hundred day- genocide in Rwanda earlier that
year. The ICTY and ICTR are the first international ad hoc criminal tribunals established
since the International Military Tribunal at Nuremberg in 1945 and take their parentage
directly from the Nazi trials at Nuremberg.150 Since the IMT trial and later zonal trials at
Nuremberg predated the Genocide Convention and so did not include genocide as one the
crimes under its Charter, the ICTY and the ICTR became the first international courts to
try individuals for genocide. 151 The statutes for both tribunals adopt verbatim the
definition of genocide found in the Genocide Convention.152
The world’s first international conviction for genocide took place in 1998, when
the ICTR found Jean-Paul Akayesu, the former bourgmestre (mayor) of Taba, guilty on
September 2, 1998 of incitement to commit genocide by leading and addressing a public
gathering in Taba in 1994 urging the killing of Tutsi tribesmen by his fellow Hutus
during the Rwandan genocide. Approximately 2,000 Tutsis were murdered by Hutus and
scores of Tutsi women were raped in the Taba region. In addition to genocide, Akayesu
was found guilty of crimes against humanity, arising out of the extermination, murder,
torture, rape and “other inhuman acts” of the Tutsis in Taba. His criminal responsibility
was based on his direct participation in acts of genocide and on his position as a superior
148
See Chapter 10 for discussion of the prosecution of the Iraqi leaders after the overthrow of the Saddam
Hussein regime.
149
See 18 U.S.C. Sec. 1091 (designating the federal crime of “Genocide.”). For further discussion, see
Chapter 3.
150
One of the major factors leading the UN Security Council to create the ICTY, which in turn led to the
establishment of the ICTR, was the transmission by the ITN television network on August 6, 1992 graphic
footage of emaciated, shirtless male prisoners behind a barbed wire in the Omarska camp run by Bosnian
Serbs. These images reminiscent of the images of concentration camp prisoners following liberation of the
Nazi-run camps, shamed the Security Council to take action.
151
Numerous legal treatises have been published on the work of the ICTY and ICTR. See e.g. Rachel Kerr,
The International Criminal Tribunal for the Former Yugoslavia: An Exercise in Law, Politics and
Diplomacy (Oxford, UK: Oxford U. Press, 2004); Michael P. Scharf, Balkan Justice: The Story Behind the
First International War Crimes Trial Since Nuremberg (Durham, N.C.: Carolina Academic Press, 1997);
L.J. van den Herik, The Contribution of the Rwanda Tribunal to the Development of International Law
(London: Martinus Nijhoff Publishers, 2005); and Kingsley Moghalu, Rwanda’s Genocide: The Politics of
Global Justice (New York: Palgrave Macmillan, 2005).
Rachel Kerr explains the rationale for establishing the ICTY, and this rationale is equally
applicable to the ICTR: “Part of the reason that a tribunal was deemed an appropriate response to the
massive and widespread violations of international humanitarian law occurring in the former Yugoslavia
was because there existed a well-developed and codified body of law to be applied, and a widely held
recognition that the acts in question were not only morally reprehensible but also carried criminal
responsibility.” Kerr, supra, pp. 20-21.
152
See ICTY Statute, article 4 and ICTR Statute, article 2.
54
in command of the other perpetrators. The Akayesu decision is also significant for finding
that mass rape can constitute an act of genocide as part of a plan to destroy a group.153
The ICTR trial chamber sentenced Akayesu to life imprisonment. In June, 2001, the
ICTR appeals chamber upheld his conviction.154
On September 4, 1998, two days after finding Akayesu guilty, the same ICTR
trial chamber sentenced Jean Kambanda, former prime minister of Rwanda, also to life
imprisonment. Kambanda was found guilty of (1) genocide, (2) conspiracy to commit
genocide, (3) incitement to commit genocide, (4) complicity in genocide, (5) crimes
against humanity (murder), and (6) crimes against humanity (extermination). At the trial
stage, Kambanda did not contest his charges and pled guilty. On appeal, he claimed
ineffective assistance of counsel, but the ICTR appellate chamber rejected this charge and
upheld his conviction. As a result, Kambanda technically remains, to date, the only head
of state to plead guilty to genocide.
In another significant conviction, an ICTR trial panel in December 2006 found a
Roman Catholic priest guilty of genocide. Father Athanase Seromba, a Hutu, was in
charge of a parish church where some 2000 Tutsis sought refuge from rampaging Hutus.
Seromba ordered the bulldozing of the church and the shooting of all those who tried to
escape. Seromba, sentenced to fifteen years imprisonment, is the first cleric to be
convicted for genocide.155
The first person convicted of genocide before the ICTY was Bosnian Serb
General Radislav Krstic, found guilty in 2001 of genocide arising out of the Srebrenica
massacre in 1995 where 8,000 men and boys of Bosnian Muslim descent were
murdered.156 The Srebrenica genocide was the largest mass murder on European soil
since World War II and Krstic was sentenced to forty-six years in prison for his role in
the genocide.157 On appeal, the ICTY appeals chambers overturned his conviction for
genocide on the grounds that he lacked sufficient intent to commit genocide. Instead, he
was found guilty of the lesser crime of “aiding and abetting genocide” and his sentence
was reduced from forty-six years to thirty-five years.158
In 2001, Slobodan Milosevic, the former Yugoslav and Serbian president was also
charged with genocide, along with war crimes and crimes against humanity, by the ICTY
arising out of the atrocities in the former Yugoslavia. The genocide charge was limited to
the atrocities committed in Bosnia. Milosevic was never adjudged for his alleged crimes
since he died in 2006 in the midst of the prolonged trial that began four years earlier159.
As of this writing, the ICTY had indicted 161 individuals, with six remaining still at
153
Prosecutor v. Akayesu, Trial Chamber decision, supra, para. 706.
Prosecutor v. Akayesu, Appellate Chamber decision, supra, para. 423.
155
ICTR Press Release, “Catholic Priest Athanese Seromba Sentenced to Fifteen Years,” Dec. 13, 2006,
available at <www.ictr.org>
156
The first defendant brought to trial before the ICTY – and therefore became the first person convicted by
an international tribunal since Nuremberg –was Duško Tadić, a Bosnian Serb found guilty in 1997 of war
crimes and crimes against humanity. Tadić participated in the atrocities committed against Bosnian
Muslims and Croats both in and outside the Omarska prison camp in northwest Bosnia. Since Tadić was
not one of the major perpetrators of the atrocities in Bosnia but rather a “small fry” defendant, he was not
charged with genocide. He is serving his 20-year sentence in Germany. For an account of the trial see
Michael P. Scharf, supra.
157
Prosecutor v. Krstic, Trial Chamber decision, supra, para. 727.
158
Prosecutor v. Krstic, Appellate Chamber decision, supra, para. 97.
159
See Chapter 8 for a detailed discussion of the Milosevic trial.
154
55
large. A number of these defendants have been charged with genocide. The two most
prominent are former Bosnian Serb president Radovan Karadzic, who has been on the run
since 1995, and Bosnian Serb army chief General Ratko Mladic, also in hiding for over a
decade, apparently somewhere in Serbia. Karadzic and Mladic are considered the
masterminds of, among other crimes, the genocide at Srebrenica and both have been
charged with the crime.
Why have convictions for genocide been so sparse? As the next section
demonstrates, the crime of genocide as enunciated in the Genocide Convention is
difficult to prove. For this reason, prosecutors at the ICTY and the ICTR are reluctant to
charge individuals with genocide, preferring instead to prosecute individuals for war
crimes and crimes against humanity, for which it is easier to obtain a conviction.
2.5. The Elements of the Crime of Genocide
Genocide is a crime under international law, for which individuals committing it
are individually responsible. Like any other crime “on the books,” it contains both the
behavior element, known as the actus reus, and the mental element, known as the mens
rea. For an individual to have committed the crime of genocide, the prosecution must
prove – as with any crime – that both elements were present at the time of its
commission.
2.5.1. The actus reus of genocide
The actus reus element is found in subsections (a) through (e) of Article II,
enumerating the limited number of ways a genocide can be committed. Ironically, even
the finite acts that constitute genocide have been criticized as being too broad. Keeping in
mind the Holocaust as the template for Lemkin’s coinage of the term, it is clear that
subsection (a) – “killing members of a group” – and subsection (c) – “Deliberately
inflicting on the group conditions of life calculated to bring about its physical destruction
in whole” – definitely qualify as those acts which the crime of genocide encompasses.
These acts, in common parlance, constitute genocide when they are undertaken in order
to destroy, or completely annihilate, a certain group. Genocide is first and foremost the
crime of group destruction. As previously noted, the UN General Assembly’s Declaration
on Genocide, passed unanimously in 1946 as the precursor to the Genocide Convention,
expressed this understanding when it described genocide as “a denial of the right of
existence of entire groups, as homicide is the denial of the right to live of individual
human beings.”160
Dictionary definitions confirm this understanding. Webster’s dictionary defines
genocide as “the deliberate and systematic destruction of a racial, political, or cultural
group.”161 The American Heritage dictionary employs a slightly different formulation,
using the term “extermination” rather than “destruction” by defining genocide as “[t]he
160
161
GA Res. 96 (1946).
Merriam-Webster’s Dictionary (11th ed. 2003).
56
systematic and planned extermination of an entire national, racial, political, or ethnic
group.”162
Article II, however, does not limit the actus reus element of genocide solely to
acts that result in complete physical extinction of a group, or even to instances of mass
murder. Rather, it makes other acts that fall short of mass murder as also legally
constituting genocide. These include: (b) “Causing serious bodily or mental harm to
members of the group”; (c) “Deliberately inflicting on the group conditions of life
calculated to bring about its physical destruction . . .in part”; (d) “Imposing measures
intended to prevent births within the group”; and (e) “forcibly transferring children of the
group to another group.”
Why should it be so? The drafters of the Convention wanted to make clear that
genocide is not just a specific crime of physical destruction – or extinction –of a certain
group of human beings. Rather, as explained by English political scientist Martin Shaw,
genocide is “a general crime of anti-group violence in international law.”163 To date,
however, all prosecutions for genocide before the ad hoc tribunals have charged
individuals with killing members of a protected group. The only act short of killing found
to constitute genocide is rape, in the Akayesu decision of the ICTR discussed infra. In
Akayesu, the ICTR trial chamber placed rape within subsection (b) as constituting acts
“[c]ausing serious bodily or mental harm to members of the group 164 Even in that
instance, the genocidaire was charged with the killing of other members of the group
along with the charge of rape.
Recognizing the seriousness of the crime, it is unlikely that an international
prosecutor would ever charge anyone of committing genocide without there being deaths
– and especially massive deaths – of members of a protected group. The only possible
exception would be the instances where the perpetrators aim to destroy the protected
group by preventing births within the group or forcibly transferring children from the
group. Since these, of course, are acts aiming to destroy the group by biological means,
they are also likely to be prosecuted as genocide. As of this writing, however, no one has
been prosecuted for these enumerated acts of genocide.
Shaw argues for expanding the actus reus of genocide by including other modes
of behavior. According to Shaw:
Lemkin had not suggested that killing groups principally meant mass murder. On
the contrary, he stressed that genocide involved “a synchronized attack on
different aspects of life of peoples” in the political, social, cultural, educational,
economic, religious and biological fields. Killing whole groups was more about
162
American Heritage Dictionary of the English Language (4th ed. 2006).
Shaw, supra, p.11.
164
In so finding, the ICTR trial chamber found that rape in the course of the Rwandan genocide was often a
prelude to the killing of the victim. Prosecutor v. Akayesu, (Trial Chamber, Sept. 2, 1998) para. 731. Rape
is specifically set out as constituting a crime against humanity in the Statutes of the ICTR and the ICTY.
See article 3, ICTR Statute and article 5, ICTY Statute. In 2001, the ICTY found that acts of rape
can constitute both war crimes and crimes against humanity. It also found that sexual enslavement was a
crime against humanity and can also constitute a war crime. See Prosecutor v. Kunarac, (Trial Chamber,
Feb. 22, 2001), para. 531. For discussion of rape as genocide see Schabas, supra, pp. 162-5 and sources
cited therein.
163
57
destroying social institutions and values than murdering individual bodies,
although it often involved that, too.165
Invoking Lemkin and relying on his original intent, Shaw argues that a broad range of
acts should qualify for the official label of genocide. As he explains:
It is high time that we reclaim Lemkin’s original idea of genocide as social
destruction. Whether populations are violently expelled, terrorized in situ or
murdered; whether they are attacked for their ethnic, class, political, religious or
any other kind of affiliations; whether they themselves accept their attackers’
labeling of them or not; whether they are particularly victimized as men or
women, young or old, homosexual or disabled — in all these cases, the intentional
destruction of social groups constitutes genocide. . . . “Genocide” therefore
describes the full range of organized violence specifically targeted at civilian
populations, including those which are often called by a range of other names —
the many other “-cide” terms that have proliferated in recent decades, such as
“ethnocide,” “gendercide,” “politicide” and so on.166
Shaw expresses the frustration of many outside the legal field, who find the legal
formulation of what acts can constitute genocide as being too narrow.167 Nevertheless,
despite efforts of social scientists to expand the legal range of culpable acts, the Article II
formulation remains unchanged and has been adopted without amendment both by the ad
hoc tribunals and the International Criminal Court. While non-lawyers like Shaw may
offer extra-legal definitions of genocide, for legal purposes the range of acts that
constitute genocide remains limited and, for practical purposes, confined to instances
when mass murder or group destruction by other means, as set out in Article II (a)
through (e), had taken place.
2.5.2. The mens rea of genocide
Turning now to the mental element of the crime, what state of mind must the
alleged genocidaire possess to be guilty of the crime of genocide? As will be shown
below, proving genocidal intent is both the most important and the most difficult task in
prosecuting an individual for the crime of genocide. Almost all discussion of genocide
by the ad hoc tribunals has focused on the mens rea element of the crime.
As Article II of the Genocide Convention notes, the commission of acts specified
in subsections (a) through (e) alone does not make out the crime of genocide. It must be
shown that, at the time the perpetrator committed any of the (a) through (e) acts, the
perpetrator held a certain state of mind, or mens rea. That requisite state of mind is found
in the following italicized language: “acts committed with intent to destroy, in whole or
in part, a national, ethnical, racial or religious group.”
Using American criminal law parlance, genocide is then a “specific intent” crime,
meaning that the defendant must have harbored the specific intent set out in the Genocide
Convention to commit the acts. The specific intent requirement is two-fold.
165
Ibid.
Ibid.
167
For Shaw’s most recent formulation of the parameters of genocide see Shaw, supra.
166
58
First, because genocide can only be committed intentionally, committing one or
more of the (a) through (e) acts negligently or recklessly does not make out the crime of
genocide. Or put another way, there is no such thing as reckless genocide or negligent
genocide.168
Second, the crime of genocide requires not only a general intent to commit the
acts specified in a. through e, but also a second intent, called the specific intent or special
intent (dolus specialis in Latin) in criminal law parlance. For genocide, the perpetrator
must have intended to commit acts (a) through (e) with a second intent –the specific
intent – “the intent to destroy in whole or in part” the enumerated victim group.169 As
Jerry Fowler points out, this particular “group intent” necessary for genocide – the intent
to destroy an enumerated victim group – is what “distinguishes genocide from any other
crime.”170 The ICTY, in one of its decisions made the same point: “It is in fact the mens
rea which gives genocide its speciality and distinguishes it from an ordinary crime and
other crimes against international humanitarian law. The special intent which
characterizes genocide supposes that the alleged perpetrator of the crime selects his
victims because they are part of a group which he is seeking to destroy.”171
Quigley, in his legal treatise analyzing the Genocide Convention, expresses the
two intents necessary for the crime of genocide a bit differently; nevertheless, he still
reaches same result.
Genocide is distinguished from other serious offenses by the element of
intent. For genocide, victimization of human beings is a necessary, but not the
sole element. Acts directed against human beings must be committed with an
intent to destroy a group to which the immediate victims belong. No matter how
culpable the actor [is] towards these immediate victims, this additional element is
required. The act against the immediate victims must reflect a culpable state of
mind in regard to the group. Thus, genocide encompasses a dual mental element:
one directed against the immediate victims, and a second against the group.172
The prosecution must prove both of these intents by a criminal standard, usually
expressed in the United States as “beyond a reasonable doubt.” (see discussion below). It
is an element difficult to prove, as criminal proceedings before the ICTY and the ICTR
have shown. In those courts, a number of defendants indicted for genocide have been
found not guilty of the crime – even though the court conceded that a genocide in fact
took place – because the prosecution could not prove beyond a reasonable doubt that the
defendant harbored these legally required intents at the time of the killings. As explained
by Quigley, “In most prosecutions to date, it has been clear that the accused caused harm
168
The drafters of the Genocide Convention could have been more artful in their draftsmanship of the
Article II subparagraphs by specifically noting that each of the acts criminalized in these subparagraphs
must be committed intentionally. They did so for subparagraph (c) by inserting the word “deliberately”
(“deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in
whole or in part”) but failing to do so for the other subparagraphs.
169
In the Akayesu case discussed above, the first international conviction for genocide, the ICTR confirmed
the mens rea requirement of the “specific intent to commit genocide” in order to secure a conviction for
genocide. Prosecutor v. Akayesu, supra, para. 498.
170
Fowler, supra, p. 30.
171
Prosecutor v. Jelisic, Trial Chamber (Dec. 14, 1999), para. 66.
172
Quigley, supra, p 10 (citing O. Triffterer, “Genocide, Its Particular Intent to Destroy in Whole or in Part
the Group as Such,” Leiden Journal of International Law (2001), pp. 399-400).
59
to specific victims in ways falling within the subparagraphs [(a) though (e)] of Article II
of the Genocide Convention. What the accused has typically denied is having acted with
intent to destroy the group of which the victims were members. The several acquittals
that have been entered on genocide charges have resulted from the court’s conclusion that
the prosecution had not proved the intent to destroy.”173 Since Quigley wrote these
words in 2006, additional individuals have been acquitted of genocide because of the
prosecution’s inability to show the requisite genocidal intent discussed above.
The rationale for putting the prosecution to a stringent requirement in proving
specific intent for genocide is reflected in the gravity of the crime. As an appeals chamber
of the ICTY in the 1994 Krstic decision explained: “The demanding proof of specific
intent and the showing that the group was targeted for destruction in its entirety or in
substantial part, guard against a danger that convictions for this crime will be imposed
lightly.”174
At trial, Bosnian Serb general Radislav Krstic was found guilty of genocide of
Bosnian Muslims during the 1995 Srebrenica massacre in Bosnia. Krstic was sentenced
to forty-six years imprisonment. The appeals court agreed that a genocide in fact took
place at Srebrenica. In stark language it explained: “[T]he law condemns, in appropriate
terms, the deep and lasting injury inflicted, and calls the massacre at Srebrenica by its
proper name: genocide.”175 The court set out the factual predicate for this finding as
follows: “By seeking to eliminate a part of the Bosnian Muslims, the Bosnian Serb forces
committed genocide. They targeted for extinction the 40,000 Bosnian Muslims living in
Srebrenica, a group which was emblematic of the Bosnian Muslims in general. They
stripped all the male Muslim prisoners, military and civilian, elderly and young, of their
personal belongings and identification, and deliberately and methodically killed them
solely on the basis of their identity. The Bosnian Serb forces were aware, when they
embarked on this genocidal venture, that the harm they caused would continue to plague
the Bosnian Muslims.”176
Nevertheless, the appeals chamber reversed General Kristic’s genocide conviction
on the ground that the prosecution failed to prove that Krstic himself possessed specific
intent to commit genocide when the genocide in Srebrenica took place.177 Instead, the
court found Krstic guilty of the lesser crime of complicity in genocide178 as an aider and
abettor to the crime.179 The appellate chamber held that, unlike for genocide, the mens
173
Quigley, supra, p 10.
Prosecutor v. Krstic, Appeals Chamber, supra, para. 37.
Ibid.
176
Ibid.
177
As the appellate chamber explained: “[A]ll that the evidence can establish is that Krstic was aware of
the intent to commit genocide on the part of some members of the [Bosnian Serb ]VRS Main Staff, and
with that knowledge, he did nothing to prevent the use of Drina Corps personnel and resources to facilitate
those killings. This knowledge on his part alone cannot support an inference of genocidal intent. Genocide
is one of the worst crimes known to humankind, and its gravity is reflected in the stringent requirement of
specific intent. Convictions for genocide can be entered only where that intent has been unequivocally
established. There was a demonstrable failure by the Trial Chamber to supply adequate proof that Radislav
Krstic possessed the genocidal intent. Krstic, therefore, is not guilty of genocide as a principal perpetrator.”
Ibid, para. 134 (emphasis added).
178
Ibid.
179
As the appellate chamber explained: “…Radislav Krstic had knowledge of the genocidal intent of some
of the Members of the [Bosnian Serb ] VRS Main Staff. Radislav Krstic was aware that the Main Staff had
174
175
60
rea for aiding and abetting in genocide is made out when the prosecution has shown that
the defendant knew about the principal perpetrator’s genocidal intent180 and aware that
his actions aided the principal perpetrator in the commission of the genocide.181
As a result of the reversal of Krstic’s conviction for genocide (but not for “aiding
and abetting” the genocide), the appellate chamber reduced Krstic’s sentence to thirtyfive years.
In September 2006, the ICTY acquitted Bosnian Serb politician Momcilo
Krajišnik of genocide in the 1992-95 Bosnian war on the ground that Krajišnik, the 61year-old former right-hand man to Bosnian Serb leader Radovan Karadzic and speaker of
the separatist Bosnian Serb parliament, also did not have specific intent necessary to be
found guilty of genocide. Unlike General Krstic, Krajišnik was also acquitted of
complicity in genocide. As the ICTY three-judge court opinion explained summarizing
its decision:
With regard to the charge of genocide, the Chamber finds that in spite of evidence
of acts perpetrated in the municipalities which constituted the actus reus of
insufficient resources of its own to carry out the executions and that, without the use of Drina Corps
resources [under Krstic’s command], the Main Staff would not have been able to implement its genocidal
plan. Krstic knew that by allowing Drina Corps resources to be used he was making a substantial
contribution to the execution of the Bosnian Muslim prisoners. Although the evidence suggests that
Radislav Krstic was not a supporter of that plan, as Commander of the Drina Corps he permitted the Main
Staff to call upon Drina Corps resources and to employ those resources. The criminal liability of Krstic is
therefore more properly expressed as that of an aider and abettor to genocide, and not as that of a
perpetrator.” Ibid, para. 137 (emphasis added). The appellate attempted to differentiate “aiding and
abetting” from “complicity as an accomplice” (Ibid. paras. 139, 142) – indicating that the former may be
narrower than the latter – but there seems to be no real distinction between these two concepts. Schabas
agrees. See Schabas, supra, pp. 293, 301-02.
180
According to the appellate chamber, the aider and abettor to genocide does not need to share the
principal’s genocidal intent. As the court explained: “[T]he aider and abettor [of] . . . an offence with a
specific intent[] must be aware . . . of the discriminatory intent of the perpetrators of that crime,” but “need
not share th[at] intent” (quoting Krnojelac Appeal Judgment, para. 52). Schabas comes to the same
conclusion. See Schabas, supra, p. 301.
181 As the appellate chamber explained: “[A question arises] of whether, for liability of aiding and abetting
to attach, the individual charged need only possess knowledge of the principal perpetrator’s specific
genocidal intent, or whether he must share that intent. The Appeals Chamber has previously explained, on
several occasions, that an individual who aids and abets a specific intent offense may be held responsible if
he assists the commission of the crime knowing the intent behind the crime. This principle applies to the
Statute’s prohibition of genocide, which is also an offence requiring a showing of specific intent. The
conviction for aiding and abetting genocide upon proof that the defendant knew about the principal
perpetrator’s genocidal intent is permitted by the Statute and case-law of the Tribunal.” Ibid, para. 140
(footnote omitted) (emphasis added).
Note that 1) knowledge that a genocidal act is taking place and 2) knowledge of the principal
perpetrator’s genocidal intent does not impose liability as an aider and abetter to genocide. That knowledge
must be coupled with the defendant’s additional knowledge that his acts are assisting the principal
perpetrator in the commission of the genocide. The appellate chamber cites with approval the following
sentence from the Tadic appellate judgment: “In the case of aiding and abetting, the requisite mental
element is knowledge that the acts performed by the aider and abettor assist the commission of a specific
crime by the principal.”(quoting Tadic Appellate Chamber, para. 229).
Finally, note that actual knowledge of all three must exist. Knowledge cannot be inferred from the
circumstances, and so a defendant cannot be found guilty as an aider and abettor to genocide on the basis
that a reasonable person in such circumstances where a genocide occurred, would have knowledge of it and
the perpetrator’s genocidal intent.
61
genocide, the Chamber has not received sufficient evidence to establish whether
the perpetrators had genocidal intent, that is the intent to destroy, the BosnianMuslim or Bosnian-Croat ethnic group, as such. . . . The evidence does not show
that, at any time during the indictment period, the crime of genocide formed part
of the common objective of the joint criminal enterprise in which Mr Krajišnik is
shown on the evidence to have participated, nor that Mr Krajišnik had the specific
intent necessary for genocide. The evidence also does not support the conclusion
that Mr. Krajišnik was complicit in genocide.”182
Despite being acquitted of all genocide charges, Krajišnik was found guilty of
crimes against humanity, which does not require the same strict showing of specific
intent, and was sentenced to twenty-seven years in prison.183 The tribunal judges, headed
by Presiding Judge Alphons Orie from Holland, found that it had been proven beyond a
reasonable doubt that Krajišnik was responsible for the extermination, murder,
persecution and deportation of non-Serbs during the war, adding that his role in the
commission of these crimes was crucial. The trial chamber found that Krajišnik “gave the
go-ahead for the expulsion programme to commence during a session of the Bosnian
Serb parliament when he called for ‘implementing what we have agreed upon, the ethnic
division on the ground.’”184 These findings were sufficient for a war crimes conviction
but not a genocide conviction.
In 2007, an ICTY appeals chamber reversed the genocide conviction of a highranking military officer involved in the genocide at Srebrenica. Vidoje Blagojević was a
former Bosnian Serb army commander who, according to the prosecution, was “third in
command” of the troops in the Srebrenica area. Troops under his command and direction
helped to transfer Muslim men and boys out of the UN-protected Srebrenica safe haven
area to a location under Serb Bosnian control where they were later murdered.
In a 2005 trial, Blagojević was convicted of complicity in the genocide at
Srebrenica by an ICTY trial chamber. The trial judges first reasoned that Blagojević
could not be convicted of genocide because he was not one of the principal architects of
the Srebrenica genocide, but rather a secondary figure involved in providing logistical
support while the killings were going on. However, since “the practical assistance he
rendered had a substantial effect on the commission of the crime of genocide” in
Srebrenica – orchestrated by wartime Bosnian Serb army commander Ratko Mladic and
Bosnian Serb political leader Radovan Karadzic – Blagojević, according to the trial court,
could properly be found guilty of “complicity by aiding and abetting” the crime. 185
The appellate court disagreed. In an opinion by Italian judge Fausto Pocar, the
president of the ICTY, the appellate chamber held that Blagojević cannot be convicted of
complicity to genocide because the prosecution could not show that at the time that
Blagojević directed the transfer of the men and boys at Srebrenica he knew that they were
about to be murdered en masse. Unlike General Krstic, who had knowledge of the
upcoming fate of the Bosnian Muslim male prisoners and therefore harbored sufficient
intent to be guilty at least of complicity to genocide, Blagojević’s lack of knowledge of
Prosecutor v. Krajišnic, Summary of Judgment, available at <www.un.org/icty>
For a discussion comparing “crimes against humanity” with “genocide” and “war crimes” as interpreted
by various international criminal tribunals and domestic courts see Chapter 6.
184
Prosecutor v. Krajišnic, ibid.
185
Prosecutor v. Blagojević, Trial Chamber, para. 58 (Jan. 17, 2005).
182
183
62
the fate that awaited the prisoners transferred by his soldiers meant that he did not
knowingly aid and abet the commission of genocide at Srebrenica.186 As explained by the
appellate chamber, though somewhat inarticulately: “[N]o reasonable trier of fact could
find beyond reasonable doubt that, without knowledge of the mass killings, Mr.
Blagojević's awareness of the other facts related to the forcible transfer operation shows
that he had knowledge of the principal perpetrators' genocidal intent."187 In other words,
because Blagojević was oblivious to the genocidal intent of the main perpetrators, he
cannot be held guilty of complicity in genocide.
The appellate chamber upheld, however, Blagojević’s convictions at trial for
crimes against humanity and war crimes.188 As a result, the appellate judges reduced
Blagojević’s sentence from eighteen years to fifteen years.
The Bosnian Muslims met these acquittals with a sense of bewilderment: how
could some of the major players of the genocide at Srebrenica, and recognized as such by
the ICTY, be acquitted of the crime? The answer, of course, is the same as for all
criminal trials: the prosecution could not prove its genocide cases against Krajišnik and
Blagojević, specifically that these particular defendants at the dock harbored the specific
intent to eradicate all or a substantial part of the Bosnian Muslims in Bosnia. As
explained by one Bosnian academic trying to make sense of the Krajišnik judgment, “The
judges in the Krajišnik case said they had established that genocide took place, but were
not convinced the Serb leadership intended to commit it.”189 Or put another way, this
would be equivalent to a defendant being acquitted of murder – even though the
prosecution proved that the defendant killed the deceased – because the prosecution could
not prove beyond a reasonable doubt that the defendant harbored the specific intent
necessary for murder, i.e. that the defendant intended to kill the deceased or to cause
grievous bodily harm at the time when he committed the homicide.
The strict requirement of specific intent to commit genocide can also be negated
by a defendant’s mental incapacity. The Jelisic case before the ICTY illustrates this
point. Goran Jelisic nicknamed himself the “Serbian Adolf” in the course of his murder
of Bosnian Muslims. The ICTY trial chamber found that such self-designation and other
bizarre behavior by Jelišic demonstrated “a disturbed personality . . . which presents
borderline, anti-social and narcissistic characteristics.”190 Such findings led the trial
chamber to hold that reasonable doubt existed whether Jelisic harbored the required
specific intent for genocide, and he was acquitted of the crime.191
The appellate judges also rejected the prosecution’s argument on appeal that the trial judges incorrectly
concluded that there was insufficient evidence to show that Blagojević in fact did have knowledge of the
mass killings at Srebrenica.
187
Prosecutor v. Blagojević, Appellate Chamber, supra, para. 123.
188
The specific convictions upheld were: (1) aiding and abetting murder as a violation of the laws or
customs of war (“war crimes”); (2) persecutions and other inhumane acts (forcible transfer) (Count 6) as
crimes against humanity; and (3)aiding and abetting murder.
189
Edina Becirevic, Bosnia's “Accidental” Genocide, Institute for War & Peace Reporting, Sept. 29, 2006
available at <www.iwpr.net>
190
Prosecutor v. Jelisic, supra, para. 106. Jelisic did not raise the insanity defense and was also found
capable to standing trial.
191
Jelisic pled guilty to war crimes and crimes against humanity and was sentenced to 40 years’
imprisonment for such crimes. The trial chamber also recommended that Jelisic receive “psychological and
psychiatric follow-up treatment.”
186
63
The most recent instance illustrating the difficulty of proving the necessary mens
rea for genocide took place in 2007, with the decision of the International Court of
Justice (ICJ), the judicial arm of the United Nations and sometimes commonly referred to
as the World Court, in the suit for genocide filed by Bosnia against Serbia also arising out
of the 1992-95 Bosnian war. Fourteen years earlier, Bosnia brought suit against Serbia
before the ICJ (where only controversies between states are considered) claiming that
Serbia – by directing, financing and arming the Bosnian Serbs in the conflict in Bosnia –
was responsible of genocide. This was the first time that one nation had sued another
nation for genocide and the first time that the ICJ would be interpreting the Genocide
Convention, and so its decision was highly anticipated.
In February 2007, the ICJ cleared Serbia of state responsibility for genocide.192
Even though the ICJ found, like the ICTY, that a genocide indeed had taken place at
Srebrenica at the hands of the Bosnian Serb forces, it nevertheless concluded, in an
opinion by British judge Rosalyn Higgins, that there was insufficient evidence that Serbia
possessed specific intent to destroy the Muslim community in Bosnia.193 With this
finding, the mens rea element of genocide was missing, and Serbia was absolved of legal
responsibility for the Srebrenica genocide.194
After the judgment, David Kaye, in a commentary in the Los Angeles Times,
asked: “Does international law against genocide have force today? Or is it that genocide,
a powerful political and rhetorical tool, is nearly impossible to prove in court?… [O]ne
cannot escape the conclusion that proving responsibility [of nations] for genocide is now
On appeal, the appeals chamber both affirmed the 40-year sentence conviction and rejected the
prosecutor’s appeal that Jelisic should also have been convicted of genocide. The appellate chamber also
made the general observation that “there is no per se inconsistency between a diagnosis of the kind of
immature, narcissistic , disturbed personality on which the Trial Chamber relied and the ability to form an
intent to destroy a particular protected group. Indeed, . . . it is the borderline unbalanced personality who is
more likely to be drawn to extreme racial and ethnical hatred than the more balanced modulated individual
without personality defects.” Prosecutor v. Jelisic, (Appellate Chamber, Jul. 5, 2001).
192
By a vote of 13-2, the ICJ judges held that “Serbia had not committed genocide, through its organs or
persons, whose acts engage its responsibility under customary international law.” It also found that “Serbia
has not conspired to commit genocide, nor incited the commission of genocide,” and was not “complicit in
genocide.” A copy of the decision can be located at the ICJ website <www.icj-cij.org>. Because Bosnia
sued Serbia solely for violating the Genocide Convention, the ICJ did not determine whether crimes against
humanity or war crimes had been committed or whether Serbia is responsible for such crimes.
193
The ICJ judges also rejected Bosnia’s argument that specific intent to destroy the Muslim and Croatian
communities in Bosnia could be inferred from the pattern of atrocities directed strictly against Muslim and
Croats and committed over an extended period of time in Bosnia, which resulted in tens of thousands being
killed and up to two million uprooted.
194
The ICJ did hold that Serbia, in not preventing the Srebrenica massacres, failed to meet its obligation
under international law to prevent genocide. It also held that Serbia failed in it obligations, as a signatory to
the Genocide Convention, to assist in bringing Bosnian Serb leaders Rodovan Karadic and Radko Mladic
to justice. However, it imposed no damages upon Serbia for these failures but merely referred the matter to
the UN Security Council for further action. According to international law professor Diane Orentlicher, the
ICJ’s finding that Serbia failed to meet its obligations under the Genocide Convention is significant
because “it is the first time in history that an international court has judged a state, responsible legally, for
violating the Genocide Convention. That is not a small thing. I think that that conclusion tends to be
eclipsed by the fact that Serbia was not found to be directly responsible for genocide, or even responsible
for being complicit in genocide.” “Justice in the Courts,” Interview with Diane Orentlicher, available at
<www.ushmm.org>
64
an impossible task.”195 Antonio Cassese, noted Italian international law scholar who
earlier served as the first presiding judge on the ICTY, likewise attacked the judgment for
demanding an “unrealistically high standard of proof for finding Serbia to have been
legally complicit in genocide.”196
On the other hand, it can well be understood that when a nation is being accused
by another nation of violating international law before an institution commonly known as
the World Court, a high standard of proof will be required by that court to conclude that
the accused nation has acted like an international outlaw. Even though technically the
proceedings before the ICJ are not criminal, but more akin to a civil suit between private
parties,197 the ICJ is not adopting a civil liability proof standard of a “preponderance of
the evidence” but the criminal proof standard of “beyond a reasonable doubt.” This
demand for such a high level of proof is even more understandable when the accusation –
whether against an individual or a nation state – is in relation to as grave a crime as
genocide.
In taking the high evidentiary standard of genocidal intent required in criminal
prosecutions of individuals for genocide and adopting them for suits for genocide filed by
one nation against another, the ICJ made it seemingly impossible for a nation to be found
accountable for genocide. In theory, therefore, a nation can be found guilty of genocide.
In practice, after the ICJ decision, it appears that only instances akin to the actions taken
by Germany during World War II can lead to a finding holding a nation responsible for
genocide.198
2.5.3. Proving the Legal Elements of Genocide
We conclude our discussion of the legal elements of genocide by discussing how
these elements are proven in court.
As with any criminal prosecution, the easiest way to do so is through a direct
confession of the defendant, who admits both to carrying out any one of the genocidal
acts set out in Article II (a) through (e) and to the harboring of specific intent to commit
those acts. For example, defendant confesses that he intended to destroy a specific
David Kaye, “You Know Genocide When You See It,” Los Angeles Times, Mar. 1, 2007.
Antonio Cassese, “Court’s Muddled Ruling Does Little for Survivors of Srebrenica Massacre,” The
Nation, Mar. 1, 2007.
197
In a criminal proceeding, the usual sanction imposed is loss of liberty and sometimes even death (in
those nations that still recognize capital punishment). In a civil proceeding, on the other hand, the highest
sanction that a court can impose is payment of monetary damages. The ICJ has power only to impose a
monetary sanction upon the wrongdoing nation in the form of reparations. ICJ Statute, art. 36(2)(d).
Enforcement is left up to the UN Security Council.
198
Another recent example confirming the difficulty of proving that a certain government or political group
is committing genocide because of the stringent requirements for showing the mens rea element of the
crime occurred in January 2005, when the UN Commission of Inquiry on Darfur issued its report. The
Commission, while finding that war crimes and crimes against humanity had taken place in Darfur,
concluded that no genocide had occurred. Despite the scale of murder, the commission determined that
while the actus rea elements of genocide were present – mass killings of a distinct ethnic or racial group –
there was insufficient evidence of specific intent on the part of the government or its agents to destroy the
local black tribes in whole or in part. Earlier, the United States government reached the opposite
conclusion, finding that a genocide was in effect taking place in Darfur. See discussion in Chapter 3.
195
196
65
national, ethnic, racial or religious group and that he, in fact, either killed members of
that protected group or directed others to do so.
Another means is through testimony of witnesses who can testify that defendant
made statements corroborating genocidal intent and admitted to the commission of the
genocidal acts. Commission of the acts (a) through (e) can also be proven by eyewitness
testimony in those instances when defendant denies participation or involvement.
Defendant’s denial in the genocide is likely to be rejected by the triers of fact when a
percipient witness credibly testifies that he or she was present at the scene and saw
defendant commit any of the acts set out in subsections (a) through (e).
Defendants can confirm their involvement in the destruction of a protected group
and also express their genocidal intent towards the group through documents, such as in
written orders, letters, or other written communications. As will be shown in Chapter 5,
the Nuremberg prosecutions of the Nazis provide excellent illustrations of how
documents can be utilized to convict defendants of international crimes by showing both
the defendants’ participation in the acts and the intentions behind the defendants’ acts.
The trial of Adolf Eichmann in Israel likewise shows the important use of documents to
find a defendant guilty. In the trial of Saddam Hussein, Saddam’s signature on written
orders to kill innocent civilians at Dujail proved critical to a verdict of guilty for crimes
against humanity.
In reality, however, most defendants on trial for genocide or other serious
international crimes usually do not confess or make such incriminating statements. They
are more likely to plead ignorance and lack of involvement. Documents may also be
nonexistent because defendants, realizing the criminality of their behavior, may not put
their orders in writing or successfully destroy any incriminating documents. In such
cases, genocide must be proven by circumstantial evidence. Our previous discussion
notes the difficulty of proving the specific intent of genocide, and for this reason
demonstrating that “the accused did it” (the actus reus) is often easier than proving “why
the accused did it” (the mens rea).
One example will suffice to demonstrate how genocidal intent can be proven
through circumstantial evidence. The defendant is on trial for genocide for intending to
physically destroy an enumerated group by engaging in acts criminalized in subsection
(c): “deliberately inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part.” How to prove that defendant harbored the
specific intent to commit acts enumerated in subsection (c)? In 1947, while the
Convention was being drafted, U.N. Secretary- General Trygve Lie, in a commentary
about this subsection and with the Holocaust as a recent backdrop, explained as follows:
Obviously, if members of a group of human beings are placed in concentration
camps where the annual death rate is thirty per cent to forty per cent, the intention
to commit genocide is unquestionable. There may be borderline cases where a
relatively high death rate might be ascribed to lack of attention, negligence or
inhumanity, which, through highly reprehensible, would not constitute
[circumstantial] evidence of intention to commit genocide.199
The ad hoc tribunals for the former Yugoslavia and Rwanda have also confirmed
that “genocidal intent [may] be inferred from the physical acts and specifically the
199
U.N. Economic and Social Council, 2nd Sess., Draft Convention on the Crime of Genocide, Report of
Secretary-General (Jun. 26, 1947), UN Doc. E/447 (1947), cited and quoted in Quigley, supra, p. 91.
66
massive and/or systematic nature of the atrocity.”200 According to the tribunals, “even in
the absence of a confession from the accused, his intent is inferred from . . . the
perpetration of other culpable acts systematically directed against that same group,
whether these acts were committed by the same offender or by others.”201
Last, because domestic penal statutes require proof of any criminal act and
concurrent intent beyond a reasonable doubt, international penal tribunals, composed of
judges selected from domestic legal systems, likewise require such level of proof to find
the defendant guilty of genocide. As Quigley explains, “International law has not
independently developed. . . [culpability] concepts, but draws on domestic law, where
such matters have been analyzed by courts in great detail. The presumption is that when
treaty drafters formulate a penal offense, they operate from concepts found in domestic
penal law.”202 This evidentiary standard has been expressly codified in the Rome Statute
of the International Criminal Court. Article 66(3) of the Rome Statute states that “to
convict the accused, the Court must be convinced of the guilt of the accused beyond a
reasonable doubt.”203 The Rules of Procedure and Evidence of the Yugoslav and Rwanda
ad hoc tribunals likewise adopt the same evidentiary standard, stating that “[a] finding of
guilt may be reached only when the majority of the Trial Chamber is satisfied that guilt
has been proved beyond a reasonable doubt.”204
The criminal standard of “proof beyond a reasonable doubt” imposes a much
higher burden of proof on the prosecution than the standard of evidentiary proof required
in civil cases, formulated in common law jurisdictions as “proof by a preponderance of
the evidence.” This high standard of proof for all criminal cases, coupled with the special
difficulties of proving specific intent in criminal prosecutions for genocide, makes the
task of convicting a defendant for genocide particularly difficult.
200
Prosecutor v. Akaysesu, (Trial Court Judgment, Sept. 2, 1998), quoted in Prosecutor v. Jelistic,
(Appeals Court Judgment, Oct. 13, 2006).
201
Ibid.
202
Quigley, supra, p. 92.
203
Rome Statute of the International Criminal Court, art. 66(3), available at <www.icc.cpi.int>
ICTY Rules of Procedure and Evidence, Rule 87, available at <www.un.org/icty>
and ICTR Rules of Procedure and Evidence, Rule 87, available at <www.ictr.org>
204
67
2.6. Other Genocide-Related Crimes
The Genocide Convention in Article III criminalizes other acts that fall short of
genocide but that are still punishable under the Convention as genocide-related crimes.
These four other crimes are: (1) conspiracy to commit genocide; (2) inciting others to
commit genocide; (3) attempted genocide; and (4) complicity in genocide. Most domestic
genocide statutes also criminalize such acts consistent with the scheme in their penal
codes that likewise outlaw acts that fall short of the actual crime. All criminal statutes, for
example, punish in some form or another not only those who kill another human being
without cause (for example, not in self-defense) – murder – but also those who are
complicit in the murder, enter into a conspiracy to murder another human being, attempt
to kill but are unsuccessful in their efforts, or incite another person by words or deeds to
actually commit the killing. For some of these related-crimes, a person receives the same
punishment as the actual perpetrator, while for others the punishment may be less. The
same rule goes for the genocide-related crimes.
This section will discuss these genocide-related crimes and also focus on two
other crimes that often are charged alongside genocide – or in lieu of it: war crimes and
crimes against humanity. It will also briefly discuss the related acts of ethnic cleansing,
which some states also specifically define and criminalize.
2.6.1. Conspiracy to Commit Genocide
Under Anglo-American law, conspiracy is a separate crime apart from the
substantive crime itself and a defendant can be found guilty of both the substantive crime
and also conspiracy to commit that crime. The rationale for the separate conspiracy
charge is that a person participating with others to commit a crime is more dangerous
than one committing it alone, and so it is fair to convict a person involved in a criminal
conspiracy not only of the crime itself but also the separate crime of conspiracy.205
Conspiracy, like attempt, is also an inchoate crime under Anglo-American law,
meaning that the person can be found guilty of conspiracy to commit the substantive
offense, and not found guilty of the substantive offense because, when arrested, the
substantive offense had not yet been carried out.206 The inchoate crime of conspiracy is
complete when an agreement is made between the co-conspirators to commit the crime.
Some jurisdictions also require that one of the conspirators commit some overt act in
furtherance of the conspiracy before the crime of conspiracy is considered to have been
205
As explained by a recent treatise on criminal law: "The heart of the rationale lies in the fact - or at least
the assumption is - that collective action toward an antisocial end involves a greater risk to society than
individual action toward the same end." Joshua Dressler, Cases and Materials on Criminal Law Third
Edition, (St. Paul, MN: West Group, 2003) p. 803.
"the heart of the rationale lies in the fact-or at least the assumption-that collective action toward an
antisocial end involves a greater risk to society than individual action toward the same end"
206
Some civil law jurisdictions hold otherwise, punishing the participants for the crime of conspiracy only
if the defendants have been found guilty of the substantive offense that was the object of their criminal
conspiracy.
68
accomplished. Any act will do, even if completely legal. As an example, if two
individuals decide to rob a store, the purchase of a map to locate stores in the area
suffices for the overt act.
Conspiracy as an international crime was first recognized at the Nuremberg
proceedings of the senior Nazi leaders, where the defendants were charged with three
substantive crimes – crimes against peace, war crimes and crimes against humanity – and
conspiracy to commit the other crimes. Conspiracy was also charged at the later
Nuremberg zonal trials. 207
The Genocide Convention continues this recognition of conspiracy as a separate
international crime by noting, in Article III, that a person can be found guilty of
“conspiracy to commit genocide.” Both the ICTY and ICTR statutes208 recognize the
separate crime of “conspiracy to commit genocide.” As discussed above, the first person
to be convicted of conspiracy to commit genocide was Jean Kambanda, a former prime
minister of Rwanda. Conspiracy was one of the slew of charges to which Kambanda pled
guilty before the ICTR in 1998 and received a life sentence. Since that time, other
defendants before both the ICTY and ICTR have been charged with conspiracy to
commit genocide, with some being convicted of the charge.
To date, no one has been charged, and thereby convicted, solely of conspiracy to
commit genocide. Prosecutors at both ad hoc tribunals have included the conspiracy
charge as part of their indictments for genocide and genocide-related crimes solely in
instances when they believe that a genocide actually took place and committed by a
group of individuals. Additionally, no one has yet been found guilty of conspiracy to
commit genocide but acquitted of genocide itself. Therefore, the existence of conspiracy
to commit genocide as an inchoate crime remains only a theoretical possibility.209
The mens rea of conspiracy to commit genocide is the same as for the substantive
crime of genocide. As explained by a trial chamber of the ICTR:
[C]onspiracy to commit genocide is to be defined as an agreement
between two or more persons to commit the crime of genocide. With respect to
the mens rea of the crime of conspiracy to commit genocide, the Chamber notes
that is rests on the concerted intent to commit genocide, that it is to destroy, in
whole or in part, a national, ethnic, racial or religious group, as such. Thus, it is
the view of the Chamber that the requisite intent for the crime of conspiracy to
207
Contrary to the indictment, where conspiracy was charged alongside all of the three substantive crimes,
the Nuremberg judges of the International Military Tribunal found only those defendants who were found
guilty of “crimes against peace” also guilty of a “conspiracy to commit crimes against peace” (in other
words, a concrete plan by the Nazi leaders to engage in an aggressive war). No one was found guilty simply
of conspiracy. No one also was found guilty of “conspiracy to commit war crimes” or “conspiracy to
commit crimes against humanity.” See Chapter 5 for further discussion.
208
See ICTY Statute, Section 4(3)(b) (“Conspiracy to Commit Genocide”); ICTR Statute, Section 2(3)(b)
(“Conspiracy to Commit Genocide”).
209
The Statute of the Rome Treaty creating the International Criminal Court (ICC) does not recognize the
separate crime of conspiracy. It well may be, therefore, that as international criminal law is further
developed though ICC jurisprudence, conspiracy as an inchoate crime or even as a separate crime alongside
the substantive offenses of genocide, war crimes or crimes against humanity, may disappear.
69
commit genocide is, ipso facto, the intent required for the crime of genocide, that
is the dolus specialis [specific intent] of genocide.210
Last, it should be noted that since genocide is unlikely to be committed by just
one person – unlike murder, for example, where there can be only one guilty party –
conspiracy to commit genocide can almost always be charged alongside the main crime
of genocide. As a result, a court can increase the sentence of a convicted genocidaire by
issuing separate sentences for each crime. The practice of the ad hoc tribunals, however,
has been to conflate the separate convictions into one across-the-board sentence.
2.6.2. Incitement to Commit Genocide
The Genocide Convention also punishes those who incite others to commit
genocide. Criminalizing incitement is always a risky proposition since it criminalizes
pure speech and so may be used to stifle freedom of expression. During the drafting of
the Convention, the United States delegation was specifically concerned of that danger.211
At the same time, taking their cue from the fiery speeches of the Nazi leaders against the
Jews212, the drafters recognized that genocide often begins with public speeches by those
in power urging others to take action against a victim group.
The balance is struck with the added requirements to the actual crime: the
incitement must be “direct and public” – meaning that the speech must expressly urge the
listeners to take immediate action against members of a protected group213 and must be
done in a public forum (including transmission via television, radio, or some
technological means; incitement to genocide via text messaging today would surely
qualify) in order for the crime of “incitement to genocide” to take place. Here, a
distinction exists with the crime of complicity to commit genocide. Privately urging
someone to commit genocide, in other words, private incitement, can make an
individually guilty of complicity to genocide – but only if an actual genocide took place.
Since incitement to genocide, however, is a preparatory, or inchoate, crime, technically a
person can be convicted for incitement to genocide even if actual genocide never took
place (akin to the crime of attempted genocide – see discussion below). To date,
however, no one has ever been charged with the inchoate aspect of the crime.
One intriguing – and also deplorable – recent case involves the repeated calls by
Iranian President Mahmoud Ahmadinejad in 2005 that “Israel should be wiped off the
map.” In 2006, Ahmadinejad added that the solution to the crisis in the Middle East is
210
Prosecutor v. Musema, (Trial Chamber, Jan. 27, 2000), paras. 191-92.
211
Schabas, supra, p. 267-68.
For conviction of Nazi propagandist Julius Streicher at Nuremberg for his repeated calls for the murder
of Jews see Chapter 5.
213
As explained by the ICTR, “mere vague or indirect suggestion” will not do. Prosecutor v. Akayesu,
supra, para. 551. On the other hand, euphemisms or coded language to kill would qualify as express
incitement if the listeners understand the true meaning of the coded language uttered by the speaker. As an
example, at the Wannsee Conference held by the Nazi leaders to discuss the physical extermination of the
Jews of Europe, “resettlement to the East” was widely known to refer to the transfer of Jews to the death
camps of Eastern Europe where they would be murdered.
212
70
"the destruction of the Zionist regime."214 Arguably, such statements could be
characterized as direct and public incitement to commit genocide of the Jews in the State
of Israel. The practical problem is how to bring a case before a court to test whether
incitement to genocide – purely as an inchoate crime as recognized by the Genocide
Convention – has been committed. The International Criminal Court (ICC) has
jurisdiction to try persons who make statements inciting genocide;215 however, since
neither Iran nor Israel are parties to the Rome Statute, the ICC is unlikely to exercise
jurisdiction. One possibility is for the UN Security Council to refer the matter to the ICC
Prosecutor for investigation and possible prosecution;216 in such instances, the consent of
the impacted states is not required for the court to obtain jurisdiction. Such a move is
unlikely, however, given the makeup of the Security Council and the power of Russia and
China to veto any such referral. Since both Israel and Iran are parties to the Genocide
Convention,217, following the precedent of Bosnia suing Serbia for genocide, Israel might
attempt to file suit against Iran before the ICJ for incitement of genocide based on the
statements made by the Iranian head of state. It is doubtful, however, whether Israel
would ever pursue this option considering Israel's negative view of the ICJ following that
tribunal’s 2003 decision in the Israel security barrier advisory opinion case. It appears,
therefore, unlikely that any judicial body will ever examine Ahmadinejad’s appalling
statements and that of other Iranian leaders against Israel to determine whether they
qualify as direct and public incitements to genocide.
The most prominent conviction to date for incitement to genocide came in 2006,
when the ICTR sentenced Joseph Serugendo to six years in prison for direct and public
incitement to commit genocide and persecution as a crime against humanity. Serugendo
was the technical director of the infamous radio station Radio Mille Collines, known
commonly as Radio Machete, which broadcast messages urging Hutus to kill Tutsis and
even gave specific locations where the victims could be located. Under a plea agreement,
the ICTR prosecutor dropped the more serious charges of genocide, conspiracy to
commit genocide and complicity to commit genocide in exchange for Serugendo's guilty
plea for incitement.
214
Ahmadinejad is not the first and only Iranian leader to call for the destruction of Israel. As explained in
a brief prepared to the United Nations by the Jerusalem Center for Public Affairs, a Jerusalem-based NGO,
and calling for action to be taken against Iran arising out of such statements: “From as early as the rule of
‘[Grand Ayatollah] Khomeini, [the political leader of the 1979 Iranian revolution,] anti-Israel
pronouncements and anti-Semitic invectives have characterized Iranian leaders’ speeches and permeated
the Iranian media. In fact, the phrases ‘death to Israel’ and ‘Israel must be eliminated’ were coined by
Khomeini himself.” Justus Reid Weiner, Referral of Iranian President Mahmoud Ahmadinejad and the
Member State of the Islamic Republic of Iran to the United Nations, including its Main bodies, Judicial
Organs, and Specialized Agencies on the Charge of Incitement to Commit Genocide and Other Charges,
Dec. 19, 2006, para. 15 (endnotes omitted) available at <http://www.spme.net>
215
Article 25 of the ICC Statute, titled “Individual criminal responsibility,” states that the ICC shall have
jurisdiction over natural persons and that such “a person shall be criminally responsible and liable for
punishment for a crime within the jurisdiction of the Court if that person:…(e) In respect of the crime of
genocide, directly and publicly incites others to commit genocide.” For further discussion of the ICC see
Chapter 9.
216
The ICC already took this move once with regards to the events in Darfur. See Chapter 10.
217
Israel became a state party to the Genocide Convention in 1950 and Iran in 1956 (with the current
Islamic Republic of Iran not repudiating the treaty). .
71
Last, it should be kept in mind that almost all individuals charged with incitement
to genocide can also be charged with complicity in genocide (see discussion below) since
complicity in genocide by aiding and abetting someone to commit genocide also includes
the act of incitement.218 In practical terms, therefore, other than as an inchoate crime,
charging someone with incitement to genocide in addition to the charge of genocide,
seems superfluous.
2.6.3. Attempted Genocide
For almost all crimes found on the books of domestic legal systems, if an
individual attempts to commit the enumerated crime, but fails to do so, he or she can be
found guilty of the separate crime of “attempt to commit crime X” or “attempted X.”
For example, an individual who intends to kill someone, shoots at the intended victim but
misses, does not go free. Society considers that individual both culpable enough and
sufficiently dangerous that the individual is guilty of “attempted murder,” a separate
crime on the books that often carries a lesser penalty of imprisonment.
The Genocide Convention, likewise, recognizes the “crime of attempt to commit
genocide” or, more simply put, “attempted genocide” (akin to “attempted murder,”
“attempted robbery,” etc.) The Yugoslav and Rwanda ad hoc tribunals, by incorporating
the crimes listed in the Genocide Convention, likewise criminalize attempts to commit
genocide.
However, while the crime is on the books, to date no one has ever been
prosecuted for attempted genocide either before the ad hoc tribunals or in any domestic
court. While the ICTY and ICTR prosecutors have chosen to indict individuals for the
other genocide-related crimes, they have not charged anyone of attempted genocide.
Similarly, there have been no domestic prosecutions of this crime.219
2.6.4. Complicity in Genocide
In the ICTY prosecution of Momcilo Krajišnik discussed above, the defendant
was also charged in addition to genocide with a separate crime: complicity to commit
genocide. The technical name of the crime is “complicity in genocide” and complicity in
a crime is most often demonstrated by the defendant’s “aiding and abetting” in the crime.
The ICTY court likewise acquitted Krajišnik of this charge.
Complicity to commit genocide is recognized as a separate crime under Article III
of the Genocide Convention, and likewise adopted by the statutes establishing the ICTY
and the ICTR. The basis for recognizing criminal liability for complicity comes from
domestic legal systems. As Schabas points out, “Probably all criminal law systems punish
accomplices, that is, those who aid, abet, counsel and procure or otherwise participate in
criminal offenses, even if they are not the principal offenders.”220 In the United Kingdom,
the United States and other British-derived legal systems, complicity is not a separate
crime, but a means to find an accomplice to a crime guilty for acts committed by the
Schabas points out that Black’s Law Dictionary defines abet to also mean to incite. Schabas, supra, p.
269-70.
219
For a discussion of attempted genocide see Schabas, supra, pp. 280-85.
220
Schabas, supra, p. 285.
218
72
principal when the accomplice shares the same mens rea as the principal. For example, if
A and B plan to kill C, and A shoots C and kills him, B is also guilty of murder even
though B did not pull the trigger because B’s mens rea was the same as that of A, the
actual perpetrator of the crime. B, in that instance, is said to have aided and abetted A in
the crime and is charged the same as a principal in the crime.221 As explained by the
judges at one of the U.S zonal trials at Nuremberg, “The person who persuades another to
commit murder, the person who furnishes the lethal weapon for the purpose of its
commission, and the person who pulls the trigger are all principals or accessories to the
crime.”222 Under Anglo-American law, the person is not charged with a separate crime of
aiding or abetting, or complicity, but rather is charged along with the actual perpetrator of
the crime itself and is subject to the same punishment.
The Genocide Convention crime of complicity treats the analysis differently. An
accomplice to genocide can be found guilty of a separate crime of complicity even
though his mens rea was less than that of the perpetrator. For example, as discussed
above, the ICTY appeals chamber in Prosecutor v. Krstic reversed the trial chamber’s
conviction of the Bosnian Serb general of genocide, but found him guilty of “complicity
to commit genocide.” The appeals chamber treated the complicity conviction as less
heinous that the overturned genocide conviction by reducing defendant’s sentence from
forty-six years to thirty-five years imprisonment.
This result makes it appear that the crime of “complicity to genocide” is somehow
a lesser or secondary offense to the crime of “genocide” but as Schabas points out,
“when applied to genocide, there is nothing ‘secondary’ about it. The ‘accomplice’ is
often the real villain, and the ‘principal offender’ a small cog in the machine. Hitler did
not apparently, physically murder or brutalize anyone; technically, he was ‘only’ an
accomplice to the crime of genocide.”223 Another way of explaining this is that in
genocide, the general principles of criminal liability can sometimes be turned on its head.
For genocide, the individuals who actually perpetrate the killings or the other actus rea of
the crime are only accomplices, while the real perpetrators are the leaders who plan and
order the carrying out of these acts for the purpose of committing genocide.
What is the mens rea for the crime of complicity to commit genocide? The Krstic
appeals chamber explained that the “conviction for aiding and abetting genocide [is
proper] upon proof that the defendant knew about the principal perpetrator’s genocidal
intent….”224 As discussed earlier, Krstic participated in the 1995 mass murder of 8,000
Bosnian Muslims in Srebrenica, the largest wartime mass murder on European soil since
World War II. Even though the prosecution had not proven that Krstic had the intent to
221
A separate crime of complicity, therefore, is unnecessary in British-derived legal systems, and is the
reason why the U.K., in incorporating the Genocide Convention in its domestic law, did not include Article
III complicity in the domestic version of the law. As explained by one of the drafters of the U.K. domestic
legislation, “Complicity in genocide has not been included in Clause 2(1) [because] we take the view that
the sub-heading in Article III is subsumed in the act of genocide itself in exactly the same way as, under
our domestic criminal law, aiding and abetting is a situation in which a person so charged could be charged
as a principal in relation to the offense itself.” Statement of Parliamentary Secretary Elystan Morgan, cited
and quoted in Schabas, supra p. 287.
222
United States v. Alstotter, et al. (“Justice Trial”), (1948) 6 LRTWC (1948), p. 62, cited and quoted in
Schabas, supra, p. 295.
223
Schabas, supra, p. 286
224
Prosecutor v. Krstic, Appellate Chamber, supra, para. 141.
73
destroy the Bosnian Muslims as a group when he participated in the Srebrenica mass
killings, the appeals chamber found that he “had knowledge of the genocidal intent of
[his superiors]” to destroy the Bosnian Muslims when they ordered Krstic and others to
carry out the killings.225 Krstic was therefore found guilty of complicity to genocide
because “he assist[ed] the commission of the crime [of genocide] knowing the intent
behind the crime.”226
Of course, mere knowledge as sufficient mens rea is not enough. Krstic also had
the necessary actus reus of the crime of genocide by participating in the killings at
Srebrenica. Quigley points out that the minimum mens rea of knowledge for the crime of
complicity to genocide must be tempered by some common sense limitations, otherwise,
an ordinary foot soldier would be liable for complicity to genocide by the mere awareness
that his superiors’ purpose in ordering the killings was to destroy the enumerated
group.227
Quigley’s cautionary notes is similar to the one discussed earlier with regard to
the misuse of the term genocide in the political sphere. If genocide is to remain “the
crime of crimes” in the judicial sphere and reserved for the most wicked kind of behavior,
it cannot be adjudged by courts to exist in instances where ordinary convictions of
murder or other lesser crimes would suffice.
2.6.5. War Crimes and Crimes Against Humanity
Individuals charged with genocide are often also charged with war crimes, crimes
against humanity or both. In popular parlance, they are known as “lesser crimes” than the
crime of genocide. Here we briefly explain the relationship of these three crimes.
Like genocide, war crimes are crimes under international law but predate the
crime of genocide. The basic concept of the crime is that if wars are indeed inevitable,
then they will not be “free for alls” but will follow certain guidelines in order to minimize
human casualties and property damages to civilians, referred to also as non-combatants.
While the direct object of a war is to win the war by killing as many soldiers that your
enemy musters against you, there are also certain international norms of combat which
protect both civilians and combatants no longer able to take part in the fighting (i.e.
POWs are not to be summarily shot upon surrender, modes of transportation for wounded
soldiers like ambulances and hospital ships cannot be deliberately targeted).
The major distinction between genocide and war crimes is temporal. War crimes
by its terms necessarily can only be committed during times of war, while genocide can
be committed both in the course of a war and during peacetime.228 War, for purposes of
war crimes prosecution, includes both international and internal armed conflicts, i.e. civil
225
Id, paras. 137-141.
Id, para. 140.
227
Quigley, supra, p. 134- 36. As Quigley explains: “It was an important advance in the law to establish
that commanders and rulers are not exempt from liability. At the same time, if superiors are held too strictly
accountable, the traditional philosophical basis for criminal responsibility disappears. Similarly, with
subordinates, there may be various levels of awareness of the genocidal intent of the superior. No person
should be convicted of a crime so serious as genocide absent a sufficient finding of mental culpability.”
Ibid, p. 136.
228
Article I of the Genocide Convention states that “genocide, whether committed in time of peace or in
time of war, is a crime under international law.”
226
74
wars. International criminal responsibility for war crimes exists, therefore, for acts
committed during an internal armed conflict. The most prominent example of
international prosecution of individuals for war crimes committed during an internal
armed conflict are trials before the ICTR resulting in war crimes convictions of Hutu
tribesmen for acts committed against their Tutsi national brethren in Rwanda in 1994.
Origins of the laws and customs of war (jus in bello) can be traced to biblical
times for the West and the ancient writings of the Chinese warrior philosopher Sun Tzu
from the 6th Century BCE for the East. Its modern incarnation as a crime for which
individuals (including political and military leaders) have personal criminal responsibility
derives, however, from the criminal proceedings taken against the German defendants
before the International Military Tribunal in Nuremberg at the end of World War II and
the subsequent criminal proceedings both at Nuremberg and at other venues.229
The same goes for crimes against humanity. The term “crimes against humanity”
made its first appearance purely as a political term, used by the Allies in the aftermath of
World War I accusing the Ottoman Turks of the massacres committed against their
Armenian fellow citizens.230 Its first appearance as a legal norm of international criminal
law occurs in the charter creating the International Military Tribunal at Nuremberg,
which lists “crimes against humanity” as one of the crimes for which the Nazi leaders
were tried after World War II. While crimes against humanity and war crimes often
overlap, the drafters of the Nuremberg statute included it specifically to cover atrocities
committed by a state against its own nationals (in that instance, Nazi Germany against its
Jewish citizens and other persecuted nationals) and acts committed by the Nazis before
the outbreak of World War II in September 1939, since those are not considered as war
crimes. The Nuremberg innovation of formally recognizing crimes against humanity as a
separate crime under international law was carried on by the ad hoc tribunals for the
former Yugoslavia and Rwanda, both of which recognize the crime under its constituent
statute establishing the respective tribunals.231 As Kerr explains, “The prosecution of
“Without doubt, however, the watershed for the development of the principle of individual criminal
responsibility for human rights abuses was the exercise undertaken by the international community
following the previously unimaginable atrocities of World War II, particularly the Holocaust.” Steven R.
Ratner and Jason S. Abrams, Accountability For Human Rights Atrocities in International Law: Beyond the
Nuremberg Legacy (Oxford, UK: Oxford U. Press, 2nd ed., 2001), p. 6.
230
See Gary Jonathan Bass, Stay the Hand of Vengeance: The Politics of War Crimes Tribunals (Princeton,
N.J.: Princeton U. Press, 2003), p. 114-17.
231
We note that “crimes against humanity” is a legal term, signifying a specific crime under international
law. The term, however, can be used in a more general, non-legal way to designate all international crimes
– including such modern international law crimes of terrorism and hostage-taking – which impact the
entire humankind. In that descriptive sense, genocide is also a crime against humanity. As Michael
Ignatieff explains: [“W]hy, exactly, is genocide a crime against humanity? Why is a crime committed
against Jews, or any other human group, a crime against those who don't belong to that group? Now, the
obvious answer [is] . . . that we belong to the same species and we owe each other the same duties of care.”
Ignatieff Lemkin Lecture, supra. The implication, of course, is that a crime against one group of people is a
crime towards the entire human race since the entire human race suffers from that crime. Lemkin made a
similar point: "Our whole heritage is a product of the contributions of all people. We can best understand
this when we realize how impoverished our culture would be if the so-called inferior peoples doomed by
Germany, such as the Jews, had not been permitted to create the Bible, or to give birth to an Einstein, a
Spinoza; if the Poles had not had the opportunity to give to the world a Copernicus, a Chopin, a Curie; the
Czechs a Huss, a Dvorak; the Greeks a Plato and a Socrates; the Russians a Tolstoy and a Shostakovich."
Raphael Lemkin, “Genocide: A Modern Crime,” Free World, v.9, no. 4 (Apr. 1945), p. 39-43,
229
75
crimes at Nuremberg was harshly criticized as the application of law ex post facto. There
was no doubt, however, as to their validity in law” during the creation of the ICTY and
the ICTR.232 Today, crimes against humanity can be committed against both nationals
and foreign civilians. “[C]rimes against humanity are inhumane acts of a very serious
nature, committed as part of a widespread attack against any civilian population, on a
widespread or systematic scale.”233
Detailed discussion of the Nuremberg trials and their legacy will be taken up later
in the text. In this introductory chapter, we only note that genocide, war crimes and
crimes against humanity form the modern triad of international criminal law.
International criminal law does not recognize a hierarchy among three crimes, with all
three considered equally abhorrent. While in theory a perpetrator of any of the three
crimes can receive the same penal sanction, the practice of the international ad hoc
tribunals for the former Yugoslavia and Rwanda has shown that (1) a higher standard of
evidentiary proof is necessary to convict an individual of the genocide than of the other
two crimes and, as a result, and (2) genocidaires are treated more harshly, receiving
longer prison terms, than those found guilty of war crimes or crimes against humanity.
The public perception is the same. For both international jurists and the lay person only
genocide is considered the “crime of crimes.”234
Since genocide in practice is seen as a more serious crime than its sister crimes of
war crimes and crimes against humanity, individuals acquitted of genocide before the
ICTY and the ICTR nevertheless have been convicted of war crimes, crimes against
humanity or both. As a result of the high standards of evidentiary proof necessary for
genocide, it is likely that prosecutors will now be less likely to charge individuals with
genocide. Why bother to charge an individual with the “crime of crimes” if proving war
crimes and crimes against humanity is so much easier?
In 2007, Louis Moreno-Ocampo, the prosecutor of the International Criminal
Court (“ICC”), apparently made the calculated decision that it would be too difficult to
prosecute for genocide when he accused the first two individuals (a Sudanese minister
and a militia leader) connected to the mass atrocities in Darfur not of genocide but of war
crimes and crimes against humanity. David Kaye commented on the decision by
available at <www.prevent genocide.org>
232
Kerr, supra, p. 85.
233
Ibid (citing Report of the Secretary-General of the United Nations, S/25704 (1993)). See e.g. Art. 5 of
ICTY Statute (“Crimes Against Humanity”): “The International Tribunal shall have the power to prosecute
persons responsible for the following crimes when committed in armed conflict, whether international or
internal in character, and directed against any civilian population: (a) murder; (b) extermination; (c)
enslavement; (d) deportation; (e) imprisonment; (f) torture; (g) rape; (h) persecutions on political, racial and
religious grounds; (i) other inhumane acts” and article 3 (“Crimes Against Humanity”) of the ICTR Statute:
“The International Tribunal for Rwanda shall have the power to prosecute persons responsible for the
following crimes when committed as part of a widespread or systematic attack against any civilian
population on national, political, ethnic, racial or religious grounds: (a)Murder; (b) Extermination;
(c)Enslavement;(d) Deportation;(e) Imprisonment;(f) Torture;(g) Rape;(h) Persecutions on political, racial
and religious grounds;(i) Other inhumane acts.
234
Alain Destexhe, former secretary-general of the NGO Medecins Sans Frontieres [Doctors Without
Borders], in using the term “crimes against humanity” as a general descriptive term, characterizes genocide
as” a crime on a different scale to all other crimes against humanity and implies an intention to completely
exterminate the chosen group. . . .Genocide is therefore both the gravest and greatest of the crimes against
humanity. . .[It has become]the ultimate verbal stigma." Destexhe, supra, pp. 4, 7.
76
Moreno-Ocampo: “[S]mart choice; better to prosecute these perpetrators on provable
grounds than try to make a symbolic statement about genocide and risk losing the
case.”235 Kaye notes that “[t]he atrocities are clear, and they are no less serious simply
because they are called war crimes or crimes against humanity rather than genocide.” Of
course, war crimes and crimes against humanity don’t carry the same “oomph” as
genocide, and so Moreno-Ocampo was criticized by some human rights groups for not
including genocide in his charges against the two defendants for the events in Darfur.
Actual prosecutions demonstrate that these three international crimes often
overlap and individuals convicted of any of these three related crimes are also guilty of
one or both of the others.
2.6.6. Ethnic Cleansing
Ethnic cleansing – unlike genocide, war crimes and crimes against humanity – is
not a crime specifically enumerated as such in any international treaty. Rather, it is only a
descriptive term236 that gained popularity in the 1990’s as a means to describe the events
in Bosnia that took place in the aftermath of the breakup of Yugoslavia and conducted
primarily by ethnic Serbs to expel Bosnian Muslims and Croats from certain parts of the
newly independent nation of Bosnia-Herzegovina.237 The goal of an ethnic cleansing
campaign is to leave one group as the sole remaining group, or dominant group, in the
region where ethnic cleansing takes place. A UN Commission of Experts reporting on the
events in the former Yugoslavia defined ethnic cleansing as “rendering an area ethnically
homogenous by using force or intimidation to remove persons of given groups.”238 The
term “ethnic” is used here loosely, since the forced displacement of one group of people
by another group of the same ethnicity (but, for example, of a different religion) would
still be labeled ethnic cleaning. In fact, in the Bosnia situation, all of the perpetrator and
victim groups were of the same Slavic ethnicity, with the differences being religious
rather than ethnic.
If one of the methods used to ethnically cleanse an area is the forcible deportation
of civilians from that area, then such deportations may be “crimes against humanity” and
235
Kaye, supra.
This is similar to genocide being used as a descriptive term at the Nuremberg trials before genocide
became a crime under international law through the enactment of the Genocide Convention.
237
As Kerr explains, “Ethnic cleansing was an explicit part of Serb strategy in Croatia and in Bosnia. The
aim was to clear areas of non-Serb population through mass killing, terror and deportation. . . The same
strategy was carried out by Bosnian Croat forces against Bosnian Muslims. . .There were also sporadic
incidents of atrocities carried out by Bosnian Muslims against Bosnian Serbs.” Kerr, supra, pp. 30-31
(footnotes omitted). Both Serbs and Croats also conducted ethnic cleansing operations in the Croatian
region of Krajina, with the Serbs expelling the Croats in 1991, and the Croatian Army, after recapturing
Krajina in 1995, expelling the native Serbian population of the region. See Chapter 8 for further
discussion.
238
United Nations Commission on Breaches of Geneva Law in Former Yugoslavia, (Oct. 1992) available
at <www.earlham.edu> “The acts which [the UN Commission found to have] constituted ‘ethnic cleansing’
included mass forced populations transfers, Serb-run detention centers where tens of thousands were being
killed and tortured, organized massacres, physical destruction of whole towns including major historical,
cultural, and religious monuments, and the systematic and repeated rape of women.” Kerr, supra, pp. 31
(footnote omitted).
236
77
“war crimes” for which there is individual criminal responsibility.239 Since the Genocide
Convention does not list “forcible deportation” as one of the enumerated actus reus
means of committing of genocide, 240 such action — though horrible — does not amount
to genocide, unless it is children that are being deported.241 Of course, if the methods
used to effectuate ethnic cleansing include systematic killing members of a group
enumerated in the Genocide Convention, or any of the other actus reus means specified
in Article II, then those specific acts – coupled with the necessary specific intent – may
themselves be characterized as genocide. A blanket statement, however, equating ethnic
cleansing with genocide is nothing more than hyperbole. As Schabas correctly notes:
“The opinion expressed in certain resolutions of the General Assembly and by some
writers that ethnic cleansing is a form of genocide is troublesome. . . . Plainly, [ethnic
cleansing] is not the same thing as genocide, which is directed at the destruction of the
group. . . .[Therefore,] it is incorrect to assert that ethnic cleansing is a form of genocide,
or even that in some cases, ethnic cleansing amounts to genocide. . . .Ethnic cleansing is
also a warning sign of genocide to come. Genocide is the last resort of the frustrated
ethnic cleanser.” 242
Like genocide, ethnic cleansing has all-too frequently taken place in human
history, and so – like genocide (and paraphrasing Raphael Lemkin) – is a new term to
describe an old practice.243 Infamous historical instances include the forced transfer of
Native Americans to reservations in the United States and the transfers and resettlement
of the indigenous Aborigines in Australia and the Maoris in New Zealand by the
European settlers. During World War II, the Nazis also conducted a campaign of ethnic
cleansing when they forcibly expelled Jews from Germany and parts of the conquered
territories so as to make those areas Judenrein [free of Jews].244
See ICTY Statute, art. 2 (noting that “unlawful deportation or transfer or unlawful confinement of a
civilian” is a grave breach of the Geneva Convention of 1949) and art. 5 (describing “deportation” as a
crime against humanity when “committed in armed conflict, whether international or internal in character,
and directed against any civilian population.”). The ICTY Statute empowers the ICTY to prosecute
individuals for violations of articles 2 and 5. The ICTR Statute, in article 3, makes “deportation” a crime
against humanity “when committed as part of a widespread or systematic attack against any civilian
population on national, political, ethnic, racial or religious grounds.” The ICC Statute characterizes
deportation as both a “crime against humanity…. when committed as part of a widespread or systematic
attack directed against any civilian population, with knowledge of the attack” (art. 7) and a war crime when
committed during the time of war or occupation (art. 8).
240
In fact, the drafters of the Genocide Convention specifically noted that “mass displacement of
populations from one region to another also does not constitute genocide.” UN Doc. E/447, p. 23 cited and
quoted in Schabas, supra, p. 196. As Schabas points out, the drafters in 1948 specifically excluded such
forced mass displacement from one of the enumerated acts of genocide because many of the European
nations just three years earlier began engaging in the forced transfer of certain ethnic groups as part of their
realignment of borders in the aftermath of World War II.
241
“[G]enocide means any of the following acts…..(e) Forcibly transferring children of the group to
another group.” Article II (e).
242
Schabas, supra. p. 200.
243
See Andrew Bell-Fialkoff, "A Brief History of Ethnic Cleansing," Foreign Affairs (Summer 1993).
244
Immediately after the end of the Second Word War, Poland and Czechoslovakia also expelled millions
of ethnic Germans from its territories, with some of the expellees or their families, such as the so-called
Sudeten Germans from then-northern Czechoslovakia, still demanding either return to their former
residences or compensation for the expulsion. Both countries refuse to recognize those claims, arguing that
the ethnic Germans sides with the Nazis during the war and so were expelled en masse as traitors. For a
239
78
Chapter 3: Genocide – Ongoing Legal Controversies
Michael J. Bazyler and Sam Garkawe
3.1. Introduction
3.2. Defining the Parameters of the Mens Rea Element
of Genocide: The Meaning of “With Intent to Destroy, In
Whole Or In Part”
3.3. Defining the Parameters of the Actus Reus Element
of Genocide: Is Systematic Destruction Necessary?
3.4. Group Definitions and Exclusion of Political Groups
From the Protection of the Genocide Convention
3.5. Should “Cultural Genocide” Be Considered Genocide?
3.6. Using the “G-word” for Historical Atrocities:
When is it Proper To Do So?
3.7. “Never Again”: The Cry of the Holocaust and the Language
of Genocide Prevention
3.1. Introduction
This chapter focuses on significant controversies in the field of genocide studies,
and presents the assorted points of view regarding these controversies. In identifying
disagreements, we readily acknowledge that such identification will not necessarily lead
to their resolution, either in the discussion that follows or, for that matter, in the
foreseeable future. However, it is worthwhile for students of genocide to have signposts
where their road of study is clear and where it is bumpy and, because of the emotive
power of the term, at times even fraught with danger. While our focus will naturally be a
legal one, we will also mention relevant non-legal perspectives.
One continuing controversy among scholars is whether a person can be convicted
of genocide if the number of persons actually killed or injured is small, rather than a mass
killing involving hundreds, thousands, or millions of individuals. The subject has created
much confusion because the language of the Genocide Convention is vague about the
answer. Additionally, much of the discussion on the subject confuses the mens rea and
the actus reus requirements of the crime. Our discussion below seeks to clarify the issue
by differentiating the “numbers game” as it applies to the separate mens rea and actus
reus elements of the crime of genocide.
We also discuss the use and misuse of the term genocide outside the courtroom,
focusing on two arenas: the historical use of the term, when events prior to the enactment
of the Genocide Convention are labeled as a genocide; and in the political sphere, when
general discussion of the history of ethnic cleansing see Benjamin Lieberman, Terrible Fate: Ethnic
Cleansing in the Making of Modern Europe (Chicago, Ill: Ivan R, Dee, 2006).
79
the cry of genocide is raised to prevent an impending genocide or to suppress atrocities
that have reached genocidal proportions.
3.2. Defining the Parameters of the Mens Rea Element
The Meaning “With Intent to Destroy, In Whole Or In Part”
of
Genocide:
Chapter 2 illustrated the importance of the mens rea element of the crime of
genocide and the difficulties of proving that element in a court of law. Here we focus on
another difficulty presented by the mens rea requirement stemming from how that
requirement is set out in the text of the Genocide Convention.
In Axis Rule, Lemkin explained that genocide means “the destruction of a nation
or an ethnic group.”245 While not expressly stated, the implication is that the entire victim
group must be eradicated, or, at the least, the defendant must have intended to destroy the
entire group even if the final result was not the group’s extinction. Using the Holocaust as
our paradigmatic standard, we can surely conclude that Hitler and his cohorts committed
genocide of the Jews even if the Nazis failed in their purported ultimate goal of
eventually killing every Jew on the face of the earth or, for that matter, all of the Jews of
Europe.246 For this reason, some have argued that unless the perpetrator’s goal is to kill
all of a given people, the individual did not commit genocide regardless of the number
actually killed. Just as homicide is the extinction of the life of an individual, so is
genocide the extinction of the life of an entire group.
However, this is contrary to the very words of the Genocide Convention.
Article II states that the necessary intent possessed by the perpetrator at the time of
commission of any of the acts enumerated in subparagraphs (a) through (e) is not only the
intent to destroy the group “in whole” but also “in part.”
Quigley explains how the term “in part” was inserted into the genocidal intent
element of the offense. “As the drafting proceeded, some participants worried that
persons accused of genocide might argue that they did not intend to destroy the entire
group, but only a portion of it. So the drafters added the phrase ‘in whole or in part.’”247
At the same time, Quigley points out that “t]he phrase ‘in part’ has eluded precise
application. By one reading, it imports a minimum numerical requirement” to the mens
rea element of genocide.248 The United States, in ratifying the Genocide Convention in
the late 1980’s, filed with the UN an Understanding as part of its ratification, noting that
it interprets “in part” to mean “in substantial part.” While the United States’
understanding did not further define the term “substantial,” when genocide was made a
federal crime by the U.S. Congress in the aftermath of the Convention’s ratification, the
federal penal statute criminalizing genocide under American law added the explanation
that “substantial part” means destruction of “such numerical significance that the
245
Lemkin, supra, p. 79.
What was the Nazis’ ultimate intent is still a matter of conjecture. One indicator that the Nazis intended
to eradicate all Jews everywhere was their plan to build a “Central Museum of the Extinguished Jewish
Race” in Prague at the conclusion of the war housing Jewish artifacts plundered from their Jewish victims.
Another is that the Nazis intended to apply the same measures to the Jews of North Africa and the Middle
East, including in British Mandate Palestine, if they had succeeded in conquering those territories.
247
Quigley, supra, p. 139.
248
Ibid.
246
80
destruction or loss of that part would cause the destruction of the group as a viable entity
within the nation of which such group is a part.”249
The ad hoc international tribunals have come to the same understanding about
the need to show substantiality. The ITCR, for example, has held that the mens rea
element “requires the intention to destroy a considerable number of individuals who are
part of the group.”250 The ICTY likewise explained in the Krstic trial chamber decision
that “an intent to destroy only part of the group must nevertheless concern a substantial
part thereof, either numerically or qualitatively.”251 These decisions show that the
Understanding filed by the United States earlier interpreting “in part” as being “in
substantial part” has now become accepted international law.
If intent to physically destroy a part of a protected group is sufficient to meet the
mens rea element, this leads to two other questions: (1) how many members of a
protected group must the perpetrator intend to destroy for the “intent to destroy…in part”
requirement be met and (2) what proportion of a protected group must actually be
destroyed for the destruction to qualify as a partial destruction? Since the Genocide
Convention does not provide an answer, international tribunals trying individuals for
genocide have to fill in the meaning to both these questions.
In the next section we deal with the second question. The focus here is not on
the result but on the mental state of the defendant: how large of a part of a protected
group must the actor intend to destroy to possess the requisite mens rea of genocide?
Schabas puts the question this way: “[T]he intent to destroy an individual member of a
group because that person belongs to the group would be racially motivated murder and
not genocide. But at what point do a number of racially motivated murders cross the
threshold and attain the status of genocide?”252 There is no single answer. As Schabas
points out in his detailed discussion of the issue, for some scholars the perpetrator must
intend to destroy a substantial or significant part of the protected group; for others,
“[g]enocide can occur with the specific intent to destroy a small number of a relevant
group.”253 Intent to destroy a statistically small number of a protected group can meet the
genocidal intent if the individuals targeted comprise the leaders of a protected group. As
the Krstic appeals chamber noted, “In addition to the numeric size of the group, its
prominence within the group can be a useful consideration. If a specific part of the group
is emblematic of the overall group, or is essential to its survival, that may support a
finding that the part qualifies as substantial.”254
Ultimately, a hard-and-fast rule – whether expressed numerically or by
percentage – cannot be given. Rather, the usual legal answer applies here: what qualifies
as “intent to destroy . . . in part” a protected group and also meets the substantiality
requirement will depend on the facts of the particular case.
249
250
18 U.S. Code Section 1093(8).
Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1-T (Trial Chamber), May 21, 1999, paras.
96-97.
251
Prosecutor v. Krstic, (Trial Chamber), para. 634. The Krstic appeals chamber agreed with that view. See
Prosecutor v. Krstic, (Appeals Chamber), paras. 6-8.
252
Schabas, supra, p. 234 (italics in original)
253
Id., supra, p. 239 (quoting legal scholars Jordan Paust and Leila Sadat).
254
Prosecutor v. Krstic, Appeals Chamber, supra, para. 12.
81
3.3. Defining the Parameters of the Actus Reus Element of Genocide: Must the
Destruction Be Systematic?
On August 10, 1999, a lone gunman attacked the children and staff of a Jewish
daycare center in Granada Hills, a quiet suburb of Los Angeles. Buford O. Furrow, Jr., a
thirty-seven year-old member of the neo-Nazi group Aryan Nations, sprayed at least
seventy rounds with a high-powered assault rifle into the lobby of the center. Furrow
wounded three young children, a teenager and an adult. After the shooting spree, Furrow
hijacked a car and fled. About an hour later, he gunned down Joseph Ileto, a Filipino
postman delivering mail. After turning himself in, Furrow confessed to scouting several
prominent Jewish institutions in the Los Angeles area before stumbling upon the Jewish
community center. In 2001, as part of a plea-bargain, Furrow pleaded guilty to sixteen
felony counts, including the murder of Mr. Ileto, in exchange for the prosecution not
seeking the death penalty. He was sentenced to life without parole.
Furrow, who expressed no remorse over the killing of Mr. Ileto or the wounding
of the individuals at the daycare center, said he targeted the daycare center because of his
hatred of Jews. He also told authorities that if Mr. Ileto had been white, he would not
have killed him. According to the police, Furrow intended for his acts to be a “wake-up
call to America to kills Jews.”255
Could Furrow have been charged with genocide even though he murdered only
one individual and wounded several others? A credible argument can be made that
Furrow’s state of mind at the time of his acts meets the mens rea of genocide. If Furrow
intended, as he set out on his racially-motivated killing spree, to kill as many Jews as
possible, his murder of even one Jew meets the requirement of intending to destroy a
substantial part of a protected group. On the other hand, if Furrow set out to kill one
particular Jewish person because of his hatred of Jews, then the killing is racially or
religiously- motivated murder but not genocide.
It appears that under the text of the Genocide Convention, Furrow’s acts likewise
meet the actus reus elements of genocide. Article II (a) speaks of “killing members of
the group” without specifying the number of members of the protected group that must be
killed for the killings to constitute genocide. Furrow killed the Philippine-American
postman because of the victim’s ethnicity, and so such a result falls within subsection (a).
Since Furrow’s wounding of the Jewish schoolchildren and staff resulted in bodily, and
perhaps also mental, harm to these victims, Furrow’s acts also fall under subsection (b) of
article II making “causing serious bodily or mental harm to members of the group”
sufficient for the actus rea element of genocide. Assuming that Furrow had the sufficient
intent for the crime of genocide (see discussion above), Furrow committed six counts of
genocide under the Genocide Convention.
Commentators interpreting the Genocide Convention appear to agree with this
result. Heidenrich explains: “[I]f an ordinary gang of thugs kill [sic] a person simply
because that person belongs to a particular nationality, ethnicity, race, or religion, that
255
<www.CNN.com/US/9908/19/furrow.indictment>
82
one murder is, legally speaking, an act of genocide.”256 Schabas concludes that “[n]o
acceptable rationale can justify why an individual murder, if committed with the intent to
destroy a group ‘in whole or in part’, should not be qualified as genocide.”257 According
to Quigley, “An actor is responsible for entertaining the intent to destroy a group, when
an act is carried out in pursuance of that intent, directed against individual members of
the group. In principle, the act could be directed against a single member.”258 For this
reason, Quigley points out, “It is thus not accurate to refer to genocide as a ‘mass crime’
or a ‘massive crime’. . . The actor need not harm substantial numbers of people to
commit genocide.”259 In support of his proposition, Quigley notes that some domestic
penal codes criminalizing genocide also have been interpreted as finding genocide even if
only one person was killed. Quigley points to a commentary to the Austrian penal code
stating that “[t]he killing of a single member of the group can in general be regarded as
genocide, if it is part of a plan to destroy the group, for example, if thereby to work
towards the killing of other members of the group.”260 In Chapter 2, we noted that some
domestic courts have convicted individuals of genocide when the number of victims
numbered only a handful.
During the drafting process of the Convention before the UN, delegates from the
representative nations specifically considered this quantitative issue. The United States,
in particular, was troubled by a result where genocide can be found in instances where the
number of victims is small.261 The British agreed, noting that the murder of one
individual constitutes homicide and not genocide.262 Not able to agree on whether a
minimum number of victims must be impacted before the actus reus of the crime is made
out, the final text of Article II is silent on this issue. The only quantitative requirement for
the actus reus elements of genocide is found in subsection (c) which necessitates
“deliberately inflicting on the group conditions of life calculated to bring its physical
destruction in whole or in part.” The absence of such a qualifying phrase in the remaining
subsections of article II leads to the conclusion that the requirements of these subsections
are met even when one member of a protected group is impacted.
It should be noted that many genocide scholars disagree with this interpretation.
These critics note that a person charged with the death of a single individual – even if the
individual’s intent was to destroy a substantial or even an entire protected group – should
be tried for a homicide, i.e. murder, and not genocide. To do otherwise, diminishes the
severity of the crime. The proponents of the view requiring actual substantial destruction
also point to the Preamble of the Rome Statute creating the modern International
Criminal Court (“ICC”) to try perpetrators of genocide and other serious international
crimes. The Rome Statute appears to exclude random murders targeted at members of a
256
Heidenrich, supra, p. 2.
Schabas, supra, p. 234 (footnote omitted).
258
Quigley, supra, p. 99
259
Id., supra, p. 98.
260
Id. (citing and quoting E. Foregger and E. Serini (eds). Stafgesetzbuch samt den wichtigsen
Nebengesetzen [Penal Code along with the most important Supplementary Laws], (Vienna: Mans Verlag,
1978), p. 516).
261
As Schabas points out, “The United States delegation worried about ‘broadening’ the concept of
genocide to cases where ‘a single individual was attacked as a member of a group.’” Schabas, supra, p. 233
(citing Genocide Convention drafting history).
262
Id. Schabas provides an excellent discussion of this numerical debate. Id. pp. 230-240.
257
83
protected group from its jurisdiction by limiting genocide and other international crimes
covered by the Statute to “unimaginable atrocities that deeply shock the conscience of
humanity,” “such grave crimes [that] threaten the peace, security and well-being of the
world” and “the most serious crimes of concern to the international community as a
whole.” 263 In view of this language in the Statute’s Preamble, the ICC Prosecutor’s
Office is likely to exercise its discretion and not prosecute in circumstances where only
one or a handful of individuals have been killed,
For others, not only must the killing be large, but also involve state action.
Sociologist Irving Louis Horowitz explains that genocide “is not simply a sporadic or
random act;” it must be systematic “and conducted with the approval of, if not, direct
intervention by the state apparatus.”264
The insertion of the “substantiality” and “state action” requirements to the actus
reus element of the crime is, of course, contrary to the very words of the Genocide
Convention. Subparagraphs (a) through (e) – setting out the various actus rea of the
crime of genocide – specifically do not require the destruction of the entire group to meet
the actus reus element of the crime, and subparagraph (c) specifically includes acts
“calculated to bring about [the group’s] physical destruction in whole or in part.”
The late genocide scholar Leo Kuper introduced the term “genocidal massacre” to
cover killings which are not substantial or systematic. The inclusion of the root “geno-“
has the advantage of noting the seriousness of the events, while at the same time noting
the distinction from the crime of genocide by qualifying it with the less serious term
“massacre.”
Needless to say, the same definitional problems existing with the term “genocide”
persist when the new term “genocidal massacre” is introduced. How large or systematic
must the killing be before the event rises to the level of not just being an ordinary
massacre but a “genocidal massacre?” Did Furrow’s killing of Mr. Ileto and the
wounding of Jewish children and staff amount to a “genocidal massacre” if it is not
genocide?
Moreover, as will be discussed later, victim groups are also never satisfied when
the actions against one or more of their members is relegated to some secondary
category. Instead, they wish for what their members suffered to be designated as
“genocide,” the ultimate crime.
Finally, it should be kept in mind that there is no such crime as “genocidal
massacre.” It may be an apt description of some events, but it is not a crime recognized
either in international law or domestic law.
3.4. Group Definitions and Exclusions of Political Groups from the Protection of the
Genocide Convention
As noted above, the Genocide Convention in Article II protects from genocide
“national, ethnical, racial or religious” groups. Two significant questions arise from this
categorization: (1) since the Convention does not provide a definition for these four
263
Rome Statute of the International Criminal Court, Preamble, available at <www.icc-cpi.int>.
Irving Louis Horowitz, Taking Lives: Genocide and State Power (New Brunswick, NJ: Transaction
Publishers, 4th ed. 1997), p.12.
264
84
protected groups, how are they to be defined; and (2) why does the Convention limit its
protection to these four groups? The latter question is usually set out as a criticism of the
Convention for failing to include “political groups” within its protection.
While the drafters might have believed that the descriptions “national, ethnical,
racial or religious” are so obvious that they do not require any definition, the reality is
quite different. As Quigley observes in his genocide legal text, “ By limiting genocide to
acts intended to affect only certain types of groups, they drafters of the Genocide
Convention created more complexity than they realized. The very existence of a group
may be disputed. Even if the group is found to exist, an accused may deny that fact,
thereby casting doubt on whether he had an intent to destroy it. Or an accused may act
against a person thinking they belong to a group that in fact does not exist.”265
Failure to precisely define the four protected groups in the Genocide Convention
led to problems in the very first set of international prosecutions for genocide before the
ICTY and the ICTR. In the prosecution before the ICTR of Jean Akayesu discussed
above, for example, the defendant argued that he cannot be prosecuted for genocide since
the Tutsi victims of the Rwandan genocide do not constitute a national, ethnic, racial or
religious group separate from the Hutu perpetrators. The ICTR trial chamber rejected his
argument, finding that the Tutsi were indeed a distinct ethnic group targeted by the Hutu
ethnic group. As the trial chamber explained:
The Chamber notes that the Tutsi population does not have its own language or a
distinct culture from the rest of the Rwandan population. However, the Chamber
finds that there are a number of objective indicators of the group as a group with a
distinct identity. Every Rwandan citizen was required before 1994 to carry an
identity card which included an entry for ethnic group. . . being Hutu, Tutsi or
Twa. The Rwandan Constitution and laws in force in 1994 also identified
Rwandans by reference to their ethnic group. . . The Rwandan witnesses who
testified before the Chamber identified themselves by ethnic group, and generally
knew the ethnic group to which their friends and neighbours belonged. Moreover,
the Tutsi were conceived of as an ethnic group by those who targeted them for
killing. 266
The last point is critical. It is of no consequence if the targeted individuals do not
constitute or even conceive of themselves as members of the protected group. What
counts is the perception of the perpetrators. If the perpetrator targets individuals because
of a belief that such individuals belong to a protected group, the mens rea of genocide is
fulfilled. Two examples will suffice. If, for instance, Buford Furrow killed the PhilippineAmerican postman believing him to be of Asian ethnic descent or a Jew, then it is
irrelevant whether Furrow was mistaken about the ethnic or religious background of his
victim and Mr. Ileto was in fact of the same ethnicity or religion as Furrow. Furrow’s
state of mind meets the mens rea requirement that he must act “with the intent to
265
Quigley, supra, p. 139.
266
Prosecutor v. Akayesu, Trial Chamber, paras. 170-171.
85
destroy…a ethnical, racial or religious” group267. Similarly, when the Nazis targeted Jews
in their belief that Jews constituted a separate race, a scientific finding that Jews do not
constitute a separate race does not mean that the Holocaust was not a genocide. Under the
Nazi racial theories, Christians with at least three Jewish grandparents were also
considered part of the “Jewish race,”268 and so the murder of such Christians based on
this belief likewise constitutes a genocide.
The ICTY likewise recognizes that the relevant analysis is, as Quigley puts it in
his genocide legal treatise, a matter of “a group in the eye of the beholder.”269 In the
Jelisic case, the trial chamber explained, “[I]t is more appropriate to evaluate the status
of a national, ethnical or racial group from the point of view of those persons who wish to
single that group out from the rest of the community. The Trial Chamber consequently
elects to evaluate membership in a national, ethnical or racial group using a subjective
criterion. It is the stigmatization of a group as a distinct national, ethnical or racial unit by
the community which allows it to be determined whether a targeted population
constitutes a national, ethnical or racial group in the eyes of the alleged perpetrators.”270
Moving on to the issue of the exclusion of political groups from the protection of
the Genocide Convention, the drafters expressly considered this question. They
ultimately decided to exclude political groups from the categories of protected groups. As
a result, the final version of the Convention did not list political groups. The purported
rationale given was that the other groups listed – national, racial, ethnic and religious –
have a quality of permanency, while political allegiances can be easily changed. A
Communist today can become a capitalist tomorrow. Lemkin himself raised this
rationale. As Schabas explains, “Raphael Lemkin said political groups lacked the
permanency and specific characteristics of the other groups, insisting that the Convention
should not risk failure by introducing ideas on which the world was deeply divided.”271
The great Polish international jurist Manfred Lachs, who also participated in the drafting
of the Convention, added, “Those who needed protection most were those who could not
alter their status.”272
Some have argued that the insertion of the term “as such” after the listing of the protected groups (“with
the intent to destroy. ..a national, ethnical, racial or religious group, as such”) indicates that the drafters of
the Genocide Convention sought to use an objective criterion rather than subjective belief on the part of the
perpetrator. See e.g. Prosecutor v. Bagilishema, (ICTR Trial Chamber decision), June 7, 2001, para. 64,
where the trial chamber indicated that it agreed “with the statement of the International Law Commission,
that ‘the intention must be to destroy the group as such, meaning as a separate and distinct entity, and not
merely some individuals because of their membership in particular group.’”
268
See Chapter 2.
269
Quigley, supra, pp. 153-156.
270
Prosecutor v. Jelisic, supra, Trial Chamber (Dec. 14, 1999) para. 70. Schabas criticizes the use of the
purely subjective approach on the ground that under such an analysis “genocide [can] be committed against
a group that does not have any real objective existence. . . .Although helpful to an extent, the subjective
approach flounders because law cannot permit the crime to be defined by the offender alone. It is
necessary, therefore, to determine some objective existence of the four [protected] groups.” Schabas, supra,
p. 110. We respectfully disagree. Since the essence of the crime of genocide is based upon the mental state
of the perpetrator, it is perfectly acceptable to base the crime on purely the subjective belief of the
perpetrator. The law still defines the crime – rather than the offender – but bases it on the offender’s state of
mind at the time of the commission of the crime.
271
Schabas, supra p. 134 (citing UN debates on Genocide Convention).
272
Id, p. 138.
267
86
Of course, the characterization of national, racial, ethnic and religious groups as
being immutable is not entirely correct. Individuals can, and do, change their nationalities
and religions. Even ethnicity and race are not permanent, with persons of mixed race or
ethnicity freely deciding with which group they wish to self-identify. The real reason for
excluding the term “political” from the group descriptions was more practical: fear by
representatives of some member states that inclusion of the term would open up these
states to prosecution for political crimes under the Genocide Convention. Schabas, after
setting out the history of the debates on this point, concludes: “It is clear that political
groups were excluded from the definition for ‘political’ reasons rather than reasons of
principle.”273
The exclusion of political groups from the list of protected groups under the
Genocide Convention presents a real problem when we use the legal lens to examine one
of the most well known atrocities usually characterized as a genocide: the killing fields of
Cambodia during the rule of the Khmer Rouge communists between 1975-1979. Upon
taking power, the Khmer Rouge began a fanatical campaign to remake the entire country
and its people. Along with changing the name of the country to the Republic of
Democratic Kampuchea, the Khmer Rouge began destroying cities, forcing urban
residents into the countryside where they were left to starve or were worked to death, and
murdering indiscriminately real or imagined opponents. Persons were targeted simply
because they wore glasses, since to the Khmer Rouge that was a sign of being part of the
intellectual bourgeois. By the time they were driven out from power and forced to go
into exile into the countryside through an invasion by neighboring Vietnam, the Khmer
Rouge murdered 1.7 million people out of a total population of 8 million (approximately
20%) of Cambodia.
Because the Khmer Rouge targeted their political opponents, seen by them as
either the entire population of Cambodia that was not part of the Khmer Rouge, or those
which the Khmer Rouge considered political opponents — being especially the educated
classes — the horrible mass murders in Cambodia cannot, as a general matter, be
characterized as a genocide utilizing the Genocide Convention definition since such
perceived political opponents are not listed as a protected class under the Convention.
Another historical event presenting the same problem was the murderous regime
of Joseph Stalin in the U.S.S.R. during the 1930’s-1950’s, when tens of millions real and
imagined opponents were murdered throughout the entire Soviet Union. One of the most
appalling episodes during Stalin’s rule was the campaign of mass starvation of the
Ukrainian peasant farmers in response to their resistance to the forced collectivization of
agriculture that took place over the entire Soviet Union during Stalin’s reign. In what is
now called the Great Famine, or Holodomor, in the Ukraine, between seven to ten million
people (or approximately one-quarter of the Ukrainian population) died in the years
between 1932-1933 through a famine engineered by the rulers in Moscow. Even though
273
Id, p. 140. Schabas also rejects the view that the Soviet Union is most to blame for the eventual
exclusion of political groups from the Convention’s protections since Stalin and his cohorts feared that they
might be branded as genocidaires for their brutal repression of political opponents. “Rigorous examination
of the travaux [legislative history] fails to confirm a popular impression in the literature [citing to numerous
sources] that the opposition to inclusion of political genocide was some Soviet machination. The Soviet
views were shared by a number of other States to whom it is difficult to establish any geographic or social
common denominator: Lebanon, Sweden, Brazil, Peru, Venezuela, the Philippines, the Dominican
Republic, Iran, Egypt, Belgium and Uruguay.” Id. p. 140 (citations omitted).
87
the group murdered consisted of Ukrainians, a national group protected under the
Genocide Convention, Stalin and his cohorts targeted this group for mass slaughter
through starvation because they became political opponents of the Soviet regime through
their resistance to his economic policy, and not because of their national origin. As
discussed earlier, the targeted group must be viewed from the perspective of the
perpetrator rather than from end-result of which group ends up being killed.
Non-lawyers faced with this result are shocked. How could the murder of
millions, amounting to a significant percentage of the population of a region, not be a
genocide? It recalls the adage from Charles Dickens’ Oliver Twist that, if that is the law,
then “the law is an ass.”
Not that lawyers have not tried creatively to get around this problem. In the
Cambodian case, numerous legal scholars continue to insist that a genocide did occur
there, with some legal proponents and their cohorts inventing a special term for the
events in Cambodia: “autogenocide” – meaning a mass murder when the perpetrators and
the victims come from the same group. Of course, such a term has no legal meaning.
Another method is to argue that the perpetrators indeed did intend to target a
particular protected group. Quigley, in his Genocide Convention text, recalls that when
acting as “an expert witness on the law of genocide” in a domestic trial in Cambodia in
1979 of Pol Pot and his deputy of the recently overthrown Khmer Rouge government, he
concluded that the evidence had shown that the two defendants harbored “an intent to use
mass killings to wipe out national minorities, religious groups, and the stratum of
intellectuals of Kampuchean society. Article 2 of the Genocide Convention also
considers it to be genocide if conditions are imposed on a group to bring about its
elimination in whole or in part.”274
In his statements, Quigley was engaging in creative lawyering, trying to get the
situation in Cambodia fit within the legal meaning of genocide. While Quigley is correct
that, as part of the killings, individuals who were part of the national or religious
minorities in Cambodia were murdered on a large scale (many point to the Cham
Muslims), such groups themselves were not targeted. The “stratum of intellectuals”
clearly is not a protected group under the Convention. As to the second sentence, Quigley
conveniently omits mentioning that Article 2 only considers it genocide the conditions he
refers to are be imposed upon a protected group, and not “a group” as characterized by
Quigley.
Legally speaking, therefore, the Khmer Rouge perpetrators cannot be prosecuted
for genocide. As correctly noted by Heidenrich, “In per capita terms, the Cambodian
nation suffered the worst mass murder ever inflicted upon a population by its own
government. Yet according to the legal definition of genocide, the great majority of those
victims were not victims of ‘genocide’ because they were killed according to purely
political, not a racial criteria. The only exceptions were Cambodia’s ethnic minorities.”275
This does not mean, however, that the perpetrators of mass murders on a
genocidal scale against political opponents, whether in Khmer Rouge’s Kampuchea or
Stalin’s U.S.S.R. are not international outlaws. International crimes were committed—but
not genocide. As the International Law Commission explained in 1996:
274
275
Ibid, p. xiii.
Heidenrich, supra, p. 2.
88
Political groups were included in the definition of persecution contained in the
Nuremberg Charter, but not in the definition of genocide contained in the
Convention because this type of group was not considered sufficiently stable for
purposes of the latter crime. Nonetheless, persecution directed against members of
a political group could still constitute a crime against humanity.276
For the victim groups, however, this is often not enough. Crimes against
humanity – despite its seriousness as a crime under international law and its implication
of “A crime against the whole of humanity has been committed” – does not carry the
same opprobrium as some kind of a definitive announcement from a legal or political
body that a genocide has taken place. Thus, Yale University’s project to study the tragedy
calls itself “The Cambodian Genocide Program.”277 A Canadian NGO originating from
the University of Toronto Faculty of Law carries a similar name, the “Cambodian
Genocide Group.”278 As Google search of “Cambodian genocide” yields over 1.7 million
entries. Similarly, the Ukrainian government has embarked on a campaign to have the
international community recognize the Holodomor as a genocide.
Some have argued for a long time that the exclusion of political groups from the
legal definition is the most defective feature of the Genocide Convention and campaign
to amend the Genocide Convention by adding political groups as a protected group.279
This campaign appears today to have little chance of success considering that the original
definition in the Genocide Convention has remained unchanged for the last half-century
and was incorporated without amendment into the definitions of the crime of genocide in
the statutes for the ad hoc international tribunals for the former Yugoslavia and Rwanda
and the Rome Statute establishing the ICC.
Another possibility is to enact a domestic criminal statute criminalizing genocide
that does not merely incorporate the international legal definition, but expands the
definition to include political groups within the protected status categories. As discussed
above, some states in criminalizing genocide in their domestic penal codes have
specifically added “political groups” within the list groups protected by the crime of
genocide.280 Canada, in its domestic legislation, takes a whole other approach by
completely avoiding any list of groups but instead criminalizing the intent to destroy, in
whole or in part, any “identifiable group of persons, as such, that, at the time and in the
place of commission, constitutes genocide according to customary international law or
Report of the International Law Commission on the Work of Its Forty-Eight Session, 6 May – 26 Jul.
1996, UN Doc. A/51/10, p. 89 (cited and quoted in Schabas, supra, p. 144).
277
<http://www.yale.edu/cgp>
278
<www.cambodiangenocide.org >
279
For a good discussion, see Beth Van Schaak, “The Crime of Political Genocide: Repairing the Genocide
Convention’s Blind Spot,” Yale Law Journal, v. 106, p. 2259 (1997).
280
The following states have added political groups to the list of groups protected from destruction in their
domestic genocide penal statute: Colombia; Ethiopia; Ivory Coast; Panama; Poland; and Switzerland. The
Polish Penal Code is illustrative: “Any person who, with the intent to destroy, in whole or in part, a
national, ethnic, racial, political or religious group or a group of persons with a definite philosophical
conviction, kills a member of the group or causes serious harm to the health of a member of the group, shall
be punished with imprisonment for a time not shorter than twelve years, with imprisonment for twenty
years, or with imprisonment for life.” Penal Code of the Republic of Poland, Law of 6 June 1997, Art.
§118(1), reproduced in <www.preventgenocide.org> Lemkin’s native country, therefore, considers
political killings to be genocide.
276
89
conventional international law or by virtue of its being criminal according to general
principles of law recognized by the community of nations….”281
Genocide scholars Barbara Harff and Ted R. Gurr follow a slightly different
approach by creating a new term—Lemkin-like—encompassing political killings:
politicide, and suggesting that perpetrators of politicide have the same level of criminal
culpability as genocide perpetrators.282
We suggest another alternative, based upon the methodology we presented earlier
to our discussion of mass killings of political groups. If we are trying to determine
whether a person can be charged with genocide because their acts involved targeting for
destruction political groups, we know that the genocide charge will not stick. On the
other hand, if our purpose in making a determination is to decide whether political or
military action should be taken because mass-scale political killings are occurring, our
definition of genocide surely can encompass these political killings and the event can be
labeled a genocide as a motivator to take action to either prevent or suppress the killings.
Similarly, if we are looking back at a historical event involving large-scale political
murders, we are likewise not beholden to the international criminal law definition and can
properly label the event a genocide. Stalin’s killing of the Ukrainian peasants or, for that
matter, the slaughter of millions of other political opponents can be labeled a genocide.
3.5. Should “Cultural Genocide” Be Considered Genocide?
One issue that arose in the course of the drafting of the Genocide Convention
during debates both before the General Assembly of the UN and its Economic and Social
Council was whether the Convention should also include the crime of “cultural
genocide.” The term “cultural genocide” refers, as explained by another human rights
text, to “acts aimed at the destruction of a group by elimination of its cultural attributes,
as opposed to the actual physical destruction of the group.”283 As discussed earlier,
281
Consolidated Statutes of Canada, S.C. 2000, c. 24 Sec.4 & Sec. 6, cited and quoted in Quigley, supra, p.
18.
282
See e.g. Barbara Harff and Ted R. Gurr, "Toward empirical theory of genocides and politicides,"
International Studies Quarterly v. 37, no. 3 (1988): "By our definition, genocides and politicides are the
promotion and execution of policies by a state or its agents which result in the deaths of a substantial
portion of a group. The difference between genocides and politicides is in the characteristics by which
members of the group are identified by the state. In genocides the victimized groups are defined primarily
in terms of their communal characteristics, i.e., ethnicity, religion or nationality. In politicides the victim
groups are defined primarily in terms of their hierarchical position or political opposition to the regime and
dominant groups."
283
Steven R. Ratner & Jason S. Abrams Accountability for Human Rights Atrocities in International Law:
Beyond the Nuremberg Legacy, 2nd ed, (Oxford: Oxford U. Press, 2001) p. 34. The UN Draft Declaration
on the Rights of Indigenous Peoples (Aug. 26, 1994), specifically uses the term “cultural genocide” and
defines the following acts as constituting “cultural genocide”: “Any action which has the aim or effect of
depriving [indigenous peoples] of their . . . cultural values”; “Any form of assimilation or integration by
other cultures or ways of life imposed on them by legislative, administrative or other measure”; and “Any
form of propaganda directed against them.” The draft declaration also refers to such acts as “ethnocide.”
Earlier, in 1981, UNESCO (the United Nations Educational, Scientific and Cultural Organization) issued a
declaration equating the terms “cultural genocide” and “ethnocide.” (“We declare that ethnocide, that is,
cultural genocide, is a violation of international law equivalent to genocide…”) The popularity of the use
90
Lemkin himself, in his 1933 proposal before the League of Nations’ legal conference in
Madrid, suggested criminalizing under international law such destruction of cultural
attributes of a victim group, although there he proposed that such cultural destruction be
designated a separate crime of “vandalism” as opposed to the precursor name he gave to
the physical extinction of a group, “barbarity.”
Those suggesting that intentional acts of destruction of a group’s culture should
be part of the crime of genocide present an attractive argument. Eliminating or
destroying the cultural features of a group – such as suppression of its language or
religion – is in fact an insidious way to destroy the group, as its cultural features are what
makes the group distinctive. Proponents of this view argue that this is equivalent in
effect to physically destroying the group. The term today is often associated with acts
directed toward indigenous peoples or other ethnic minorities within a country or region
with the aim of eradicating the particular and long-standing way of life of such a
minority.284 Examples include the suppression of Tibetan culture and religion by the
People’s Republic of China in its efforts to assimilate the Tibetan people into China; the
suppression of the Kurdish culture in Turkey, which, until recently, included a ban on the
use of Kurdish language in schools, media and other public fora; the forced assimilation
of the Aboriginal indigenous people into the dominant European culture of Australia that
took place during the first two centuries since colonization (and similar acts which took
place against the Maoris in New Zealand); and the centuries-old persecution and
suppression by Christian Europe of those practicing the Jewish religion under the
“convert, flee or die” policies of some of the medieval European monarchs.
Initial drafts of the Genocide Convention did include reference to cultural groups as
one of the protected groups under the Convention.285 In the end, however, the
proponents’ arguments were decisively rejected by the General Assembly during its final
vote, and so destruction of a group’s culture is not included in the acts criminalized by
the Convention.286
The primary reason why the UN delegates rejected the inclusion of “cultural
genocide” as a crime under the Convention was the belief that the destruction of cultural
of the phrase “cultural genocide” is confirmed by Google, which lists over 199,000 entries on the Internet
for the phrase.
Martin Shaw, in his recent study, discusses the many “-cides” that social scientists have been
busy creating as spin offs or substitutes to Lemkin’s enormously successful ‘genocide” invention,
including such new terms as “democide,” ethnocide, “politicide, “gendercide” “classicide” and “urbicide.”
Two separate treatises have already been published on “gendercide,” See Gendercide and Genocide,
(Adam Jones, ed.) (Vanderbilt U. Press 2004) and Mary Ann Warren, Gendercide (Rowman & Littlefield
1985). Shaw argues that “the many new “-cides” are, in fact, the many sides of genocide” and he would
abandon the use of these terms. Martin Shaw, What Is Genocide? (Cambridge: Polity Press, 2007), p. 108.
284
Note that the acts of the majority group must be intentional. Unintended assimilation over time of a
minority culture into a majority culture cannot be genocide since the mens rea element of genocide is
missing.
285
One act that was originally classified as cultural genocide, namely, the forced transfer of children, did
make it into the final version of the Genocide Convention (See Article II (e)).
286
Schabas points out that, while cultural genocide was left out of the final version of the Genocide
Convention, “a shadow of the idea reappeared in the final version, which lists the forcible transfer of
children from one group to the other as a punishable act.” William A. Schabas, “The ‘Odious Scourge:
Evolving Interpretations of the Crime of Genocide,” Genocide Studies and Prevention, v. 1, no. 2 (Fall
2006), p. 97.
91
attributes of a group does not rise to the level of physical destruction, which is the main
aim of the Convention. As recently explained by Holocaust historian Yehuda Bauer:
“[The term] cultural genocide obfuscates the issue. When people are deprived of
their rights to exercise their cultural preferences, are forbidden to use their
language, etc., it is not a genocide but a severe and inexcusable deprivation of
human rights; however, the victims are alive. When we talk about genocide
(remember “cidere”[meaning death]) we are not talking about people who will not
be able to exercise their rights to a better future, because they are dead. Of course,
a deprivation of rights can turn into a genocidal threat, so we talk about
prevention.”287
Lemkin’s proposal for an international crime of “vandalism” as separate and
distinct from genocide indicates that the founding father of the Convention appeared to
agree with this position.
The inclusion of “cultural destruction” as acts of genocide would also introduce a
whole new layer of definitional problems and other difficulties on top of the already
difficult problems of determining the contours of physical destruction. Acts of destruction
of a group through mass murder appear self-evident; annihilation through suppression of
culture is difficult to gauge. As Bauer reasons, criminalization of the latter is best left to
other international human rights instruments focusing specifically on culture. 288 The
Rome Statute creating the International Criminal Court likewise follows this view and
simply reproduces the Genocide Convention definition in its list of crimes under the
jurisdiction of the Court.289
The debate, however, continues, with some social scientists and academics from
other disciplines still vigorously arguing that the Genocide Convention definition should
be amended to include within the legal definition of genocide both the destruction and
attempted destruction of a group’s culture.290
3.6. Using the “G-word for Historical Atrocities: When Is It Proper To Do So?
For purposes of criminal prosecution, the only relevant definition of genocide is
the one found in the Genocide Convention. This is the definition to be used to determine
“Letter to the Editor” to the Journal of Genocide Research. 8(2), pp. 239-241 (2006).
The 1907 Hague Regulations concerning the Laws and Customs of War on Land contains a number of
provisions protecting cultural property and religion, particularly in Articles 27 and 56, contains a number of
provisions protecting cultural property and religion. The 1954 Hague Convention for the Protection of
Cultural Property bans and criminalizes the targeting of “cultural property” as defined in article 1(a).
Furthermore, the 1977 Protocol Additional to the Geneva Conventions of 12 August 1949 and Relating to
the Protection of Victims of International Conflicts, in articles 53 and 85(4)(d), designates destruction of
cultural property as a grave breach of the Protocol. Finally, it should be noted that the 1999 Second
Protocol to The Hague Convention for the Protection of Cultural Property, significantly expands the
protection for cultural property during times of armed conflict.
289
Rome Statute of the International Criminal Court, art. 6 available at <www.icc-cpi.int>
290
Martin Shaw, like Bauer, recognizes that acts intending to destroy a group’s culture are often precursors
to acts of physical destruction, but argues that cultural destruction can be a component of genocide. As he
explains: “It is better to refer to cultural suppression for pre-genocidal denial of culture [and] the cultural
dimension of genocide for suppression that is part of a broader genocidal process….” Shaw, supra, p. 114.
287
288
92
whether the defendant is a perpetrator of genocide (a genocidaire) and so can be subject
to individual criminal responsibility under international criminal law.
However, the legal definition is often relied on for purposes other than to
prosecute accused genocidaires. These other purposes are:
- political action purpose – when a “real time” genocide is occurring, so that
there is need for political action to be taken by the international community, or
by nations that are signatories to the Genocide Convention. (See next section)
- historical purpose – to determine when should an atrocity that occurred before
the enactment of the Genocide Convention should be recognized historically
as a genocide
As already noted, an interesting phenomenon exists today: various victim groups seeking
to have the atrocities committed against their brethren to be labeled a “genocide.” It is
curious that a word that has existed only since 1944 is so much sought after. Why is it
so important for the victims of atrocities committed against them to have those atrocities
labeled a “genocide?” As Belinda Cooper and Taner Akçam recently noted, the
recognition of victimhood is most recognized by the world at large when “The G-Word”
is used.291 The “genocide label” appears to confer special status in history to the events
and one for which victims will fight strongly to obtain. As Schabas implicitly noted, the
recognition of atrocities as a genocide is important because genocide today is viewed – in
the words of the judges on the International Criminal Tribunal for Rwanda – as “the
crime of crimes.”292
In Chapter 7, we examine the phenomenon of Holocaust denial and denials of
other genocides and mass atrocities. Here we ask whether it is proper to use the genocide
label to describe events that took place before the enactment of the Genocide Convention.
For some, the answer is “No.” Applying the legal analogy of prohibitions against the use
of laws in an ex post facto fashion for criminal prosecutions (a prohibition recognized by
every legal system), one can argue that to pin the label genocide upon an event that
occurred prior to the existence of the Genocide Convention amounts to unfairly accusing
alleged perpetrators of committing a crime that was not “on the books” when the event
took place. The analogy, of course, breaks down when we apply it to the Holocaust, since
the mass murder of the Jews during the Nazi era also took place before the enactment of
the Genocide Convention. Yet, as discussed above, Lemkin specifically coined the term
“genocide” to describe the events of the Nazi era. This is one reason why many describe
the Holocaust as the paradigmatic genocide. Genocide scholars use the Holocaust as the
“gold standard” by which to measure other genocides, and victim groups aim to convince
others that the atrocities suffered by their kin should likewise be called a genocide
because of the similarities to the Holocaust.
Ultimately, therefore, we must conclude that if a historical event, including those
occurring before the enactment of the Genocide Convention, bears substantial similarity
to events already recognized as a genocide –whether it be the Holocaust or the Rwandan
Belinda Cooper & Taner Akçam, “Turks, Armenians, and the ‘G –Word,’” World Policy Journal, vol.
22, issue 3 (2005), p. 81.
292
William A. Schabas, Genocide in International Law: The Crimes of Crimes (Cambridge: Cambridge U.
Press, 2000). The original source for the designation comes from the opinion of Prosecutor v. Kambanda,
Judgment and Sentence, Case No. ICTR 97-23-S (Trial Chamber 4 Sept. 1998), para. 16 of the
International Criminal Tribunal for Rwanda stating: ''[G]enocide constitutes the crime of crimes.”
291
93
genocide – the term genocide should be used to describe the event. It is a tribute to the
enormous popularity of the term genocide that for the aggrieved victim group no other
term – whether it be “genocidal massacre,” “a genocidal-like event,” “crime against
humanity,” “war crime,” “mass murder,” “politicide” or “democide” or even the generic
“atrocity” – will do.
The debate surrounding the proper use of the “genocide” label for historical
purposes manifests itself today most prominently around one event: the massacres of the
Armenians during World War I and shortly thereafter. As Chapter 7 will discuss, one of
the most blatant and most notorious denials has been the unwillingness by Turkey to
recognize that what happened to its local Armenian population between 1915-1920 in the
Ottoman Empire amounted to a genocide. At the most, the official position of the
Republic of Turkey is to label the events as the “so-called Armenian genocide,” but this
is a disrespectful and satirical use of the word and hardly its recognition. However, as
Turkish-born historian Taner Akçam has pointed out, “Although the world itself [–
genocide–] did not exist in 1915, most qualified historians today agree that the events of
1915-20 constituted genocide.”293
Why would Turkey so strongly object to slapping the term “genocide” to events
that took place during a previous regime? In other words, what are they afraid of? One
answer is that it undermines the historical identity of modern-day Turkey since many of
the instigators of the killings against the Armenians are the Founding Fathers of the
modern Turkish republic. As Akçam has pointed out, “A number of the [Turkish]
republic’s founders had been involved in the Armenian genocide; they were glorified as
heroic founding fathers, and their crimes disappeared from official [Turkish] histories.”294
Other fears include that recognition of the Armenian genocide would lead to claims to
lost territory by the neighboring Republic of Armenia and claims for monetary
compensation against Turkey.
Cooper and Akçam point out that, “[a]s with the Jews after the Second World
War, the trauma of the genocide became a defining element in [the Armenian] diaspora
identity, [and] hardened by continued Turkish denial.”295 To buttress their claim, the
Armenians and their supporters point to the links between the Holocaust and the
Armenian genocide.296 The Armenians and their supporters also marshal two additional
pieces of evidence: 1) the reported utterance by Hitler in August 1939 to his generals in
explaining that they would all enjoy impunity from prosecution for the naked attack on
293
Cooper & Akçam, supra, p.81.
Ibid.
295
Ibid.
296
Eric Frey, managing editor of the Vienna-based Jewish daily Der Standard explains: “The Armenian
genocide has a special relevance for Jews. The systematic deportations and killings of around a million
Armenians from 1915 to 1917 offered a blueprint to the Nazis. And just as Jews insist that the memory of
the Holocaust be kept alive, today’s Armenians demand that Turkey at least acknowledges the horrible
injustices committed against them 90 years ago. Unfortunately, the modern Turkish state seems unable to
do so. Even though its founder, Kemal Atatürk, was not personally implicated in the genocide, too many of
his key aides were. The denial of that crime thus became a pillar of Turkish national identity. ” Eric Frey,
“Turkey’s Choice: Europe or Amnesia,” Forward, Oct. 27, 2006.
294
94
Poland, since "Who remembers now the extermination of the Armenians?"297 and 2)
Raphael Lemkin’s apparently not only had the contemporaneous murder of the Jews in
mind, but also the earlier murder of the Armenians when coining the term “genocide.”298
As a result, as Cooper and Akçam point out: “The argument has never been
purely academic for the two peoples themselves: Turkish intellectuals who question the
official version of the Armenian genocide face censure, and the Turkish government has
gone to great lengths to fight foreign governments’ adoption of resolutions
acknowledging the genocide299, while Armenians in a large worldwide diaspora have
long made Turkish accountability a touchstone for improved relations between the two
peoples.”300
Other victim groups have also sought the genocide label. As already discussed
above, the Ukrainian government is presently engaged in a campaign to have as many
nations as possible recognize the man-made famine imposed by Stalin upon Ukraine in
1932-33 – the Holomodor – as a genocide. Aiming to put the historical famine squarely
within the legal definition of genocide, Ukraine’s Foreign Minister Boris Tarasyuk
argued before the United Nations General Assembly in September 2006 that Stalin’s
targets of the artificial famine should not be viewed as political opponents resisting the
Bolshevik collectivization policy but rather “the basis of the Ukrainian nation – the
peasantry” which Stalin and his Soviet authorities in Ukraine were aiming to destroy. 301
Such a reframing of the intentions of Stalin and his cohorts for imposing the famine aims
to place the Holomodor within the Genocide Convention’s protection of national groups.
Taking a page from the Armenian genocide recognition movement’s playbook, Ukraine
has also been lobbying various nations to support a resolution it has been bringing before
the United Nations General Assembly to recognize its Soviet-era famine as a genocide.
In 2003, the UN General Assembly marked the 70th anniversary of the Ukrainian famine
by issuing a resolution stating that the famine "ranks with the worst atrocities of our
297
For a discussion of this statement by Hitler see Kevork B. Bardakjian, Hitler and the Armenian
Genocide (Cambridge, Mass: The Zoryan Institute, 1985). The statement sometimes quotes Hitler as
saying, “Who still talks nowadays of the extermination of the Armenians?" Ibid.
298
Lemkin is said to have pondered the question of why the murder of one person is a crime – referring to
the assassination of Taalat Pasha, one of the architects of the genocide, on the streets of Paris in 1921 by
Soghomon Tehlirian, a survivor of the genocide – but a murder of a million is not. “It is a crime for
Tehlirian to kill a man, but is not a crime for his oppressor to kill more than a million men?” Cooper &
Akçam, supra.
299
The recognition campaign by the Armenians and their supporters aims to have governments issue
proclamations officially recognizing the Armenian genocide. To date, parliaments of fifteen countries –
including France and Germany – have issued such proclamations. Turkey’s strategy is to use both political
persuasion and economic sanctions to counter these efforts. For example, when the French parliament
issued a proclamation in 2001 recognizing the genocide, Turkey cancelled multi-million euro deals with
French enterprises. As Turkish Foreign Minister Abdullah Gul told a Belgian journalist in 2006: “Fighting
the Armenian allegations of genocide is a priority issue for Turkish foreign policy.” Turkish Daily News,
Oct. 18, 2006.
300
Cooper & Akçam, supra. Akçam is one of those “Turkish intellectuals” who challenges the “official”
Turkish view and has been censured by Turkey by labeling the events a genocide. He lives outside his
homeland and currently teaches at the University of Minnesota. For his latest study, see Taner Akçam, A
Shameful Act: The Armenian Genocide and the Question of Turkish Responsibility (New York:
Metropolitan Books, 2006).
301
“Tarasyuk Calls On UN to Recognize Holomodor as Genocide,” Unian Agency News, Sept. 26, 2006,
available at < www.unian.net/eng>
95
time" and a national tragedy. The term “genocide” was specifically left out of the
declaration, to the great disappointment of the Ukrainians.
Two criticisms can be made about efforts to have political bodies – whether
parliaments of individual nations, or international bodies like the European Union and the
UN General Assembly – reach back into history and solemnly declare an event to have
been a “genocide.”
First, politicians and diplomats are not neutral judges who base their decisions
upon an analytical application of the facts to the law.302 They are also not legitimate
historians303 whose task is to research and explain past events based on archival data they
discover and analyze through extensive research. Rather, their decisions are based on
political expediency and maintenance of good diplomatic relations with other
governments. Armenia, for example, will not recognize the Holomodor as a genocide for
fear of antagonizing its good neighbor Russia, with whom it seeks to maintain friendly
relations and receives protection against its less friendly neighbors. Russia’s position is
that the famine of the 1930’s was not a genocide but yet another in a series of brutal
events committed by Stalin against all of the peoples making up the former Soviet Union.
Likewise, Israel will not call the massacres of the Armenians a genocide since this would
offend Turkey, the only Moslem country with whom the Jewish state maintains extensive
political and military ties.304 The United States federal government also refuses to use the
g-word when referring to the atrocities committed against the Armenians in order not to
rupture relations with its strategic military ally Turkey. In February 2005, when U.S.
Ambassador to Armenia John M. Evans made a speech in Los Angeles before an
audience of Armenian-Americans referring to the events as a genocide, he was promptly
removed from his post. Repeated efforts by Armenian-Americans and their supporters to
have the U.S. Congress follow other parliaments and likewise proclaim the atrocities a
genocide have also failed as a result of strong pressure of the Executive put upon U.S.
legislators not to vote in favor of such a proclamation. And if the U.S. legislators did
issue such a proclamation, their vote would be motivated primarily by political
considerations. It is no accident that elected officials at both the federal and state levels
with a large constituency of Armenian-Americans have been the strongest supporters of
calling the atrocities a genocide. Many of those voting for or against the resolution could
probably not locate Armenia on the map, much less being informed of the events that
took place in Ottoman Turkey during World War I.
The debates as to what word to use to describe a past event continue to be played
out in the political arena. Turkey, of course, could ignore these political proclamations as
nothing more than rants of politicians seeking to curry favor with their constituents, but
302
Whatever objections one may have to the ICTY finding the events in Srebrenica constituted a genocide,
or the decision by the World Court not to find Serbia responsible for genocide, or the ICTR finding the
murders in Rwanda in 1994 to be a genocide, at least we can concede that these decisions were made by
judges whose task is to leave politics out of their decision process. We can fault these judges for acting like
politicians, but recognize that in such instances the judges were not acting like neutral arbiters.
303
See Chapter 7 for a discussion of legitimate vs. illegitimate historians in the context of Holocaust denial
and denial of other historical atrocities.
304
For further discussion by an Israeli academic of this phenomenon, see Yair Auron, The Banality of
Denial: Israel and the Armenian Genocide (New Brunswick, N.J.: Transaction Publishers, 2004).
96
chooses instead to take them seriously. Armenia and the Armenian diaspora has likewise
chosen the political route as a means to have the atrocities called, in their view, by their
proper name.
Our point here is not to reject the genocide label for the mass murders and
deportations of the Armenians beginning in 1915 – the genocide label fits – but rather to
point out that the political arena is not the best place to debate history. Nevertheless,
parliaments and international political bodies will remain the setting where such
historical debates will continue to take place.
A second criticism of reaching back into history and designating an event a
genocide might be that adding to the list of genocides dilutes the impact of the term.
Overuse of the “genocide” label is akin to crying wolf, since if atrocities ever do occur
that reach genocidal proportions, few will listen. We noted earlier Yehuda Bauer’s
observation that since the Holocaust was an event created by humans, it can happen
again. And if it does happen again, “genocide fatigue” could lead to individuals and
governments ignoring the cry when another Holocaust is indeed transpiring.
Alain Destexhe, former Secretary-General of Medicins Sans Frontieres [Doctors
Without Borders] argues that only three events of the 20th century qualify as a genocide:
the massacres of the Armenians in Ottoman Turkey beginning in 1915; the extermination
of the Jews and other persecuted groups during World War II; and the slaughter of the
Tutsi minority in Rwanda in 1994.305 Perhaps the Destexhian view is too extreme, but the
motivation is legitimate: to reserve the genocide label to the most serious of human
atrocities. Michael Ignatieff, as discussed earlier, makes the same point. Both also worry
that overuse of the term leads to a kind of depersonalization of evil, where everyone is
responsible and so no one is responsible.
3.7. “Never Again” – The Cry of the Holocaust and the Language of Genocide
Prevention
One of the most memorable phrases to come out of the Holocaust is the cry of
“Never Again!” The phrase is ordinarily associated with the horrors of the Holocaust,
even though it is sometimes used in other contexts. For example, the official report of the
Argentine human rights commission setting out the torture, killing and other atrocities
committed during the “dirty war” years of military rule in Argentina in the 1970’s and
1980’s is titled “Nunca Mas” [Never Again].
What does the phrase “Never Again” mean? First, and foremost, it is the
commitment that never again would the wholesale murder of the Jewish people is
allowed to happen. This vigilance against another Holocaust is one of the major beliefs
by many Israelis and Jews around the world fearing that the Moslem neighbors around
them are set to destroy the Jewish state. The cry of “Never Again” is therefore an
important motivation for action by Israel when it feels threatened by outside forces. 306
305
Destexhe, supra, p. 21. As pointed out earlier, Destexhe warns that the term genocide has succumbed to
“verbal inflation” so as to become “dangerously commonplace” and therefore almost useless when used.
Id., p.6
Israeli author and journalist Tom Segev explains: “The Holocaust has in recent years become a very
central element of Israeli identity. There is not a single day in the Israeli media, for example, without some
306
97
However, the phrase today is usually understood as not just applying to preventing
another genocide of the Jews, but preventing genocide of any other group. It is
understood to mean that humanity just cannot stand idly by while another genocide of
any peoples takes place or danger signs appear that a genocide anywhere is about to
happen.307 Unfortunately, the hope of “Never Again” since the end of World War II has
turned out to be a myth. As forcefully explained by Gregory Stanton, founder of
Genocide Watch (an NGO whose goal is genocide prevention) and incoming president of
the International Association of Genocide Scholars,
When the Genocide Convention was passed by the United Nations in 1948, the
world said, “Never again.” But the history of the twentieth century instead proved
that “never again” became “again and again.” The promise the United Nations
made was broken, as again and again, genocides and other forms of mass murder
killed 170 million people, more than all the international wars of the twentieth
century combined.308
David Kader, referring to Lemkin’s original dream, makes a similar point. Though his
words were penned in 1991, they unfortunately remain as true today.
Since Raphael Lemkin’s work nearly half a century ago, the essential burden
of legal scholarship on genocide has remained unchanged. Lemkin’s ambition to
fashion an edifice of law by which the emerging mid-century world community
could begin to punish and prevent genocide remains. This ambition continues,
simply because it has not been realized. The declaration found repeatedly in the
opening passages of the writings on law and genocide is how this monstrous
crime continues unprevented and its perpetrators unpunished. This double failure
– the reality of both the crime and the impotent response – mirrors the themes in
the writings on law and genocide, from the earliest writings to the most recent.309
Taking into consideration the sad reality of post-Holocaust genocides, Holocaust
historian Michael Berenbaum has modified the cry into “Never Again in Our
Lifetime.”310 Berenbaum’s aim is to move from the general obligation of “Never Again”
to the more specific goal of putting the responsibility on each individual to take action in
reference to the Holocaust. The Israelis carry the Holocaust in themselves very much and that is also true
for Israelis who do not even come from European origins. So it is an all-Israeli experience, very deep. . . .
[I]f you look at the history of Israel, you can see that some of the most crucial decisions in our history were
taken under the influence of the Holocaust.” Interview with Tom Segev, BBC, Jan. 7, 2005, available at
<www.bbc.co.uk>
307
The motto of Jewish World Watch (JWW), a California- based consortium of Jewish synagogues
seeking to end the genocide in Darfur, is “Do Not Stand Idly By” See <www.jewishworldwatch.org> Its
website explains the motivation for establishing JWW: “Shocked by revelations of mass killings in Darfur,
Sudan, and remembering the Holocaust and the many post-Holocaust genocides, Rabbi Harold M.
Schulweis of Valley Beth Shalom challenged the Jewish people to begin to honor the promise made
following the Holocaust – that "Never Again" would we be silent in the face of genocide. With that
challenge, Jewish World Watch was established in October, 2004, as a Jewish response to the horrors being
perpetrated by human beings against others.” Id.
308
Gregory H. Stanton, “How Can We Prevent Genocide: Building an International Campaign to End
Genocide,” available at <www.genocidewatch.org>
309
David Kader, “Progress and Limitations in Basic Genocide Law,” in Genocide: A Critical Bibliographic
Review, v. 2 (Israel W. Charny, ed.) (Mansell Pub. Ltd., 1991), p. 141.
310
Michael Berenbaum, Keynote Address, Biannual Meeting, International Association of Genocide
Scholars, Boca Raton, Florida, Jun. 3, 2005.
98
reaction to an ongoing or impending genocide. In a similar vein, actors and activists
George Clooney, Brad Pitt, Matt Damon and Don Cheadle (the latter played the lead role
in the film Hotel Rwanda) launched in 2007 “Not On Our Watch,” an organization to
stop the ongoing genocide in Darfur and to bring attention to other atrocities
worldwide.311
The massive efforts of various civic groups and individuals in the United States
and Europe in response to the genocide taking place in the Darfur region of Sudan in
2005-06 is a good illustration of individuals banding together to take action to stop
genocide. Massive demonstrations, letter-writing campaigns to politicians and ads in the
print media have played a critical role in making sure that the ongoing Darfur genocide is
not forgotten and has led to action by both individual countries and such international
organizations as the United Nations, the European Union and the African Union. While
the Darfur genocide as of this writing is still ongoing, it illustrates that one of the most
effective means of getting a meaningful response by governments and the international
community to deal with an impending or an ongoing genocide might be through a
groundswell of action from the ground up. One of the most vocal groups with regard to
the genocide in Darfur has been the Jewish community in the United States. For the
Jews, “Never Again in Our Lifetime” means never again a genocide of any kind, and not
just genocide of the Jewish people.
The topic of genocide prevention has been the subject of many books and
articles.312 Sadly, Rwanda and Darfur show that prevention of genocide is a job not very
well done, either by the international community or individual nations. In 2004, UN
Secretary-General Kofi Annan took a stab at the task by creating the position of Special
Adviser on the Prevention of Genocide and appointing Juan Mendez, law professor,
human rights advocate, and former political prisoner from Argentina, to the post. The
events in Darfur demonstrate, at least to date, that the addition of such a special adviser
for genocide prevention at the UN has had little effect in the real world.
Earlier in 1997, the Clinton Administration in the United States created a new
post in the U.S. State Department, the U.S. Ambassador-at-Large for War Crimes Issues,
with a similar mandate to focus on genocide and other large-scale international criminal
law violations. Likewise, the creation of the post has, at most, a negligible effect on the
task of genocide prevention and the current holder of the position, John Clint Williamson,
seems to play a minor role in the State Department. Prior to Williamson’s s appointment
in April 2006, the post was vacant for six months.
In the 1970’s, Israel Charny and Chanan Rapaport devised the Genocide Early
Warning System (GEWS), an analytic process by which to recognize preludes to
genocides, so that effective action can be taken before the events on the ground escalate
into a full-blown genocide. GEWS is based on the fact that all genocides – including the
See <www.notonourwatchproject.org> (Not On Our Watch aims “to use the influence
and reach of prominent artists to spotlight underreported violent conflicts and atrocities around the world
and raise funding for needed humanitarian assistance”).
312
See e.g. Leo Kuper, The Prevention of Genocide (New Haven, Conn: Yale U. Press, 1985); John G.
Heidenrich, How To Prevent Genocide: A Guide for Policymakers, Scholars, and the Concerned Citizen
(Wesport, Conn: Praeger, 2001); Herbert Hersch, Anti-Genocide: Building An American Movement to
Prevent Genocide (Wesport,CN: Praeger, 2002), The Prevention and Intervention of Genocide: A Critical
Bibliographic Review, (Samuel Totten, ed.), (New Brunswick, N.J.: Transaction Publishers, 2007).
311
99
Holocaust – are never spontaneous events. Rather, they occur incrementally, in
predicable steps.313
In the 1990’s, Gregory Stanton addressed the same issue as Charny and Rapaport
and gave us an important tool by likewise identifying the signposts on the road to
genocide, Stanton explains that “[g]enocide is a process that develops in eight stages that
are predictable but not inexorable. At each stage, preventive measures can stop it. The
later stages must be preceded by the earlier stages, though earlier stages continue to
operate throughout the process.”314 Stanton’s eight stages of genocide are: (1)
Classification; (2) Symbolization; (3) Dehumanization; (4) Organization; (5) Polarization
(6) Preparation; (7) Extermination; and (8) Denial. How to prevent reaching Stage
Seven? At the non-governmental level, his group issues “Genocide Alerts,” bringing
awareness of impending genocides. Stanton seeks to formalize the genocide alert process
by the creation at the United Nations of “a Genocide Prevention Center to support the
work of the Special Advisor and to provide a focal point for the efforts of many
organizations around the world that are working to prevent genocide.”315 A critical
division of this UN Genocide Prevention Center would be an “Early Warning Unit” that
would identify “situations at risk of genocide,” communicate that information to a
“Political Unit” composed of respected UN diplomats, whose aim is to prevent the
impending genocide through the political process and, failing that, bring into action the
“Missions and Operations Unit,” whose task would include urging the Security Council
to sending UN troops to stop the genocide. Despite the wariness of many, Stanton
maintains that “the United Nations remains the best hope” for prevention of genocide.
According to Stanton,
An underlying premise of the Genocide Convention is that any regime that
commits genocide forfeits its legitimacy, and should be subject to the authority of
international law and international intervention. The U.N. Security Council has
the responsibility to protect against threats to international peace and security.
Rwanda and Bosnia should teach the world that genocide is never simply an
“internal matter.” Genocidal regimes never stop their predatory murders at their
own borders and always bleed refugees. As Lemkin emphasized, genocide is a
crime against all of humanity because it permanently reduces the cultural
diversity that is humanity’s heritage.316
Northwestern University law professor David Scheffer, former U.S. Ambassadorat-Large for War Crimes, offers another proposal to make genocide prevention more
effective. Scheffer correctly points out that the legal definition of genocide, as found in
the Genocide Convention, has acted as a constraint to genocide prevention since it
provides both the United Nations and individual nations a ready-made legal excuse for
not taking action by claiming that the acts being committed, while horrible, have not (yet)
risen to the level of genocide as set out in the legal definition. As Scheffer puts it, “[T]he
Israel W. Charny in collaboration with Chanan Rapaport, “Toward a Genocide Early Warning System,”
How Can We Commit the Unthinkable?: Genocide, the Human Cancer pp. 283-331 (Israel W. Charny, ed.)
(Boulder, Co: Westview Press 1982). A good summary of GEWS can be found in The Encyclopedia of
Genocide, (Santa Barbara: Clio Press, 1999) (Israel W. Charny, Editor in Chief) v. 1, pp. 253-261.
314
Gregory H. Stanton, The Eight Stages of Genocide, available at <www.genocidewatch.org>
315
Gregory Stanton, “Create A United Nations Genocide Focal Point and Genocide Prevention Center,”
available at <www.genocidewatch.org>
316
Id. (citing Raphael Lemkin “Genocide,” American Scholar, v. 15, no. 2 (Apr. 1946), p. 228).
313
100
prospect of the term genocide arising in policy-making too often imposes an intimidating
brake on effective responses.”317 David Bosco, senior editor of Foreign Policy magazine,
agrees. Explaining the negative impact of relying on the existence of a genocide as a call
to action, Bosco points out how the UN’s decision not to label the atrocities in Darfur as a
genocide led to a popular belief that no action was necessary.
In considering whether and where to intervene, one question has assumed
talismanic significance: Is it genocide?. . . Such a finding has become a signal for
the world to act. But as the [UN] Darfur report shows, genocide is an unreliable
trigger. For all its moral power, genocide is both hard to document and linked to
questions of race, ethnicity and religion in a way that excludes other – similarly
heinous – crimes. Intended as a clarion call, the term itself has become too much
of a focal point, muddling the necessity for action almost as often as clarifying it
...Looking to the genocide label to motivate international intervention...overlooks
two sad truths: Widespread slaughter can demand intervention even if it falls
outside of the genocide standard. And the world is quite capable of standing by
and watching even when a genocide is acknowledged.”318
Bosco makes the incisive observation that “[t]he world genocide may be too powerful for
its own good. It conjures up images of a relentless and irrational evil that must be
confronted massively. It is almost paralyzing. We are used to fighting crime; genocide
seems to require a crusade.”319
Thus, while the genocide in Rwanda was ongoing, the Clinton Administration
shied away from calling the events a “genocide” since use of the ‘g-word,” it was
believed, required action. Michael Ignatieff, at a lecture on genocide prevention at the
U.S. Holocaust Memorial Museum in 2006, recalled the now-infamous verbal contortions
employed by the U.S. State Department to avoid using the g-word when asked about the
atrocities being committed in Rwanda: “All of you will probably remember the ignoble
period in May and June of 1994 when, not very far from this room, State Department
spokesmen, when asked to say whether what was happening in Rwanda was genocide,
refused explicitly to use the word. Lest the use of the word would entrain the obligations
entailed in the fact that the United States had ratified the [Genocide] Convention.” 320
During the current crisis in Darfur, a verbal duel is being waged between the
United States and the United Nations as to what to call this latest man-made catastrophe
in Sudan. The Bush Administration and the entire U.S. Congress has repeatedly labeled
the death of about 200,000 and the displacement of 2.5 million from their homes as a
genocide.321 Pinning the genocide label on Darfur did not lead, however, to the United
States taking any military action to stop the genocide even after three years of failed
diplomatic efforts and a mounting death toll. The United Nations and its human rights
David Scheffer, “Genocide and Atrocity Crimes,” Genocide Studies and Prevention, v.1, no. 3 (Dec.
2006), p. 229.
317
David Bosco, “Crime of Crimes: Does It Have To Be Genocide for the World to Act”,” Washington
Post, March 6, 2005.
319
Bosco, supra,
320
Ignatieff, supra, United States Holocaust Memorial Museum Lecture, available at <www.ushmm.org>
321
For an excellent study by an NGO concisely analyzing why the events in Darfur meet the legal
definition of genocide, see Public International Law & Policy Group, Genocide in Darfur: A Legal
Analysis, (September 2004), available at <www.publicinternationallaw.org >.
318
101
and humanitarian agencies, for its part, refuses to use the term, employing the less
shocking “war crimes” and “crimes against humanity.”322 This verbal sideshow – which
Bosco characterizes as a “warped diplomatic parlor game (who will say the G-word
first?)”323 – distracts the international community from its real task: how best to respond
to the crisis in order to stop the human catastrophe.
Governments and international institutions are not the only ones notorious for
playing word games with the term genocide. Some NGOs, in an effort to mobilize public
opinion and at times as a means to increase financial support for their work, might
employ the term when its use appears improper. In contrast to politicians and diplomats,
who tend to shy away from using the term, human rights activists tend to overuse it. As
Samatha Power explains, “We outside government have spent far too much time arguing
for the brand of genocide to be employed in the real-time to describe the atrocities
underway.”324
Scheffer’s proposal is attractive since it argues that genocide prevention can be
made more effective simply by the use of a different terminology. According to Scheffer,
the “political use of the term should be separated from its legal definition as a crime of
individual responsibility. Governments and international organizations should be
liberated to apply the term genocide more readily within a political context so as to
publicly describe precursors of genocide and react rapidly to prevent or to stop mass
killings or other seeming acts of genocide.”325 Scheffer then goes one step further and
proposes the abandonment of the use of the term genocide in political contexts and
substituting a new term – atrocity crimes – to cover those acts for which action must be
taken. Atrocity crimes, in Scheffer’s lexicon, constitute not only genocide but crimes
which are precursors to genocide and for which, in any case, either an international or a
national response is required: namely, war crimes and crimes against humanity
(including ethnic cleansing).326
Bosco also argues for the abandonment of the word genocide and instead the use
of the already existing-term “crimes against humanity.” As Bosco explains, “The
category of ‘crimes against humanity’ – first used to describe the massacres of
Armenians after World War I and then codified in the Nuremberg trials – is simpler and
broader, but still morally powerful. It encompasses large-scale efforts to kill, abuse or
displace populations. It avoids messy determinations of whether the victims fit into the
right legal box and whether the killers had a sufficiently evil mindset. Do we really care,
The UN’s conclusion that no genocide was occurring in Darfur was based on the usual basis for such a
finding: lack of mens rea. “The crucial element of genocidal intent appears to be missing, at least as far as
the central Government authorities are concerned.” International Commission of Inquiry on Darfur, Report
to the Secretary-General, Jan. 25, 2005, available at <www.un.org> In other words, the UN fact- finders
could not find sufficient evidence that Sudanese president Omar al-Bashir and his allies in their campaign
of killings and displacement intended to destroy in whole or in part the local tribes that make up the victims
in the Darfur region.
323
Bosco, supra.
324
Samantha Power, “Fulfilling A Responsibility To Protect: What Will It Take to End the ‘Age of
Genocide,’” Lecture delivered at United States Holocaust Memorial Museum, May 4, 2004, available at
<www.ushmm.org>
325
Scheffer, supra.
326
Id., supra.
322
102
after all, whether the victims of atrocities are members of a distinct tribe or simply
political opponents of the regime?”327
Ultimately, however, we must concede that no matter how many international
legal norms are enacted criminalizing and punishing genocide, and regardless of what
terms we employ, law and language on their own can do little to stop genocide. Lack of
law is not the problem. As David Kader pointed out almost two decades ago, “Although
legal norms against genocide have existed for over twenty years, necessary will to apply
these norms is still lacking. Enforcement is frozen, not out of the law’s inadequacy as an
instrument, but because of the political and moral paralysis of the national actors. Law
does not create order, it is order that permits law.”328 Holocaust historian Omer Bartov
makes the same point: “[T]he act of actually codifying genocide did not mean that it
would be prevented. It has to be enforced, and it cannot be enforced without the
international community actively doing so.”329 How to best prevent genocide and make
“Never Again” or at least, “Never Again In Our Lifetime” a reality? Bartov explains:
[T]he most important point to be made is that it is really up to citizens,
particularly in democratic states to make their voices heard and say that this is
their own national interest to stop such events from occurring, even in countries
that are very far from them, happening to people with whom they do not speak. . .
. Governments, after all, it takes them quite a while to recognize [genocide], but
they depend on the will of the people. . . . This is not just people in the street; this
has to do with the media, this has to do with academia, this has to do with anyone
who has some access to public opinion, and when that happens, then policy can
change. If it does not happen, it does mean that people do not care, and if they do
not care then their governments will not act.”330
Samantha Power, author of the Pulitzer-prize winning study of genocide A
Problem From Hell,331 notes that while political pressure from the bottom is critical for
leaders to begin paying attention to genocide prevention, the leaders themselves need to
take initiative. At a lecture delivered at the United States Holocaust Memorial Museum
in Washington DC on subject of genocide prevention in 2004, Power explained:
[L]eadership is not really coming to this building once a year and regretting the
occurrence of the Holocaust; leadership means a genocide presidential decision,
leadership means contingency military planning, leadership means consultation
with allies or, in the case of today, retrieval of allies and then consultation with
allies. Leadership means the beginning of a public conversation that leads beyond
“Never again’ and to the "what" and the "how". . . . The most striking fact about
the Rwandan genocide and the U.S. response is that President Clinton never even
called his cabinet together, never even called a meeting to discuss what might be
done and to roll up our sleeves and to say which of these tools can we employ. . . .
327
Bosco, supra.
David Kader, “Progress and Limitations in Basic Genocide Law,” in Genocide: A Critical Bibliographic
Review, v. 2 (Israel W. Charny, ed., (London: Mansell Publishers, 1991), p. 141.
329
“The Legacy of Raphael Lemkin,” Interview with Omer Bartov, Mar. 8, 2007, available at
<www.ushmm.org>
330
Ibid.
331
Power, supra.
328
103
If a meeting had taken place, it wouldn't have [necessarily] necessitated any
results, but it gives you a sense of the mid- to low-level priority that real genocide
– in a place that doesn't intersect the vital interests – actually commands.332
We conclude with a sober assessment of the success of anti-genocide efforts by
Jerry Fowler, Director of the Committee of Conscience in the United States Holocaust
Memorial Museum: “We have to believe that we can reduce it, that we can fight it when
it happens, and we can strive for the day when it is eliminated. When it doesn’t happen,
we have to be humble. . . . I think we look forward in some wonderful future to a world
without genocide. When we’ll achieve that world I don’t know. But that’s the struggle
that we’re engaged in and that we can’t desist from as a tribute and a memorial to the
victims of the Holocaust. We do need to do everything we can to eliminate that scourge
from the face of the Earth.” 333
Samantha Power, “Fulfilling A Responsibility To Protect: What Will It Take to End the ‘Age of
Genocide,’” Lecture delivered at United States Holocaust Memorial Museum, May 4, 2004, available at
<www.ushmm.org>
333
“Eliminating Genocide,” Interview with Committee on Conscience Staff Director Jerry Fowler, Feb. 12,
1999, available at <www.ushmm.org>
332
104
Chapter 4: Legal System in Nazi Germany: Legal Barbarism
4.1. Lawful Barbarism
Lawful Barbarism: German Law During The Holocaust, Michael J. Bazyler
One of the most important, and least considered, aspects of the Holocaust is law. The
Nazis were fastidious about following Legal requirements, and for this reason the law
played an important role in the measures taken which led to the death of six-million Jews.
It is important to recognize that Germany had for a long time prior to the rise of the Nazis
an extremely developed and sophisticated legal system. The two major documents
creating modem civil law, which exist today in all of Continental Europe and which
spread to Latin America, were the 1804 Napoleonic Civil Code and the 1898 BgB Civil
Code enacted in Germany in 1898. German law, like German philosophy therefore, was
well known, respected and emulated worldwide for many years prior to the Nazis coming
to power in January 1933.
Some of the legal innovations created by Germany at the beginning of the late 19 and
early 20 Century even spread to the United States, including the current workers
compensation and Social Security systems we have in this country. Many American legal
theorists looked to German jurisprudence as a source of inspiration for their writings up
to WW II. In pre-Nazi Germany, lawyers played an important role, judges were
independent, and a law-based state existed not too dissimilar to the United States.
The jurisprudential doctrine in favor in the West during the first part of the 20th
Century was legal positivism, the theory that legal rules are valid only because they are
enacted by an existing political authority and then accepted as binding by the citizenry.
Morality or natural law are not proper sources of law making in a positivist-based state.
The German society's allegiance to the necessity of written laws was recognized by the
Nazis when they came to power. For that reason, the Nazis made sure that all of their
horrific acts could be based upon some legal decree.
Attached to this paper as an appendix is a list prepared by the United States Holocaust
Memorial Museum summarizing 128 anti-Jewish laws passed by the Nazis between 1933
and 1945.
Let me cite two examples of the Nazis' recognition that their acts must appear to have
been law-based. The first comes from the early days of Nazi rule and the last in the postWorld War II as Nazi Germany lay in ruins.
105
In 1938, when the number-two Nazi, Hermann Goering, suggested in the course of a
discussion, that German travelers could always kick Jewish passengers out of a crowded
compartment on a train, the Propaganda Minister, Josef Goebbels, replied: "I would not
say that. I do not believe in this. There has to be a law."1
In 1946, when the Nazi criminals were tried in Nuremberg and accused of crimes against
humanity, they "coolly produced decrees and permits in triplicate, and were genuinely
shocked when prosecutors dismissed all those documents"2
Richard Lawrence Miller, author of Nazi Justiz, described the hijacking of the laws by
the Nazis as follows:
"During a Roman Catholic mass, the faithful witnessed and participated in a miracle. A
group of atheists could gather and mimic the proceedings, but the activity would no
longer have meaning, even the words and ceremony were duplicated in finest detail.
Nazis were legal atheists; they did not believe in law. They duplicated the natural
outward form, emptied the legal ritual of meaning. The decrees, courts, and documents
were no more valid than a mass celebrated by an atheist. Retaining the outward forms of
law, however, made [German] citizens feel comfortable; the old priests were gone and
the new ones spoke with a strange accent, but nonetheless they were adept with
traditional words and ceremonies, and the congregation felt assured. Even troubled
members would not consider leaving the Church. What they did not realize was that the
Church was gone. The community of believers remained, but had been hijacked by
unbelieving persons garbed in priestly robes, who cynically exploited the congregation's
beliefs in order to enslave the faithful."3
Let me now discuss some of the major anti-Jewish legislation enacted by the Nazis. In
discussing the legislation, it is important to note that the Nazis defined Jews by
genealogy, rather than religion, using the bogus concept of a Jewish "race."
In Nazi Germany, a person did not have to practice Judaism in order to be a Jew; lifelong
Christians could be Jews, be forced to wear the yellow star, and be transported to the
"East." Of course, practitioners of Judaism were the primary victims, but the Nazis
classified as Jews many persons who were not considered such before or after the Third
Reich. The number of those victims is unclear. It is estimated, that in 1933 the non-Aryan
population of Germany was about six-hundred-thousand, or one-percent. This included
both those who practiced Judaism and those whose parents were half-Jewish. The racial
classifications enacted by the Nazis expanded that number into six-million. The number
of non-Aryans in government service was approximately five-thousand, or 0.5% of the
total government personnel --a very small number.
The Nazis' first targets were those five-thousand individuals. The first major anti-Jewish
law, predating the infamous Nuremberg Laws, that came two years later, was the "Law
for the Reestablishment of the Professional Civil Service," enacted on April 7, 1933.
"[The] decree was drafted by the appropriate experts in the Interior Ministry and ... the
competent experts in the Finance Ministry were consulted before publication."4 Like
much anti-Semitic legislation, this law carried an innocuous title; however, the law
106
expelled from government service all non-Jewish civil servants. In a gesture to the aged
President of Germany, World War One hero Field Marshal von Hindenburg, the law
exempted Jewish veterans from World War One from expulsion. This exemption did not
last long, as the Jewish veterans were also soon banished from their government jobs.
Between the civil service law of April 1933 and the September 1935, Nuremberg Laws,
the Nazis passed various anti-Jewish legislation, some major and some minor, but all
meant to make life extremely difficult for Jews living in Nazi Germany. These included:
an April 19, 1933 decree entered by the State of Baden, prohibiting the use of the Jewish
language - Yiddish - in cattle markets; a May 13, 1933 decree issued by the State of
Prussia decreeing that Jews may only change their names to other Jewish names; a
November 27, 1933 issued by the Reich Interior Ministry forbidding the listing of Jewish
holidays on office calendars; and a May 5, 1934 decree issued by the Reich Propaganda
Ministry forbidding the appearance on stage of Jewish actors.
From September 11- 15, 1935, the Nazis held a Party congress at Nuremberg. It is
believed that the Nuremberg Laws were drafted on the last two days of the Congress,
even though much preliminary work had been accomplished before that.5
The September 15, 1935 "Reich Citizenship Law" deprived German Jews of citizenship,
limiting German citizenship to persons of German or "kindred" blood. As a result, those
who the Nazis considered to be non-German were now deprived of the civil rights
possessed by citizens of the State. The "Law for the Protection of German Blood and
German Honor" forbid marriage and extra-marital sexual intercourse between Jews and
citizens of German or "kindred" blood. Jews were also forbidden to employ in their
households German women younger than forty-five years of age, and were forbidden to
fly the national flag.
Since the Nazis classified Jews on the basis of race, and not religion, they were forced to
develop an entire set of legal rules to determine who would be classified as Jew and who
would be an Aryan. The practical problem was the over-five-million Germans who had
some Jewish heritage, but did not consider themselves to be Jews These individuals were
labeled Mischlinge, a German word for half-breeds or mixed-cast.
Mischlinge, when considered Jews, fell under the category of the anti-Jewish legislation;
Mischlinge who could under the laws' definitions keep themselves out of the Jewish
category, retained all the rights and privileges of citizenship.
Since specific definitions were now required, supplementary decrees were published.
The first supplementary decree to the Reich Citizenship Law, published on November 14,
1935 defined as Jewish (1) all persons who had at least three full Jewish grandparents, or
(2) who had two Jewish grandparents and were married to a Jewish spouse or (3) who
belonged to the Jewish religion at the time of the Law's publication, or who entered into
such commitments at a later date. From November 14 on, therefore, the civil rights of
these legally defined Jews were cancelled, their voting rights abolished, Jewish civil
servants who had kept their positions owing to their veteran status, were now forced into
retirement.
107
On December 21st 1935, a second supplemental decree ordered the dismissal of Jewish
professors, teachers, physicians, lawyers, and notaries who were state employees and had
been granted exemption.6
What this meant was that your religion did not matter, nor the religion of your parents.
The critical fact for determination of who was to be considered a Jew was the religion of
one's grandparents.
A November 26, 1935, supplementary decree to the "Law for the Protection of German
Blood," specified the various categories of forbidden marriages. Marriage was now
forbidden between a Jew and Mischling with one Jewish grandparent (Mischling of the
first degree); between a Mischling and another, each with one Jewish grandparent; and
between a Mischling with two Jewish grandparents and a German, the last one subject to
waiver by special exception from the Interior Minister.
Mischlinge of the first degree (two Jewish grandparents), therefore, could marry Jews and thereby become Jews- or marry one another. Mischlinge of the second degree (one
Jewish grandparent) had even more severe legal restrictions: they could not marry a Jew,
and could not marry each other.
The November 14, 1935, supplementary decree also forbid sexual relations between Jews
and persons of "alien blood" The original April, 1935 decree already made it illegal to
have sexual relations between Jews and Germans. This supplementary decree required
clarification as to who was of "alien blood" Twelve days after the issuance of the
supplementary decree, a circular from the Reich Ministry of the Interior clarified the
ambiguity: alien blood referred to "Gypsies, Negroes, and their bastards."7
As Professor Saul Friedlander of UCLA in the volume one of his landmark study, Nazi
Germany and the Jews, explains:
"Proof that one was not of Jewish origin or did not belong to any 'less valuable' group
became essential for normal existence in The Third Reich. And the requirements were
especially stringent for anyone aspiring to join or to remain in a State or Party agency.
Even the higher strata of the civil service, the party, and the army could not escape racial
investigation. The personal file of General Alfred Jodl [who would later become one of
the defendants at the Nuremberg trial of major war criminals], contains a detailed family
tree in Jodi's handwriting, which, in 1936, proved his impeccable Aryan descent as flit
back as the mid-18th century."8
Friedlander describes instances when the Nazis, either for personal gain or convenience,
would make exceptions to these legal categories. According to Friedlander, the most
notorious case was that of Gerhard Milch, the State Secretary of the Aviation Ministry.
A Mischling of the second degree, he was turned into an Aryan by the Nazis. When a
priest in the religion class, a Father Wolpert, in Bavaria, stated to his children that
General Milch was of Jewish origin, charges were brought against him. The cancer
researcher Otto Warburg, a "Mischling of the first degree," was transformed into a
"Mischling of the second degree" on Herman Goering's orders. Friedlander speculates
108
that Hitler's hypochondriacal worries played a role. These exemptions were issued in the
form of a "protection letter."
Friedlander also shows how legal opinions had to issued - based on potential or actual
situations - to educate the German populace how these laws worked in actual practice.
These were set out in the form of questions and answers, eerily similar to the ethics
opinions issued by, for example, the California State Bar today.
The second appendix to this paper reproduces two of such hypothetical factual scenarios,
followed with the coned legal answer.
A major legal hurdle encountered by experts attempting to interpret the Nuremberg Laws
was the definition of "intercourse." Litigation on this question even came before the
Supreme Court of Germany. In a December 1935 decision, the Supreme Court stated:
"The term 'sexual intercourse' as meant by the Law for the Protection of German Blood
does not include every obscene act, but it is also not limited to "coition." It includes all
forms of natural and unnatural sexual intercourse - that is, coition as well as those sexual
activities of those persons of the opposite sex which are designed, in the matter in which
they are performed, to serve in place of coition to satisfy the sex drive of at least one of
the partners."
On March 13, 1942, the Special Court for the District of the Court of Appeal in
Nuremberg, issued a decision in the criminal case brought against the defendants
Katzenberger and Seiler. Leo Katzenberger was an elderly Jewish widower, who had
befriended Irene Seiler, a German thirty-seven years his junior, when in 1932 she came to
live in Katnzenberger's apartment building. The three-judge court handed down the death
sentence for Katzenberger and a sentence of two years of hard Labor and an additional
two years of loss of civil liberties for Seiler. Seiler's offense was of committing perjury
while being questioned by the police in the course of their investigation of whether
Katzenberger had committed racial pollution.
This is how the Court justifies the classification of their contacts as "sexual intercourse,"
even though the two defendants maintained that their acts amounted to no more than a
case of fatherly friendliness towards a younger neighbor:
"In view of the behavior of the defendants towards each other, as repeatedly described,
the court has become convinced that the relations between Seiler and Katzenberger which
extended over a period often years, were of purely sexual nature. This is the only
possible explanation of the intimacy of their acquaintance. As there were a large number
of circumstances favoring seduction, no doubt is possible that the defendant Katzenberger
maintained continuous sexual intercourse with Seiler, The Court considers as untrue
Katzenberger's statement to the contrary that Seiler did not interest him sexually, and that
the statements made by the defendant Seiler in support of Katzenberger's defense the
Court considers incompatible with all practical experience. They were obviously made
with the purpose of saving Katzenberger from his punishment."
109
The Court explained its rationale for imposing the death sentence upon Katzenberger,
seventy years old at the time, as follows:
"The political form of life of the German people under National Socialism is based upon
the community. One fundamental factor of the life of the National Community is the
racial problem. If a Jew commits racial pollution with a German woman, this amounts to
polluting the German race and, by polluting a German woman, to a grave attack on the
purity of German blood. The need for protection is particularly strong."
Katzenberger practiced pollution for years. He was well acquainted with the point of
view taken by patriotic German men and women as regards racial problems, and he knew
that by his conduct the patriotic feelings of the German people were slapped in the face.
Neither the National Socialist Revolution of 1933, nor the passing of the Law for the
Protection of German Blood in 1935, neither the action against the Jews in 1938
[referring to Kristalnnacht, the Jewish pogrom in November of that year], nor the
outbreak of war in 1939 made him abandon this activity of his."9
Reading this opinion and many others, one is stunned by the similarity to opinions
regularly issued by American courts in criminal trials. The structure is exactly the same:
a detailed recitation of facts, the statement of applicable law, and then a dutiful
application of the law to the facts, with statutory analysis to fill in any gaps.
The judges appear to be doing what judges presiding over criminal cases in the United
States and other democracies do every day. Yet the laws that the judges were applying
and interpreting were obscene. This did not stop them, however, from doing their job.
Only the last portion of the Katzenberger opinion reveals that the three judges were
ardent believers in such laws.
As German historian Ingo Müller, in his landmark study Hitler's Justice: The Courts of
the Third Reich10 explains, the German jurists were more than happy, using his phrase, to
"coordinate" themselves into the new reality created by the Nazis and even to profit from
it.
A most sad example for this author is that of young, up-and-coming non-tenured law
professors at German law schools who eagerly took up the spots of their senior mentors
who had been expelled from their posts because of their Jewish origins. These younger
professors were quickly granted tenure to replace the shortage created by the expulsion.
Ironically, these professors reached their scholarly heights after the war, and so became
the most influential post war German law teachers and scholars, teaching the new
generations of German youth into the 1970s.
Resistance from the bench and bar did occur to some degree. Hubert Schorn, a retired
judge, wrote a book after the war listing accounts of resistance by judges. Schorn
asserted that "the overwhelming majority" of judges had opposed the Nazi system, and
that a judge had "no alternative but to apply the unjust laws, and risked his own life if he
objected."11
110
Fritz Hartunger, a justice of the Supreme Court in West Germany, who had worked for
the courts during the Nazi era, also claimed in a study that if the judges had made any
other decisions, they would have risked their lives.
Müller, in his study doubts the accuracy of these statements. Müller does point out,
however, that two prominent judges were executed by the Nazis. Both were murdered by
the Nazis in early 1945 for their participation in a plot against Hitler.
Müller correctly notes that neither individual was persecuted for their conduct on the
bench, but rather for their political activities. In the waning years of the war, as the tide
turned against Nazi Germany, these two judges joined the underground German
resistance movement, even secretly assisting the few remaining Jews in Germany.
Müller also finds that the "numerous other 'martyrs of the judiciary' cited by Schorn, were
either attorneys or Jewish judges who the Nazis removed from office and then
murdered."12
Müller notes that there is only one documented case of resistance by a judge in the course
of carrying out his professional duties. Dr. Lothar Kreyssig, a family law judge in
Brandenburg, appointed in 1928, began complaining about the Nazis in 1934, often in his
role as an officer of the Lutheran Confessional Church. Kreyssig began receiving
complaints from his superiors beginning in 1936, yet continued to express his displeasure
against the acts being committed by the Nazis. An inquiry with the aim of removing him
from the bench began in 1937 when he referred to Nazi church policies as "injustice masquerading in the form of law." A criminal investigation was also opened against him
in 1938 for some of the statements he made during church services.
Kreyssig was not fired or imprisoned, however, only reassigned to another court, where
he continued to issue rulings to ameliorate the harshness of Nazi legal decrees. In one
such move, Judge Kreyssig issued injunctions to several hospitals in his capacity as a
judge of the Court of Guardianship, prohibiting the hospitals from transferring mental
patients for execution. When Judge Kreyssig learned that Phillipp Bouhler, a Nazi party
leader, was responsible for the euthanasia program, known as "T 4," Kreyssig filed
criminal charges before the public prosecutor in Potsdam against Bouhler.
The tenacious judge was then summoned before the Minister of Justice, Franz Gürtner,
who tried to persuade him that the T 4 program was lawful because it had come from an
"order of the Führer." Gürtner also indicated that if Judge Kreyssig "did not recognize
the will of the Führer as the [force] of law," then he could no longer serve as a judge.13
Soon thereafter, Judge Kreyssig wrote to Gürtner requesting early retirement, since his
conscience would not allow him to withdraw the objections against the hospital. He was
allowed to retire at the end of 1940, and was given lull pension rights. In April 1942, a
month after his early retirement was finally confirmed, the criminal investigation against
him was dropped. "[F]rom then on[,] the Third Reich left the courageous judge in
peace."14
111
Muller finds Kreyssig's case to be "extremely revealing. It shows that if a judge refused
to accept the injustices of the system, the worst he had to fear was early retirement."15
Müller sadly concludes that the cases of resistance were few and far between and that the
judiciary "became a smoothly functioning part of the National Socialist's System of
intimidation - today they prefer to say they became 'enmeshed' or 'entangled'..."16 Müller
cites the findings of Martin Hirsch, a retired judge of the post-war West German Federal
Constitutional Court, who estimates that the courts during the Nazi era handed down at
least forty-thousand to fifty-thousand death sentences, not counting the verdicts in the
summary proceedings of the military and the police tribunals.
Müller looks for comparison to the wartime courts in Italy and Japan. He finds that in
both of these countries, "mass arrests of political opponents did occur, and there were
also irregular courts, harsher laws to protect the government and internment camps."17
However, a military style Special Tribunal established in Fascist Italy in 1926, handed
down only twenty-nine death sentences and seven sentences of life imprisonment in over
five-thousand trials. In Japan, six-thousand persons were arrested; and charges were
brought against less than ten-percent of them. During wartime, only two people were
sentenced to death by Japanese civilian courts, and that was the German spy Richard
Sorge and his Japanese informer Hozmi Ozaka.
Müller concludes: "The jurists of the Third Reich had no peers anywhere in the world."18
1
Raul Hilberg, Perpetrators, Victims, Bystanders: The Jewish Catastrophe 1933-1945, 71
(1993).
2
Lawrence Miller, Nazi Justiz: Law of the Holocaust, 2 (1995).
3
Id.
4
Hilber, supra, at 86.
5
Saul Friedlander, Nazi Germany and the Jews: Volume One, The Years of Persecution,
1933-1939 (1997).
6
supra, at 29.
7
Id at 153.
8
Id at 153.
9
The Katzenberger case opinion is translated and reproduced in Volume III of the "Trials
of War Criminals Before Nuremberg Military Tribunals Under Control Consol Law No.
10," conducted by the United States and other Allies after the trials of the International
Military Tribunal at Nuremburg for the Major War Criminals.
10
Hitler's Justice: The Courts of the Third Reich (1991).
11
Müller, supra, at 21.
12
Müller, supra, at 193.
13
Id. at 195.
14
Id. at 195.
15
Id.
16
Id. at 196.
17
Id. at 197.
18
Id.
112
4.2. Lawful Barbarism - Holocaust Memorial Museum
Lawful Barbarism (Appendix 1), The Anti-Jewish Legislation of Nazi Germany from
1933-1945 (Prepared by the United States Holocaust Memorial Museum, Washington,
DC)
March 2, 1933 When awarding public contracts, the state government of Thuringia will
only consider Christian
March 22, 1933 Jewish lawyers and notaries are no longer allowed to work on legal
matters in the city of Berlin.
March 22. 1933 The state of Saxony prohibits the slaughter of animals according to
Jewish custom.
March 31, 1933 Reich Commissar of the Prussian Judiciary fires all Jewish judges and
states attorneys. They are not allowed to enter the courtrooms.
*March 31. 1933 In the state of Baden, school principals and teachers are asked to protect
Jewish students from attacks by their German fellow students.
May 1, 1933 The Mayor of Cologne decrees that Jews may not be employed in municipal
offices. The ban also applies to baptized Jews and non-Jews who are married to Jews.
May 4, 1933 The Mayor of Munich prohibits Jewish doctors from treating non-Jewish
patients in city hospitals.
May 6, 1933 The Reich Ministry of Finance revokes the licenses of all Jewish tax
consultants.
May 7, 1933 The "Civil Service Law" retires all Jewish and other "non-Aryan" civil
servants; Jewish veterans of World War One are exempt.
April 7, 1933 "Non-Aryan" lawyers may be de-barred until September 30, 1933.
April 7, 1933 The Bavarian Interior Ministry no longer admits Jewish students to medical
school.
April 12, 1933 The Nazi Party leader in the Palatinate region decrees that Jews can only
be released from "protective custody" if two petitioners or two doctors who gave Jews
medical certificates are held in custody in their stead.
April 19. 1933 The state of Baden prohibits the use of the Jewish language--Yiddish--in
cattle markets.
April 22, 1933 The Reich Transportation Ministry forbids the spelling of Jewish names
when transmitting telegrams by phone.
113
April 25, 1933The Reich Transportation Ministry imposes a quota of 1.5% on the
admission of "non-Aryan" students to German schools and universities.
May 7, 1933 All Jewish workers and civilian employees are dismissed from the Army
(Wehrmacht).
May13, 1933 The state of Prussia-decrees that Jews may only change their name to other
Jewish names.
June 30, 1933The Nazi leadership in the Allenstein district forbids all party members
from entering bars frequented by Jews. This also pertains to cafés and restaurants, but
not to hotels.
July 18, 1933The Nazi "Farmers' Chief" in Būtow forbids the farmers of his county from
selling their products to Jewish traders.
August 16, 1933 The import and sale of foreign Jewish newspapers is forbidden
September 5, 1933 General Synod of the old-Prussian Union decrees that "non-Aryans"
cannot be appointed as clergymen and officials in the church administration. This also
pertains to the husbands of non-Arian women.
November 27, 1933 The Reich Interior Ministry forbids the listing of Jewish holidays on
office calendars.
December 1, 1933 The Association of Retail Traders in Frankfurt forbids Jewish shops
from using Christian symbols during Christmas season sales.
March 5, 1934 The Reich Propaganda Ministry forbids the appearance of Jewish actors.
April 17, 1934 In Prussia, "non-Aryans" and the spouses of "non-Aryans" no longer may
receive concessions from pharmacies.
June 21, 1934 The Hessian Education Ministry excludes the Old Testament from the
Protestant religious educational curriculum, and replaces with additional passages from
the New Testament.
December 26, 1934 The Reich Interior Ministry declares that hostile activities against
Jews by unauthorized persons.
February 10, 1935 The Secret State Police (Gestapo) forbids all Jewish meetings which
propagandize for the continuing stay of Jews in Germany.
April 11, 1935 Hitler's Deputy, Rudolph Hess, decrees members of the Nazi party must
not have any personal contact with Jews.
114
June 11, 1935 The Prussian Interior Ministry Signs decrees that, because of impending
Olympic games in Berlin, signs saying "Jews not welcome" should be removed from
major avenues.
August 17, 1935 The Gestapo confiscates the membership lists of all Jewish
organizations in order to compile a comprehensive register of Jews living in Germany
(Judenkarten).
September 15, 1935 The "Reich Citizenship Law" restricts German citizenship to persons
of German or "kindred" blood. Non-Germans are deprived of civil rights.
September 15, 1935 The "Law for the Protection of German blood and German honor"
forbids marriages and extramarital sexual intercourse between Jews and citizens of
German or "kindred" blood. Jews are forbidden to employ in their household German
women younger than 45 years of age. Finally, Jews are forbidden to fly the national flag
or display the Reich colors.
September 18, 1935 The Gestapo rules that people guilty of "race defilement"
(intermarriage or sexual relations between Jews and Germans) shall be confined to a
concentration camp.
September 28, 1935 The Mayor of Königsdorf, a village in Bavaria, decrees that cows
purchased directly or indirectly from Jews may not be inseminated by the common
village bull.
October 17, 1935 Reich Chamber of Film decrees that Jewish owners of movie theaters
must sell their theaters to Aryans by December 10, 1935.
December 24, 1935 The Reich Propaganda Ministry decrees that the names of Jewish
soldiers should no longer be included on memorials for the dead of World War One.
November 4, 1935 Reich Education Ministry imposes a hiring freeze on new Jewish
teachers for Jewish schools.
November 14, 1935 In a supplemental decree to the "Reich Citizenship Law," the Reich
Interior Ministry defines a Jewish Mischling (person of mixed blood) as anyone who is
descended from one or two Jewish grandparents. A grandparent is considered Jewish if
he or she belonged to the Jewish religious community. A full-blooded Jew is anyone
descended from at least three Jewish grandparents.
November 26, 1935 In a supplemental decree to the "Law for the Protection of German
Blood," the Reich Interior Ministry defines replaces term non-Aryan with the word
"Jew". The decree further defines the terms 'Jew,' "first degree Mischling," "second
degree Mischling, and person of German blood.
December 17, 1935 The Reich Interior Ministry declares that racial affiliation must be
emphasized in all reports to the press about crimes committed by Jews.
115
December 16, 1935 The Gestapo forbids Jews from receiving licenses to carry firearms.
December 1935 The President of the Reich Supreme Court decrees that German judges
may not cite legal commentaries or treatises of Jewish authors.
February 8, 1936 The Gestapo bans the "Association of Jews Faithful to the Torah," as it
cannot promote the emigration of Jews and is likely to impede the supervision of Jews.
April 2, 1936 The Reich Justice Ministry declares its intention to enforce more severely
the 'Law for the Protection of German Blood."
June 18, 1935 The Reich Education Ministry imposes restrictions on the ability of Jewish
medical students to perform certain gynecological examinations on German women.
June 29, 1936 The Mayor of Düsseldorf decrees that Jews will not be admitted to
municipal hospitals, and will only be treated as out-patients.
August 31, 1936 The Reich Finance Ministry announces that religious affiliation must be
indicated on tax forms.
October 4, 1936 RMI The conversion of Jews to Christianity has no relevance with
respect to the question of race. The possibility to hide one's origin by changing one's
religious affiliation will entirely vanish as soon as the offices for racial research begin
their work.
March 18, 1937 The Gestapo orders ongoing, strict surveillance of the activities of
assimilated Jews must, especially the activities of the Centralverein (Central Association)
and the Alliance of Jewish Front-line Soldiers.
April 15,1937 The Reich Education Ministry decrees that Jewish university students will
not be admitted to doctoral exams.
June 8, 1937 Reich Postal Ministry forcibly retires all postal officials whose spouses are
not of purely Aryan origin.
June 23, 1937 To obtain a low-interest home loan newly married couples must prove that
their grandparents do not belong to the Jewish religion and that their parents belong to the
Christian faith.
September 27, 1937 Infertile women have the right to be examined at public expense, in
order to determine whether their infertility can be remedied. The Reich Interior Ministry
declares that Jewish women have no right for such an examination.
November 22, 1937 Due to foreign reports of atrocities against Jews, SS-Chief Heinrich
Himmler decrees that Jews will not be released from the concentration camp of Dachau.
January 1, 1938 Jews cannot become members of the German Red Cross.
116
March 24, 1938 The Reich Interior Ministry forbids Jews to use governmental archives,
except for the purpose of tracing their lineage or researching Jewish folklore (Jüdisches
Volksturns).
April 26, 1938 As Chairman of the Four-Year-Plan, Hermann Göring orders all Jews
must declare the value of on their entire domestic and foreign property and assets.
June 1, 1938 All Jews who have been sentenced to a prison term of more than one month
or to a fine must be arrested and, without interrogation sent to a concentration camp.
June 14, 1933 Reich Economic Ministry endorses the quick elimination of Jews from
industry and Commerce.
August 17, 1938 Starting January 1,1939, Jews lacking an identifiably Jewish first name
must adopt the middle name must adopt the names "Israel" and "Sara."
October 5, 1938 The Reich Interior Ministry invalidates all German passports held by
Jews. Jews musts surrender their old passports, which will become valid only after the
letter "J" has been stamped in them.
November 9, 1938 The Gestapo informs all local state police offices of anti-Jewish
actions which will take place all over Germany (the "Night of Broken Glass'). Local
police must not be prevent these actions. The arrest of 20-30,000 Jews in the Reich must
be prepared; especially rich Jews are to be targeted.
November 9, 1938 The chief of the SA commands that all Jewish shops must be
immediately destroyed by SA-men in uniform (the "Night of Broken Glass"). The press
should be informed. Synagogues must be put on fire immediately, Jewish symbols must
be secured. Firebrigades must only protect Aryan residencies, but also adjacent Jewish
residencies, though Jews must be expelled, because Aryans will move into them shortly.
November 10,1938 SS-Chief Heinrich Himmler orders that the "Night of Broken Glass"
must not endanger German life and property and forbids the destruction or looting of Jew
apartments. Arrested Jews will be housed in concentration camps.
November 10, 1938 The Berlin Gestapo reports the availability of room for 30,000 Jews
in the concentration camps of Dachau, Buchenwald and Saschsenhausen.
November 12, 1938 Hermann Göring decrees that all damage resulting from the "Night
of Broken Glass" must be removed by Jewish shopkeepers and tradesmen. The costs of
repair must be borne by the Jewish proprietors.
November 12, 1938 Hermann Göring forbids Jews from operating retail trades, mail
order, firms, or workshops for skilled labor, effective January 1, 1939.
November 12, 1932 Security Police Chief Reinhard Heydrich forbids the restoration of
synagogues damaged or destroyed during the "night of Broken Glass."
117
November 12, 1938 President of Reich Chamber of Culture forbids Jews from attending
theaters, movies, concerts, art exhibitions, etc.
November 12, 1238 Hermann Göring imposes a fine of 100,000,000 Reichsmark on the
entire Jewish population of Germany.
November 15, 1938 The Reich Education Ministry expels all Jews from German schools.
November 29, 1938 Jews are forbidden to keep carrier pigeons.
December 3,1938 SS-Chief Heinrich Himmler revokes the driver's licenses and truck
registration cards held by Jews.
December 5, 1938 In order to prevent the flight of capital owned by Jews, the Reich
Economics Ministry freezes all Jewish property and assets.
December 14, 1938 Hermann Göring forbids all unauthorized activity against Jews. All
local and state governments must first submit new laws against Jews for Göring's
approval.
December 21, 1938 Jewish women may not be certified as midwives.
January 21, 1939 The Gestapo releases all Jews under the age of 18 to were arrested
during the "Night of Broken Glass" from imprisonment in concentration camps.
March 15, 1939 SS-Chief Heinrich Himmler bans the unauthorized emigration of Jews.
Illegal refugees and their helpers are to be arrested and send to concentration camps.
March 25, 1939 Jews may not become members of the Hitler Youth. Persons of mixed
German-Jewish blood may be admitted.
July 12, 1939 When reporting on trials against Jews, newspapers should mention the
names "Israel" and "Sara", so that the reader recognizes the defendants as Jews.
August 1, 1939 President of the German Lottery forbids the sale of tickets to Jews.
September 1, 1939 Local police stations impose a 8:00 p.m. curfew on Jews.
September 7, 1939 Security Police Chief Reinhard Heydrich orders the arrest of all Jews
of Polish nationality living in Germany.
September 20,1939 Jews are forbidden to own radios. The regulation also applies to
Germans living in Jewish households, and to persons of mixed German-Jewish blood.
September 21, 1939 Security Police Chief Reinhard Heydrich instructs SS and police
units open ring in occupied Poland to assemble the Jewish population into urban ghettos
and to create a governing Jewish Council for each ghetto.
118
September 26, 1939 The German governor of occupied Poland, Hans Frank, decrees that
every Jew living in occupied Poland is subject to forced labor. For this purpose, the Jews
will be organized into forced labor teams.
February 15,1940 The press is instructed to treat as confidential reports that 1,000
German Jews have been deported to Poland.
February 16, 1940 The Reich Interior and Justice Ministries declare that only Jewish men
can be accused of the crime of "race defilement" (sexual relations between Jews and
Germans). The punishment of women for "race defilement" is prohibited.
March 11, 1940 The Reich Agriculture Ministry decrees that food ration cards for Jews
must be marked with the letter "J."
April 10, 1940 SS-Chief Heinrich Himmler decrees that for the duration of the war,
Jewish prisoners may not be released from concentration camps.
April 20, 1940 The German Army discharges from military service all "first degree
Mischlinge" (people of mixed German-Jewish ancestry) and the husbands of Jewish
women.
July 4, 1940 The Chief of Police in Berlin announces that the purchase of food for and by
Jews in Berlin has to take place between 4:00 and 5:00 p.m.
July 19, 1940 The Reich Postal Ministry refuses telephone service to Jews.
February 21, 1941 Plans to establish a special location for Jewish cultural assets are given
over to the Reich Chamber of the Arts.
May 20, 1941 In light of the impending "Final Solution of the Jewish Question" the
Reich Security Police acts to prevent the emigration of German Jews from Belgium and
France to other countries.
June 26, 1941 The Head of the Nazi Party Chancellery decrees that Jews may no longer
receive additional ration cards for soap and shaving cream.
July 31, 1941 In accordance with the Hitler's edict of 1.24.39, Hermann Göring asks
Security Police Chief Reinhard Heydrich to make all necessary preparations "for the
complete solution of the Jewish question in the European territory under German control.
August 2,1941 President of the Reich Chamber of Literature bars Jews from all public
libraries.
September 1941 The Head of the Nazi Party Chancellery orders that a repetition of the
"Night of Broken Glass" should be avoided. It is below the dignity of the Nan movement,
he announces, for its members to molest individual Jews.
119
September 1, 1941 Starting on September 25 1943, Jews older than 6 years of age are
forbidden to appear in public without displaying the "Jewish Star" on their clothing.
September 18, 1941 The Reich Transportation Ministry decrees that Jews must receive
police permission to leave their home towns or to use public transportation.
October 10, 1941 Field Marshal von Reichenau of the Army High Command announces
that the goal of the German invasion of the Soviet Union "is the complete crushing of its
means of power and the extermination of Asiatic influence in the European cultural
region...Therefore the soldier must have full understanding for the necessity of a severe
but just atonement on Jewish sub-humanity.
October 23, 1941 The Security Police forbid the emigration of Jews for the duration of
the war.
October 24, 1941 Germans blood who publicly display friendly relationships to Jews will
be taken into Security Police custody or, in more serious cases, sent for three months to a
concentration camp.
October 24, 1941 The Chief of Police orders the deportation of 50,000 Jews from
Germany, Austria and Bohemia to ghettos in the occupied East (Riga, Lodz, Kovno, and
Minsk).
November, 13, 1941 The Security Police orders the confiscation of all typewriters,
adding machines, duplicating machines, bicycles, cameras, and binoculars owned by
Jews.
November 22, 1941 Jews may no longer receive compensation for personal injuries. This
regulation does not pertain to Jews living in a mixed marriage.
December 12, 1941 Jews wearing the "Jewish Star" are forbidden to use public pay
telephones.
February 14, 1942 The Head of the Nazi Party Chancellery orders that all bakeries and
pasty shops must post signs saying that pastries may not be given away to Jews and
Poles.
March 13, 1942 Jews must mark the entrance doors to their apartments with a black
"Jewish Star."
March 14, 1942 According to the Nazi Party Jews are needed for work in the armaments
industry.
March 16, 1942 The Dresdin Gestapo forbids Jews from buying flowers.
April 5, 1942 Local police chiefs, county heads, and mayors in the lower Rhine valley
region are asked not to register the deportation of Jews, but simply to record them as
"moved- address unknown" or "emigrated."
120
May 10, 1942 The Gestapo in Koblenz forbids romantic and sexual relations between
male Jewish Mischlinge and German women.
May 13, 1942 The Mayor of Berlin orders that, for the purposes of allocating food ration
cards, Gypsies are to be treated exactly as Jews.
May 17, 1942 The Reich Work Ministry decrees that regulations for the protection of
pregnant and nursing mothers do not apply to Jews.
May 19, 1942 The Head of the Nazi Party Chancellery announces that Gypsies are to be
treated as Jews in matters pertaining to labor and taxes.
June 9, 1942 Jews must surrender all dispensable clothing.
June 22, 1942 Jews may no longer receive food ration stamps for eggs.
August 24, 1942 Reich Association of Jews in the Rhineland forbids Jews to perform
religious services during the Jewish High Holidays.
September 1, 1942 The estate of deceased concentration camp inmates is to be collected
by the German government.
September 24, 1942 The Military High Command denies consent to marriages between
soldiers and German women who had previously been married to Jews.
November 1942 SS-Chief Heinrich Himmler orders that all Jews in concentration camps
within Germany property must be transferred to the concentration camps at Auschwitz
and Majdanek in occupied Poland.
December 1942 On behalf of the German government, the Economic Ministry for the
state of Württemberg orders the confiscation of all metal from Jewish cemeteries
(including graves, fences, and gates).
February 26, 1943 Female German savants and ladies may no longer be employed in
Jewish households or the households of persons of mixed German-Jewish blood.
April 29, 1943 The Head of Reich News Agency asks that the news media discuss the
Jewish question continuously and without interruption.
July 11, 1943 The Head of the Nazi Party Chancellery forbids all public discussions of
the "Final Solution."
January 27, 2944 The Security Police orders that all Jews who are subjects of Argentina
must be deported under guard to Bergen-Belsen.
November 25, 1944 Copies of certificates of death for Jews are to be forwarded to the tax
authorities.
121
February 16, 1945 The Reich Education Ministry orders the destruction of files which
record anti-Jewish activities of the Nazi state, to prevent them from falling into enemy
hands.
4.3 Lawful Barbarism Hypotheticals - Michael Bazyler
Lawful Barbarism (Appendix 2) – Bazyler, Legal Rights - Gone Wrong, Role of Lawyers
and Judges in the Holocaust, Lawful Barbarism, Professor Michael J. Bazyler
Question: What can be said about the marriage of a half-Aryan with a girl who has one
Aryan parent, but whose Aryan mother converted to Judaism so that the girl was raised as
a Jew? What can be said, further, about the children of this marriage?
Answer: The girl, actually half-Aryan, is not a Mischling, but is without any doubt
regarded as Jewish in the sense of the law because she belonged to the Jewish religious
community on the deadline date, i.e., 15th September 1935; subsequent conversion does
not alter this status in any way. The husband - a first degree Mischling is likewise
regarded as a Jew since he married a statutory Jew. The children of this marriage are in
any case regarded as Jews since they have three Jewish grandparents (two by race, one by
religion). This would not have been different if the mother had left the Jewish
community before the deadline. She herself would have been a Mischling, but the
children would still have had three Jewish grandparents. In other words, it is quite
possible that children who are regarded as Jews may result from a marriage in which both
partners are half-Aryan.
Question: A man has two Jewish grandparents, one Aryan grandmother and a halfAryan grandfather; the latter was born Jewish and became Christian only later. Is this 62
percent Jewish person a Mischling or a Jew?
Answer: The man is Jew according to the Nuremberg Laws because of the one
grandparent who was of the Jewish religion, this grandparent is assumed to have been a
full Jew and this assumption cannot be contested. So this 62 percent Jew has three full
Jewish grandparents. On the other hand, if the half-Aryan grandfather had been Christian
by birth, he would not have been a full Jew and would not have counted at all for this
calculation; his grandson would have been a Mischling of the First Degree.
4.4. Resistance by Lawyers to Legal Barbarism
4.4.1. The Case of Pakistan
December 7, 2007
Detained Pakistani Seeks to Revive Judiciary Cause
By Jane Perlez, New York Times
122
PESHAWAR, Pakistan, Dec. 6 — The leader of the lawyers’ movement here, worried
that the cause of an independent judiciary is foundering as elections approach, has written
to his colleagues from detention outlining a strategy to keep the flame alive.
The lawyer, Aitzaz Ahsan, said in a long letter published Wednesday in the major
newspapers that if the political parties take part in the January parliamentary elections,
then the lawyers must persuade candidates to sign an oath pledging to restore the
judiciary. The lawyers’ movement, which coalesced around the dismissal of the chief
justice of the Supreme Court last March, is a driving force of the opposition.
Such an oath will keep the focus on the Supreme Court justices and other high court
judges who were fired on Nov. 3 by Pakistan’s president, Pervez Musharraf, Mr. Ahsan
said. Otherwise, he wrote, bread-and-butter matters like roads, water, sewage and schools
will overshadow the cause of the judiciary.
“People will become preoccupied with other issues,” he wrote. “That is what the regime
is counting on.”
Mr. Ahsan, the strategic thinker behind the movement to reinstate the chief justice,
Iftikhar Muhammad Chaudhry, was apparently spurred to write as it became clearer that
the major political parties would participate in the elections, despite doubts about their
fairness.
Regarded here as a master political tactician as much as a pre-eminent lawyer, Mr. Ahsan
outlined bold steps that the lawyers should now use, including nationwide oath-taking
ceremonies in which candidates pledge to restore the Supreme Court. Daily news
conferences should be held to publicize the ceremonies, he wrote. “Each ceremony will
involve a maximum number of lawyers and political workers across the country.”
Mr. Ahsan’s plan was intended to force the candidates to be “either for us or against us,”
said Athar Minallah, a lawyer who has taken over some of Mr. Ahsan’s organizing role
since he was arrested on Nov. 3, the day Mr. Musharraf imposed emergency rule.
Another senior lawyer, Muneer A. Malik, who was jailed in a remote prison for three
weeks and was released only when he became seriously ill, wrote Wednesday that fair
elections were impossible without the restoration of the judges.
The very machinery of the elections, particularly challenges to tribunals that hear
allegations of vote rigging, includes the four High Courts and the Supreme Court, Mr.
Malik wrote in the newspaper Dawn.
The major political parties have been meeting in the last several days to discuss a list of
demands on election procedures that they say the government must meet before they will
participate. But disagreements on what those demands should be and, more important,
campaign activity by the parties strongly suggest that the parties led by two former prime
ministers, Benazir Bhutto and Nawaz Sharif, will not boycott the elections.
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Mr. Sharif has been barred by the election commission from being a candidate. But he
continues to make appearances around the country, and his party, a faction of the
Pakistan Muslim League, is fielding many candidates.
In pushing for the restoration of the judiciary and the reinstatement of the chief justice,
Mr. Ahsan was taking a different tack from the Bush administration and from Ms.
Bhutto.
The American ambassador to Pakistan, Anne Patterson, was barred from seeing Mr.
Ahsan in Lahore, where his house has been turned into what the Pakistani authorities call
a “sub-jail.” His house is guarded by batteries of police officers.
Instead, Ms. Patterson spoke with Mr. Ahsan’s wife, Bushra, and indicated her
“solidarity,” Mrs. Ahsan said.
But Mrs. Ahsan said the ambassador had told her that the Americans concluded Mr.
Musharraf would not “budge” on the issue of restoring the chief justice, hence the United
States would not persevere with an issue that could not be won.
Deputy Secretary of State John D. Negroponte sidestepped a question about the
restoration of the dismissed Supreme Court justices when he visited Islamabad last
month.
Statements by senior American officials calling for the end of emergency rule have
stressed the need for free and fair elections, free media and a return to constitutional rule
but have not mentioned the Supreme Court.
One reason, Western diplomats said, was the belief that the court had interfered too much
with the executive branch. In particular, they said, they did not disagree with the
Musharraf government’s complaint that the Supreme Court had been too lenient on 61
militant students affiliated with a radical mosque in Islamabad.
The students had been granted safe passage by the government during an attack by
government forces on the Red Mosque in Islamabad in July. Mr. Musharraf has cited Mr.
Chaudhry’s release of the 61 “terrorists” as a reason for dismissing him.
But Pakistani lawyers familiar with the case say that two other justices, Nawaz Abassi
and Javed Buttar, ordered the release of the students, who were being held without
charge. Mr. Chaudhry was suspended from the court and not working at the time, said
Babar Sattar, a corporate lawyer in Islamabad.
Ms. Bhutto, whose return to Pakistan had been supported by the United States, has
stopped short of advocating the restoration of the Supreme Court. Instead, she has called
for an “independent judiciary.”
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One reason for her reluctance to support the old court might be that Mr. Chaudhry had
indicated he was willing to hear challenges to the amnesty, on corruption charges, that the
Musharraf government granted her before her return, lawyers said.
In contrast, Mr. Sharif has made the Supreme Court justice a prominent campaign issue.
To prove his commitment, Mr. Sharif went to Mr. Chaudhry’s home in Islamabad on
Thursday but was rebuffed by hundreds of policemen assigned to ensure the judge stays
under house arrest and receives no visitors.
4.4.2. The Case of Iran
In Iran, a cadre of lawyers takes the case of justice
Of Iran's 27,000 attorneys, perhaps no more than 100 take politically charged cases. They brave insults, assaults and jail.
By Borzou Daragahi
Los Angeles Times Staff Writer
November 27, 2007
Tehran
The night before lawyer Mohammed Dadkhah was to appear in court for his first human
rights case, two masked men on motorcycles pulled up alongside him as he walked home.
They hurled him into one of Tehran's ubiquitous street-side drainage canals. They
grabbed at the briefcase filled with papers for the next day's defense.
Dadkhah refused to let go. They punched and kicked him. They ripped off a piece of the
briefcase and roared away into the night.
Panting in fear, his face scraped raw, his clothes soaking wet, Dadkhah pulled himself out
of the gutter and brushed himself off. When he got home, he caught his breath and
considered his options.
He was in his late 40s and had been working since 1979 as a lawyer, building up a
bustling practice. His father had been a lawyer, his uncle among the greatest litigators in
his native city of Esfahan and his grandfather a famous cleric and jurist.
This was 2000, and Iranian authorities had just arrested a member of the outlawed but
barely tolerated Freedom Movement and ordered him to appear before the Revolutionary
Court.
Dadkhah's decision to take on the case had raised eyebrows in the legal establishment.
Few, if any, lawyers represented defendants in the Revolutionary Court, which handles
politically charged cases.
"My worst fear was that they would kill me in an accident," he said of his decision to take
the case.
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With the clock ticking toward the court appearance, he contemplated his stark choice:
stand up for justice or protect his family, his wife and his children.
As the United States pressures Iran over its nuclear program and its alleged support of
militant groups across the Middle East, it also has decried human rights abuses in the
country. The Bush administration has refused to rule out military intervention against
Iran.
Inside the country, a small number of activists continue to struggle peacefully for change.
They are protected by a cadre of lawyers, including 2004 Nobel Peace laureate Shirin
Ebadi, the first Iranian to receive the prize.
But such defenders are few: Out of 27,000 licensed lawyers here, perhaps no more than
100 take on tough politically charged cases.
These lawyers say that for now they are able to work and speak their minds, and that
despite a recent reduction in political liberties, the climate here is comparable to that in
other Middle Eastern countries. But they also say they have to battle not just Iran's
Islamic laws but authoritarian mind-sets and powerful interests that often act with
impunity.
Most agree the legal climate has improved since the first days of the 1979 Islamic
Revolution, when signs saying, simply, "No Lawyers" went up outside courtrooms here.
The ayatollahs who had come to power were determined to break with the past. As Shiite
Islam became the rule of the land in Iran, secular lawyers not schooled in Sharia law were
considered suspect and branded atheists.
Among them was Mohammed Saifzadeh, a pious native of the holy city of Qom and
family friend of Ayatollah Ruhollah Khomeini. A judge in the 1970s, he says he once
signed a letter to the French authorities, urging them to give Khomeini shelter after he
was expelled from Iraq in 1978, a move he now says he regrets.
Saifzadeh says he wholeheartedly supported the revolution, only to be disillusioned.
"From the beginning of the revolution, I opposed the penal code, which included Islamic
punishments," says Saifzadeh, his brown eyes peering out from above large rectangular
eyeglasses. "I was opposed to allowing the clergy into the judiciary."
Saifzadeh was purged from his judicial post and banned from practicing law for more
than 10 years. Whenever he tried to work as a legal consultant, authorities pressured
employers to fire him. By the time he regained his legal accreditation in 1992, he had lost
his passion for law but had found one for human rights.
Since 1997, he has taken on more than 300 human rights cases: reporters charged with
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writing against the system, activists alleged to be subverting national security, scholars
accused of insulting Islam, members of the Bahai religious faith rejected from university
for their beliefs. He was one of Ebadi's lawyers when she was charged with security
crimes and locked up in prison.
Saifzadeh has been to prison nearly half a dozen times, tossed on several occasions into
solitary confinement. "Two months in solitary for someone like me," he says, heaving a
deep sigh, "it really changes your personality."
His wife was killed in a suspicious car accident, a hit-and-run that remains unsolved. He
remarried, to a lawyer. She promised to stick to lucrative real estate and tort cases.
"We are few because the danger is great," Saifzadeh says. "Lawyers here can make a lot
of money. Many of our fellow attorneys think we're just fools."
Khalil Bahramian is among those who know well the sacrifices and disappointments of
taking on Iran's establishment in court.
In 1984, Bahramian agreed to represent the parents of a young man who was allegedly
killed by members of the Black Scorpions, an offshoot of the Revolutionary Guard
Corps. It was his first human rights trial and among the first times the group had been
brought to court.
The suspects were well-connected and powerful. Bahramian says they called his relatives
and threatened to kill him. They accused him of being a communist. They torched his car.
Authorities decided to hear the case in the Revolutionary Court, which is stacked with
sympathizers of the Revolutionary Guard, whose elite Quds Force was recently labeled a
terrorist organization by the Bush administration.
But Bahramian, now 68, says he wasn't scared off that easily. His father was a labor
leader, organizing peasants among the rice paddies and orchards of the Caspian Sea coast
while evading the shah's secret police. A small copy of Picasso's "Guernica" hangs in his
office next to a statue of the 10th century Persian poet Ferdowsi.
"When you enter political work in Iran, you have to put your life aside," he says. "But
I've always been careful. I don't want to be a hero."
Bahramian made his arguments with the utmost care. "I told them, 'I want to remove
these black sheep from your flock.' "
To his shock, the judge sentenced the three suspects to death; an appellate court upheld
the verdict. But the case was later reopened and the defendants acquitted at the behest of
Iran's then-president, Ali Khamenei, now Iran's spiritual leader.
Lawyers dread arguing a case before the Revolutionary Court, or even entering and
exiting the court building. Men are harassed or barred for wearing ties, considered a sign
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of Western decadence, while women must adhere to the strictest Islamic dress codes.
The Revolutionary Court system runs parallel to its other courts and its jurisdiction
includes matters of national security, moral corruption, espionage and insurgency, and
insults to the pillars of the Islamic Republic, according to the website of Iran's judiciary.
Lawyers complain that the court sessions have a theatrical quality, with sentences
appearing preordained. The judge often acts as the prosecutor, grilling the suspect while
hurling insults at the lawyer. Often the judge won't acknowledge legal arguments or even
pay attention to the lawyer.
Under law, Revolutionary Court defendants are entitled to lawyers. But the judge
sometimes rejects the defendant's choice.
Once, lawyer Nasrine Sotoudeh tried to argue on behalf of two detained women's rights
activists. The judge refused to let her and ordered her out of the courtroom, but refused to
sign the document that would allow her to leave the building. She tried to walk out, but
the security guards stopped her. After waiting for hours, the guards finally let her out
without the signature.
"They don't want lawyers in there," she says. "Lawyers know the law. They protest."
Five months ago, the same judge summoned Sotoudeh to the Revolutionary Court. He
told her he'd read interviews she'd given to the international media and said that if she
continued, he'd throw her into jail.
"If I get thrown into prison, it would be a lot easier than dealing with these laws,"
Sotoudeh, 44, says.
The morning after his encounter with the motorcyclists, Dadkhah appeared in court. He
had decided that a few scrapes and bruises weren't going to stop him.
The judge accused his client of being a member of an outlawed political party. But
Dadkhah produced a letter from Iran's Interior Ministry, then under the control of reformminded moderates, that said it wasn't illegal.
This outraged the judge and other authorities. They overruled their own ministry but let
the defendant go.
The next year, Dadkhah was thrown into Evin Prison for five months. Prison authorities
put in him in solitary. Guards stripped him naked in the winter cold and threw him
against iron bars. They locked him up with common criminals, killers and drug dealers.
If the punishments, pressure and threats were supposed to send a message, they sent the
wrong one. The treatment only enraged Dadkhah. He sees himself as a Renaissance man
well-versed in poetry, history and architecture, as well as law. Throwing him in with
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common criminals was an insult.
Instead of lowering his profile, Dadkhah took on the case of Zahra Kazemi, an Iranian
Canadian journalist held in Evin Prison who eventually died of injuries allegedly suffered
at the hands of government officials.
Dadkhah expanded his law practice to nearly 20 attorneys, drawing in earnest interns
dedicated to defending women, trade unionists, students and activists and taking other
tough cases few other lawyers would. Every week, they canvass Evin, asking for new
prisoners detained on political charges or just in dire straits.
"A hundred years from now, I don't want people looking back and saying, 'No one stood
up,' " Dadkhah says. "Now at least they'll be able to say, 'Yes, a couple of people stood
up.' "
daragahi@latimes.com
4.5. The Torture Memos: Civil Rights vs. National Security
4.5.1. Professor John Yoo: Los Angeles Times 2005
http://www.latimes.com/news/printedition/la-me-yoo16may16,1,2991859.story
Scholar Calmly Takes Heat for His Memos on Torture
By Maria L. La Ganga
Times Staff Writer
May 16, 2005
BERKELEY — John Yoo doesn't come across like a war criminal, though that's one of
the more flamboyant charges leveled against the smooth young law professor from UC
Berkeley's storied Boalt Hall.
With his even tones and calm demeanor, his natty suits and warm charm, the 37-year-old
constitutional scholar is the embodiment of "reasonable," not the first person you'd expect
to find at the heart of an international fight over terrorism, torture and the American way.
But while working for the Department of Justice after the Sept. 11 terrorist attacks, Yoo
helped write a series of legal memos redefining torture and advising President Bush that
the Geneva Convention does not apply to members of Al Qaeda and the Taliban.
Sen. Edward M. Kennedy (D-Mass.) demanded from the Senate floor last month that Yoo
and other civilian officials be held accountable for their part in what he called the "torture
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scandal" over treatment of Iraqi detainees by American soldiers at Abu Ghraib prison in
Iraq.
Legal scholar Scott Horton, president of the New York-based International League for
Human Rights, called last month for Yoo and others to be investigated as war criminals
for their part in drafting the memos.
And in a lengthy analysis to be published in the Columbia Law Review this fall, Jeremy
Waldron, an author, scholar and Yoo's former colleague at the UC Berkeley School of
Law, said that the "defense of torture" by Yoo and other prominent lawyers had caused
"dishonor for our profession."
A year after the abuses at Abu Ghraib came to light, nearly a year after the torture memos
were leaked, debate over how the U.S. government should treat its prisoners shows no
sign of abating.
"If you read the history of philosophy from the Greeks to the present day, the question of
when should we be willing to do something terrible in pursuit of some social good is
always posed," said Martha Nussbaum, professor of philosophy and law at the University
of Chicago. "It would surprise me very much that it would go away."
But as Yoo defends the memos in debates across the country, a measured messenger for
some of the Bush administration's most controversial policies, he said he is surprised that
"the issue has staying power."
Maybe, he said, it's because the fight against terrorism shows no sign of an end. Maybe
it's because the government still does not know how best to battle the nation's new
enemies.
"If [Democrat John F.] Kerry had won the presidency," Yoo said in a recent interview,
"we'd still be trying to figure out what policies work against Al Qaeda and which ones to
adopt."
The memos about the Geneva Convention and torture are probably the two most
controversial documents Yoo worked on with a team of other lawyers when he was a
deputy assistant attorney general with the Office of Legal Counsel from 2001 to 2003.
The former bears Yoo's name; the latter, that of then-Assistant Atty. Gen. Jay S. Bybee,
who now sits on the U.S. 9th Circuit Court of Appeals.
Some human rights advocates argue that the administration commissioned the memos to
provide legal cover for increasingly coercive interrogation techniques used against
suspected terrorists. Yoo vehemently denies such accusations. The administration has
downplayed the memos' import and said that Bush never embraced the views of the
lawyers who wrote them.
At the Council on Foreign Relations and West Point, at Columbia Law School and at his
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own leafy, liberal campus, Yoo argues that the world as America knew it ended on Sept.
11, 2001, and that the rules of war have changed because the enemy has changed.
"Al Qaeda as a non-state terror organization is not covered" by laws, such as the Geneva
Convention, that are honored when the United States fights a bona fide state, Yoo argued
earlier this month during a debate at Berkeley. Thus, "our leaders have the option to
decide what system ought to apply."
The debate was a two-on-one bruising in front of an audience that politely applauded Yoo
while cheering his detractors, an event in which a law student dressed as an Iraqi torture
victim greeted spectators with a sign that read, "War criminal John Yoo facilitated
torture: He belongs in a prison not a law school."
But a funny thing happened near the end of the forum. Tom Farer, dean of the Graduate
School of International Studies at the University of Denver, was deep into a verbal salvo
when he exhausted his allotted time but not his argument. Yoo gave up one of his own
precious minutes so that Farer could continue pummeling him.
"John cedes a minute," Farer said with a smile before launching back into his attack.
"John is a mensch."
Farer would find little argument, at least on that point. Yoo inspires deep loyalty in
friends, mute collegiality in many fellow scholars ("You know, I'd really rather not talk
about him") and an awkward mixture of kindness and dread in some of his most vocal
critics.
And although Boalt students circulated a petition last year demanding that Yoo recant his
positions or resign, he also has charmed many of his liberal pupils with a ready classroom
wit. Others have been disappointed after signing up for one of his courses so they could
hear what a fire-breathing conservative actually sounds like only to find a mild-mannered
professor at the lectern, accessible and friendly.
"A lot of the concern is that people think he's dead wrong," said Ralph Steinhardt,
professor of law and international affairs at George Washington University. "But you
have to understand, from a personal standpoint, he's a nice guy, has a good sense of
humor, dresses nicely and is as smart as the day is long."
Naomi Roht-Arriaza, a professor of law and international human rights at UC Hastings
College of the Law, said she "substantively disagrees" with Yoo's analysis of the Geneva
Convention.
She also disagrees with a memo that he co-wrote redefining torture and reinterpreting
laws against it. The memo argued that interrogation methods qualify as physical torture
only if they inflict pain "of an intensity akin to that which accompanies serious physical
injury such as death or organ failure."
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"The reason why it was so upsetting to many of us was that what was presented as
mainstream opinion [in the memos] was very far from mainstream opinion," RohtArriaza said. On the other hand, Yoo "comes off as very soft-spoken and very
reasonable…. No horn. No tail."
A Korean immigrant who came to this country with his parents when he was 3 months
old, Yoo has been a prolific writer of journalism and scholarship since his undergraduate
days on the Harvard Crimson. He is a regular contributor to the opinion pages of major
newspapers, including the Los Angeles Times, New York Times and Wall Street Journal.
Yoo began teaching constitutional and international law at UC Berkeley in 1993. But he
has spent many of the subsequent years bouncing back and forth between academia and
government. Shortly after Yoo took the Berkeley job, Supreme Court Justice Clarence
Thomas tapped him for a clerkship.
When his clerkship with Thomas ended, he headed to the U.S. Senate Committee on the
Judiciary, where he served as general counsel and helped Sen. Orrin G. Hatch (R-Utah)
with his speeches. Hatch describes Yoo as "a terrific human being." Yoo calls Hatch "a
genuine softie."
Yoo completed a public service trifecta — working in all three branches of government
— with a stint in the Office of Legal Counsel, part of the Department of Justice overseen
by then-Atty. Gen. John Ashcroft, before returning to Boalt Hall last year.
It was there in the uncertain months after Sept. 11 that Yoo worked on the memos that
transformed him from a rising star in conservative legal circles to a lightning rod for
international controversy.
Studying law at Yale University, Yoo had specialized in "two areas that interested me
and not others": war powers and the original understanding of the role of judges. "Part of
the reason you pick ones like that when you're starting out is [that] they're not crowded
with other scholars," Yoo said.
But those choices put him at the center of some of the major issues of the new
millennium. Franklin Zimring, a fellow law professor at Boalt Hall, said, "At the
moment, John's Washington career probably merits two footnotes in American history….
For those of my colleagues who voted for [Democrat George] McGovern, which of the
two they'd consider most problematic would be hard to identify."
The first, Zimring said, was the 2000 presidential election stalemate. Shortly after the
legal impasse began, Yoo wrote op-ed articles in favor of Supreme Court intervention.
Yoo said that it would be a one-time action that would appropriately end a "bizarre"
dilemma without "federalizing a whole area of life."
The second? The torture memos, which were reported for the first time in Newsweek last
May, causing a fast and furious debate throughout the country, in the legal profession and
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on Yoo's campus.
In addition to the Boalt Hall petition, many law students and their family members wore
armbands at graduation protesting Yoo's writings as deputy assistant attorney general. A
month later, anti-Yoo demonstrators marched in downtown Berkeley.
Another campus petition came to his defense, charging that the furor over the memos was
an assault on Yoo's academic freedom.
Yoo was asked to speak in February at UC Irvine as part of the Chancellor's
Distinguished Fellow Series. Nearly 500 people signed a yet another petition demanding
that Chancellor Ralph Cicerone withdraw his invitation and "stand up for justice and the
rule of law in the United States and around the world."
A police escort whisked Yoo out of the Irvine engagement. Later that week, he was a noshow at a Berkeley debate on the memos because campus police had warned him of
concerns about security.
"I'd never received a call from a police officer at Berkeley before," Yoo said. "I didn't
want my speaking at an event to lead to anything unfortunate happening to someone."
Many legal scholars and human rights activists — along with Berkeley students — draw
a straight line linking the memos and alleged prisoner abuses in Iraq and Afghanistan and
at Guantanamo. Yoo argues that they do not understand how government really works.
"It's a stretch to say that a very limited, tightly held memo somehow translated into orders
that soldiers on the ground violated human rights," Yoo said. "That's the difference
between law and policy."
To his critics, such an argument is disingenuous, but Yoo continues to defend the memos
because he feels "some sense of obligation to explain to the public why government
reached some of the conclusions it did."
"No one goes into government wanting to address these kinds of questions," he said. "But
we were attacked on Sept. 11 with devastating results. Our government has to think about
these things in order to protect the country."
*
Redefining torture after Sept. 11, 2001
John Yoo helped Justice Department attorneys write a series of legal opinions that came
to be known as the torture memos. The opinions helped guide the Bush administration in
its treatment of detainees. Some memos bear Yoo's name. Others were signed by his
superiors. Some excerpts:
Sept. 25, 2001: "The president may deploy military force preemptively against terrorist
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organizations or the states that harbor or support them, whether or not they can be linked
to the specific terrorist incidents of Sept. 11."
Jan. 9, 2002: "We conclude that neither the federal War Crimes Act nor the Geneva
Conventions would apply to the detention conditions in Guantanamo Bay, Cuba, or to
trial by military commission of Al Qaeda or Taliban prisoners."
Aug. 1, 2002: "Severe pain is generally of the kind difficult for the victim to endure.
Where the pain is physical, it must be of an intensity akin to that which accompanies
serious physical injury such as death or organ failure."
Aug. 1, 2002: "Finally, even if an interrogation method might violate Section 2340A [of
Title 18 of the United States Code], necessity or self-defense could provide justifications
that would eliminate any criminal liability."
Source: "The Torture Papers: The Road to Abu Ghraib." edited by Karen J. Greenberg
and Joshua L. Dratel
Los Angeles Times
4.5.2. Professor John Yoo: California Lawyer 2007
September 2007 CALIFORNIA LAWYER MAGAZINE
Mad About Yoo
By Martin Lasden
Constitutional law professor John Yoo insists that in the war on terror, the
president can ignore all bans on torture. Got a problem with that?
Years before he was known as the mastermind behind the Justice Department's
infamous "torture memo"—a document so politically embarrassing that the Bush
administration itself eventually retracted it after it was leaked to the press—John Yoo
was viewed by his academic peers as a brilliant iconoclast, with some very interesting
things to say about the supremacy clause, the force of international law, and the powers
of the commander-in-chief. But writing for publications such as the Michigan Law
Review or the Chicago Journal of International Law is one thing; writing legal opinions
for the Justice Department on what a president can and cannot do after a terrorist attack is
quite another.
The torture memo was one of a series of secret opinions drafted after 9/11 by Yoo
and other members of an elite group of Justice Department law-yers called the Office of
Legal Counsel (OLC). Those opinions advanced legal theories that would give the
president the power to ignore both international treaties and domestic laws, eavesdrop on
U.S. citizens without warrants, and order the torture of suspected terrorists. It was tough
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stuff, authored by lawyers who were willing to push hard against the conventions of legal
analysis to fight the war on terror. ("Legal formalism run amok," is how one
commentator described a passage.) And no one, it seems, was willing to push harder than
John Yoo, who at age 35 had just started the second half of a two-year leave of absence
from UC Berkeley's Boalt Hall School of Law, where he held a tenured position.
To some, this makes Yoo a patriot of the first order. To others, he's a dangerous
ideologue. Last year a group of human rights lawyers from the New York—based Center
for Constitutional Rights filed a criminal complaint in Germany against Yoo, alleging
that he and other Bush administration officials were complicit in the abusive interrogation
techniques employed at both Guantanamo and Abu Ghraib. These techniques included
sexual humiliation, prolonged sleep deprivation, and the use of threatening dogs. (The
center filed its complaint under a German law that empowers that country's authorities to
hold trials against war criminals, irrespective of who they are or where their crimes
occur.)
When the torture memo became public in the spring of 2004, it engendered an
extraordinary show of outrage from politicians, civil libertarians, and constitutional
scholars. But Yoo did not recoil from the maelstrom. In fact, if anything, he seemed to
welcome the attention. He granted scores of interviews to the press, regularly participated
in debates and panel discussions, wrote more than 50 op-ed pieces for the general press—
including the Wall Street Journal and the New York Times—and published two books,
one of which, War by Other Means: An Insider's Account of the War on Terror (2006),
was billed as an uncompromising defense of his actions.
In it Yoo writes: "Much of the attention on me is due to the fact there are few Bush
Administration veterans who will defend their decisions in the war on terrorism in public.
Some inside and outside the administration have chosen to fall silent out of lawyerly
discretion, lack of time or energy, or fear of partisan attack. Others have tried to engage
in a series of self-serving leaks intended to distance themselves from those decisions. I
decided to explain the choices made by the Bush Administration in the very first months
of the war."
To be sure, nothing in War by Other Means or anything else Yoo has written
would sway those who believe that torture can never be legally or morally justified. But
most Americans probably don't hold that view. In fact, back in October 2005, when the
images from Abu Ghraib were still fresh on people's minds, the Pew Research Center for
the People and the Press found that 46 percent of Americans believed that torture "in
order to gain important information" could at least "sometimes" be justified. Another 17
percent said they wouldn't rule it out altogether.
Still, there is the sense that by reading the Constitution the way he did—especially when
it came to presidential power—Yoo had, as a Justice Department lawyer, crossed some
sort of line.
Long before he became a lawyer, Yoo thought of himself as a conservative. The
son of two South Korean psychiatrists, he was less than a year old when his parents
emigrated to Philadelphia. There he got a first-rate education. In fact, by the time he
entered Harvard as an undergraduate in 1985, he already had six years of Latin and five
years of Greek under his belt, and he knew his ancient history backwards and forwards.
Meanwhile, as an observer of his own time, he was deeply impressed by the Reagan
Revolution and the fight against Communism.
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"I would say that conservatives are much more dubious than liberals about human nature
and are much less confident of the ability of government to solve problems," he tells me
one morning during the first of two visits I pay to his Berkeley office. "Conservatives
would never expect to see an end to crime, for example. Or poverty. Those are, I think,
more or less permanent features of the human condition."
But if conservatives are skeptical of big government, then why, I ask him, wouldn't that
same skepticism apply to presidents who would take the country to war and curb civil
liberties in the process? "I think the government's primary duty is to protect the country
from attack," he answers.
Yoo is a soft-spoken, reserved man who can talk for hours without revealing very much
about himself. One of the few personal details that I tease out of our discussions is that
his wife, Elsa Arnett—a former journalist who happens to be the daughter of the Pulitzer
Prizewinning war correspondent Peter Arnett—wishes he would stay out of the limelight.
I also notice that he has a rather sly sense of humor. "Would it be accurate to describe
you as the most vilified law school professor in America?" I ask him at one point. "That's
just because people don't know more about what other law professors are doing," he
deadpans.
In his office at Boalt, a large Department of Justice seal hangs on the wall bearing the
best wishes of former colleagues, including the then-attorney general of the United
States, John Ashcroft. "Thank you for excellent service. We are stronger and safer
because of you," Ashcroft wrote. Yoo also has on display a photo of the nine U.S.
Supreme Court justices, taken in 1994, the year he clerked for Clarence Thomas after
graduating from Yale Law School. Yoo says he particularly likes this photograph because
in it the justices are pos-ing without their robes on. "I prefer to think of them as real
human beings," he tells me. "Not automatons or gods."
For all the attention that Yoo has drawn as a public servant, though, he thinks of himself
first and foremost as an academic; and for all the snide things he has to say about
Berkeley's left-leaning politics, he continues to feel very much at home at Boalt, where
he counts as friends a number of colleagues.
"I've known Yoo since we hired him," says Sanford Kadish, who's been a professor there
since 1964. "I find him to be very funny, affable, informed, opinionated, articulate,
brilliant, and perverse.
"Yeah," he laughs, "to me his ideas are perverse. And I've often told him that I thought he
was a great guy except that his views were wrongheaded."
Another professor who knows Yoo well is Jesse Choper, Boalt's dean from 1982 to 1992.
"He's a controversial guy," Choper admits, "and on basic matters regarding how the
courts should treat various challenges to the Constitution, we disagree. But I like him,
and we've written a few papers together."
Students who take his constitutional law classes also seem to have a favorable
impression of him. In fact, when a half-dozen protesters from a group calling itself World
Can't Wait broke into his classroom one day wearing orange jumpsuits to reenact the
abuses at Abu Ghraib, they were greeted with a round of boos. And on a student blog
called Nuts & Boalts, I have no trouble finding bloggers who say there's a clear
distinction to be made between Yoo's views and his merits as a teacher. "[W]hile almost
no students agree with his views," says one, "I have never heard a student who actually
took his class say they don't believe he should be here."
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Still, even among those who appreciate Yoo's charms, not everyone views him as simply
misguided. Take Jeremy Waldron, one of the country's most distinguished legal
philosophers, who in 1993 was on the Boalt steering committee that made the decision to
hire Yoo. "John was one of a group of emerging stars who had published a lot of
interesting stuff," remembers Waldron, a New Zealander who now teaches law at NYU.
"I disagreed with a lot of it, but it was well argued, and I thought he was a good prospect.
I actually liked him."
A dozen years later, though, when the two met to debate each other before an audience of
law students at Columbia University, Waldron admits, he had a hard time shaking Yoo's
hand. "It was heartbreak-ing," he says. "John turned up and expected that we would be
good friends, just as we always were. But what he did while in government, I believe,
was not only wrong but criminal, and quite possibly catastrophic in terms of the
reputation of the country."
As a mid-level official, Yoo was by most accounts unusually influential at the Office of
Legal Counsel. But it wasn't until late spring 2004, when he was back at Boalt, that
Newsweek broke the story that dramatically raised his profile. The story described an
OLC opinion, dated January 9, 2002, that had Yoo's name on it—a document that
foreshadowed the torture memo to come some seven months later.
"In a crucial memo written four months after the September 11, 2001, terror attacks," the
magazine reported, "Justice Department lawyers advised that President George W. Bush
and the U.S. military did not have to comply with any international laws in the handling
of detainees in the war on terrorism. It was that conclusion, say some critics, that laid the
groundwork for aggressive interrogation techniques that led to the abuses at the Abu
Ghraib prison in Iraq."
The Newsweek article came out about a month after 60 Minutes broadcast the first
photographs from Abu Ghraib—and just a few days before the graduation of nearly 300
Boalt Hall students.
At the amphitheater where the graduation ceremony was held, about a quarter of
the students showed up wearing red armbands over their black robes to express
disapproval of both Yoo and the memo. Law professor Linda Krieger remembers the
scene well. She was one of the commencement speakers and had planned to deliver a
fairly conventional talk. But that morning before she left her house, she read a newspaper
article about the release of yet another batch of disturbing images from Abu Ghraib, and
realized that she had to say more.
"At our best," she told the graduating class, "lawyers are keepers of our peoples' most
cherished values: due process, the right to be free of cruel and unusual punishment, the
right to a writ of habeas corpus, the right to judicial oversight. But to do this—to stand
for these values—we must use our skills, our abilities, and our privilege over and over
again, to give voice to the voiceless—to stand, over and over again, directly in the path of
the powerful. We must refuse to use our knowledge and skill to provide a veneer of
justification when our clients propose to undertake enterprises that our moral
commitments tell us are foolish or wrong.
"Let us not fool ourselves," she added. "The law itself provides no moral compass. Hitler
had lawyers too."
Yoo was not in the audience that day, so he did not hear Krieger's remarks. As he
explains it, "I didn't want to be a magnet for some sort of crazy person." But he was
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certainly well aware of the petition that a group of students was circulating around then,
calling on him to repudiate the positions he had taken while working at the Justice
Department. The petition also invited Yoo to resign his tenured position at Boalt should
he refuse to recant.
By the first of June, student organizers claimed to have collected more than 250
signatures from both law school students and alums. However, the effort soon bogged
down in what, for organizers, was a frustrating debate over academic freedom. "We never
asked that he actually be fired," explains Mazen M. Basrawi, one of the students behind
the petition drive. "That wasn't our position at all. Nor do we believe it was ever about
academic freedom. We were not interested in his academic writings. We were interested
in his actions as a government official."
As he thinks back on it, though, Basrawi, now an associate at Bingham
McCutchen in San Francisco, admits that calling for Yoo to resign probably wasn't such a
good idea. "We should have stayed focused on the moral position he had taken," he
says.About two weeks after the Newsweek story broke, the August 2002 torture memo
itself became public. It was signed by an assistant attorney general named Jay S. Bybee,
who is now a judge on the U.S. Court of Appeals for the Ninth Circuit. But soon Yoo
came forward to acknowledge that he had played a pivotal role in its drafting.
"In August 2002," the Washington Post reported, "the Justice Department advised
the White House that torturing al Qaeda terrorists in captivity abroad 'may be justified,'
and that international laws against torture 'may be unconstitutional if applied to
interrogations' conducted in President Bush's war on terrorism."
As the memo itself declared: "Congress may no more regulate the President's
ability to detain and interrogate enemy combatants than it may regulate his ability to
direct troop movements on the battlefield." The memo also provided a working definition
of torture that gave maximum leeway to interrogators who might otherwise be accused of
breaking a law Congress had passed in 1994 (18 U.S.C. § 2340—40A), which outlawed
the torture of overseas prisoners. "We conclude," said the memo, "that for an act to
constitute torture as defined in Section 2340 it must inflict pain that is difficult to endure.
Physical pain amounting to torture must be equivalent in intensity to the pain
accompanying serious physical injury, such as organ failure, impairment of bodily
function, or even death."
Such language could easily have been used to justify any of a number of abuses
committed at Abu Ghraib—which, after the pictures came out, even Yoo would
acknowledge amounted to illegal abuse. But the organ-failure definition of torture wasn't
all that proved controversial. Critics also strongly objected to how that definition was
arrived at—not through a careful analysis of international law, but rather by taking out of
context the words used in a federal health care statute to define a medical emergency.
The memo also discussed various legal defenses that interrogators might use if
ever accused of violating the 1994 torture statute, such as the necessity defense. (The
memo neglected to mention, however, that a year earlier a majority of justices on the U.S.
Supreme Court questioned whether the necessity defense could ever be used when the
federal statute in question does not explicitly provide for it.) (United States v. Oakland
Cannabis Buyers' Coop (532 U.S. 483 (2001).)
When the torture memo was leaked to the press, law professors Eric Posner and
Adrian Vermeule, both then at the University of Chicago, were among the few academics
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who publicly defended it. "The academic critics have puffed up an intramural
methodological disagreement among constitutional lawyers into a test of professional
competence," they wrote in an op-ed piece published in the Wall Street Journal on July 6,
2004. "Although we disagree with some of the memo's conclusions, its arguments fall
squarely within the OLC's longstanding jurisprudence, stretching across many
administrations of different parties, which emphasizes an expansive reading of
presidential power. ... [T]he memorandum's arguments," the professors added, "are
standard lawyerly fare, routine stuff."
However, to the vast majority of scholars who weighed in, the torture memo was
anything but routine. One of the sharpest critiques came from Harold Hongju Koh, an
international law expert and former OLC lawyer who had been one of Yoo's mentors at
Yale before becoming the law school's dean. "[T]he August 1, 2002, memorandum is a
stain upon our law and our national reputation," Koh declared in testimony before the
U.S. Senate Judiciary Committee, which at the time was considering the nomination of
Alberto Gonzales to succeed John Ashcroft as attorney general. "A legal opinion that is
so lacking in historical context," Koh continued, "that offers a definition of torture so
narrow that it would have exculpated Saddam Hussein, that reads the commander-inchief power so as to remove Congress as a check against torture, that turns Nuremberg on
its head, and that gives government officials a license for cruelty can only be described—
as my predecessor Eugene Rostow described the Japanese internment cases—as a
'disaster'."
Others who commented on the controversy include former CIA director R. James
Woolsey, who said, "In a democratic country bounded by religious faith, there is no room
for unbounded power over any human being," and former secretary of state Colin Powell,
who declared, "The world is beginning to doubt the moral basis of our fight against
terrorism." Even the former head of the Office of Legal Counsel during the Reagan
administration, Douglas W. Kmiec, expressed reservations. "[I]t starts with a premise that
extreme methods of interrogation are needed. Why would you start with that premise?"
he asked.
In an open letter to President Bush that summer, nearly 130 U.S. jurists, including
nine former federal judges and eight past presidents of the American Bar Association,
formally condemned both the January and the August 2002 memos, accusing their
authors of unprofessional conduct. "The lawyers who prepared and approved of these
memoranda," their statement read, "have failed to meet their professional obligations.
They have counseled individuals to ignore the law and offered arguments to minimize the
exposure to sanction or liability for doing so."
Meanwhile, among a handful of scholars, mostly on the East Coast, the memos
triggered a blogging frenzy that continues to this day. Martin Lederman, a former OLC
lawyer, for one, now has more than 200 postings about Yoo's writings and related topics
on a blog called Balkinization, which was started by a Yale law professor named Jack
Balkin. "I got into this," says Lederman, "because I'm very concerned about the OLC as
an institution." Georgetown University's David Luban is another academic who has
devoted the past three years to writing lengthy articles dissecting Yoo's work and the
torture memo. "I've said to my wife that it would be nice to go back to doing scholarship
that's creating rather than destroying something," he laughs. "But it's amazing how many
Americans still don't know about all this." And then there's Scott Horton, a lawyer and
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human rights activist who draws an analogy between Yoo's writings and those of a Nazi
legal scholar named Carl Schmitt. It was Schmitt who, during World War II, advanced
the theory that Germany was engaged in a new kind of ideological war against the
Bolsheviks, who did not fight in a conventional manner and therefore did not qualify for
protection under the rules of war.
With respect to the torture memo specifically, what the human rights activists
feared most was that it would, on a global scale, undermine the taboo against torture—a
taboo that no country had worked harder to advance than the United States.
From there, the objections got more technical. Why, the critics asked, didn't the
memo mention Youngstown Sheet & Tube Co. Et Al v. Sawyer (343 U.S. 579 (1952)),
which is generally considered the landmark case on the limits of presidential power in
wartime? (In that case, the U.S. Supreme Court held that President Truman could not,
without the approval of Congress, seize steel mills that had been shut down by a labor
strike during the Korean War.) Why, in its analysis, didn't the memo refer to that part of
Article 1, Section 8 of the Constitution that grants Congress the power not only to "make
rules concerning captures on land and water," but also to "define and punish ... offences
against the law of nations"? Why not include the position that the United States
articulated in its report to the U.N. Committee against Torture in 1999, which declared,
"No exceptional circumstances may be invoked as a justification of torture"?
The questions went on. Why wasn't the torture memo circulated to other
departments within the administration, such as the State Department, for review? Why
was no more than a cursory analysis made of the numerous court cases analyzing the
meaning of torture under the Convention Against Torture and Other Cruel, Inhuman and
Degrading Treatment—ratified by the United States in 1994—many of which departed
from the memo's conclusions? And why didn't the Justice Department lawyers address
the possibility of misidentifying terrorists—a possibility that could not reasonably be
judged as remote, given reports coming out of the military as early as February 2002 that
as many as half of the initial detainees at Guantanamo had little or no intelligence value?
"I think many of the critics take the memo in isolation and its passages out of context,"
Yoo tells me when I start to press him on some of these points. "The memo wasn't written
for the general lay public. I think it has a specific purpose, which is to interpret a statute
in certain circumstances, and the questions that may have been controversial were also
addressed by other memos that the office issued. And I think anyone in the government
realizes it is controversial. You don't need to say, 'Oh, the conflict between the president's
commander-in-chief powers and Congress's powers is a controversial subject,' because
the office wrote a series of memos well before 9/11 that addressed these issues and
identified them as problematic. I think the point of this kind of memo was to create clear
rules."
Yoo also explains why his superiors decided not to circulate the torture memo to other
administration departments. "I think they were worried about leaks," he says, adding that
if the enemy had known what American forces were prepared to do, they might have
been better able to train their people to resist. And as for the legal ramifications of
mistakenly torturing the wrong people, Yoo says he didn't address that issue in the memo
because no one raised it.
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As Yoo answers my questions, he displays an unflappability that is impressive. But when
I ask him about his views on abortion, he appears genuinely puzzled.
It is not a gratuitous question: The August 1, 2002, memo suggests that, while a
necessity defense could be used by the accused in a torture case, it might not necessarily
be available to a doctor who performs an abortion, even if it is to save the mother's life.
Does Yoo believe that torture is more defensible than a life-saving abortion?
"I don't remember anything about abortion in the memo," he tells me.
In the talks he gives around the country, Yoo likes to begin by telling his listeners how
grateful he is for the chance to get away from the "People's Republic of Berkeley"—a
line that always seems to draw a laugh, even from hostile audiences. He also likes to
drive home the distinction between war and crime. Within the criminal justice system, he
notes, the focus is on holding people responsible for crimes they've already committed.
But in war, it's not about punishing anyone; it's about preventing future attacks. Hence,
the need to forcefully extract information from people.
Yoo makes the case that prisoners of war held abroad do not have the right of
habeas corpus under our Constitution. At the same time, he argues that the war we are
now engaged in is an unprecedented conflict against an unconventional enemy that
neither qualifies for nor deserves the protections this country has traditionally provided to
prisoners of war under the Geneva Conventions. That's why he's so careful to refer to the
people we have locked up at Guantanamo and elsewhere as "detainees" or "enemy
combatants," or "illegal enemy combatants," rather than "prisoners."
"Look, death is worse than torture," he told a British reporter several months ago,
"but everyone except pacifists thinks there are circumstances in which war is justified.
War means killing people. If we are entitled to kill people, we must be entitled to injure
them. I don't see how it can be reasonable to have an absolute prohibition on torture when
you don't have an absolute prohibition on killing. Reasonable people will disagree about
when torture is justified. But that, in some circumstances, it is justified seems to me to be
just moral common sense. How could it be better that 10,000 or 50,000 or a million
people die than that one person be injured?"
When Waldron, the legal philosopher, addressed that question in his debate with Yoo at
Columbia two years ago, however, he argued passionately that there is no way to be
provisionally in favor of torture—or torture lite, as some would call it—without falling
into a moral abyss.
"There's no provision in our anti-torture statute for varying the provision in times
of emergency," Waldron declared. "So to sneakily mess with the definition to preserve
the letter of that while undermining the spirit seems to me to be a terrible mistake and
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flies directly in the face of the absoluteness of the prohibition.
"When we laid down the absolute prohibition on torture in these human rights
instruments," Waldron continued, "we didn't do so as a sort of peacetime game that has
no application in times like these. We laid down this norm in a calm hour no doubt
specifically to constrain ourselves, because we thought we'd probably be incapable of
thinking responsibly about these matters in times of panic or fear or anger. So I have no
time at all for the proposition that this most fundamental of human rights requirements
means one thing in peacetime and can be construed to mean another thing in times of
stress and danger."
Yoo, of course, offered a very different perspective. "Let me give a real case," he said
when it was his turn to speak. "So the government captures Abu Zubaydah in the spring
of 2002, who at the time is the number three leader of al Qaeda, responsible for all the
operational planning, and he's been trained to resist all the standard interrogation
techniques that, I think, go no further than shouting loudly or playing various good-cop,
bad-cop games. So what I didn't hear Jeremy say is what he would be willing to do to
interrogate that person short of torture. Now if you're going to classify torture as
everything that extends beyond shouting at someone or trying to play tricks on them like
good cop, bad cop, then I think we do have a difference. Should we not consider things
that other democracies have done, such as Israel and Great Britain, when faced by
terrorist threats—things that go beyond simple questioning? What about some of the
things that the military does to its own troops in basic training. Would these all be
prohibited? Would physical labor be prohibited? Would it be prohibited to let someone
sleep only seven hours a day? There are a whole number of things possible that don't
involve the infliction of severe physical or mental pain or suffering for the purpose of
interrogation but may produce useful information, particularly from people like the
leaders of al Qaeda, who have in their heads the plans for attacking the United States."
When it was Waldron's turn again, the moderator of the debate—a Columbia law
professor—asked him to consider a carefully crafted tickingtime bomb scenario. "Let's
make the assumption," she said, "that interrogation procedures that involve torture yield
good information. Let's assume further that a nuclear device is set to go off in an
American city. U.S. authorities have 20 terrorists in custody, and we know that one of
them knows where the device is and how to defuse it. Are we justified in using torture on
all 20 to get the information and in the process save millions of innocent lives, or are we
morally obliged to refrain?"
"It's a bad and corrupt question," Waldron began, "but I said I would answer it,
and I will. ... You could make it even worse. You can say it's a bomb planted in a New
Zealand city. (Laughter) You could have the terrorists be convicted terrorists and not just
suspected terrorists. The answer would be the same. It's the answer that the law requires.
It's the answer that morality requires. It's the answer that my religion requires: In no
circumstances is torture to be resorted to. There's nothing in the law about nuclear
weapons. There's nothing in the law about people who we are sure know the location of
explosive devices. The law is unambiguous. It's an absolute prohibition. And for many of
us, on ethical grounds and religious grounds, it's an absolute moral prohibition as well.
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There are some things that are ruled out. Not everything is permissible, and you can't
make things permissible simply by making the bomb bigger or changing the arithmetic.
We can change the hypothetical a little bit and talk not about torture but about raping the
detainees or their girlfriends ... or their mothers, and I believe for most people in this
room there comes a point when you say, 'No, there are certain things that must not be
done.' And we would take the hit, and the device would go off and the people would be
blown up, and we would take some responsibility for that since it is a product of our
moral choices. But unless we are prepared to say that we recognize no standards and that
there are no limits on what we can do, unless we adopt this sort of relativism, then it
seems to me we are at the mercy of the arithmetic."
Yoo, however, is clearly guided by the arithmetic. "When it comes to policymaking," he
tells me, "I think you have to be a consequentialist. You couldn't make decisions in
government if you were anything but," he adds, "because you always have to make tradeoffs."
To this day, Yoo insists that the secret torture memo that he was so instrumental in
drafting did not lead to the abuses at Abu Ghraib, which he blames only on low-ranking
soldiers. (Since my last interview with Yoo, however, Antonio Taguba, the two-star
general, now retired, who led the first investigation into those abuses, has said publicly
that he believes high-level Department of Defense officials bear responsibility for what
happened.) Yoo also denies that there's any reasonable connection to be made between
Abu Ghraib and Guantanamo—despite the findings of at least one military investigation
(the Schmidt Report) documenting Abu Ghraib—like abuses at Guantanamo, authorized
by the secretary of defense. But most of all, Yoo believes that to deal with the threats
posed by al Qaeda and other nonstate actors—threats that probably won't go away
anytime soon—Americans will not only have to get used to a stronger executive branch
than many would like, but also be willing to compromise their civil liberties from time to
time.
It doesn't make sense to me to try and restrict the power of the president when we're not
sure yet what the future threats are," he says. "I think the government has so far been
successful at stopping another 9/11. And I think that at least in part we've been successful
because of the president's expanded powers."
From the Torture Memo
"Physical pain amounting to torture must be equivalent in intensity to the pain
accompanying serious physical injury, such as organ failure, impairment of bodily
function or even death." [Within the document, this definition of torture is used a total of
four times.]
"For purely mental pain or suffering to amount to torture under Section 2340, it
must result in significant psychological harm of significant duration, e.g. lasting for
months or even years."
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"Torture is thus to be distinguished from lesser forms of cruel, inhuman, or
degrading treatment or punishment, which are to be deplored and prevented, but are not
so universally and categorically condemned as to warrant the severe legal consequences
that the Convention [Against Torture] provides in case of torture."
"Even if an interrogation method arguably were to violate Section 2340A, the
statute would be unconstitutional if it impermissibly encroached on the President's
constitutional power to conduct a military campaign."
"Congress may no more regulate the President's ability to detain and interrogate
enemy combatants than it may regulate his ability to direct troop movements on the
battlefield."
"We believe that a defense of necessity could be raised, under the current
circumstances, to an allegation of a Section 2340A violation."
"[I]f Congress explicitly has made clear that violation of a statute cannot be
outweighed by the harm avoided, courts cannot recognize the necessity defense. LaFave
and Israel provide as an example an abortion statute that made clear that abortions even
to save the life of the mother would still be a crime; in such cases the necessity defense
would be unavailable. Here, however, Congress has not explicitly made a determination
of values vis-ã-vis torture."
Martin Lasden is the editor of California Lawyer.
4.6. Civil Rights vs. National Security: DOJ Lawyers Revolt
E. DOJ Lawyers Revolt
MSNBC.com
Palace Revolt
They were loyal conservatives, and Bush appointees. They fought a quiet battle to
rein in the president's power in the war on terror. And they paid a price for it. A
NEWSWEEK investigation.
By Daniel Klaidman, Stuart Taylor Jr. and Evan Thomas
Newsweek
Feb. 6, 2006 issue - James Comey, a lanky, 6-foot-8 former prosecutor who looks a
little like Jimmy Stewart, resigned as deputy attorney general in the summer of
2005. The press and public hardly noticed. Comey's farewell speech, delivered in the
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Great Hall of the Justice Department, contained all the predictable, if heartfelt,
appreciations. But mixed in among the platitudes was an unusual passage. Comey
thanked "people who came to my office, or my home, or called my cell phone late at
night, to quietly tell me when I was about to make a mistake; they were the people
committed to getting it right-and to doing the right thing-whatever the price. These
people," said Comey, "know who they are. Some of them did pay a price for their
commitment to right, but they wouldn't have it any other way."
One of those people-a former assistant attorney general named Jack Goldsmith-was
absent from the festivities and did not, for many months, hear Comey's grateful
praise. In the summer of 2004, Goldsmith, 43, had left his post in George W. Bush's
Washington to become a professor at Harvard Law School. Stocky, rumpled, genial,
though possessing an enormous intellect, Goldsmith is known for his lack of
pretense; he rarely talks about his time in government. In liberal Cambridge, Mass.,
he was at first snubbed in the community and mocked as an atrocity-abetting war
criminal by his more knee-jerk colleagues. ICY WELCOME FOR NEW LAW PROF,
headlined The Harvard Crimson.
They had no idea. Goldsmith was actually the opposite of what his detractors
imagined. For nine months, from October 2003 to June 2004, he had been the
central figure in a secret but intense rebellion of a small coterie of Bush
administration lawyers. Their insurrection, described to NEWSWEEK by current and
former administration officials who did not wish to be identified discussing
confidential deliberations, is one of the most significant and intriguing untold stories
of the war on terror.
These Justice Department lawyers, backed by their intrepid boss Comey, had stood
up to the hard-liners, centered in the office of the vice president, who wanted to give
the president virtually unlimited powers in the war on terror. Demanding that the
White House stop using what they saw as farfetched rationales for riding rough-shod
over the law and the Constitution, Goldsmith and the others fought to bring
government spying and interrogation methods within the law. They did so at their
peril; ostracized, some were denied promotions, while others left for more
comfortable climes in private law firms and academia. Some went so far as to line up
private lawyers in 2004, anticipating that the president's eavesdropping program
would draw scrutiny from Congress, if not prosecutors. These government attorneys
did not always succeed, but their efforts went a long way toward vindicating the
principle of a nation of laws and not men.
The rebels were not whistle-blowers in the traditional sense. They did not wantindeed avoided-publicity. (Goldsmith confirmed public facts about himself but
otherwise declined to comment. Comey also declined to comment.) They were not
downtrodden career civil servants. Rather, they were conservative political
appointees who had been friends and close colleagues of some of the true believers
they were fighting against. They did not see the struggle in terms of black and white
but in shades of gray-as painfully close calls with unavoidable pitfalls. They worried
deeply about whether their principles might put Americans at home and abroad at
risk. Their story has been obscured behind legalisms and the veil of secrecy over the
White House. But it is a quietly dramatic profile in courage. (For its part the White
House denies any internal strife. "The proposition of internal division in our fight
against terrorism isn't based in fact," says Lea Anne McBride, a spokeswoman for
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Vice President Dick Cheney. "This administration is united in its commitment to
protect Americans, defeat terrorism and grow democracy.")
The chief opponent of the rebels, though by no means the only one, was an equally
obscure, but immensely powerful, lawyer-bureaucrat. Intense, workaholic (even by
insane White House standards), David Addington, formerly counsel, now chief of
staff to the vice president, is a righteous, ascetic public servant. According to those
who know him, he does not care about fame, riches or the trappings of power. He
takes the Metro to work, rather than use his White House parking pass, and refuses
to even have his picture taken by the press. His habitual lunch is a bowl of gazpacho,
eaten in the White House Mess. He is hardly anonymous inside the government,
however. Presidential appointees quail before his volcanic temper, backed by
assiduous preparation and acid sarcasm.
Addington, 49, has worked as an adviser to Dick Cheney off and on since Cheney
was a member and Addington a staffer on the House Intelligence Committee in the
mid-'80s. When Cheney became secretary of Defense in the Bush 41 administration,
Addington served at the Pentagon as general counsel. When Cheney became vice
president to Bush 43, he brought Addington into the White House as his lawyer.
Counsel to the vice president is, in most administrations, worth less than the
proverbial bucket of warm spit, but under Prime Minister Cheney, it became a vital
power center, especially after 9/11.
Like his boss, Addington has long believed that the executive branch was pitifully
weakened by the backlash from Vietnam and the Watergate scandal. Fearful of
investigative reporters and congressional subpoenas, soldiers and spies had become
timid-"risk averse" in bureaucratic jargon. To Addington and Cheney, the 9/11
attacks-and the threat of more and worse to come-were perfect justification for
unleashing the CIA and other long-blunted weapons in the national-security arsenal.
Secretary of Defense Donald Rumsfeld, who disdains lawyers, was ready to go. So,
too, was CIA Director George Tenet-but only if his spooks had legal cover, so they
wouldn't be left holding the bag if things went wrong.
Addington and a small band of like-minded lawyers set about providing that cover-a
legal argument that the power of the president in time of war was virtually
untrammeled. One of Addington's first jobs had been to draft a presidential order
establishing military commissions to try unlawful combatants-terrorists caught on the
global battlefield. The normal "interagency process"-getting agreement from lawyers
at Defense, State, the intelligence agencies and so forth-proved glacial, as usual. So
Addington, working with fellow conservative Deputy White House Counsel Timothy
Flanigan, came up with a solution: cut virtually everyone else out. Addington is a
purist, not a cynic; he does not believe he is in any way ignoring or twisting the law.
It is also important to note that Addington was not sailing off on some personal
crusade; he had the full backing of the president and vice president, who shared his
views. But, steeped in bureaucratic experience and clear in his purpose, Addington
was a ferocious infighter for his cause. (Addington declined to comment. But
McBride, the vice president's spokeswoman, said, "David Addington has a long,
distinguished record of public service. He's committed to the president's agenda.")
Inexperienced in national-security law, White House Counsel Alberto Gonzales was
steered by more-expert lawyers like Addington and Flanigan. Others, like John
Bellinger, the National Security Council's top lawyer, were simply not told what was
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going on. Addington and the hard-liners had particular disregard for Bellinger, who
was considered a softie-mocked by Addington because he had lunch once a month or
so with a pillar of the liberal-leaning legal establishment, the late Lloyd Cutler. When
Addington and Flanigan produced a document-signed by Bush-that gave the
president near-total authority over the prosecution of suspected terrorists, Bellinger
burst into Gonzales's office, clearly upset, according to a source familiar with the
episode. But it was too late.
Addington was just getting started. Minimizing dissent by going behind the backs of
bureaucratic rivals was how he played the game. A potentially formidable obstacle,
however, was the Justice Department's Office of Legal Counsel. The OLC is the most
important government office you've never heard of. Among its bosses-before they
went on the Supreme Court-were William Rehnquist and Antonin Scalia. Within the
executive branch, including the Pentagon and CIA, the OLC acts as a kind of mini
Supreme Court. Its carefully worded opinions are regarded as binding precedent-final
say on what the president and all his agencies can and cannot legally do.
Addington found an ally in an OLC lawyer whose name-John Yoo-would later become
synonymous with the notion that power is for the president to use as he sees fit in a
time of war. Shortly after 9/11, Yoo wrote, in a formal OLC opinion, that Congress
may not "place any limits on the President's determinations as to any terrorist
threat, the amount of military force to be used in response, or the method, timing,
and nature of the response."
The brainy, pleasant and supremely self-confident Yoo became Addington's main
man at Justice, a prolific author of legal opinions granting the president maximum
power during wartime. In the winter of 2002, the CIA began catching top Qaeda
terrorists-so-called High Value Targets-like Abu Zubaydah. These hard-case jihadists
proved resistant to normal methods of interrogation. In the fevered atmosphere of
the time, the Bush administration feared a "second wave" attack from Qaeda sleeper
cells still inside the United States. The CIA wanted legal permission to use "coercive
methods."
An August 2002 OLC memo, signed by the then head of the OLC-Jay Bybee-but
drafted by Yoo, gave the agency what it needed. The controversial document, which
became famous as the "torture memo" when it leaked two years later, defined
torture so narrowly that, short of maiming or killing a prisoner, interrogators had a
free hand. What's more, the memo claimed license for the president to order
methods that would be torture by anyone's definition-and to do it wholesale, and not
just in specific cases. A very similar Yoo memo in March 2003 was even more
expansive, authorizing military interrogators questioning terror suspects to ignore
many criminal statutes-as well as the strict interrogation rules traditionally used by
the military. Secretary of Defense Rumsfeld put some limits on interrogation
techniques, and they were intended to be used only on true terror suspects. Perhaps
inevitably, however, "coercive interrogation methods" spread from Guantanamo Bay,
which housed terror suspects, into prisons like Abu Ghraib, where detainees could be
almost anyone. (Poor leadership in the chain of command and on the ground was
partly to blame, as well as loose or fuzzy legal rules.) The result: those grotesque
images of Iraqis being humiliated by poorly trained and sadistic American prison
guards, not to mention prisoners who have been brutalized and in some cases killed
by interrogators in Afghanistan and elsewhere.
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In the summer of 2003, Yoo, who stands by his body of work, left the Justice
Department and returned to teaching law. His departure came in the midst of a
critical power struggle. Addington and Gonzales had both wanted to make Yoo head
of the OLC when Bybee went off to take a federal judgeship in March 2003, but
Attorney General John Ashcroft balked. Ashcroft's reasons were apparently
bureaucratic. (He declined to speak for this story.) According to colleagues, he
resented Yoo's going behind his back to give the White House a private pipeline into
the OLC. Yoo denied circumventing Ashcroft. "OLC kept the attorney general or his
staff fully informed of all of its work in the war on terrorism," he said.
Jack Goldsmith, a law professor who was working in the general counsel's office at
the Pentagon, was the eventual compromise choice to head the OLC. Goldsmith
seemed like a natural fit. He was brilliant, a graduate of Oxford and Yale Law School,
and he was conservative. Like Yoo, he was tagged a "New Sovereigntist" for his
scholarly argument that international laws including prohibitions on human-rights
abuses should not be treated as binding law by the U.S. courts.
But somehow, in the vetting of Goldsmith, one of his important views was
overlooked. Goldsmith is no executive-power absolutist. What's more, his friends
say, he did not intend to be a patsy for Addington and the hard-liners around
Cheney. Goldsmith was not the first administration lawyer to push back against
Addington & Co. At the CIA, general counsel Scott Muller had caused a stir by ruling
that CIA agents could not join with the military in the interrogation of Iraqi prisoners.
But Goldsmith became a rallying point for Justice Department lawyers who had legal
qualms about the administration's stance.
Goldsmith soon served notice of his independence. Shortly after taking over the OLC
in October 2003, he took the position that the so-called Fourth Geneva Conventionwhich bars the use of physical or moral coercion on prisoners held in a militarily
occupied country-applied to all Iraqis, even if they were suspected of belonging to Al
Qaeda.
Addington soon suffered pangs of buyer's remorse over Goldsmith. There was no
way to simply ignore the new head of the OLC. Over time, Addington's heartburn
grew much worse. In December, Goldsmith informed the Defense Department that
Yoo's March 2003 torture memo was "under review" and could no longer be relied
upon. It is almost unheard-of for an administration to overturn its own OLC opinions.
Addington was beside himself. Later, in frequent face-to-face confrontations, he
attacked Goldsmith for changing the rules in the middle of the game and putting
brave men at risk, according to three former government officials, who declined to
speak on the record given the sensitivity of the subject.
Addington's problems with Goldsmith were just beginning. In the jittery aftermath of
9/11, the Bush administration had pushed the top-secret National Security Agency to
do a better and more expansive job of electronically eavesdropping on Al Qaeda's
global communications. Under existing law-the Foreign Intelligence Surveillance Act,
or FISA, adopted in 1978 as a post-Watergate reform-the NSA needed (in the
opinion of most legal experts) to get a warrant to eavesdrop on communications
coming into or going out of the United States. Reasoning that there was no time to
obtain warrants from a secret court set up under FISA (a sometimes cumbersome
process), the Bush administration justified going around the law by invoking a post9/11 congressional resolution authorizing use of force against global terror. The
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eavesdropping program was very closely held, with cryptic briefings for only a few
congressional leaders. Once again, Addington and his allies made sure that possible
dissenters were cut out of the loop.
There was one catch: the secret program had to be reapproved by the attorney
general every 45 days. It was Goldsmith's job to advise the A.G. on the legality of
the program. In March 2004, John Ashcroft was in the hospital with a serious
pancreatic condition. At Justice, Comey, Ashcroft's No. 2, was acting as attorney
general. The grandson of an Irish cop and a former U.S. attorney from Manhattan,
Comey, 45, is a straight arrow. (It was Comey who appointed his friend-the equally
straitlaced and dogged Patrick Fitzgerald-to be the special prosecutor in the Valerie
Plame leak-investigation case.) Goldsmith raised with Comey serious questions about
the secret eavesdropping program, according to two sources familiar with the
episode. He was joined by a former OLC lawyer, Patrick Philbin, who had become
national-security aide to the deputy attorney general. Comey backed them up. The
White House was told: no reauthorization.
The angry reaction bubbled up all the way to the Oval Office. President Bush, with
his penchant for put-down nicknames, had begun referring to Comey as "Cuomey" or
"Cuomo," apparently after former New York governor Mario Cuomo, who was
notorious for his Hamlet-like indecision over whether to seek the Democratic
presidential nomination in the 1980s. A high-level delegation-White House Counsel
Gonzales and chief of staff Andy Card-visited Ashcroft in the hospital to appeal
Comey's refusal. In pain and on medication, Ashcroft stood by his No. 2.
A compromise was finally worked out. The NSA was not compelled to go to the
secret FISA court to get warrants, but Justice imposed tougher legal standards
before permitting eavesdropping on communications into the United States. It was a
victory for the Justice lawyers, and it drove Addington to new levels of vexation with
Goldsmith.
Addington is a hard man to cross. Flanigan, his former White House colleague,
described his M.O.: "David could go from zero to 150 very quickly. I'm not sure how
much is temper and how much is for effect. At a meeting with government
bureaucrats he might start out very calm. Then he would start with the sarcasm. He
could say, 'We could do that, but that would give away all of the president's power.'
All of a sudden here comes David Addington out of his chair. I'd think to myself we're
not just dancing a minuet, there's a little slam dancing going on here." But
Addington "usually had the facts, the law and the precedents on his side," says
Flanigan. He had another huge advantage. He never needed to invoke Cheney's
name, but everyone knew that he spoke for the vice president.
Addington was particularly biting with Goldsmith. During a long struggle over the
legality of the August 2002 torture memo, Addington confronted Goldsmith,
according to two sources who had heard accounts of the conversation: "Now that
you've withdrawn legal opinions that the president of the United States has been
relying on, I need you to go through all of OLC's opinions [relating to the war on
terror] and let me know which ones you still stand by," Addington said.
Addington was taking a clever dig at Goldsmith-in effect, accusing him of
undermining the entire edifice of OLC opinions. But he was not making a rhetorical
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point. Addington began keeping track of opinions in which he believed Goldsmith was
getting wobbly-carrying a list inside his suit pocket.
Goldsmith was not unmoved by Addington's arguments, say his friends and
colleagues. He told colleagues he openly worried that he might be putting soldiers
and CIA officers in legal jeopardy. He did not want to weaken America's defenses
against another terrorist attack. But he also wanted to uphold the law. Goldsmith,
known for putting in long hours, went to new extremes as he reviewed the OLC
opinions. Colleagues received e-mails from him at all hours of the night. His familyhis wife, 3-year-old son and newborn baby boy-saw him less and less often.
Sometimes he would take his older boy down to the Justice Department's Command
Center on Saturdays, just to be near him.
By June 2004, the crisis came to a head when the torture memo leaked to The
Washington Post. Goldsmith was worn out but still resolute. He told Ashcroft that he
was formally withdrawing the August 2002 torture memo. With some prodding from
Comey, Ashcroft again backed his DOJ lawyers-though he was not happy to engage
in another battle with the White House. Comey, with Goldsmith and Philbin at his
side, held a not-for-attribution background briefing to announce that the Justice
Department was disavowing the August 2002 torture memo. At the same time,
White House officials held their own press conference, in part to counter what they
saw as Comey's grandstanding. A fierce behind-the-scenes bureaucratic fight
dragged on until December, when the OLC issued a new memo that was hardly to
the taste of human-rights activists but contained a much more defensible (and
broader) definition of torture and was far less expansive about the power of the
president to authorize coercive interrogation methods. The author of the revised
memo, senior Justice Department lawyer Daniel Levin, fought pitched battles with
the White House over its timing and contents; yet again, Comey's intervention was
crucial in helping Levin and his allies carry the day.
By then, Goldsmith was gone from Justice. He and his wife (who is a poet) and two
children had moved to Cambridge, where Goldsmith had taken a job on the Harvard
Law faculty. Other dissenting lawyers had also moved on. Philbin, who had been the
in-house favorite to become deputy solicitor general, saw his chances of securing
any administration job derailed when Addington, who had come to see him as a
turncoat on national-security issues, moved to block him from promotion, with
Cheney's blessing; Philbin, who declined to comment, was planning a move into the
private sector. Levin, whose battles with the White House took their toll on his
political future as well, left for private practice. (Levin declined to comment.) Comey
was working for a defense contractor.
But the national security/civil liberties pendulum was swinging. Bellinger, who had
become legal adviser to Secretary of State Condoleezza Rice, began pushing, along
with lawyers in the Pentagon, to roll back unduly harsh interrogation and detention
policies. After the electronic eavesdropping program leaked in The New York Times in
December 2005, Sen. Arlen Specter announced that the Senate Judiciary Committee
would hold hearings that will start next week. The federal courts have increasingly
begun resisting absolutist assertions of executive authority in the war on terror. After
Cheney's chief of staff, Scooter Libby, pleaded not guilty to perjury charges in the
Plame leak case, Addington took Libby's place. He is still a force to be reckoned with
in the councils of power. And he still has the ear of the president and vice president;
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last week Bush was out vigorously defending warrantless eavesdropping. But, thanks
to a few quietly determined lawyers, a healthy debate has at last begun.
© 2006 Newsweek, Inc.
© 2006 MSNBC.com
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Chapter 5: Criminal Law: Prosecution of Nazi War Criminals After
WWII
5.1 Nuremberg Trial – Introduction and Documents
5.1.1 How the Nazi Trials Helped Spawn Modern Justice
SPIEGEL (Germany) ONLINE - November 18, 2005
URL: http://www.spiegel.de/international/0,1518,385509,00.html
60 Years after Nuremberg
How the Nazi Trials Helped Spawn Modern Justice
The idea of achieving peace through justice rose out of the ruins of Germany 60 years
ago and made its way around the world. In Nuremberg, the Nazi elite were made to
answer for their crimes. The trials also ushered in an era of modern international law.
The new center of international criminal law stands on the outskirts of The Hague,
already visible as one approaches from the motorway-- a striped cube, slammed down
between white office blocks. It's the central nervous system of the International Criminal
Court, the world's court. The court, which is soundproofed, bombproofed and everything
else imaginable, is currently preparing for its first trial -- the prosecution of the leaders
responsible for the bloody mass slaughter that came to characterize nearly 20 years of
civil war in Uganda.
It took 60 years for international justice to come this far. The root idea of bringing
statesmen and military leaders before an international court of law when they infringe the
basic rules of civilized life had its origins in the Nuremberg trials. The inaugural trial of
the leading, surviving perpetrators of Nazi terror commenced on Nov. 20th, 1945.
Indeed, Nov. 20 is the anniversary of an idea which traversed the world. The name
"Nuremberg" is synonymous with both. Nuremberg played host to the Reich's political
conventions -- a government that brought death, ruin and barbarism to Europe. But it was
also in Nuremberg that the victorious Allied Forces dealt with the defeated power. In the
history of man, their bold actions were wholly without precedent. There was no
bloodbath, no peace treaty -- instead, there was a trial -- call it peace through justice.
The Allies' litigation against 23 "major war criminals" -- including Reichsmarshall
Hermann Göring, Foreign Minister Joachim von Ribbentrop and Hitler's secretary Martin
Bormann -- lasted for over a year and culminated in 12 death sentences. Göring avoided
his scheduled execution by swallowing a cyanide pill, Bormann disappeared without
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trace and 10 others were hanged. The executioners scattered their ashes disposed of in the
Isar River in Munich. No trace should remain of the Nazi regime.
Justice, a living memorial to peace
Peace followed. But was there justice as well? It was the "justice of the victors" the
German governments argued -- and to this day they still have not recognized the
judgment as legally binding. But now, with war back on the agenda -- pushed back to the
center of the political debate following the genocide in the Balkans, in Africa and Latin
America -- many people have gone back to read the transcripts of the Nuremberg trials all
over again. Peace through justice could just be the saving grace in an age in which wars,
civil wars and terrorism have become so difficult to tell apart. In addition to charging and
punishing the war of aggression as "greatest of all crimes," the prosecutors at Nuremberg
also branded the terror of the war of extermination "a crime against humanity," the first
time the phrase was used.
Sixty years on, "Nuremberg" has taken on the significance of a memorial for many.
Every year, 20,000 visitors pack into historic courtroom No. 600 in Nuremberg's Palace
of Justice. United States citizens are no longer active as attorneys here -- instead they
serve as tour guides.
It's a pretty colorful place. Big letters behind the magistrates' table in Room 600 boast of
the "Texas Bar," which offers "Beer tonight" for half a deutsche mark. When the United
States' chief prosecutor Robert H. Jackson flew into Nuremberg for the first time, a few
weeks before the trial was due to start, on the way to undertaking the most important task
of his life, he found that the GIs had made themselves right at home in the Palace of
Justice. Jackson's team had architects and construction experts flown in swiftly from
Washington to transform the shabby old building into a space with a sense of history in
just a few weeks.
The chamber was enlarged and windows were cut into the walls to enable camera teams
to film the proceedings. Red and yellow lamps were installed at every seat for the benefit
of the interpreters: red meant "stop", yellow indicated "please speak more slowly." An
alarm system was wired into the media chamber. If it buzzed once, the proceedings were
beginning; three buzzes meant "especially noteworthy statement." The Americans were
real professionals. The victorious Allies may have decided at the London conference that
the prosecution was the joint responsibility of the USA, Russia, England and France, but
only the Americans had the money to furnish the Nuremberg world theater. And they had
Jackson.
The one-time attorney general in Washington was an ambitious man and an experienced
expert in international law. Thanks to his work, the Nuremberg Trial would form the
foundation for modern, international law. Before the Nuremberg trials, prosecuting what
by then had become known as "crimes against humanity," had been left to the discretion
of sovereign states and not the international community.
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A "crime of aggression"
Despite considerable opposition, particularly from the Russians, the eloquent Washington
lawyer succeeded in charging the Nuremberg Nazis of having committed a "Crime of
Aggression."
Shortly before 10 a.m. on Nov. 20, 1945, the elevator from the cellar began spitting out
the defendants, in groups of three, into Room 600. A meticulously prepared international
court of law awaited them. "Crime of Aggression," Chief Prosecutor Jackson bellowed at
the defendant, blinded by bright spotlights. "Not guilty," Göring shouted back. Two
hundred fifty journalists scribbled in their notepads.
The four judges from the four prosecuting nations were enthroned on a podium with their
four deputies. The Russian jurists wore chocolate brown uniforms, the Americans,
English and French donned black robes. The heavy, gray satin curtains were drawn to
keep out the November sky of the broken town and the room was furnished with dark
wood panels. As the world watched, Jackson described the atmosphere to his team as
"melancholy grandeur."
His speech would be one of the most important in history. Tears were shed in the
courtroom. And the following morning, Jackson's words would appear in newspapers all
over the world.
"The wrongs which we seek to condemn and punish have been so calculated, so
malignant, and so devastating, that civilization cannot tolerate their being ignored,
because it cannot survive their being repeated."
Jackson read out reports of the raging of the SS in the conquered East. In one example, he
described how 3,000 Jews had to be shot because "they had to be considered as the
carriers of Bolshevik propaganda". He quoted from the chilling report by SS General
Jürgen Stroop on the destruction of the Warsaw Ghetto -- "Countless numbers of Jews
were liquidated in sewers and bunkers through blasting..." He read from a report which
the defendant Alfred Rosenberg, Nazi ideologist and Reichsminister in the occupied
territories, sent to Chief of Staff of the German High Command, the accused Wilhelm
Keitel, stating that over 3 million Russians had perished: "A large number of them have
starved, or died, because of the hazards of the weather." Fenced in with barbed wire and
left without food, they had frozen to death.
240 witnesses, 300,000 statements
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Then came the "most terrible crime of all," the war of aggression. Jackson quoted Hitler's
speech from May 23, 1939: "It is a question of expanding our living space in the East.
There is therefore no question of sparing Poland." Hitler had made it patently clear to
many of the defendants that, for propaganda purposes, he would give provocation for
war. "It will make no difference," he announced, "whether this reason will sound
convincing or not. After all, the victor will not be asked whether he spoke the truth or not.
The stronger is always right. We have to proceed brutally."
Jackson trembled: "Civilization asks whether law is so laggard as to be utterly helpless to
deal with crimes of this magnitude by criminals of this order of importance." Putting the
rule to the test will take up 218 days in the courtroom, calling on 240 witnesses, 300,000
sworn declarations and 2,630 documents.
The executions took place before a small gathering in the prison gymnasium behind the
courthouse in the early hours of the morning of Oct. 16, 1946. There was no public
audience, just a handful of official witnesses including the governor of Bavarian,
Wilhelm Högner. With their hands tied behind their backs with black shoelaces, the
delinquents' heads were covered with black hoods, the nooses pulled around their necks.
The aroma of coffee, whisky and Virginia cigarettes lingered in the air. Very little was
said.
5.2. Charter of the International Military Tribunal at Nuremberg
I. CONSTITUTION OF THE INTERNATIONAL MILITARY TRIBUNAL (at
Nuremberg)
Article 1.
In pursuance of the Agreement signed on the 8th day of August 1945 by the Government
of the United States of America, the Provisional Government of the French Republic, the
Government of the United Kingdom of Great Britain and Northern Ireland and the
Government of the Union of Soviet Socialist Republics, there shall be established an
International Military Tribunal (hereinafter called "the Tribunal'') for the just and prompt
trial and punishment of the major war criminals of the European Axis.
...
II. JURISDICTION AND GENERAL PRINCIPLES
Article 6.
The Tribunal established by the Agreement referred to m Article 1 hereof for the trial and
punishment of the major war criminals of the European Axis countries shall have the
power to try and punish persons who, acting in the interests of the European Axis
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countries, whether as individuals or as members of organizations, committed any of the
following crimes.
The following acts, or any of them, are crimes coming within the jurisdiction of the
Tribunal for which there shall be individual responsibility:
(a) CRIMES AGAINST PEACE: namely, planning, preparation, initiation or waging of a
war of aggression, or a war in violation of international treaties, agreements or
assurances, or participation in a common plan or conspiracy for the accomplishment of
any of the foregoing;
(b) WAR CRIMES: namely, violations of the laws or customs of war. Such violations
shall include, but not be limited to, murder, ill-treatment or deportation to slave labor or
for any other purpose of civilian population of or in occupied territory, murder or illtreatment of prisoners of war or persons on the seas, killing of hostages, plunder of public
or private property, wanton destruction of cities, towns or villages, or devastation not
justified by military necessity;
(c)CRIMES AGAINST HUMANITY: namely, murder, extermination, enslavement,
deportation, and other inhumane acts committed against any civilian population, before
or during the war; or persecutions on political, racial or religious grounds in 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.
Leaders, organizers, instigators and accomplices participating in the formulation or
execution of a common plan or conspiracy to commit any of the foregoing crimes are
responsible for all acts performed by any persons in execution of such plan.
Article 7.
The official position of defendants, whether as Heads of State or responsible officials in
Government Departments, shall not be considered as freeing them from responsibility or
mitigating punishment.
Article 8.
The fact that the Defendant acted pursuant to order of his Government or of a superior
shall not free him from responsibility, but may be considered in mitigation of punishment
if the Tribunal determines that justice so requires.
Article 9.
At the trial of any individual member of any group or organization the Tribunal may
declare (in connection with any act of which the individual may be convicted) that the
group or organization of which the individual was a member was a criminal organization.
After the receipt of the Indictment the Tribunal shall give such notice as it thinks fit that
the prosecution intends to ask the Tribunal to make such declaration and any member of
the organization will be entitled to apply to the Tribunal for leave to be heard by the
Tribunal upon the question of the criminal character of the organization. The Tribunal
shall have power to allow or reject the application. If the application is allowed, the
Tribunal may direct in what manner the applicants shall be represented and heard.
Article 10.
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In cases where a group or organization is declared criminal by the Tribunal, the
competent national authority of any Signatory shall have the right to bring individual to
trial for membership therein before national, military or occupation courts. In any such
case the criminal nature of the group or organization is considered proved and shall not
be questioned.
Article 11.
Any person convicted by the Tribunal may be charged before a national, military or
occupation court, referred to in Article 10 of this Charter, with a crime other than of
membership in a criminal group or organization and such court may, after convicting
him, impose upon him punishment independent of and additional to the punishment
imposed by the Tribunal for participation in the criminal activities of such group or
organization.
Article 12.
The Tribunal shall have the right to take proceedings against a person charged with
crimes set out in Article 6 of this Charter in his absence, if he has not been found or if the
Tribunal, for any reason, finds it necessary, in the interests of justice, to conduct the
hearing in his absence.
...
VI. JUDGMENT AND SENTENCE
...
Article 27.
The Tribunal shall have the right to impose upon a Defendant, on conviction, death or
such other punishment as shall be determined by it to be just.
Article 28.
In addition to any punishment imposed by it, the Tribunal shall have the right to deprive
the convicted person of any stolen property and order its delivery to the Control Council
for Germany.
Article 29.
In case of guilt, sentences shall be carried out in accordance with the orders of the
Control Council for Germany, which may at any time reduce or otherwise alter the
sentences, but may not increase the severity thereof. If the Control Council for Germany,
after any Defendant has been convicted and sentenced, discovers fresh evidence which, in
its opinion, would found a fresh charge against him, the Council shall report accordingly
to the Committee established under Article 14 hereof, for such action as they may
consider proper, having regard to the interests of justice.
5.3. Court TV Nuremberg Overview
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5.3.1. The Creation of the Tribunal and the Law Behind It
http://www.courttv.com/archive/casefiles/nuremberg/law.html
The Creation of the Tribunal and the Law Behind It
Creation of the International Military Tribunal
During World War II, the Allies and representatives of the exiled governments of
occupied Europe met several times to discuss post-war treatment of the Nazi leaders.
Initially, most of the Allies considered their crimes to have been beyond the scope of
human justice -- that their fate was a political, rather than a legal, question.
Winston Churchill, for example, said in 1944 that they should be "hunted down and
shot." The French and Soviets also supported summary executions. The Americans,
however, pushed for a trial. (A faction within the U.S. government led by Secretary of
War Henry L. Stimson had won a domestic battle over the U.S. position on punishment
of the Nazis. The other faction, led by Henry Morgenthau, the Jewish secretary of the
Treasury, supported a harsh plan designed to prevent Germany from ever rising again as
an industrial power.)
In August 1945, the British, French, Americans and Soviets, meeting in London, signed
the agreement that created the Nuremberg court, officially the International Military
Tribunal, and set ground rules for the trial. The London Charter of the International
Military Tribunal, was named to avoid using words such as "law" or "code" in an effort to
circumvent the delicate question of whether the trial would be ex post facto.
The London Charter set down the rules of trial procedure and defined the crimes to be
tried. (It did not define the term "criminal organizations," although six organizations were
indicted under the charter.)
The defendants were charged not only for the systematic butchering of millions of
people, but also for planning and carrying out the war in Europe.
The Law
The International Military Tribunal combined elements of Anglo-American and civil
(continental) law. Defendants' rights and the rules of evidence differed in several ways
from those in American courtrooms:
In contrast to the U.S. system, in which the prosecutors must show evidence suggesting
there is probable cause to try a defendant, civil law requires that all proof be presented
with the indictment. At the International Military Tribunal, some of the proof was
presented at the time of indictment, some was not.
In contrast to U.S. practice, defendants were permitted to give unsworn statements at the
end of the trial.
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Hearsay evidence was allowed. This often came in the form of statements by individuals
not called as witnesses. The statements were read by prosecutors; defendants, on cross
examination, were asked to respond to incriminating allegations. In U.S. courts, unlike at
Nuremberg, the accused have the right to confront and question his accuser. At
Nuremberg, evidence merely had to be "probative" to be admitted.
The London Charter did not create a right to a jury trial.
There was no right to appeal and no court to which the defendants could appeal. The
defendants could ask the Control Council of Germany -- the Allied occupation
government, to reduce or change their sentences, and those who were found guilty did
seek clemency from the Control Council. Their request was rejected and ten of the eleven
defendants who received death sentences were hanged two weeks later. (The eleventh,
Hermann Goering, committed suicide several hours before he was to be hanged.)
The defendants had a right to an attorney of their choice, although they could represent
themselves if they wanted (none chose to do so). The four prosecuting nations paid the
attorneys' fees.
The defendants also had a right to present evidence in their own defense and to crossexamine any witnesses against them.
The law of the London Charter was arguably ex post facto.
5.3.2. Who's Who
http://www.courttv.com/archive/casefiles/nuremberg/participants.html
Who's Who
The major participants in the Nuremberg war crimes trial.
John Harlan Amen
U.S. colonel, associate trial counsel, head of interrogations.
William Baldwin
Assistant U.S. prosecutor.
Murray Bernays
War Department lawyer who drafted the initial proposal for prosecuting international war
criminals.
Francis Biddle
Former U.S. Attorney General, American justice on the court.
Sir Norman Birkett
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Alternate British justice on the court.
Martin Bormann
Secretary to Hitler, tried in abstentia.
Rudolf Dix
Defense counsel for Hjalmar Schacht.
Thomas J. Dodd
Associate and later deputy U.S. prosecutor.
Karl Donitz
Supreme Commander of the German Navy.
Henri de Vabres Donnedieu
French justice on the court.
Franz Exner
Defense counsel for Alfred Jodl.
Robert Falco
Alternate French justice on the court.
Hans Flachsner
Defense counsel for Albert Speer.
Hans Frank
Governor-General of occupied Poland.
Wilhelm Frick
Nazi Minister of the Interior.
Hans Fritzche
Ministerial Director and head of the radio division in the Nazi Propaganda Ministry.
Walther Funk
President of the Reichsbank.
Hermann Goering
Reichsmarschall, Chief of the Air Force.
Whitney Harris
Assistant U.S. prosecutor.
Rudolf Hess
Deputy to Hitler.
Heinrich Himmler
Reichsfuher, head of the SS.
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Rudolf Hoess
Commandant of Auschwitz.
Martin Horn
Second defense counsel for Joachim von Ribbentrop.
Robert Jackson
Chief U.S. prosecutor.
Alred Jodl
Operations chief of the German armed forces.
Ernst Kaltenbrunner
Head of the Nazi security apparatus, second to Himmler in the SS.
Kurt Kauffmann
Defense counsel for Ernst Kaltenbrunner.
Wilhelm Keitel
Field marshal, chief of staff of the German armed forces.
Daniel Kiley
Office of Strategic Services officer, architect who restored the Palace of Justice.
Otto Kranzbuehler
German Navy judge, defense counsel for Karl Donitz.
Thomas Lambert
Assistant U.S. prosecutor.
Sir Geoffrey Lawrence
British justice and president of the court.
Robert Ley
Head of the German Labor Front.
Daniel Margolies
Assistant U.S. prosecutor.
Otto Nelte
Defense counsel for Wilhelm Keitel.
Konstantin von Neurath
Germany's foreign minister before Joachim von Ribbentrop, protector of Bohemia and
Moravia.
Ion Timofeevich Nikitchenko
Major general of jurisprudence, Soviet justice on the court.
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Otto Ohlendorf
SS general.
Franz von Papen
German chancellor before Hitler, vice chancellor under Hitler.
John Parker
Alternate U.S. justice on the court.
V.Y. Pokrovsky
Deputy Soviet prosecutor.
Erich Raeder
Commander in chief of the German Navy.
Joachim von Ribbentrop
Nazi foreign minister.
Gunther von Rohrscheidt
First defense counsel for Rudolf Hess.
Alfred Rosenberg
Nazi minister for the Occupied Eastern Territories.
James Rowe
Legal advisor to Francis Biddle.
Roman Rudenko
Chief Soviet prosecutor.
Fritz Sauckel
German labor leader
Fritz Sauter
First defense counsel for Joachim von Ribbentrop, also counsel for Walther Funk and
Baldur von Schirach.
Hjalmar Schacht
President of the Reischsbank prior to Walther Funk.
Baldur von Schirach
Head of the Hitler Youth.
Alfred Seidl
Second defense counsel for Rudolf Hess, also defense counsel for Hans Frank.
Arthur Seyss-Inquart
Nazi commissar of occupied Holland.
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Sir Hartley Shawcross
British prosecutor.
Albert Speer
Minister of Armaments and War Production
Drexel Sprecher
Assistant U.S. prosecutor, later prosecutor at subsequent war crimes trials.
Otto Stahmer
Defense counsel for Hermann Goering.
Robert Stewart
U.S. major, legal advisor to alternate justice John Parker.
Robert Storey
U.S. colonel, head of the U.S. prosecution team under Robert Jackson.
Julius Streicher
Editor of the newspaper Der Sturmer.
Telford Taylor
U.S. general, prosecutor of the High Command case, later chief prosecutor at subsequent
trials.
Alexander Volchkov
Alternate Soviet justice.
Herbet Wechsler
Chief legal advisor to American justice Francis Biddle.
5.3.3. The Indictments
http://www.courttv.com/archive/casefiles/nuremberg/indictments.html
The Indictments
In early October 1945, the four prosecuting nations -- the United States, Great Britain,
France and Russia -- issued an indictment against 24 men and six organizations. The
individual defendants were charged not only with the systematic murder of millions of
people, but also with planning and carrying out the war in Europe.
Twenty-one of the indicted men eventually sat in the dock in the Nuremberg courtroom.
One of those named, labor leader Robert Ley hanged himself before the trial began.
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Another, the industrialist Gustav Krupp, was judged too frail to stand trial. Martin
Bormann, who as Adolf Hitler's private secretary was one of the most powerful Nazi
leaders, was nowhere to be found. He was tried in absentia and sentenced to hang if he
should ever turn up. Bormann apparently died as the Soviets entered Berlin -- his remains
were identified there in 1972 and he was declared dead by a German court the following
year.
Lt. Col. Murray Bernays, an attorney in the U.S. War Department who collected evidence
on crimes committed against GIs, had devised a scheme to try the Nazis as conspirators
in waging aggressive war and to try Nazi organizations as a means of reaching hundreds
of thousands of members. His ideas were promoted by Secretary of War Henry Stimson
and eventually incorporated into the indictment.
The Indictment of Nazi Organizations
The indictment of Nazi organizations was designed to deal with the problem of what to
do about the hundreds of thousands of people who had been members of organizations
such as the SS and the Gestapo. The idea was to find them to have been criminal
organizations, then hold hearings to determine the extent to which a member was guilty.
At the conclusion of the trial against the 21 individuals, the International Military
Tribunal spent a month hearing testimony about the organizations.
The indictment of the organizations, however, raised a fundamental legal question: the
legitimacy of creating a system of guilt by association. Although members of the criminal
organizations were later tried by German denazification courts set up by the U.S.
occupation government, no one was ever punished solely on the basis of the tribunal
convictions.
Three of the six indicted organizations were found guilty. They were: the SS, the Gestapo
and the Corps of the Political Leaders of the Nazi Party.
Three of the organizations were not convicted. They were: the SA (Hitler's street thugs,
known as brownshirts, whose power had dwindled in the 1930s); the Reichsregierung
(Reich Cabinet) and General Staff and High Command of the German Armed Forces.
The latter two organizations were determined to cover relatively few members so that it
was deemed better to deal with them as individuals.
The Charges
The four powers divided the prosecution work, giving the United States the complicated
and most difficult job of proving Count One -- the conspiracy charge.
Count One: Conspiracy to Wage Aggressive War
The "common plan or conspiracy" charge was designed to get around the problem of how
to deal with crimes committed before the war. The defendants charged under Count One
were accused of agreeing to commit crimes.
The concept of conspiracy was not a part of continental law, and remained controversial
throughout the trial.
Some historians have argued that this count caused prosecutors to over-emphasize the
coherence of Nazi policymaking. It also gave the defense an additional reason to
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emphasize the confused Nazi command structure and allowed the defendants to buttress
their contentions of ignorance of the regime's brutality.
Count Two: Waging Aggressive War, or "Crimes Against Peace"
This evidence was presented by the British prosecutors and was defined in the indictment
as "the planning, preparation, initiation, and waging of wars of aggression, which were
also wars in violation of international treaties, agreements, and assurances."
This charge created problems for the prosecutors. Although Hitler had clearly waged an
aggressive war, beginning with the invasion of Poland in 1939, Count Two was based on
allegations that the Germans had violated international agreements such as the KelloggBriand Pact of 1928. Signatories to that agreement had renounced war as an instrument of
national policy (as opposed, say, to defensive war), but the pact did not define
"aggressive war" and did not spell out the penalties for its violation.
(The Anschluss and the invasion of Czechoslovakia were not held to be aggressive wars
because Hitler had manipulated the political situation in each nation in order to avoid an
invasion.)
The Soviet Union also had broken the Kellogg-Briand Pact by invading Finland, Poland
and the Baltics, and had schemed with Hitler to sign the Nazi-Soviet Non-Aggression
Pact in 1939 (which secretly divided Poland).
Robert Jackson, the chief U.S. prosecutor, wanted the International Military Tribunal to
create new international law that would outlaw aggressive war. Clearly, the premise that
it is possible to outlaw war is a questionable one.
Count Three: War Crimes
The Russian and French prosecutors presented evidence on atrocities committed in the
East and West, respectively.
Count Three was intended to deal with acts that violated traditional concepts of the law of
war -- e.g. the use of slave labor; bombing civilian populations; the Reprisal Order
(signed by Field Marshal Wilhelm Keitel, a defendant, this order required that 50 Soviet
soldiers be shot for every German killed by partisans); the Commando Order (issued by
Keitel, it ordered that downed Allied airmen be shot rather than taken captive).
The violations of international law under Count Three were more clearly rooted in
precedent than the other counts.
International laws of war had developed during the 18th and 19th centuries. The Hague
Conventions of 1899 and 1907 dealt with the conduct of war by outlawing certain types
of weapons (dum-dum bullets, poison gas) and outlining treatment of POWs and
civilians. The Geneva Conventions of 1864 and 1906 dealt with treatment of the sick and
wounded. (After 1929, the treatment of POWs was promulgated by the Geneva
Convention.) Naval law developed separately and originally dealt with problems of
piracy, rescue, false flags and the like.
War crimes were defined under the London Charter (the document drafted by the Allies
before the trial began) as "murder, ill treatment or deportation to slave labor or for any
other purpose of civilian population or in occupied territory, murder or ill-treatment of
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prisoners-of-war or persons on the seas, killing of hostages, plunder of public or private
property, wanton destruction of cities, towns, or villages or devastation not justified by
military necessity."
Count Four: Crimes Against Humanity
The Russians and the French again divided responsibility along East-West lines.
Count Four was applied to defendants responsible for the death camps, concentration
camps and killing rampages in the East.
Initially, crimes against humanity were understood to be crimes committed by a
government against its own people, and there was some question as to whether the
concept could be applied internationally. Their inclusion in the London Charter was a
novel extension of the concept.
The London Charter defined these crimes as "murder, extermination, enslavement,
deportation, and other inhumane acts committed against any civilian population before or
during the war, or persecutions on political, racial, or religious grounds in execution of or
in connection with any crimes within the jurisdiction of the International Military
Tribunal, whether or not in violation of domestic law of the country where perpetrated."
Selection of Defendants
The list of the accused was to some extent arbitrary. The defendants represented the
major administrative branches of the Third Reich and included prisoners held by each of
the four prosecuting nations. Apparently, little attention was paid to the availability of
evidence against them. Attention was generally paid to how well known they were and
how much power they had wielded. However, Hans Fritzsche, who was held by the
Russians, had been a relatively minor official in Josef Goebbels' propaganda ministry but
was included, along with Admiral Erich Raeder, to appease the Russians.
4. The Defendants
http://www.courttv.com/archive/casefiles/nuremberg/defendants.html
The Defendants
On November 20, 1945, twenty-one Nazi defendants filed into the dock at the Palace of
Justice in Nuremberg to stand trial for war crimes. Another defendant, Martin Bormann,
was believed dead.
Karl Doenitz
Supreme Commander of the Navy; in Hitler's last will and testament he was made Third
Reich President and Supreme Commander of the Armed Forces
Sentenced to 10 Years in Prison
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Hans Frank
Governor-General of occupied Poland
Sentenced to Hang
Wilhelm Frick
Minister of the Interior
Sentenced to Hang
Hans Fritzsche
Ministerial Director and head of the radio division in the Propaganda Ministry
Acquitted
Walther Funk
President of the Reichsbank
Sentenced to Life in Prison
Hermann Goering
Reichsmarschall, Chief of the Air Force
Sentenced to Hang
Rudolf Hess
Deputy to Hitler
Sentenced to Life in Prison
Alfred Jodl
Chief of Army Operations
Sentenced to Hang
Ernst Kaltenbrunner
Chief of Reich Main Security Office whose departments included the Gestapo and SS
Sentenced to Hang
Wilhelm Keitel
Chief of Staff of the High Command of the Armed Forces
Sentenced to Hang
Erich Raeder
Grand Admiral of the Navy
Sentenced to Life in Prison
Alfred Rosenberg
Minister of the Occupied Eastern Territories
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Sentenced to Hang
Fritz Sauckel
Labor leader
Sentenced to Hang
Hjalmar Schacht
Minister of the Economics
Acquitted
Arthur Seyss-Inquart
Commisar of the Netherlands
Sentenced to Hang
Albert Speer
Minister of Armaments and War Production
Sentenced to 20 Years in Prison
Julius Streicher
Editor of the newspaper Der Sturmer, Director of the Central Committee for the Defence
against Jewish Atrocity and Boycott Propaganda
Sentenced to Hang
Constantin von Neurath
Protector of Bohemia and Moravia
Sentenced to 15 Years in Prison
Franz von Papen
One-time Chancellor of Germany
Acquitted
Joachim von Ribbentrop
Minister of Foreign Affairs
Sentenced to Hang
Baldur von Schirach
Reich Youth leader
Sentenced to 20 Years in Prison
5.3.5. The Trial's Legacy
http://www.courttv.com/archive/casefiles/nuremberg/legacy.html
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The Trial's Legacy
Fifty years ago this month, Associate United States Supreme Court Justice Robert
Jackson made the opening statement in what would become known as the Nuremberg
war crimes trial.
"The privilege of opening the first trial in history for crimes against the peace of the
world imposes a great responsibility," Jackson told the International Military Tribunal.
"The four great nations flushed with victory and stung with injury, stay the hand of
vengeance and voluntarily submit their captive enemies to the judgment of the law.
"The crimes which we seek to condemn and punish have been so calculated, so malignant
and so devastating, that civilization cannot tolerate their being ignored, because it cannot
survive their being repeated," he said.
During the next ten months, prosecutors from the four victorious powers -- the United
States, Great Britain, France and Russia -- presented their case against 22 Nazi leaders. In
trying to fix German guilt, the prosecutors had charged the defendants with conspiring
and launching aggressive war and committing war crimes and crimes against humanity.
In the end, three of the defendants were acquitted. Eight received long prison sentences
and the rest were sentenced to death. At 10:45 p.m. on October 15, 1946, Hermann
Goering cheated the hangman with a cyanide capsule. Two hours later, the executions
began.
The trial of Goering, Rudolf Hess, Albert Speer and the others was part show trial and
part noble effort to create new international law in the face of crimes that negated
civilization's progress. To some extent, it reflected the optimistic sentiments for world
cooperation (which were rapidly eclipsed by the Cold War) that led to the creation of the
United Nations. It was a political effort to find human-sized justice for crimes that were
so hideous.
This was the trial of the century. In the words of Norman Birkett, who served as a British
alternate judge: it was "the greatest trial in history."
A Special Court TV Presentation
Beginning November 13, 1995, Court TV broadcast 15 hours of Nuremberg. It was the
most extensive coverage of the trial ever broadcast.
Some of the trial was filmed by the U.S. Army Signal Corps, Soviet cameramen and
commercial newsreel companies such as Paramount and Universal. But there were many
days when nothing was filmed.
A nearly complete record of the proceedings does exist on audio tape, recorded as it was
spoken in the four languages of the trial - English, German, French and Russian. Court
TV's broadcast supplemented selected portions of the existing film with audio tape.
Where only audio exists, we added still photographs or film that was shot in the
courtroom during that particular portion of the trial.
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The cameras of the mid-1940s used 35 mm film on 10-minute reels. There were no zoom
lenses, so cameramen used turret lenses that held close-up, normal and long lenses.
Cameramen switched lenses while shooting and often did not focus after a lens change.
The footage was shot and edited for newsreels that were shown in movie theaters, and
choices about what was shot reflected the needs of the newsreel companies. The cameras
often were placed at awkward angles to avoid disrupting the proceedings.
As stated earlier, the proceedings were held in four languages. All documents were to be
translated and made available in each language, and a team of translators was employed.
But the sheer volume of the material insured that the translators could not keep up.
The Legacy of Nuremberg
In the view of most historians, Nuremberg's legacy is mixed. They are generally
favorable to the attempt made by the Allies to bring some form of international judicial
accounting for the horrors of the Nazi regime. To this day, Nuremberg remains the most
thorough record of Hitler's rise to power, and the planning, launching and execution of
World War II. As such, it was no small achievement, and one that was forged out of the
chaos and rubble immediately following World War II.
But some argue that the International Military Tribunal was a victor's justice, and the trial
has been criticized for a variety of reasons. The list of those accused was somewhat
arbitrary. There also were basic misgivings. The accused had been charged with
violations of international law, but such law was binding on nations, not individuals.
Individuals, it was argued, could be brought to justice only under the laws of their own
country, not on the basis of a new order established after a war. It may have been
imperfect justice, but there was no alternative.
Nuremberg has never fulfilled its brightest promise -- a permanent international tribunal
for war crimes. Various efforts have been made in the ensuing half century, but all have
languished. Only recently, with the establishment of the U.N.'s International Criminal
Tribunal that is addressing war crimes in the Former Yugoslavia and Rwanda, have the
ideals set at Nuremberg taken a tangible form.
The final business of Nuremberg remains unfinished.
5.4. The Eichmann Trial in Israel
5.4.1. The Nazi and Nazi Collaborators (Punishment) Law of 1950
http://www.mfa.gov.il/MFA/MFAArchive/1950_1959/Nazis%20and%20Nazi%20Collab
orators%20-Punishment-%20Law-%20571
The Nazi and Nazi Collaborators (Punishment) Law 1950 provides:
(a) A person who has committed one of the following offences -
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(1) done, during the period of the Nazi regime, in an enemy country, an act constituting a
crime against the Jewish people;
(2) done, during the period of the Nazi regime, in an enemy country, an act constituting a
crime against humanity;
(3) done, during the period of the Second World War, in an enemy country, an act
constituting a war crime,
is liable to the death penalty.
(b) In this section "crime against the Jewish people" means any of the following acts, committed with intent
to destroy the Jewish people in whole or-in part :
(1) killing Jews;
(2) causing serious bodily or mental harm to Jews;
(3) placing Jews in living conditions calculated to bring about their physical destruction;
(4) imposing measures-intended to prevent births among Jews;
(5) forcibly transferring Jewish children to another national or religious group;
(6) destroying or desecrating Jewish religious or cultural assets or values;
(7) inciting to hatred of Jews;
"crime against humanity" means any of the following acts;
murder, extermination, enslavement, starvation or deportation and other inhumane acts
committed against any civilian population, and persecution on national, racial, religious
or political grounds;
"war crime" means any of the following acts;
murder, ill-treatment or deportation to forced labour or for any other purpose, of civilian
population of or in occupied territory; murder or ill-treatment of prisoners of war or
persons on the seas; killing of hostages; plunder of public or private property; wanton
destruction of cities, towns or villages; and devastation not justified by military necessity.
2. If a person, during the period of the Nazi regime, committed in an enemy country an
act by which, had he committed it in Israel territory, he would have become guilty of an
offence under one of the following sections of the Criminal Code, and he committed the
act against a persecuted person as a persecuted person he shall be guilty of an offence
under this Law and be liable to the same punishment to which he would have been liable
had he committed the act in Israel territory:
(a) section 152 (rape, sexual and unnatural offences);
(b) section 153 (rape by deception);
(c) section 157 (indecent act with force, etc.);
(d) section 188 (child stealing);
(e) section 212 (manslaughter);
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(f) section 214 (murder);
(g) section 222 (attempt to murder);
(h) section 235 (acts intended to cause grievous harm...);
(i) section 236 (preventing escape from wreck);
(j) section 238 (grievous harm);
(k) section 240 (maliciously administering poison with intent to harm);
(l) section 256 (abducting in order to murder);
(m) section 258 (abducting in order to subject person to grievous hurt);
(n) section 286 (robbery and attempted robbery);
(o) section 293 (demanding property with menaces with intent to steal).
Section 9 provides:
9. (a) A person who has committed an offence under this Law may be tried in Israel even
if he has already been tried abroad, whether before an international tribunal or a tribunal
of a foreign state, for the same offence.
(b) If a person is convicted in Israel of an offence under this Law after being convicted
of the same act abroad, the Israel court shall, in determining the punishment, take into
consideration the sentence which he has served abroad.
Section 14 provides:
14. A prosecution for an offence under this Law may only be instituted by the Attorney
General or his representative.
Section 16 provides:
16. In this law "the period of the Nazi regime" means the period which began on ... (30th January, 1933)
and ended on ... (8th May, 1945);
"the period of the Second World War" means the period which began on ... (1st
September, 1939) and ended on ...(14th August, 1945);
...
"Axis state" means a state which during the whole or part of the period of the Second
World War was at war with the Allied Powers; the period which began on the day of the
beginning of the state of war between a particular Axis state and the first, in time, of the
Allied Powers and ended on the day of cessation of hostilities between that state and the
last, in time, of the Allied Powers, shall be considered as the period of war between that
state and the Allied Powers;
"enemy country" means 1.Germany during the period of the Nazi regime;
2.any other Axis state during the period of the war between it and the Allied Powers;
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3.any territory which, during the whole or part of the period of the Nazi regime, was de
facto under the German rule as aforesaid;
4.any territory which was de facto under the rule of any other Axis state during the
whole, or part of the period of the war between it and the Allied Powers, for the time
during which that territory was de facto under the rule of that Axis state as aforesaid;
5.4.2. The Banality of “the Banality of Evil”
http://www.latimes.com/news/opinion/commentary/la-opcesarani16apr16,1,3116174.story
The banality of the `banality of evil'
By David Cesarani, DAVID CESARANI is research professor in history at Royal
Holloway, University of London. "Becoming Eichmann: Rethinking the Life, Crimes and
Trial of a 'Desk Murderer' " is to be published May 1.
April 16, 2006
Adolf Eichmann is an icon of the 20th century and of the genocide the Nazis waged
against the Jews. The image of the murderer sitting inside a bulletproof glass booth at his
trial in Jerusalem in 1961 has come to encapsulate the
satisfying story of the perpetrator meeting justice at the hands of his victims. Eichmann
today is the face of Nazi mass murder.
Yet Eichmann was not always among the pantheon of Nazi killers, and few have been so
mythologized and misunderstood.
Although he was a colonel in the Nazi security service and chief of the Jewish
Department, Bureau IVB4, of the SS head office, he scarcely figured at the Nuremberg
Tribunal. Even though he was responsible for driving through the "Final Solution,"
Eichmann was almost unknown. He had always operated in the background and covered
his tracks well.
In the years immediately after the end of World War II, it was widely argued and
generally believed that the Third Reich was created by a gang of pathologically inclined
misfits who seized a modern state and bent it to their demented purposes. This top-down
model informed the charges against the Nazi leadership. The worst crimes were blamed
on the SS, whose members were characterized as fanatical robots or sadistic monsters.
Eichmann made only a perfunctory appearance in early histories of the Nazi persecution
and mass murder of the Jews. As late as 1957, when Isser Harel, head of the Israeli secret
service, received a tip about Eichmann's hiding place in Argentina, he had little idea of
his quarry's significance.
But after the Mossad's dramatic kidnapping of Eichmann from a Buenos Aires street in
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1960 and the sensational criminal trial that followed - beginning 45 years ago this month
- his obscurity came to an end. In the rush to satiate public curiosity, several journalists
churned out biographies that cumulatively turned him into an iconic figure.
Much of their information came from a largely spurious prison statement by Dieter
Wisliceny, one of Eichmann's subordinates. Eichmann's hasty biographers uncritically
slotted this information into the early psychological explanations of fascism, especially
the theories of Theodor Adorno, who had developed the model of the "authoritarian
personality." A 1960 pot-boiler by NBC correspondent John Donovan typified the genre.
According to Donovan, Eichmann presented the "classic pattern of the disturbed,
introverted personality which so often produced the larvae of fanaticism." Eichmann
"drifted around in a world without hope" until he "traded a threadbare suit for the
splendid SA uniform." This was nonsense. Eichmann's interrogation and examination in
court revealed a normal childhood. True, he lost his mother at a vulnerable age, but he
got on with his stepmother. Although his father experienced economic vicissitudes during
the 1920s, the family was never destitute. On the contrary, they were pillars of the
bourgeoisie in Linz, Austria.
Eichmann did not excel at school, but he eventually found his metier as a sales
representative for a petroleum company. After he was made redundant in May 1933
because of the economic downturn, his Jewish employers gave him generous severance
pay.
Eichmann did not join the Nazi Party because he was down on his luck. He had been a
member since April 1932, when he enrolled at the invitation of Ernst Kaltenbrunner, a
party activist and family friend. Until then, Eichmann had associated with right-wing
groups but regarded the Austrian Nazis as riffraff. Kaltenbrunner, however, was a
respectable lawyer, and his approach flattered Eichmann.
It is a comforting illusion that Eichmann was an inveterate Jew-hater who entered the SS
in order to pursue a racist vendetta. Although he doubtless shared the prejudices of his
milieu, the truth is that when he transferred to the security service in 1934, it did not even
have a brief to deal with Jews. He was later assigned to the service's embryonic Jewish
Department by chance. No one could have foreseen that five years later it would be the
dynamo of Nazi anti-Jewish policy.
All this came out in the trial, but Gideon Hausner, Israel's attorney general and the chief
prosecutor, downplayed it; he wanted to transfigure Eichmann into the personification of
evil. In defiance of the evidence accumulated by the police investigation, Hausner
resolved to pin every crime against the Jews onto the man with the "Satanic personality."
Eichmann, Hausner said, was "a new kind of killer, the kind that exercises his bloody
craft behind a desk."
One foreign journalist saw through Hausner's exaggerations. Hannah Arendt, who
attended the first weeks of the trial, wrote that it was "bad history and cheap rhetoric."
Although she missed most of Eichmann's testimony, she realized that his self-denigration
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was largely the truth. His authority was circumscribed geographically and limited by
competing agencies. He was just a middle manager of genocide, only zealous insofar as
he was obedient to a regime that had inverted morality and embodied inhumanity in the
law.
However, Arendt merely succeeded in creating an alternative myth. She went to
Jerusalem determined to find the embodiment of totalitarian man, an abstract figure she
had conceived years earlier in "The Origins of Totalitarianism." In this brilliant treatise,
she argued that totalitarian regimes needed and created drones who unthinkingly obeyed
orders and accepted the inversion of morality because authority so ordained.
Arendt's depiction of Eichmann as a banal clerk gained scientific force thanks to Stanley
Milgram's research on obedience to authority. The first results of his contentious
experiments - in which he sought to find out what behavior people were capable of under
the cover of "just following orders" - were published in the same year as Arendt's
"Eichmann in Jerusalem."
Both Arendt and Milgram were wrong. The Third Reich was anything but a smoothly
operating totalitarian monolith in which impersonal bureaucrats mindlessly implemented
orders handed down by authority figures. But their conjoined, eloquent polemics
mesmerized a generation of historians and soothed a troubled public, seeming to offer a
way of understanding the modern world, totalitarian systems and the threat of nuclear
annihilation.
During the Cold War, Arendt's theories provided both comfort and powerful propaganda
for conservatives in the West by suggesting that there was no difference between the
Third Reich and the Soviet system - Eichmanns flourished under both. For the left,
Arendt's "banality of evil" model seemed to explain how government bureaucrats could
operate weapons of mass destruction against civilians and how military men such as
Army Lt. William Calley could follow orders and commit atrocities in Vietnam.
The chilling truth, however, is that Eichmann was not hard-wired to kill, nor was he
psychopathically predisposed to become a perpetrator. He had a wide degree of latitude
throughout his career and was constantly making choices. Nor can genocide and lesser
atrocity be politically quarantined. Any political system that orders or permits mass
atrocity will find the men and women to carry it out, not because they are atypical but
because they are ordinary.
In our representations of Eichmann, there has always been a tension between the
monstrous and the mundane. But as much as we may want Eichmann to be a psychotic
individual and thus unlike us, he was not. He was neither insane nor was he a robotic
receiver of orders. Eichmann was a normal man, and as long as there is a genocidal
impulse, there will be Eichmanns.
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5.5. De-naturalization Proceedings in U.S.
5.5.1. Pursuing evil to the grave - Demjamjuk
http://www.latimes.com/news/printedition/opinion/la-oegoldhagen9dec09,1,6003250.story
Pursuing evil to the grave
By Daniel Jonah Goldhagen
December 9, 2005
JOHN DEMJANJUK, the Nazi death camp guard who has lived in the United States
since falsifying his entry papers in 1952, is again in the news, facing deportation to
Germany or perhaps Ukraine, his country of origin.
Demjanjuk has been extradited once, to Israel, where the Supreme Court in 1993
overturned his conviction and death sentence, saying that he was not, in fact, Ivan the
Terrible, an infamous guard at the Treblinka death camp. But today, the documentary
evidence is clear that although he was not Ivan, he was a guard in several concentration
camps, including Sobibor, in Poland, where the Germans exterminated an estimated
250,000 people in 1942 and 1943. Because of the persuasive evidence of Demjanjuk's
service to Nazi mass murder, a federal judge stripped him of his U.S. citizenship in 2002,
which set the stage for the current deportation proceedings.
The Holocaust ended 60 years ago. Many undoubtedly wonder why Demjanjuk, now 85,
should not be left in peace. News reports described him at his most recent hearing, last
week, as frail, moaning, hunched in a wheelchair and suffering from chronic back pain.
His will certainly be one of the last legal proceedings against the Holocaust's perpetrators
because both the perpetrators and the survivors of the Nazis' crimes are dying off. The
trials (which the German public never supported anyway) have all but come to a halt in
Germany.
So, should Demjanjuk at this late date be held accountable? Indeed, how should we
assess the overall record of the last 60 years in bringing these mass murderers to justice?
Now that the surviving victims of the Holocaust are becoming ever fewer, have we failed
or succeeded in bringing their tormentors and the murderers of so many to justice?
176
No one should shed a tear for Demjanjuk and the other mass murderers, even if they are
now elderly. They committed unsurpassable crimes, willfully torturing and slaughtering
unthreatening, defenseless Jewish men, women and children by the tens of thousands.
There is no statute of limitations for murder in this country, and, recognizing the historic
nature of the Holocaust, the German Parliament repeatedly voted to extend the statute of
limitations for murder there as well. Legally, the perpetrators' culpability for their willful
crimes is beyond doubt. Is it any less clear morally?
That Demjanjuk and others escaped justice for decades, many rejoicing over their crimes,
should not earn them a permanent "get out of jail" card. Eluding criminal punishment and
living well after murdering so many, and while one's surviving victims bear their scars
every day, is no argument for being allowed to continue to elude punishment. The notion
- never baldly articulated - that if someone is arrested for his crime immediately or six
months later, he should be punished, but that if he manages not to be punished for 10, 30
or 60 years, he merits permanent immunity, is illogical and strange.
If anything, the moral outrage should not be directed at those seeking justice but, in
addition to the criminals themselves, at the political and legal authorities that have done
so little over 60 years to punish these murderers.
Germany - not surprisingly, because most of the perpetrators were German - has done the
most to prosecute these mass murderers. But from the perspective of justice, the record
has been dismal, in two senses. Even though the Germans have convicted what seems
like a large number of people for Nazi crimes - 6,500 - it is a tiny percentage of the
hundreds of thousands who committed murder and other heinous crimes against Jews and
non-Jews during the Nazi period. (In 1996, the German justice system's clearinghouse for
prosecuting Nazi crimes had more than 333,000 names in its catalog listing members of
killing institutions, of which there were more than 4,100).
And the sentences the killers received - typically a few years for the murder of hundreds,
thousands, sometimes hundreds of thousands; sometimes no more than minutes or hours
in prison for the murder of each of their victims - were travesties, not instances of justice.
(Josef Oberhauser, for instance, who was convicted in 1965 in Germany for his
participation in the murder of 300,000 people in the Belzec camp, received a prison
sentence of only 4½ years). So, contrary to what many say or imply - that enough is
enough, that we should let these harmless old men alone, that we should not hound them
endlessly - there is no good argument for letting them be. They have not been hounded;
most (and especially non-German Nazi collaborators) have lived well, enjoying perfect
immunity.
Still, the prosecution of Holocaust perpetrators has been more successful than the
prosecution of other genocide perpetrators. After most mass murders, those who
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committed the atrocities generally get off scot-free, with perhaps a few symbolic
prosecutions of leaders or sacrificial underlings serving as a stand-in for actual justice. In
Turkey, Indonesia, Cambodia, the countries of the former Soviet Union and the former
Yugoslavia, murderers of thousands have enjoyed the sympathy and protection of the
political authorities and populace alike.
This is all the more reason to redouble our efforts, to press forward prosecuting mass
murderers from any genocide for as long as it takes, no matter how old they are. Until
those tempted to slaughter others know that they will be pursued and punished, they will
have little reason not to kill.
So, instead of worrying about this frail old man, shed a tear instead for Demjanjuk's
victims - and the victims of future Demjanjuks. Demjanjuk, still living well near
Cleveland, has not received a small portion of his deserved punishment - of the
punishment he would have gotten had he murdered one non-Jewish German or one
American in 1943, 1960, 1980 or 2000.
DANIEL JONAH GOLDHAGEN, author of "Hitler's Willing Executioners: Ordinary
Germans and the Holocaust" (Vintage, 1997), is completing a book on genocide in our
time.
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Chapter 6: Civil Law: Holocaust Restitution Litigation in the United
States
6.1. Dresdner Bank
SPIEGEL ONLINE - February 18, 2006, 04:46 PM
URL: http://www.spiegel.de/international/0,1518,401575,00.html
Dresdner Bank and the Third Reich
Hitler's Willing Bankers
By Marc Young
Like many German firms, Dresdner Bank hoped after World War II its
unsavory activities during the Third Reich would be forgotten. But an
unparalleled company-sponsored research effort shows Germany's second
largest bank supported the Nazi regime much more actively than had been
previously thought.
AP
The SS under Heinrich Himmler relied
on the Dresdner Bank for private
loans.
Being known as the bank of choice for Heinrich Himmler's SS would be a PR
nightmare for any company. So the long postwar reluctance of top Dresdner Bank
executives to expose the bank's sordid history during the Nazi era is
hardly surprising.
But the degree of Dresdner's complicity in many of the Third Reich's worst crimes will
be shocking to many who read the results of a new seven-year study presented on
Friday. A team of historians sponsored by Dresdner Bank engaged in intensive
research to unearth the full extent of the darkest chapter of the bank's past. The
massive study fills four volumes and nearly 2,400 pages in what amounts to an
unprecedented look at the role of a financial institution in Nazi Germany.
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"This calls it as it is. We accept these truths even when they are painful ones," said
Wulf Meier, a member of the Dresdner Bank board, at a press conference in Berlin on
Friday. He readily admitted the bank had been shy about delving into the past until
public sentiment in the 1990s prodded several German firms to do so. "After 1945
many people and institutions avoided questions about their role during NS times."
Most German firms carry a heavy historical burden for what they did during the Nazi
era. Dresdner Bank -- founded in 1872 on the initiative of a Jewish entrepreneur -- is
no exception. Placing capitalist logic before morality, the bank systematically took
part in the Third Reich's repression of Germany's Jews and the confiscation of Jewish
wealth and assets.
The team of historians, led by Dr. Klaus-Dietmar Henke from Dresden's Technical
University, took an exhaustive approach in compiling the bank's activities. After
seven years of research costing ?1.6 million, "Dresdner Bank in the Third Reich"
paints a stark picture of how the firm actively courted Nazi favor in order to make
money and rapidly expand its business.
"There was a deep symbiosis between National Socialism and capitalism," said
Henke. Several of Dresdner's board members belonged to the Nazi party, but much
of Dresdner's involvement with the party, Henke indicated, was driven more by
business concerns.
Deportation seen as death
As an example of Dresdner's implicit knowledge about the murder of Germany's
Jewish population after their deportation to camps in Nazi occupied Eastern Europe,
the study cites the bank's unwillingness to pay pension payments for retired Jewish
Dresdner employees directly to the Reich. The Nazis claimed the government should
get the pensions to pay for the deportees' living expenses, but Dresdner officials
wanted proof that the Jews in the camps and ghettos were still alive.
AP
The Nuernberg trials sentenced
former Dresdner Bank chairman Karl
Rasche (back row, forth from right) to
seven years in prison.
"Around 5 percent of Dresdner's workforce were Jewish -- a much higher percentage
than the general population," said Dr. Dieter Ziegler for the Ruhr University in
Bochum.
The study also shows the bank took part early on in the Third Reich's policy of
confiscating Jewish property and wealth. "It's a myth that the bank was forced to
take part in the 'Aryanizing' of Jewish wealth," said Ziegler.
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But perhaps one of the most damning associations for Dresdner's past
managers is its close ties to Heinrich Himmler's SS. The bank was the most
important private lender for the Nazi organization and played a key role for its
operations in occupied Europe, essentially acting as the bank of the SS in Poland.
Henke commended Dresdner for allowing his team to take such thorough look into
the company's past and said he hoped it could encourage other firms to support
deeper research into their activities during the Third Reich.
© SPIEGEL ONLINE 2006
All Rights Reserved
Reproduction only allowed with the permission of SPIEGELnet GmbH
NEW YORK TIMES
February 18, 2006
Report Details Dresdner Bank's Wartime Financing of a Death Camp
By MARK LANDLER
FRANKFURT, Feb. 17 - Dresdner Bank helped finance the construction of the
Auschwitz death camp and was the bank of choice for Hitler's feared SS paramilitary,
according to an independent report on the German bank's dealings during the Nazi era,
released Friday in Berlin.
The findings in the 2,400-page report are not entirely new, but they serve as a blunt
reminder that Dresdner Bank, one of Germany's largest banks, was an early, enthusiastic
supporter of the Nazis, benefiting from personal ties between its bankers and SS
commanders.
"Without the help of the bank, the SS could not have constructed its large network of
business interests," said Harald Wixforth, a historian at Ruhr University in Bochum who
wrote one of the report's four volumes. "Dresdner Bank participated in many ways in the
crimes of the Nazi era."
Most notoriously, Dresdner financed, and owned a stake, in a construction company that
built some of the crematoriums at the Auschwitz camp in Poland. Mr. Wixforth said
Dresdner's bankers were aware of the camp's purpose, and encouraged the company to
take on the contract.
Dresdner Bank is the latest of several German companies to hire outside scholars to
research their wartime history. Volkswagen, Deutsche Bank and Bertelsmann have
released such studies, while Commerzbank is expected to publish the last installment of
its report next year.
181
In Dresdner's case, this public act of reckoning was also a response to withering criticism
of the bank by Holocaust survivors in 1997, when the bank all but erased the Third Reich
from its 125th anniversary commemoration. The former chief executive, Jürgen Sarrazin,
relegated the bank's dealings with the Nazis to a single sentence in a lengthy speech.
Speaking in Berlin on Friday, the current chief executive, Herbert Walter, said the
criticism of its selective memory was justified. "Dresdner Bank took it to heart," he said.
"It was a belated awakening."
Like other big German banks, Dresdner has tried, with mixed success, to remake itself
into a global financial institution. In 2000, it acquired Wasserstein Perella & Company, a
New York investment bank. A year later, the Munich insurance giant, Allianz, acquired
Dresdner.
In recent years, Dresdner has burnished its image by raising money to rebuild the Church
of Our Lady which was destroyed in the Allied bombing raid of Dresden, its hometown,
in February 1945.
But the bank's wartime past has dogged it. Soon after its disputed anniversary celebration
in 1997, Dresdner commissioned four historians, led by Klaus-Dietmar Henke, to sift
through its archives, here and abroad, to document the bank's involvement with Nazi
organizations.
The project took six years to research and a seventh year to write. Mr. Wixforth said he
visited 35 archives in Germany, Poland, and the Czech Republic for his volume of the
series, which focuses on Dresdner's expansion outside Germany during the Third Reich.
"This is by far the most detailed study of any German enterprise during the Nazi period,"
he said.
Dresdner demonstrated its fealty to the Nazi Party early on, when it purged Jewish
bankers and put two party members on its board. The bank's main link to the SS was
Oswald Pohl, a top SS commander who directed its economic activities, which included
stripping and selling the personal possessions of Jews brought to the concentration
camps.
Dresdner's ties to the SS were long known, but Mr. Wixforth said the researchers turned
up records of money transfers that demonstrate the extent of the links. The bank lent the
SS more than 47 million Reichmarks, helping it amass interests in quarries and porcelain
manufacturing.
Two years ago, Mr. Wixforth said, the researchers uncovered the evidence of Dresdner's
role in Auschwitz. The bank held a 26 percent stake in a construction company of the
time, Huta Hoch- and Tiefbau, which had a contract to build crematoriums at the camp in
Poland.
182
6.2. Nazi Looted Art Overview
FOR EDUCATIONAL USE ONLY
12/8/06 Evening Standard (London, UK) 24
2006 WLNR 21237439
Evening Standard (London, UK)
Copyright 2006 Associated Newspapers Company
December 8, 2006
THE ART OF WAR
As prices go through the roof, restitution of paintings is turning the unlikeliest of people
into sudden multimillionaires, as they claim back the Klimts, Picassos andVan Goghs
that the Nazis stole. But fighting the Austrian, Russian and German museums is a nasty
business. Godfrey Barker on art's new battleground
GODFREY BARKER
Gisela Thomas closed the door on the family house on 13 May 1939. She was 15; she
remembers it like yesterday. The house, full of works of art, stood in the wooded suburb
of Tiergarten in Berlin. She, her mother and her sister never saw it again. Kristallnacht in
November 1938, Goebbels' pledge to 'eliminate the Jew' and the opening of Dachau had
made life too dangerous.
Gisela Thomas closed the door on the family house on 13 May 1939. She was 15; she
remembers it like yesterday. The house, full of works of art, stood in the wooded suburb
of Tiergarten in Berlin. She, her mother and her sister never saw it again. Kristallnacht in
November 1938, Goebbels' pledge to 'eliminate the Jew' and the opening of Dachau had
made life too dangerous.
They left it to Nazi looters. The three women drove to Hamburg. There they boarded a
ship, the SS St Louis, carrying 937 Jewish emigres. It was bound for Cuba and from
there, they thought, for freedom in the United States. In Havana, the ship was refused
entry. SS and Gestapo men got on board. The Nazi flag was hoisted. The ship left for
Miami. It was refused entry there, too.
'We were on the voyage of the damned,' recalls Gisela Thomas of the six 'nightmare'
weeks that the St Louis wallowed around the North Atlantic, desperately seeking a
homeland for its passengers.
183
'People were getting very hysterical. A number of people tried to commit suicide, two
jumped into the water. Thank God for Captain Schroeder. He saved my life. He was
determined not to take us back to Berlin. He made contact with England, France, Holland
and Belgium. We were divided between the four countries. My sister begged that we go
to the United Kingdom. The day that I arrived at Waterloo station was the day of my life
that I will never forget.'
Sixty-seven years on, Gisela Thomas is still haunted. 'My brain starts going when I tell
this story, it makes me so emotional,' she apologises.
Her name is on Schindler's list of survivors. She has expressed her gratitude by laying
flowers on Gustav Schroeder's grave in the United States.
Decades late, now a British citizen, she is doing something sane and long overdue. She
instructed the Art Loss Register in London early in 2006 to search the world's auction
records to find her father's lost art in Berlin.
'My claim is not for me. It is to seek justice,' she declares. 'If I get compensation, I will
not keep it.' She has excellent photographs of the Tiergarten house that show 19thcentury
German paintings by WA Meyerheim and Hans Hermann expensive then, less
fashionable now but still worth Pounds 10,000 to Pounds 30,000 each.
Gisela Thomas is one of a rising number of Jews who are belatedly seeking restitution of
art lost in the Second World War. Why have so many waited so long to act? 'It was
taboo,' says David Breuer-Weill, former head of Impressionist and Modern pictures at
Phillips de Pury. 'These were experiences so dreadful that there are survivors of
Auschwitz who never even mentioned them to their sons, let alone looked back on the art
their families lost and the money they might recover.
They wanted to move on, not to revisit the agony.
In many families it was impossible even to mention the word Holocaust, distasteful to
hint at the subject of restitution. But some Jewish families are now not one but two
generations on. For the younger people, this is an issue of belated justice.' The claims are
starting to flood in. Germany called a crisis meeting of museum directors in November
after the Brucke Museum in Berlin lost Kirchner's 1913 Berliner Strassenszene (Berlin
Street Scene) to a London claimant, the general secretary of the Communist Party of
Britain, Anita Halpin.
Mrs Halpin, a 62-year-old journalist who lives in Bow, harangues crowds of CPB
Marxists in Trafalgar Square. She is known in Fleet Street circles as 'Stalin's Granny' and
sold this street scene painted by Berlin's best Expressionist ( restituted to her last year) for
$38 million at Christie's New York last month.
Halpin is locked in angry exchanges with fellow Communists who have emailed her that
184
'all property is theft' and 'from each according to her ability' and are demanding that she
pay a living wage to the journalists on the CPB's Morning Star.
Halpin, who is keeping her counsel, is claiming another six pictures hanging in German
museums and could potentially lay claim to a number of the 4,000-plus paintings once
owned by her grandparents, Alfred and Tekla Hess.
The Hesses, who were shoe manufacturers, were forced to sell in distress.
Tekla Hess, who had got the paintings out to Switzerland when Hitler attacked modern
art in 1933, was visited by the Gestapo in 1936 and ordered to bring them back. She
scattered the collection among friends, relatives and art dealers after Kristallnacht and
fled Germany.
The Hess restitutions are just the start. The German museums are staring at more than
100 restitution claims and the numbers are starting to rise. The Austrian museums,
appallingly slow or uninterested after 1945 in identifying descendants of the
concentration camps, learned last week that 2,600 'rightful claimants' have come forward
since the October posting on the internet of a list of Jewish-owned missing pictures. They
were lost when Jews like Gisela Thomas were forced to flee their homes or were forcibly
taken from their homes, the art then mostly hidden in monasteries on the Danube.
There are hopes of finding 7,000 more.
Why so many claims, so late in the day? Art is the last unfinished business of the Second
World War.
'The art market is very strong right now. Inflated prices are behind it,' says Daniella
Luxembourg, the London dealer in 20th-century pictures who bid the $38 million at
Christie's to buy Anita Halpin's Kirchner for Ronald Lauder, heir to the Estee Lauder
cosmetics fortune and founder of the Neue Galerie at Fifth Avenue and 86th Street in
Manhattan. 'A restitution claim can be expensive because of the proofs needed to show
that legally you are a proper claimant and that you are the only proper claimant.' But even
if the lawyers argue for two or three weeks in court, there's now some hope of getting
change from a restitution sale as art prices routinely surge over $5 million.
This year alone, $135 million, $88 million, $40 million, $33 million and $31 million have
been paid for Gustav Klimt paintings to the Bloch-Bauer family descendants, $38 million
to Anita Halpin and Pounds 11.77 million for Egon Schiele's Herbstsonne (Winter
Sunshine) to the Grunwalds of Vienna. All were restituted art.
A further reason for the claims is that so many pictures of dodgy origin still hang on the
walls of Austrian, German and French museums. 'In Germany they probably run into
thousands,' mutters a senior London auction source.
'Why are they still there? It's because, in the Thirties, museums were given first pick by
185
the Nazis of confiscated works of art, before the sales took place. Other paintings were
lodged with museums for safekeeping and never returned. Then, from 1937 to 1938,
some 16,000 pictures were removed from the walls of German museums in Hitler's attack
on 'entartete kunst' ('degenerate art' ie, modern art), so that in the Fifties some museums
found themselves without any 20th-century art on their walls. When they went into the
market to repair their losses, a lot of the art that was then on sale had been looted.' It's not
the museums' only problem. Because the German and Austrian museums have dawdled
so long over restitution, the price of masterpieces they are having to hand back has soared
far beyond their capacity. The Brucke Museum can come nowhere near $38 million for
the Kirchner it hung for so long; the Belvedere in Vienna nowhere near the $135 million
or $89 million paid for Klimts it showed for 50 years. 'I told several directors in the
Nineties that they would be priced out of the market if they waited,' says Konrad
Bernheimer, London and Munich Old Master dealer with several restitutions behind him.
'They were slow to understand.' Andrew Lloyd Webber, however, has a trickier problem.
He was hoping to double his money last month on Picasso's Blue Period portrait of the
anarchist Angel Fernandez de Soto at Christie's New York when a challenge to his
ownership arrived out of the blue. It came from the descendants of the first owner of the
painting, the Jewish Berlin banker Paul von Mendelssohn-Bartholdy. Lord Lloyd-Webber
was informed that when he paid $29.5 million at Sotheby's in 1995 for Picasso's portrait
of his flatmate, he had bought a painting that had been sold under pressure from the Nazis
between 1933 and 1935.
Rising numbers of restitution claims assert that Jews came under pressure for their assets
from the moment Hitler became Chancellor in 1933. And there is no doubt that the von
Mendelssohn-Bartholdy family, owners of a bank that was 'Aryanised' in 1938, had to
part with many of their pictures before the war.
The competing argument, angrily voiced in the Berlin Senate this month over Anita
Halpin's restituted Kirchner, is that everyone was poor and under pressure in the
miserable Thirties. How far were Paul von Mendelssohn-Bartholdy and Alfred Hess
under Nazi pressure and how far under general pressure to make sales?
The reply from Professor Julius Schoeps of Potsdam (a member of the von MendelssohnBartholdy family, descended not just from the bank but from the composer) is that it is
Lord Lloyd-Webber's misfortune to be a so-called 'second victim' of Adolf Hitler an
innocent who happens to be the Nineties purchaser of a picture without good title.
Neither in German nor in English law, Schoeps claims, can good title pass with a bad sale
or stolen goods. And Schoeps has made his challenge in the New York Court of Appeals
in the United States, a country where, as London art-law expert Professor Norman Palmer
puts it, 'the Nazis always lose'.
Lloyd-Webber's hopes of $75 million for his picture died as Christopher Burge, Christie's
auctioneer, opened the sale two weeks ago with the words: 'Sadly, I must announce that
Lot 47, the 1903 Picasso, has been withdrawn' three hours before the auction began. Is it
now worth zero? Probably not.
186
Sotheby's reveals that it is now bringing together the descendants of wartime Jewish
owners and new 'second victims' of Hitler. They will then attempt to bang out a deal.
Lucian Simmons, Sotheby's head of restitution in New York, explains: 'Every painting
and work of art consigned to us is screened to minimise the risk we might inadvertently
offer for sale a work that was looted during the Second World War. When we identify a
potential problem, we try to bring together the 21st-century consignors and the heirs of
the original Jewish owners. In many cases the two parties agree on a joint auction sale.
Not every sale involves a 50/50 split. There's a universe of possible splits, but there is
often a resolution reached.' Lloyd-Webber is unlikely to be content with this.
He is intending to sue Schoeps for damages, seeing the Schoeps claim as frivolous and
experimental. He may also go after Sotheby's for selling him a picture in 1995 without
warning of the risks attached. To be fair to Sotheby's, no attempt had then succeeded in
pushing back to 1933 the starting date for Jewish claims of duress sales at rubbish prices.
But Lloyd-Webber's $75 million Picasso is just a peanut in the great restitution battle. In
the fight for justice, 60 years late, there are bigger things to come.
Somewhere in the world an art lover is staring at Van Gogh's Portrait of Dr Gachet the
doctor of whom the artist said, 'That man is sicker than I am.'
The portrait became the most expensive painting ever sold when it made $82.5 million to
cheers at Christie's New York in May 1990. A strongly documented claim has been made
by Christine Koenigs of Amsterdam, granddaughter of its Thirties owner, that the picture
is stolen goods. Who is the unlucky 'second victim' of Adolf Hitler? Word has it that the
Van Gogh is in Switzerland and belongs to the Barilla family of Padua, Italy, the pasta
kings of the United States. Barilla, though named by several sources, has always refused
to say or to produce Dr Gachet for exhibition.
Then there are problems stalking the Rose Period Picasso Garcon a la Pipe which became
the world's most expensive painting at auction ($104.1 million) at Sotheby's in May 2004.
No one is certain who bought that either. David Geffen, the California owner of the
Dream-Works movie empire? Philip Niarchos of the Greek shipowning family? Whoever
it is, the owner, should he seek to sell, is likely to face a claim from Schoeps that the
painting was a distress sale at a rubbish price in the mid-Thirties.
Restitution claims threaten three museums in particular. In Vienna, the Leopold Museum
is facing action over an Egon Schiele, worth who knows? up to Pounds 12 million, from a
British client represented by Matthew Bruce of London solicitors Freshfields Bruckhaus
Deringer. Bruce is trying to get round a 1998 Austrian law that says only Austrian state
collections can be required to restitute Nazi lootings in the Second World War. 'The
Leopold collection calls itself private, though it was Christine Koenigs, granddaughter of
the Thirties owner of Van Gogh's Portrait of Dr Gachet(left) financed with state money
and is in substance a public collection,' he declares. 'We are meeting with considerable
resistance from Professor Leopold.' If Bruce wins, he will open a floodgate of claims
from others against the Leopold pictures. These are thick with Gustav Klimts and Egon
187
Schieles which were prime targets for 'decadent art' seizures by the Nazis in 1938 and
1939.
Then there are the 'hidden treasures revealed', as the Russians tantalisingly call them; 72
Impressionist and Modern pictures that belong to German owners (notably the Jewish
Scharf-Gerstenberg family of Berlin). These were seized as war reparations and taken to
Russia by the Red Army in 1945 and were unveiled, to world astonishment, at the
Hermitage in St Petersburg from 1997 to 1998.
Gauguin in Tahiti, superb Toulouse-Lautrecs in the brothels around the Moulin Rouge, a
fantastic Degas of a top-hatted boulevardier, Renoirs and Monets; you can still see two
dozen on the walls.
Hermitage director Professor Mikhail Piotrovsky profoundly hopes that a deal will be
arranged by which the Germans will miraculously pay to restitute them.
Their value? In 1998 I produced a list in the Evening Standard, with the help of Bond
Street dealers, that estimated them at $480 to $550 million.
With the surge in values since, you can easily double that. Shall we say Pounds 500 to
Pounds 600 million?
Unfortunately for the Russians and the owners, there is only the smallest prospect of a
deal.
Sotheby's and Christie's, anticipating the sale of the 21st century, have been working
tirelessly to assist the original Jewish owners.
But the single biggest forced sale of 1939 to 1945 was that of the Old Master drawings of
the Amsterdam banker Franz Koenigs in April 1940. These drawings, some 580 sheets by
every European master who matters Durer, Raphael, Holbein, Rubens, Rembrandt; only
Michelangelo is missing are presently lying in Moscow in the annexe of the Pushkin
Museum, unshown to the public. They are the subject of a claim by Christine Koenigs,
granddaughter of the collector who was murdered by Nazi agents on Cologne railway
station in March 1941. Some are missing, a few others have been returned via the
Ukraine, but the 330-plus that stand due to the Koenigs family must have a value
anywhere between Pounds 700 million and Pounds 1,300 million, according to how
quickly and in what quantity they were to be sold. They amount to the single most
valuable art loss of the Second World War.
'No one would dream of putting them on the market all at once,' says Christine Koenigs,
who has no intention of selling them should she get them back. She plans a Koenigs
Museum in Amsterdam.
But she points to the madness of her grandfather selling the entire collection in 1940 to
Hitler's Dutch coal merchant, DG van Beuningen, for 1 million Dutch guilders, a quarter
188
of its insured value, as prima facie evidence of a forced sale.
Christine has not only to persuade Moscow to restitute the drawings, she has also to
persuade the Dutch courts to restitute to her and not to the Dutch state. In a shameful
decision presently under challenge in court in Amsterdam (judgement is due before the
end of 2006), the Dutch government has decreed that all art sales that took place in 1940
before the Nazis crossed the border are classed as 'voluntary'.
Franz Koenigs, selling in April 1940 to pay back a loan to his partners in the Jewish
Lisser-Rosencranz Bank, thus accepted a ridiculous price as Wehrmacht troops massed
on the German border in Holland. To its disgrace, the Dutch government has laid down
that his sale was not 'under duress'.
Why do Jews own so many of the masterpieces of 20th-century art? It is very simple. In
the first 50 years of the 20th century, when the modern movement changed the face of
European art, Jewish collectors in Switzerland, France and Germany in particular bought
extensively into Van Gogh, Cezanne, Picasso, Matisse, Kandinsky, Klimt, Schiele, Leger,
Modigliani and the painters who now fetch prices up to $139 million (the value put on
Steve Wynn's Picasso, The Dream, through which he put his elbow in Las Vegas in
October).
Elsewhere in Europe, notably in England, taste held out strongly against modernism. The
Tate gallery even refused a gift of four Kandinskys offered by Peggy Guggenheim in the
Fifties, seeing no importance in them. The strength of tradition here and in a handful of
cities in Europe is symbolised in the alleged exchange between Sir Winston Churchill
and Sir Alfred Munnings at the Royal Academy in 1948: 'What would you do if you met
Picasso on Piccadilly, Alfred?' 'Kick him in the arse, Sir Winston.' 'Quite right, Alfred.'
Sixty years on, the top prices for Munnings are around Pounds 1.5 million and for
Picasso around Pounds 75 million. The lucky owners of the masterpieces of 20th-century
art that still lie outside museums are the descendants of the Jewish collectors with big
enough eyes to buy them before the war.
That's if you can call it luck, considering the history, and the fight they've had, and will
continue to have, to get their art back.
END
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Chapter 7: Holocaust Denial and the Law – Criminal and Civil Responses
Michael J. Bazyler Sam Garkawe
[DRAFT** NOT TO BE QUOTED OR CITED]
7.1. The Phenomenon of Holocaust Denial
7.1.1. Introduction
7.1.2. What Is Holocaust Denial?
7.2. European Anti-Holocaust Denial Laws
7.3. Significant Criminal Prosecutions
7.4. Holocaust Denial And Civil Litigation:
David Irving v. Deborah Lipstadt
7.5. Denial of Other Historical Wrongs
7.7.1. The Armenian Genocide
7.7.2. Japan and Wartime Historical Denial
7.1.1. Introduction
A frequent question raised by anyone faced with the bizarre phenomenon of a person
denying the Holocaust is how -- in the face of the enormous amount of physical evidence
captured from the Nazis (including reams of documents, photographs and films),
eyewitness testimony by survivors and bystanders, demographic data (“If six million
Jews did not perish, what happened to them all?”), and the various confessions of the
Nazi perpetrators at both Nuremberg and during other trials -- anyone could claim that
the Holocaust is a hoax?
In this introductory section we examine the existence of this phenomenon. Later sections
discuss the law’s various responses (and non-responses) to Holocaust denialism.
While Holocaust denial can be found on almost on every continent, it is most rampant in
those countries that place the fewest restrictions on speech. For this reason, the United
States, where free speech is a paramount value and even loathsome speech is
constitutionally protected, has become a popular save haven for Holocaust deniers. Other
nations with widespread protection of speech –– the United Kingdom, Canada, Australia
and New Zealand, and the Scandinavian countries –– also allow Holocaust deniers to
disseminate their message. With the rise of the Internet, deniers living in those countries
have now been able to transmit their obnoxious ideology worldwide by using servers
originating in those countries.
190
A major region from where Holocaust denial is regularly emanated is also the Muslim
world. It finds a receptive audience with those Muslims who use it as a means to delegitimize Israel.
This includes Holocaust denial not only coming from countries with majority Muslim
populations like the Arab states, Iran, Indonesia and Malaysia, but also pronouncements
from Muslim leaders in the West. For example, Sheikh Taj Aldin Alhilali, the mufti of
Australia and a member of Prime Minister John Howard's Muslim Community Reference
Group, in July 2006 dismissed the Holocaust as a "Zionist lie" in a series of fiery
sermons.
Muslim-majority countries, however, seem to have the most frequent and most consistent
pattern of Holocaust denial pronouncements, using statements first made by Holocaust
deniers in the West. The most frequent assertion questions the number of Jews killed
during World War II, and books such as The Hoax of the Twentieth Century334 and Did
Six Million Really Die?335 have been translated into Arabic and are widely sold.
In 2005, the rhetoric acquired a new spokesperson: Iranian President Mahmoud
Ahmadinejad. In a speech made that December, Ahmadinejad labeled the Holocaust a
“myth” and a "fairy tale." In a March 2006 speech he again denied the Holocaust, adding
this time:
They have fabricated a legend under the name Massacre of the Jews, and
they hold it higher than God himself, religion itself and the prophets
themselves. If somebody in their country questions God, nobody says
anything, but if somebody denies the myth of the massacre of Jews, the
Zionist loudspeakers and the governments in the pay of Zionism will start
to scream.336
These statements, coming in the aftermath of Ahmadinejad’s earlier statement in October
2005 calling for Israel to be “wiped off the map” caused a large outry in the West, with
numerous political leaders loudly condemming Ahmadinejad’s remarks. Holocaust
survivor and Nobel Prize-winner Elie Wiesel called Ahmadinejad the "number-one
Holocaust denier in the world."337 George Schultz, U.S. Secretary of State George
Schultz under President Reagan, noted: “The president of Iran challenges the truth of the
334
Arthur R. Butz and A. R. Butz, The Hoax of the Twentieth Century: The Case Against the Presumed
Extermination of European Jewry (New York: Theses & Dissertations Press, 2003).
335
Richard E. Harwood, Did Six Million Really Die?:The Truth At Last (East Sussex, UK: Historical
Review Press, 1974).
336
“Ahmadinejad: Holocaust a myth,” AlJazeera.net, March 16, 2006, available at
<http://english.aljazeera.net>
337
“Elie Wiesel Returns To S.F. For Lifetime Achievement Award,” May 9, 2007, available at
<www.abc.local.go.com> In February, 2007, a Holocaust denier named Eric Hunt grabbed Wiesel in a
hotel elevator, told him he was being taken "into his custody" and demanded that Wiesel admit that "the
Holocaust is a lie." Id. Hunt run away after Wiesel struggled with him, and was later arrested in New Jersey
after he posted his encounter on the Internet. Id.
191
Holocaust, while at the same time swearing that Israel should be wiped off the face of the
Earth. What should one conclude from these positions other than that he is denying the
last Holocaust in order to rationalize a new one?”338
Ahmadinejad’s speeches were followed by a Holocaust cartoon contest held in Tehran
seeking to mock the Holocaust. The contest, launched by an Iranian newspaper, was
publicized as a response to the Danish cartoons of the Prophet Muhammad that sparked
rage among Muslims worldwide.
In December 2006, Iran held a conference questioning the Holocaust. Possessing all the
trappings of a serious academic event, and officially titled “Review of the Holocaust
Global Vision,” the conference was held at the University of Tehran.under the auspices
of the Ministry of Foreign Affairs’ Institute for Political and International Studies. The
speakers included some of the most notorious Holocaust deniers, including former
American Klan leader David Duke, French Holocaust denier Robert Faurisson and
Australian denier Frederick Toben. One genocide scholar described the participants as
“the same, sorry lot of First World Holocaust deniers.”339 As reported by the
International Herald Tribune, set to attend the conference was an Israeli Arab Muslim
lawyer from Nazareth, Khaled Kasab Mahameed, who aimed to directly confront the
phenomena of Muslim Holocaust denial. According to Mahameed:
Instead of trying to understand the Holocaust and learn something from it,
they choose to deny it. . . . I'm going to tell them that there is no argument
about the facts, and that they must try to understand how the Holocaust
has shaped the positions of the Jews, of Europe, of America. I will tell
them they must internalize its meaning and not say it didn't happen.340
Iran refused Mahameed a visa to present his point of view. Ultimately, as explained by
one academic, “The Tehran conference was hardly a gathering that expanded Holocaust
denial beyond its usual den of First World malcontents and Middle Eastern anti-Zionists.
It was, above all, a pseudo-scholarly media event that united First World with Persian
Gulf Holocaust deniers.”341
Iran’s actions were again condemned by the international community. Newly appointed
UN Secretary-General Bai Ki-moon, on the day of his appointment reacted to the
conference in Iran by noting: “Denying historical facts, especially on such an important
subject as the Holocaust, is just not acceptable. Nor is it acceptable to call for the
elimination of any State or people. I would like to see this fundamental principle
respected both in rhetoric and in practice by all the members of the international
community.”342 The next month, on January 26, 2007 and marking the 2nd annual
338
Address of George P. Schultz before the American Jewish Historical Society, April 25, 2007, available
at <www.ajhs.org>.
339
William F. S. Miles, “Is Holocaust Denial Spreading,” The ISG Newsletter, no. 38, Spring 2007, p. 2.,
340
“Israeli Muslim to take on Holocaust denial at Iran conference,” International Herald Tribune,
November 17, 2006.
341
Miles, supra.
342
Statement of UN Secretary-General Bai Ki-moon, Press Conference, December 14, 2006.
192
International Day of Commemoration to Honor the Vctims of the Holocaust, the UN
General Assembly Members adopted by consensus a resolution specifically in reaction to
Iran’s conference “condemming without any reservation denial of the Holocaust”343
(Only the Iranian representative to the UN spoke against the resolution). This was a
reaffirmation of the statement made by the UN General Assembly in the 2005 Resolution
establishing Holocaust Remembrance Day, where the Generally Assembly noted that it
“[r]ejects any denial of the Holocaust as an historical event, either in full or part.”344
In November 2007, the 193 members of the UN Educational, Scientific, and Cultural
Organization (UNESCO), the UN agency primarily responsible for education,
unanimously adopted a resolution at its meeting in Paris promoting rememrance of the
Holocaust. The resolution was clearly aimed as a response to Ahmadinejad’s Holocaust
denial statements. According to the U.S. State Department: “[The UNESCO] resolution
“clearly demonstrates the refusal of UNESCO's member stats to countenance any form of
Holocaust denial.”345
7.1.2. What Is Holocaust Denial?
Promotion of the Nazi ideology is easy to recognize. What do we mean, however, by
Holocaust denial? Denialists are those individuals who dispute the basic facts of the
Holocaust by denying, to use our legal parlance, the mens rea and the actus reus of the
crime. The following facts, recognized by all legitimate historians, are rejected by
Holocaust denialists: (1) that Hitler and his fellow Nazis intended to wipe out European
Jewry and ultimately annhiliate the Jewish people; (2) that one means used by the Nazis
to accomplish this goal was the use of homicidal gas chambers at Auschwtz and at other
concentration camps; and (3) that the ultimate result of these Nazi policies was the
murder of approximately six million Jews.
In the denialists’ world, all three statements are false. First, claim the denialists, the Nazis
did not desire to exterminate Jews. In Denying History346, a detailed analysis of the
Holocaust denial movement, Michael Shermer and Alex Grobman quote denialist
Bradley Smith, who summarizes the major creed of the movement: “Revisionists deny
that the German State had a policy to exterminate the Jewish people (or anyone else) by
putting them to death in gas chambers or by killing them through abuse or neglect.” 347
Second, according to the denialists, the Nazis built the gas chambers at the concentration
camps for delousing of the prisoners’ clothing and blankets -- not for mass murder. As to
the crematoria found at the concentration camps, the denialists claims that they served to
efficiently dispose of dead bodies of those who died of “natual causes”: disease,
starvation and overwork. Finally, the six million figure, according to the denialists, is a
gross exaggeration. Different denialists throw out different figures about how many Jews
343
U.N. General Assembly Resolution on Holocaust Denial, GA Res. A/61/L.53 (Jan. 26, 2007).
U.N. General Assembly Resolution on Holocaust Remembrance, GA Res. A/RES/60/7 (Nov. 1, 2005).
345
U.S. Dept. of State, Press Release 2007/962, Nov. 2, 2007.
346
Michael Schermer and Alex Grobman, Denying Histor: Who Says the Holocaust Never Happened And
Why DoThey Say It? (Berkeley: University of Californiia Press 2000).
347
Bradley R. Smith, The Holocaust Controversy: The Case for Open Debate (Visalia, CA: Committee for
Open Debate on the Holocaust, 1992), quoted in Shermer & Grobman, p. xv.
344
193
died during World War II, from a few thousand to a few hundred thousand. Probably the
most schocking (and tastless) denialist statement about the death rate of the Jews was
uttered by pseudohistorian and denialist David Irving (see later discussion), who in a
speech in Calgary, Canada in 1991 uttered: “More women died in the back seat of
Edward Kennedy’s car at Chappaquiddick than ever died in a gas chamber in
Auschwitz.”
Shermer and Grobman enapsulate the beliefs of denialists into what they call the three
pillars of Holocaust denial: “no gas chambers, no six million murdered, no master
plan.”348 They also explain why these self-designated Holocaust revisionists should
properly be termed Holocaust denialists: “[The] so-called Holocaust revisionists are in
effect denying the Holocaust, since they deny its key components – the killing of six
million, gas chambers, and intentionality [of the German perpetrators].”349 French
classicist Pierre Vidal-Naquet, in his analysis of Holocaust denialists, labels them
“assassins of memory.”350
Together with the above assertions the denialists add an equivalency argument: the
Allies, they claim, killed as many, if not more Germans, during their military campaigns
and also engaged in the indiscriminate and unncecessary killing of German civillians.
The firebombing by American and British planes of the city of Dresden in 1944 is usually
cited as evidence of Allied policy of indiscriminate killing of civillians. While legitimate
historians estimate that indeed approximately 30,000 perished during the bombing of
Dresden, the denialists inflate the number, with some using the figure as hight as
300,000.351 In this camp, are also denialists who assert that the Germans were the victms
and the Allies the wrongdoers. As Shermer and Grobman explain: The denialists’ “cause
is the radical revision of the Holocaust into just another unfortunate by-product of the
war, with guilt shared equally among the competing nations.”352
A common assertion of the denialists tied to the equivalency argument is that Hitler has
been understood and so unfairly villified. Mark Weber, director of Institute of Historical
Review (“IHR”), probably the most prominent Holocaust denial organization in the
United States, explains:
A balanced or objective portrayal of Hitler is nearly impossible. In today’s
America, the portrayal of Hitler and his regime is grotesquely unbalanced, not
only in the mass media, but even in supposedly authoritative history books and
reference works. . . . American dictionaries routinely refer to Hitler as a “Nazi
dictator,” while describing Stalin merely as a Soviet “political leader” or
348
Shermer & Grobman, p. 40.
Michael Shermer and Alex Grobman, Denying History: Who Says the Holocaust Never Happened And
Why DoThey Say It? (Berkeley: University of Californiia Press 2000), p. xv (italics in origina). .
350
Pierre Vidal-Noquet, Assassins of Memory: Essays on the Denial of the Holocaust, (Jeffrey Mehlman,
trans.) (N.Y: Columbia U. Press 1993).
351
The apologists for the Nazi crimes also conveniently ignore that the Nazis murdered Jews not out of any
military necessity, but as a policy separate from their military campaigns, while the unfortunate killing of
German civillians was done as part of the military battles engaged in by the Allies.
352
Shermer and Grobman, p. 90.
349
194
“premier.”. . . . To support their distorted portrayals of Hitler and the Third Reich,
prominent historians rely upon and cite fraudulent source materials. . . While it’s
true that winners write history, that alone does not entirely explain why Hitler and
the Third Reich continue to be portrayed in such a distorted and prejudiced way in
our society. This widespread and enduring bias with regard to Hitler and his
regime. . . is a reflection of the Jewish-Zionist grip on American cultural and
political life. 353
The obsession with a Jewish-Zionist conspiracy is also common element among
denialists. Shermer and Grobman explain: “Running throgh almost all denier literature –
books, articles, editorials, reviews, monographs, guides, pamphlets, and promotional
materials – is a fascination with Jews and everything Jewish. No issue of the Journal of
Historical Review fails to contain something on the Jews. . . .The Jewish focus is
pervasive.”354
In a 2005 speech to his minions in New York City and featured on the IHR website
(along with an American flag graphic on the home page with the Star of David replacing
the 50 stars), Weber explained:
[N]o issue is of greater urgency than breaking the Jewish-Zionist grip on
American political, social and cultural life. As long as this power remains
entrenched, there will be no end to the systematic Jewish distortion of history and
current affairs, the Jewish-Zionist domination of the US political system, Zionist
oppression of Palestinians, the bloody conflict between Jews and non-Jews in the
Middle East, and the Israeli threat to peace.
Throughout history Jews have time and again wielded great power to further
group interests that are separate from, and often contrary to, those of the nonJewish populations among whom they live. This creates an inherently unjust and
unstable situation that, as history shows, never endures.355
According to the Anti-Defamation League, the oldest organization in the United States
fighting hatred and bigotry directed at Jews and other minority groups, Holocaust denial
is nothing more than a contemporary version of old-fashioned antisemitism.356 Shermer
and Grobman concur:
Like all ideologically driven movements, Holocaust denial is complex and
multifaceted, featuring diverse motives and personalities, but we maintain that the
antisemitic theme returns over and over. It may take an extreme form…[o]r it may
Institute for Historical Review, “Irving, Weber Speak On Hitler’s Place in History,” News from the
Institute for Historical Review, <www.ihr.org> (April 2005).
354
Shermer and Grobman, p. 76.
355
Mark Weber, “The Challenge of Jewish-Zionist Power in an Era of Global Struggle,” available at
<www.ihr.org> (Address of the director of the Institute for Historical Review, delivered at an IHR meeting
in New York City on July 16, 2005).
353
356
See <www.adl.org> (“Holocaust Denial: Anti-Semitism Masquerading as History”)
195
be cloaked in subtler garb. . .[b]ut it seems difficult to separate the Holocaust
denial movement from antisemitic sentiments.357
As part of their antisemitic agenda, another assertion often made by denialists is to turn
the victims into perpetrators by claiming that Israel is likewise committing a genocide of
the Palestinians. Chapter 1 already discussed the inversion of Holocaust terminology and
ideology by those seeking to characterize Israelis as modern Nazis. In effect, denialists
and their supporters aim to create a moral equivalency between the Shoah and the Naqba
(“the Catastrophe”), the Arab term designating the creation of the State of Israel in 1948.
Some Israel-bashers go even further. In July 2007, Hamas leader Khaled Mashaal
charged not only that the Holocaust was “exaggerated,” but also that “what Israel did to
the Palestinians was many, many times worse than what the Nazis did to the Jews.”358
Israel is also used by deniers as a reason why Jews have so strongly asserted the
“Holocaust myth.” According to the deniers, the Allies gave the Jews territory for a
Jewish state in British-controlled Mandate Palestine as a way to diminish guilt imposed
upon them by the Jews for the supposed murder of the six million. Today, according to
these proponents, Jews continue to perpetuate the myth in order to obtain support from
the Europeans and the Americans for the State of Israel.
Holocaust denialists are not legitimate historians. In December 1991, the governing
council of the American Historical Association, the largest and oldest professional
organization of historians in the United States, unanimously approved a statement
condemning the Holocaust denial movement, stating, "No serious historian questions that
the Holocaust took place."
How are denialists, therefore, different from legitimate historians? Legitimate historians
engage in historical research to gain new insights into the past and go where the facts
may take them. Such efforts may result in a revision of the historical narrative about a
certain event. Holocaust denialists would have outsiders believe that they are engaged in
the same task in order to better illuminate a specific past: the fate of the Jews during the
Nazi era. In actuality, their predetermined objective is to distort that past. In contrast to
legitimate historians, however, denialists have a preconceived set of notions and then use
and distort facts to conform to these notions. To use Shermer and Grobman’s
terminology, Holocaust denialists are not engaged in “rational revision” of the events of
the Nazi era but in a “dogmatic denial” of those events that do not fit within their
preconceived notions of those events.359 For this reason, Shermer and Grobman conclude:
357
Shermer and Grobman, p. 87.
Simon Wiesenthal Center, “Hamas Leader Mashaal: Nazi Holocaust ‘Exaggerated’ – Wiesenthal Center
Urges Repudiation by Arab Leaders,” SWC News, July 17, 2007, available at <www.wiesenthal.com>.
359
As Shermer & Grobman explain: “The paradox of history is resolved. . .on the tier where we can more
easily distinguish between rational revision and dogmatic denial. Obviously, there is a difference between
reinterpreting the specific facts of some historical event within the context of the larger historical picture
and denying those facts altogether. No one would deny, for example, that Robert E. Lee invaded the North
in June 1863, met the Union Army at Gettysburg, was beaten, and retreated to the South. We know with
great confidence the basic facts of this Civil War battle. There is considerable dispute among Civil War
historians, however, on a number of issues, including just how critical this battle was in turning the tide of
358
196
“[I]nstead of revising history, instead of modifying a theory based on new evidence or a
new interpretation of old evidence, the Holocaust deniers are engaged in pseudohistory,
the rewriting of the past for present or political purposes.” What are those purposes? As
earlier noted, it is to warn the world of a purported Jewish conspiracy threating the safety
of humankind.
As noted above, denialists reject the term “Holocaust denial” and, in a leading case, have
even sued for defamation when branded with this label.360 Instead, in order to give their
claims a cover of legitimacy, denialists refer to their effort as “historical revisionism” or
“revisionist research.” The “leading Holocaust denial organization in the United
States”361 located in Southern California calls itself – as noted above – the Institute for
Historical Review (“IHR”). IHR titles its publication the Journal of Historical Review.
The publication’s format and tone – often containing numerous citations and written in an
academic style --mimick mainstream academic publications.
Robert Jan van Pelt, expert on the history of Auschwitz who testified in the Irving trial in
London (see below), would also reject the label “Holocaust denial.” Rather, van Pelt calls
this phenomena Holocaust “negationism” since these individuals aim to erase something
that happened, while a denialist believes, or pretends to believe, that an event never
happened.362
the war . . .Here the facts do not just speak for themselves, but must be interpreted. Still, we can use the
methods of science to help us resolve such debates through the same methods that other historical sciences
can solve them – a scholar can marshal evidence and apply tight logic, tempered with confidence intervals
and error bars (to indicate the level of confidence in the findings and the range of probable error). Then,
through peer review and discussion, other participants can register their own degree of confidence in the
scholar’s conclusions. This process is practiced by all scientists, including those working with data from the
past, and has been used by Holocaust historians to revise our understanding of the Holocaust. In contrast, as
we shall see, the Holocaust deniers do not use such methods.” Shermber & Grobman, p. 31.
360
IHR, on its website explains: “Detractors of the IHR have often mischaracterized it as a ‘Holocaust
denial’ organization. This smear is completely at variance with the facts. The Institute does not ‘deny the
Holocaust.’ Every responsible scholar of twentieth century history acknowledges the great catastrophe that
befell European Jewry during World War II. [New paragraph]. All the same, the IHR has over the years
published detailed books and numerous probing essays that call into question aspects of the orthodox
Holocaust extermination story, and highlight specific Holocaust exaggerations and falsehoods.”
<www.ihr.org> (see “About Us”).
For the defamation lawsuit brought by David Irving against Deborah Lipstadt for calling him a Holocaust
denialist, see discussion below.
361
Shermer and Grobman, p. 9.
362
Robert Jan van Pelt, The Case for Auschwitz: Evidence from the Irving Trial, ( Bloomington, IN:
Indiana U. Press 2002), p. 83.
197
Ron Rosenbaum speaks of the “demonic ingenuity, the cruel sophistry of those who
propagate”363 denial of the Holocaust and its atrocities. As he explains:
For the most part, they know it happened (the testimony of the apostate neo-Nazi
Holocaust deniers confirms this); they’re glad it happened; they take sick
satisfaction in denying it happened only because it offers a novel way to add
insult to injury: to murder not just the body but the sould, the memory, of the
dead. To become, in effect, accessories after the fact, by the very fact of denying
the fact.364
A frequently-uttered argument of the denialists is that they are merely excercising their
free speech rights and providing a missing alternative perspective that should not be
dismissed out of hand. Their critics, they charge, are stifling free intellectual inquiry and
allowing only the “orthodox” conformist view of the Holocaust to be presented in the
academic and public arenas. As example, the denialist Bradley Smith calls his U.S.based group the "Committee for Open Debate on the Holocaust." Ahmadinejad, in
organizing his convocation of deniers in Tehran in 2006, argued that it is impossible in
the West to debate the facts of the Holocaust because it is considered sacrosanct. Iran, for
that reason, was convening a conference for such a debate.
Holocaust historians, for the most part, refuse to debate Holocaust deniers. Deborah
Lipstadt, who has been studying the phenomenon since 1987 and a prominent opponent
of the denialists (see discussion below), explains why.
[T]he deniers want to be thought of as the “other side.” Simply appearing with
them on the same stage accords them that status. Those who have challenged me
to reconsider this policy fear that when I refuse, the deniers are left free to posit
their claims with no one to challenge them. In fact, whenever I refused an
invitation to appear on [] a [television talk] show, the producers abandoned the
idea for the shortly thereafter. Refusal to debate the deniers thwarts their desire to
enter the conversation as a legitimate point of view.365
Harvard Law professor Alan Derschowitz, who will pretty much debate anyone, once
stated made his point about the looniness of the denialists by stating that he will debate a
Holocaust denier if two more debate items are added to the agenda: (1) that slavery did
not exist in the United States and (2) that the sun does not rise in the east.
Lipstadt points out that debating whether the Holocaust was a hoax would be “equivalent
of the scholar of ancient Rome debating whether the Roman Empire ever existed or the
French historian proving that there really was a French Revolution.”366 As to the charge
Ron Rosebaum, “Introduction,” in Those Who Would Deny the Past: The Question of Anti-Semitism,
(Ron Rosenbaum, ed.) (New York: Random House 1994).
364
Id. (italics in original; asterisk footnote omitted).
365
Deborah Lipstadt, Denying the Holocaust: The Growing Assault on Truth and Memory (New York:
Penguin Books, 1994), p. xiii. ADD STORY ABOUT PBS WANTING LIPSTADT TO DEBATE DAVID
IRVING IN 2006.
366
Id, p. xiv.
363
198
that refusal to debate the reality of the Holocaust “is inconsistent with the free pursuit of
ideas,” Lipstadt points out that this view
reflects a failure to understand both the ludicrousness of Holocaust denial and the
nature of the academy. It reflects the moral relativism prevalent on many
campuses and in society at large. The misguided notion that everyone’s view is of
equal stature has created an atmosphere that allows Holocaust denial to flourish. .
. . In the name of free inquiry we must not succumb to the silly view. . .that every
idea is of equal validity and worth. Although the academy must remain a place
where ideas can be freely and vigorously explored[,] it must first be a a place that
differentiates between ideas with lasting quality and those with none.”367
As Lipstadt notes, if all ideas should be open to academic debate, then we might as well
have a debate about such odious notions as to whether “individuals of African descent
should be physically separated from America’s ‘European’ population.”368
In Denying the Holocaust, Lipstadt also notes that it would be fruitless to respond to each
of the deniers’ arguments head-on. As she explains: “Time need not be wasted in
answering each and every one of the deniers’ contentions. It would be a never-ending
effort to respond to arguments posed by those who falsify findings, quote out of context,
and dismiss reams of testimony because it counters their arguments. It is the speciousness
of their arguments, not the arguments themselves, that demands a response. . . .[A]bove
all, it is essential to expose the illusion of reasoned inquiry that conceals their extermist
views.369
Shermer and Grobman take the opposite approach. In their study, they set out each one of
the deniers’ arguments and demonstrate their falsities. As they explain: “We believe that
once a claim is in the public conscounsess (as Holocaust denial undoubtedly is), it should
be properly analyzed and, if appropriate, refuted vigorously in the public arena. . . Not
only is it defensible to respond to Holocaust deniers; it is, we believe, our duty.”370 Since
in this chapter we only summarily lay out the various “the Holocaust is a hoax”
arguments of the deniers and presented earlier a brief history of the Holocaust, we refer
the reader to Shermer and Grobman’s volume for a thorough refutation of the deniers’
claims.
Shermer and Grobman demonstrate the truth of the Holocaust through “convergence of
evidence” analysis, meaning that independent facts all lead to the same conclusion. As
they explain:
367
368
Id., p.xv – xvi. .
Id., p. xv.
369
Id., p. 28 (italics in original) Ironically, Lipstadt and her team of lawyers and historical experts were
forced to do exactly that when sued by David Irving for labelling him a Holocaust denier. See discussion
below.
370
Shermer & Globman, p. 14-15.
199
Here is a convergence of evidence that proves the Holocaust happened:
1. Written documents – hundreds of thousands of letters,memos, blueprints,
orders, bills, speeches, articles, memoirs and confessions
2. Eyewitness testimony – accounts from survivors, Jewish Sonderkommandos
(who were forced to help load bodies from the gas chambers into the crematoria
in exchange for the promise of survival). SS guards, commandants, local
townspeople, and even high-ranking Nazis who spoke openly about the mass
murder of the Jews
3. Photography – including official military and press photographs, civillian
photographs, secret photographs taken by survivors, aerial photographs, German
and Allied footage, unofficial photographs taken by the German military
4. The camps themselves – concentration camps, work camps, and extermination
camps that still exist in varying degrees of originilality and reconstruction
5. Inferential evidence – population demographics, reconstructed from the preWorld War II era: if six million Jews were not killed, what happened to them
all?371
Another useful and easily available resource is the Anti-Defamation League’s online
guide to exposing and combating Holocaust denial372, which we assign to our students.
As with our students, we invite the reader also to review the actual words of the deniers,
set out in the deniers’ various websites and easily located through a Google search.
For many, Holocaust deniers are viewed with bemusement, harmless “kooks,” on par
with flat-earth advocates, and those who believe that Elvis is still alive, or that the
September 11 tragedy was a U.S.-government plot or the work of some vast Jewish
conspiracy. As Shermer and Grobman ask rhetorically, “Who in their right mind would
say that the Holocaust never happened?”373
The rise of Hitler demonstrates, however, that kooks should nevertheless be taken
seriously rather than viewed with amuzement as harmless individuals. Shermer and
371
Shermer and Grobman, p. 33.
Anti-Defamation League, Holocaust Denial: An Online Guide to Exposing and Combating Anti-Semitic
Propaganda, available at <www.adl.org> The United States Holocaust Memorial Museum, on its website,
provides useful links to other online materials discussing Holocaust denial. See <www.ushmm.org>. For
other useful studies see also Paul Kuttner, The Holocaust: Hoax or History? The Book of Answers to Those
Who Would Deny the Holocaust (New York: Dawnwood Press, 1996): John C. Zimmerman, Holocaust
Denial: Demographics, Testimonies and Ideologies (CITY:University Press of America, 2004). There is
also a study specifically directed to young adults: Ted Gottfried, Deniers of the Holocaust (CITY:21st
Century Books, 2001).
372
373
Shermer & Grobman, p. 40.
200
Grobman point out the danger of failing to reply to the denialists in the court of public
opinion:
Consider this: Some Holocaust deniers, particularly those with extreme right-wing
leanings, might gain greater acceptance if the crime attached to fascism had never
actually happened. Without the Holocaust, perhaps fascism would seem a more
acceptable alternative to democracy. Moreover, if people can be convinced that
the Holocaust never happened, perhaps they can also be persuaded to believe that
slavery is a hoax perpetrated by blacks to coerce Congress to institute affirmativeaction programs. Once we allow the distortion of one segment of history without
making an appropriate response, we risk the possible distortion of other historical
events. For this reason, Holocaust denial is not just a Jewish issue. It is an attack
on all history and on the way we transmit past to the future.
....
We can no longer ignore the deniers, calling them names and hoping they will go
away. They are not going to go away. They are highly motivated, reasonably well
financed, and often well versed in Holocaust studies. Like most fringe groups,
deniers may seem relatively small and harmless, but remember the adage: For evil
to triumph it only requires that the good do nothing. 374
How prevalent is Holocaust denial? Lipstadt notes that in a 1993 Roper Organization
poll, 22 percent of American adults and 20 percent of American high school students
answered “yes” to the question that it is possible that “the Holocaust did not happen.”375
And the danger is that with Holocaust survivors dying out, the belief might increase as
fewer live witnesses exist to counter the claims. Lipstadt explains: “The deniers’ window
of opportunity will be enhanced in years to come. The public, particularly the
uneducated public, will be increasingly susceptible to Holocaust denial as survivors
die….Future generations will not hear the story from people who can say ‘this is what
happened to me. This is my story. For them it will be part of the distant past and,
consequently, more susceptible to revisionism and denial” 376
Lipstadt atrributes the persistent, and perhaps even growing, belief that the Holocaust is a
myth to four factors.
First, is lack of education. Referring to the same Roper poll, she notes that 38 percent of
adults and 53 percent of high school students answered “don’t know” or incorrectly
explained what is meant by “the Holocaust.”
374
Shermer and Grobman, p. 16-17.
Lipstadt, p. xi.
376
Lipstadt, p. xiii. (italics in original).
375
201
Second, she notes that a significant number of Americans are always prone to believe the
most outlandish claims (Her example: “According to certain surveys the number who
believe Elvis Presley is alive is in the double digits.”377).
Third, she blames the modern trend, usually associated with deconstructionism, to
question the notion of objective truth. While Lipstadt does not claim that scholars who
support the deconstructionist approach are deniers, she notes:
Because deconstructionism argue[s] that experience was relative and nothing was
fixed, it created an atmosphere of permisseveness toward questioning the meaning
of historical events and made it hard for its proponents to assert that there was
anything ‘off limits’ for this skeptical approach. The legacy of this kind of
thinking was evident when students had to confront the issue. For too many of
them found it impossible to recognize Holocaust denial as a movement with no
scholarly, intellectual, or rational validity. A sentiment had been generated in
society – not just on campus – that made it difficult to say: ‘This has nothing to do
with ideas. This is bigotry.”378
Lipstadt fears that “[t]hese attacks on history and knowledge have the potential to alter
dramatically the way established truth is transmitted from generation to generation. . . .
No fact, no event, and no aspect of history has any fixed meaning or content. Any truth
can be retold. Any fact can be recast. There is no ultimate reality. Holocaust denial is part
of this phenomenon.”379 For this reason, Lipstadt subtitled her book “The Growing
Assault on Truth and Memory.”
Finally, according to Lipstadt, “there is a part in everyone – including survivors – that
simply finds the Holocaust beyond belief. This may explain why some of the 22 percent
who answered Roper in the affirmative did so. They found it hard to believe the
Holocaust happened. Given that the Holocaust itself beggars the imagination, it is
predictable that the deniers will find good-hearted but uneducated people who will
succumb to these mental gyrations.”380 Holocaust historian makes the same point in
psychological terms by noting that since “for exteremely wide circles of people the very
phenomenon of the Holocaust is incomprehensible, unintelligible and untenable, [ ] an
explanation claiming that it did not happen is accepted with relief.381
In addition to the four factors discussed above, the Holocaust deniers aim to instill doubt
by mixing truth with lies, providing incomplete or misleading information, and either
ignoring incontroverable documentation or labeling them as forgeries. Eyewitness
377
Lipstadt, p.xii.
Lipstadt, p. 18. For a reply to Lipstadt, arguing that the deconstructionist technique of postmodernism
can in fact be a tool to expose Holocaust denial, see Robert Eaglestone, Postmodernism and Holocaust
Denial, (Cambridge, UK: Icon Books 2001).
379
Id., p. 19.
380
Id., p. xvii.
381
Yehuda Bauer, “’Revisionism’: The Repudiation of the Holocaust and Its Historical Significance,” The
Historiography of the Holocaust Period (Israel Gutman and Gideon Greif, eds), (Jerusalem: Yad Vashem,
1988), p. 708, quoted in Shermer & Grobman, p. 3.
378
202
testimonies of victims and neutral observers are labelled as fabrications.382 One allegation
of many deniers, for instance, is to label The Diary of Anne Frank as a forgery.
Confessions of the perpetrators are described either as unreliable or obtained under
duress. And West Germany’s full acknowledgement of the facts of the Holocaust – and
making it a crime to publicly assert otherwise – are dismissed as political moves by a
defeated nation to ingratiate itself with the Allied nations rather than as an
acknowledgment of truthful facts.
After an intensive voyage into the land that Holocaust deniers inhabit, including inperson encounters with the most notorious Holocaust deniers, Shermer and Grobman
describe it as “a looking-glass world where black is white, up is down, and the normal
rules of reason don’t apply.”383
382
Sonderkommandos, Jews whose job was to drag the bodies of those just murdered in the gas chambers
for disposal, either in crematoria or by burning in open pits, provide the most detailed eyewitness testimony
of how Jews were gassed to death. Denialists simply ignore their statements or accuse the surviving
Sonderkommando of fabrication. For a recent compilation of such testimonies see Gideon Greif, We Wept
Without Tears: Testimonies of the Jewish Sonderkommando from Auschwitz (New Haven: Yale U. Press
2005).
383
Shermer & Grobman, p. 1.
203
7.2. European Anti-Holocaust Denial and Related Criminal Legislation
As a result of the enormous suffering inflicted upon the world by the Nazi regime, and
especially Europe, a number of European countries have enacted laws criminalizing both
the denial of the historical truth of the Holocaust and the promotion of Nazi ideology.
The aim of these laws is to prevent the resurrection of Nazism in Europe by stamping out
at the earliest opportunity – or to use the phrase “to nip it in the bud” – any public
reemergence of Nazi views, whether through speech, symbols, or public association.
Individuals and groups today promoting Nazism, often called neo-Nazis, do not limit
their ideology just to antisemitism. Part and parcel of their message also involves hatred
of other minority groups, most often individuals of African, Arab and Asian descent, and
immigrants from non-European nations. As a result, a number of the European laws
banning neo-Nazi messages also ban racist and hate speech. Some also criminalize the
denial of other genocides, most prominently the genocide of the Armenians.
Holocaust denial criminal prohibitions are a European phenomenon not only because the
Holocaust took place in Europe, and so stem for the fear that without such laws Nazism
may rise again, or at the least the reemergence of state-sanctioned and publicly accepted
antisemitism. Another major reasons stems from the weight of the values placed by
different societies, which are in turn reflected in the laws of that society. In the AngloAmerican legal world, enormous value is placed on the freedom of individuals to express
their views, especially if those views have a political content. This value is expressed in
the phrase “free speech” and is especially strong in the United States, where the U.S.
Supreme Court, interpreting the First Amendment protection of free speech. As Robert
Kahn explains: “If the difference between common law and civil law countries is one
major divide in the democratic legal world, the difference between the United States,
which protects almost all political speech and the rest of the world, which is far quicker
to ban group libel, hate speech and Holocaust denial.” 384
The anti-Nazi laws, and specifically laws banning some form of “historical speech,” do
not exist in every European country. Presently, thirteen European countries have some
legislation criminalizing the Nazi message, including denial of the Holocaust: Austria,
Belgium, the Czech Republic, France, Germany, Liechtenstein, Lithuania, the
Netherlands, Poland, Romania, Slovakia, Spain and Switzerland. Holocaust denial is also
illegal in Israel.385
384
Robert A. Kahn, Holocaust Denial and the Law: A Comparative Study (New York: Palgrave Macmillan
2004), p. viii. As Kahn notes, the only kind of political speech not constitutionally protected “is speech that
carries an imminent threat of lawless action. See Brandenburg v. Ohio, 395 U.S. 444 (1969).”
385
No one has yet been prosecuted in Israel for Holocaust denial. However, in 2007, the police exposed a
neo-Nazi group made up of young men who immigrated to Israel from the former Soviet Union. The
revelation was a shock to Israeli society.
204
The impetus for enactment of such laws has come from two European states: Germany
and France, with the other states in Europe taking their lead. Kahn explains why
Germany and France have made use of their penal laws to stamp out Holocaust denial.
When the Germans deny the Holocaust, they reawaken doubt that the nation has
placed its Nazi past behind it. When the French deny the Holocaust, they revive a
debate between those who colloborated and those who resisted the Nazi
occupation. Both states, therefore, view Holocaust denial as a national
embarassment and political threat, which must be dealt with systematically. This,
in turn, puts greater pressure on the legal system to prosecute deniers in a way that
discredits them. . . .386
Ultimately, therefore, “the extent to which a society views denial as a serious threat
[leading to legal prohibitions] depends on the role the Holocaust plays in national life.”387
With the fall of Communism, and the concomitant rise of extereme nationalist
movements that target Jews and other minorities, Russia and other East European
countries are seriously contemplating the passage of laws criminalizing Holocaust denial
and racist speech. The East European countries, in reaction to their Communist past, also
seek to criminalize the display of Communist-era symbols and the promotion of
Communist ideology.
The Europeans also have been aggressive in criminalizing not only Holocaust denial
specifically but also other forms of what they consider as hate speech. As will be
discussed below, many of the criminal statutes in the various European nations used to
prosecute Holocaust deniers likewise make it illegal to publicly utter speech that is racist,
xenophobic or disparaging of minority groups
7.2.1 Germany
Douglas describes the Federal Republic of Germany as “the country that remains most
traumatized by the final solution.”388 For this reason, as Kahn notes, “in Germany, th[e]
role of the Holocaust is immense.The Federal Republic was founded as an ideological
repudiation of the Nazis . . . The Federal Republic was also a repudiation of the weak
Weimar state, which was seen as lacking the moral and political will to resist the Nazi
rise to power. Finally, as the land of the perpetrators, Germany is judged by how it
shows respect for the Holocaust and the small Jewish community that has continued to
live there. . . .Germans (and the world) constantly put the Federal Republic under a
microscope, ever alert for new signs of backsliding.”389
More than a half-century later, Germany still views itself as a nation with a special status
because of the Holocaust. As expressed in January 2007 by Thomas Matussek, the
386
Kahn, supra, p. 2.
Kahn, supra, p. 3.
388
Douglas, p. 217.
389
Kahn, supra, p. 3, 150.
387
205
German Permanent Representative to the European Union (“EU”) upon Germany taking
over the six-month presidency of the EU: “[T]he unprecedented crime of the Holocaust
was committed by Germans and in the name of Germany and from that stems our very
special responsibility. . . .[Germany] turned Europe into a place of war and
genocide….”390
For this reason, Germany has been in the forefront of using its courts in punishing
historical lies about World War II. As Kahn notes: “In a society that prides itself on
protecting speech, Holocaust deniers are one group that is beyong the pale.”391
7.2.2. The Law
Legislation banning the Nazi message and also denial of the Holocaust can be traced back
to the original IMT trial at Nuremberg beginning in 1945, as discussed in Chapter 3,
when the Nazi party was branded a criminal organization. With the creation of the
Federal Republic of Germany (commonly referred to then as “West Germany”) out of the
American, British and French zones of occupied Germany in 1949, the founders of the
new German Federal Republic enacted legislation prohibiting the existence of political
parties directed against the basic democratic order.392 In 1952, legislation was specifically
enacted outlawing the Nazi Party.393
In 1960, the West German parliament, the Bundestag, unanimously enacted the first
Holocaust denial law. The impetus for the law was a rise of antisemitic incidents in West
Germany beginning in the 1950’s, such as attacks on synagogues and Jewish
cemeteries.394 The “last straw,” according to Stein, was the dismissal by a lower court
judge in Hamburg of charges brought against Friedrich Nieland, a Hamburg
businessman, who mailed an antisemitic pamphlet to 2,000 prominent Germans,
including every member of the Bundestag. The pamphlets rallied against “ ‘international
390
EU Presidency General Statement, Statement of H.E. Mr. Thomas Matussek, January X, 2007,
available at <www.europa-eu-un.org>
391
Kahn, p. 147.
Article 21(2) of the Basic Law of the Federal Republic of Germany reads: “Parties that, by reason of
their aims or the behavior of their adherents, seek to undermine or abolish the free democratic basic order
or to endanger the existence of the Federal Republic of Germany shall be unconstitutional.” This is in
contrast to the United States, where even political parties whose aim is the overthrow of the democratic
order, cannot be banned. The most poignant example is the ability of the Communist Party of the United
States of America (CPUSA) to exist even during the height of the Cold War year in the 1950’s –1960’s. In
Yates v. United States, 354 U.S. 298 (1957), the United States Supreme Court overturned the conviction of
CPUSA members for advocating the overthrow of the United States government on the basis that mere
advocacy does not amount to a clear and present danger to the United States. Twelve years later, the
Supreme Court in its monumental decision of Brandenburg v. Ohio, 395 U.S. 444 (1969) affirmed that
position under its "imminent lawless action" test when it announced that “constitutional guarantees of free
speech and free press do not permit a State to forbid or regulate advocacy of the use of force or of law
violation except where such advocacy is directed to inciting or producing imminent lawless action and is
likely to incite or produce such action.” Id.
393
Kahn, supra, p. 15.
394
Stein, supra, p. 282-83.
392
206
Jewry’ (‘the devils of the Earth’) [] responsible for the two World Wars (financing
Hitler), for planning the third and for spreading the ‘monstrous lie of a butchery of the six
million Jews by the Germans under Hitler.’”395 In his pamphlet, Nieland also demanded
that: “No Jew hold any important post whatsoever, be it in the government, be in in
political parties or in the banking world or anywhere else.”396 Even though the Federal
Supreme Court later banned Nieland’s pamphlet on the ground that it contravened the
protection of “human dignity” provision of the Basic Law,397 Nieland’s acquittal led the
Bundestag to enact the denial law.
The denial law of 1960: (1) criminalized denial of the Holocaust; (2) banned the use of
insignia related to Hitler's regime (the swastika398 or Hakenkreuz in German being the
most prominent example) and (3) made it illegal to publicly disseminate written materials
or images promoting the Nazi message. One common sense exception to the ban on the
public display of Nazi imagery was, and still remains, use of such symbols or messages
for artistic purposes, such as in art, films or plays.
The criminalization of speech promoting the Nazi message is based on the belief that the
Holocaust did not begin with the gas chambers but with the antisemitic speeches and
writings of Adolf Hitler and his fellow Nazis.
Section 130 of the German Penal Code, commonly known in Germany as the
Auschwitzlüge law, or the Auschwitz Lie Law, prohibits denial or playing down of the
genocide committed under the National Socialist regime (§ 130.3), including through
dissemination of publications (§130.4). 399 This has been interpreted by German courts to
395
Stein, supra, p. 282.
Quoted in Kahn, supra. p. 66.
397
Kahn, supra, p. 89.
398
The swastika …ancient symbol of peace appropriated by the Nazis and therefore poses a dilemma…For
this reason, Hindu and Jain temples are permitted to display swastikas, since religious symbols cannot be
banned in Germany.
396
399
German Federal Criminal Code §130 (“Agitation of the People”) reads:
(1) Whoever, in a manner that is capable of disturbing the public peace: 1. incites hatred against segments
of the population or calls for violent or arbitrary measures against them; or 2. assaults the human dignity of
others by insulting, maliciously maligning, or defaming segments of the population, shall be punished with
imprisonment from three months to five years.
(2) Whoever: 1. with respect to writings (Section 11 subsection (3)), which incite hatred against segments
of the population or a national, racial or religious group, or one characterized by its folk customs, which
call for violent or arbitrary measures against them, or which assault the human dignity of others by
insulting, maliciously maligning or defaming segments of the population or a previously indicated group: a)
disseminates them; b) publicly displays, posts, presents, or otherwise makes them accessible; c) offers,
gives or makes accessible to a person under eighteen years; or (d) produces, obtains, supplies, stocks,
offers, announces, commends, undertakes to import or export them, in order to use them or copies obtained
from them within the meaning of numbers a through c or facilitate such use by another; or 2. disseminates a
presentation of the content indicated in number 1 by radio, shall be punished with imprisonment for not
more than three years or a fine.
207
include public denial or gross trivialization of international crimes, especially the
genocide of the Jews.
The law has been amended a number of times since its initial passage in 1960 discussed
above. In its earlier form, Holocaust denial was outlawed as an “insult” [Beleidigung] to
personal honor (i.e. an “insult” to every Jew in Germany). In a 1985 amendment to the
law, the state – rather than individual Jews – could initiate prosecutions against purported
deniers.400 The amendment’s underpinning was that the denial of the Holocaust – what
the 1985 amendment first called the Auschwitz Lie or the denial of the death camps –
was an insult not only to the Jews of Germany but also to every German.
In 1994, Holocaust denial became an offense under a general criminal statute prohibiting
racial incitement. [Volksverhetzung]. The law states that incitement, denial, approval of
Nazism, trivialization or approval, in public or in an assembly, of actions of the National
Socialist regime, is a criminal offense. The 1994 amendment imposed the penalty to up
to five years imprisonment or a fine, where before the maximum penalty under the insult
statute was one year. It also extended the ban on Nazi symbols and anything that might
(3) Whoever publicly or in a meeting approves of, denies or renders harmless an act committed under the
rule of National Socialism of the type indicated in Section 220a subsection (1) [genocide], in a manner
capable of disturbing the public piece shall be punished with imprisonment for not more than five years or
a fine.
(4) Subsection (2) shall also apply to writings (Section 11 subsection (3)) with content such as is indicated
in subsection (3).
(5) In cases under subsection (2), also in conjunction with subsection (4), and in cases of subsection (3),
Section 86 subsection (3), shall apply correspondingly.” (Emphasis added).
German Federal Criminal Code §130a (“Instructions for Crimes”), a companion section, reads:
“(1) Whoever disseminates, publicly displays, posts, presents, or otherwise makes accessible a writing
(Section 11 subsection (3)) which is capable of serving as instructions for an unlawful act named in Section
126 subsection (1), and is intended by its content to encourage or awaken the readiness of others to commit
such an act, shall be punished with imprisonment for not more than three years or a fine.
(2) Whoever: 1.disseminates, publicly displays, posts, presents, or otherwise makes accessible a writing
(Section 11 subsection (3)) which is capable of serving as instructions for an unlawful act named in Section
126 subsection (1); or 2. gives instructions for an unlawful act named in Section 126 subsection (1),
publicly or in a meeting, in order to encourage or awaken the readiness of others to commit such an act,
shall be similarly punished.
(3) Section 86 subsection (3), shall apply correspondingly.”
See <www.iuscomp.org> (see German law archive containing statutes, literature and bibliographies on
German law in English language)
400
German Criminal Code § 185. For discussion of the changes made by the 1985 amendments see Eric
Stein, “History Against Free Speech: The New German Law Against the ‘Auschwitz’ – and Other – Lies,’
Michigan Law Review, v. 85, pp. 2777-324.
208
resemble Nazi slogans.401 The law has been interpreted also to ban in public the raising
the arm in a Hitler salute (the so-called “Heil Hitler” salute) and the wearing of a Nazi
uniform.
Like the amended insult statute of 1960, the 1994 provision continued to make the crime
an Offizialdelikt, that is subject to compulsory prosecution by the state attorneys. A
special clause in Article 130 provides for community service for offenders under eighteen
years of age.
The sale of Hitler’s notorious autobiography, Mein Kampf [My Struggle], is also banned
in Germany and in a number of other European countries occupied by Nazi Germany
(Norway, Switzerland, Austria, Netherlands—and also Israel).
As Kahn points out, the predecessor the current §130 “at first outlawed incitement to
class conflict and was used during the nineteenth century to prosecute libels of the
Kaiser. It was amended in 1960 to cover racial and religious incitement.”402
In addition to Article 130, German prosecutors continue to rely on the slew of penal laws
criminalizing “insult” to prosecute deniers. The current German federal criminal code
contains twelve such penal sections under Chapter Fourteen (“Insult”), including laws
criminalizing “insult,” “malicious gossip,” “defamation,” and “disparaging the memory
of deceased persons.”403 Of these, the most commonly used has been Article185,
401
German Federal Criminal Code §86 (“Dissemination of Means of Propaganda of
Unconstitutional Organizations”) reads: (1) Whoever domestically disseminates or produces,
stocks, imports or exports or makes publicly accessible through data storage media for
dissemination domestically or abroad, means of propaganda: 1. of a party which has been
declared to be unconstitutional by the Federal Constitutional Court or a party or organization, as to
which it has been determined, no longer subject to appeal, that it is a substitute organization of
such a party; . . . . 4. means of propaganda, the contents of which are intended to further the aims
of a former National Socialist organization, shall be punished with imprisonment for not more
than three years or a fine. . . . (3) Subsection (1) shall not be applicable if the means of propaganda
or the act serves to further civil enlightenment, to avert unconstitutional aims, to promote art or
science, research or teaching, reporting about current historical events or similar purposes. . . .
German Federal Criminal Code § 86a (“Use of Symbols of Unconstitutional Organizations”)
reads: (1) Whoever: 1. domestically distributes or publicly uses, in a meeting or in writings (§ 11
subsection (3)) disseminated by him, symbols of one of the parties or organizations indicated in §
86 subsection (1), nos. 1, 2 and 4; or 2. produces, stocks, imports or exports objects which depict
or contain such symbols for distribution or use domestically or abroad, in the manner indicated in
number 1, shall be punished with imprisonment for not more than three years or a fine. (2)
Symbols, within the meaning of subsection (1), shall be, in particular, flags, insignia, uniforms,
slogans and forms of greeting. Symbols which are so similar as to be mistaken for those named in
sentence 1 shall be deemed to be equivalent thereto. . . .
402
Kahn, supra, p. 6.
209
“outlaw[ing] speech that insults a group. . . [and also has been ] used against defamers of
the pope, NATO, the police, and Bavarian politician Franz Joseph Strauss.”404
The constitutional basis in Germany for the legality of criminalizing a certain kind of
political speech -- pro-Nazi statements and denial of the Holocaust -- comes from the
Basic Law of the Federal Republic of Germany (Grundgesetz für die Bundesrepublik
Deutschland), the de facto constitution of Germany. In response to the dictatorship of the
Nazis, the Basic Law, in article 5(1), contains far-reaching provisions guaranteeing the
right of free speech and opinion.405 At the same time, the Basic Law recognizes, in light
of the Nazi experience, that such freedoms can be abused and lead to their end. For this
Section 185 Insult: “Insult shall be punished with imprisonment for not more than one year or a fine
and, if the insult is committed by means of violence, with imprisonment for not more than two years or a
fine.”
403
Section 186 Malicious Gossip: “Whoever asserts or disseminates a fact in relation to another, which is
capable of maligning him or disparaging him in the public opinion, shall, if this fact is not demonstrably
true, be punished with imprisonment for not more than one year or a fine and, if the act was committed
publicly or through the dissemination of writings (Section 11 subsection (3)), with imprisonment for not
more than two years or a fine.”
Section 187 Defamation: “Whoever, against his better judgment, asserts or disseminates an untrue fact in
relation to another, which maligns him or disparages him in the public opinion or is capable of endangering
his credit, shall be punished with imprisonment for not more than two years or a fine, and, if the act was
committed publicly, in a meeting or through dissemination of writings (Section 11 subsection (3)), with
imprisonment for not more than five years or a fine.
Section 188 Malicious Gossip and Defamation Against Persons in Political Life: “(1) If malicious gossip
(Section 186) is committed publicly, in a meeting or through dissemination of writings (Section 11
subsection (3)) against a person involved in the political life of the people with a motive connected with the
position of the insulted person in public life, and the act is capable of making his public work substantially
more difficult, then the punishment shall be imprisonment from three months to five years.(2) A
defamation (Section 187) under the same prerequisites shall be punished with imprisonment from six
months to five years.”
Section 189 Disparagement of the Memory of Deceased Persons: “Whoever disparages the memory of a
deceased person shall be punished with imprisonment for not more than two years or a fine.”
404
Kahn, supra, p. 6.
Basic Law, article 5 (1) (Freedom of expression) reads: “ Every person shall have the right to express
and disseminate his opinions in speech, writing and pictures and to inform himself without hindrance from
generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and
films shall be guaranteed. There shall be no censorship.”
405
210
reason, the very next article of the Basic Law, article 5(2), expressly limits these
freedoms, stating: “These rights [of freedoms of expression] shall find their limits in the
provisions of general laws, in provisions for the protection of young persons, and in the
right to personal honor.”
Moreover, the Basic Law makes another value take precedence over free speech: human
dignity, guaranteed in the very first article of the Basic Law.406 In the Foreword by the
Federal President to the latest version of the Basic Law, former German president
Johannes Rau explained: “The most important sentence in the Basic Law will always be
Article 1: ‘Human dignity shall be inviolable.’. . .This is not an abstract philosophical
concept, but a binding obligation and enduring mission for all those who bear
responsibility in our democratic and social state under the rule of law.”407
As interpreted by the Federal Constitutional Court of Germany (the “FCC”), guardian of
the Basic Law, these values of human dignity and personal honor can trump the free
speech guarantees of article 5(1). For this reason, the FCC has upheld the various
provisions of the Criminal Code discussed above as being in conformance with the Basic
Law. Eric Stein explains:
An American observer would expect the central issue in the public debate
to be the conflict between the constitutionally protected values of individual
freedom of expression on the one hand and public security and personal honor on
the other. This, however, has not been the case. To the contrary, the constitutional
issue has played a marginal role in the legislative process [of the enactment of
Holocaust denial laws], and it has been resolved by the [German] courts with
obvious ease in favor of the constitutionality of the [Holocaust denial] legislation.
. . .Moreover, it has been widely assumed (albeit with some dissent) that law and
the courts have a significant role in protecting against the infamous and the
ignorant who propagate the “Auschwitz lie.” The core issue in public discourse
has been [instead] the scope and the modalities of this contribution. 408
In 1994, the FCC held that Holocaust denial was not even protected opinion under Basic
Law article 5(1) since it amounts to not an opinion but false speech. As such, it is outside
of the purview of constitutional protection of article 5(1) protecting “the right [of every
person] to express and disseminate his opinions in speech, in writing and pictures. . . “ As
the FCC explained: ‘The statement that in the Third Reich there were no persecution of
Jews, is a factual assertion, which after countless eyewitness reports and documents and
determinations of courts in numerous prosecutions, has been proven untrue.”409
Finally, the Germany that emerged out of the ashes of its Nazi years also is anchored on
the concept of militant democracy (streitbare or wehrhafte Demokratie) by which those
406
Basic Law, article 1, paragraph 1 reads: "Human dignity is inviolable. To respect and to protect it is the
duty of all state authority."
407
Johannes, Rau, Foreword by the Federal President to the Basic Law for the Federal Republic of
Germany (2000 edition), p. 5-6, available at <www.bundestag.de>
408
Stein, supra, p. 281.
409
FCC Decision of April X, 1994 (“Holocaust Denial” case), quoted in Kahn, supra, p. 21.
211
seeking to overturn the democratic order of the nation can be banned by the judiciary
from the “marketplace of ideas.” The failure of the Weimar Republic to contain the
Nazis is usually cited as the reason for the adoption of this concept by the Federal
Republic of Germany. On this basis, the FCC banned the Nazi Party in 1952 (officially
called the Socialist Reich Party in the postwar era) and the German Communist Party in
1956, finding that their platforms were incompatible with, and posing a threat to, the
democratic ideals of the postwar German state. The bans are constitutional, unlike in the
United States, since the Federal Republic’s Basic Law in Article 21 permits the banning
of extremist political parties. Additionally, under Article 18, those who use the freedoms
granted by the Basic Law to try to overturn the “free democratic order” forfeit their
rights. Both the Communists and the Nazis operated legally under the Weimar Republic.
With regard to Jew hatred and Holocaust denial, as Kahn points out, “militant democracy
has always had a special role in the fight against anti-Semitism. The wave of anti-Semitic
incidents that swept across West Germany in the late 1950s led many in the Federal
Republic to interpret basic law in a more communitarian fashion – opposing antiSemitism took precedence over protecting speech.” 410 It appears that the current
dramatic increase of antisemitic and other forms of racist speech and activity in unified
Germany will again lead the German politicians to take dramatic legal steps to curb such
activity in the name of militant democracy.
7.2.3. Application
German prosecutors have been vigilant in prosecuting violations of the anti-Nazis
laws. It is safe to say that of all the countries with such legislation, it is most strictly
enforced in Germany. A number of examples illustrate the seriousness by which
Germany views its Holocaust denial and anti-Nazi criminal prohibitions.
In September 2006, a German businessman went on trial in Stuttgart for using
Nazi symbols, including swastikas, on T-shirts, buttons and other products that he was
selling through a highly profitable mail-order service. In a twist, however, all the
products carried an anti-Nazi message. The swastikas, for example, had thick red lines
drawn through them representing rejection of Nazism along with the message below it
stating: "We reserve the right to oppose"[Großansicht des Bildes mit der
Bildunterschrift]. State Prosecutor Bernhardt Häussler nevertheless brought criminal
charges in Stuttgart state court against Jürgen Kamm, owner of the mail order
company selling such merchandise. Häussler did not seek a jail sentence for Mann, but a
monetary fine for violating the law. Applying the strict letter of the law, Häussler argued
that since German law strictly forbids the use of symbols associated with the Nazi
regime, it did not matter in what context the symbols were used, the intent of the wearer,
or that the symbol had been altered.
The case became a cause celebre of sorts, with much of the German media
contending that such a literal interpretation of the law was going too far. Individuals
410
Kahn, p. 149.
212
across the political spectrum urged the trial court to dismiss the charges, with many
claiming that the use of Nazi symbols for the purpose of communicating an anti-Nazi
message was necessary to fight right-wing extremism in Germany.411 Several
politicians, including the head of the Green party Claudia Roth, in reaction to the
prosecution reported themselves to prosecutors in Stuttgart for wearing anti-Nazi T-shirts
and buttons that include the banned symbols. The trial judge convicted Mann and fined
him fine €3,200 (approximately US$4,200).
In March 2007, the Federal Court of Justice on appeal overturned the conviction.
Appellate Judge Gerhardt Altvater, writing for the court, noted that Kamm’s actions were
legal since they were clearly meant to communicate a rejection of Nazi ideology. In its
decision, the court held that the public use of the swastika in Germany is permissible
when it denounces Hitler’s regime in an unmistakable fashion.
A relieved Kamm reacted: "For me it’s important that I can use this symbol again.
There is no other [means] that shows so precisely that the person wearing it is against
Nazism. I cannot imagine what the judge was thinking when he banned the symbol. . .
.“412 Prosecutor Häussler remained unrepentant: "What happened under this Nazi symbol
was simply too horrific to allow the swastika to be used in the present-day political
debate. That is why I’m convinced that the swastika should remain banned from mass
market distribution."413
In 2007, the leader of German’s largest far-right party, the National Democratic
Party (“NDP”) (see discussion below) was charged with inciting race hate by proposing
that Hitler’s deputy Rudolf Hess be nominated for the Nobel Peace Prize.414 NDP leader
Udo Voigt, proposed Hess for the peace prize during a speech he gave in August 2007 to
coincide with the 20th anniversary of Hess's death. The proposal was nothing more than
hyperbole, since only living persons can be nominated for the Nobel prize. Nevertheless,
German police in the eastern city of Jena, where Voigt made the speech, decided
to go forward with the charges. As of this writing, the proceedings continue.
“Reversing Earlier Call, Court Allows Anti-Nazi Symbol Sale,” Spiegel, March 8, 2007.
Id.
413
Id.
414
“NDP Leader Charged With Inciting Race Hate,” Spiegel, August 24, 2007.
411
412
213
Video games using Nazi imagery have also been banned in Germany. For
example, KZ Manager, a racist video game around since the 1990’s, in which the player
operates a concentation camp is banned in Germany. Even games not condoning the Nazi
message but only using Nazi imagery have been prohibited. For example, Commandos:
Behind Enemy Lines, a video game that involves American soldiers on missions to kill
Nazi soldiers, has also been banned.
German prosecutors have also been vigilant to enforce their Auschwitzlüge law
criminalizing Holocaust denial.
In 2007, Marcel Wöll, the 24-year-old leader of the NDP in the German state of
Hesse in Western Germany was sentenced to four months in prison for Holocaust denial.
Wöll, a member of the local city council, publicly objected during a council meeting to
the government- subsidized school trips of German schoolchildren to Auschwitz and
other German concentration camps. Wöll called such outings a form of "brainwashing"
and described the camps as the "so-called sites of National Socialist terror."415 Earlier,
Wöll was ejected from a council meeting after he physically accosted youths who were
handing out anti-fascist leaflets calling for the banning of his right-wing extremist party.
The administrative court judge in Friedberg, north of Frankfurt, who delivered the
sentence characterized Wöll’s comments as a "planned provocation."416
In 2007, Germar Rudolf, a 42-year-old notorious Holocaust denier earlier
deported from the United States to Germany was convicted sentenced to 2 1/2 years in
prison for denying the Holocaust. Rudol’s conviction arose out of a monograph he
published in hard copy and distributed over the Internet claiming that Jews were not
gassed at Auschwitz.
Rudolf’s first run-in with the law came in 1995, when a state court in Mannheim
found him guilty of breaking laws against denying the Holocaust and sentenced to
fourteen months in prison.417 Rudolf then fled to the United States, where he sought
political asylum. He also married an American citizen, and, on that basis, applied for a
green card. In 2005, his asylum petition was finally rejected and he was sent back to
Germany. In 2006, fresh charges were brought against him, which this time included his
Holocaust denial activities in the United States. It was proper to charge him for these
American-based activities even though they were legal in the United States since as a
German citizen he remained subject to German law. Moreover, under § 5 of the German
“Member of far-right German party gets 4 months in prison for denying Holocaust,” International
Herald Tribune, August 7, 2007.
415
416
Id.
“German deported from the United States convicted of Holocaust denial,” International Herald Tribune,
March 15, 2007.
417
214
Federal Criminal Code418, German courts interpreted their anti-denial laws as having
extra-territorial application against German nationals.
In November 2007, former lawyer Horst Mahler, a former German radical leftist
who has become a notorious neo-Nazi and strategist for the far-right National Democratic
Party, was given a six-month jail sentence for making the stiff arm Nazi salute. Mahler,
71, was convicted of making the outlawed gesture to his guards when he entered prison in
November 2006 to serve nine months for incitement to hate. A court in former East
German city of Cottbus handed down the sentence. This was Mahler’s fifth conviction for
either displaying outlawed Nazi symbols or for denying the Holocaust.
Another long-running case of Holocaust denial prosecution involves the notorious
denier Ernst Zündel. Zündel, born in Germany in 1939, emigrated to Canada in 1958 and
settled in Toronto. From there, he began disseminating in print form a substantial amount
of material denying the Holocaust. In 1974, Zündel published a thirty-one page booklet
penned by a British Holocaust denier entitled Did Six Million Really Die? and his own
works such as The Hitler We Loved and Why. His audience became much larger with the
rise of the Internet and through the reach of a website created by his wife and webmaster,
Ingrid Rimland, <www.zundelsite.org>. Because of free speech guarantees in the United
States allowing Zündel to freely disseminate his views, however vile (see discussion
below), the Zundelsite uses a U. S. based Internet service provider and, as of this writing,
is still operational.
An excerpt from an article penned by Zündel in 1977 titled "Our New Emblem: The Best
of Two Worlds" (referring to a design that merged a swastika and the American flag) and
published in the magazine White Power is representative of his message:
Wherever we look, we White people find ourselves besieged by peoples of
other races who compete aggressively against us for jobs, food, housing,
education and above all -- power! The Jews are particularly adept at
seizing or insinuating themselves into strategic positions in our society
where they wield power far beyond the extent of their numbers....Through
us, the White majority of Europe and America, the Jewish minority have
obtained their advantages, including their Israel, their Federal Reserve,
their World Bank and their International Monetary Fund. In exchange for
these advantages, the Jews give us -- their White hosts -- wars,
depressions, inflation, unemployment, energy shortages, higher and higher
taxes and air piracy. Like sheep, they expect us to go down the road with
them -- all the way to the kosher slaughterhouse. We White people of
German Federal Criminal Code §5 (“Acts Abroad Against Domestic Legal Interests”) reads, in
pertinent part:“German criminal law shall apply, regardless of the law of the place the act was committed,
to the following acts committed abroad: . . . .3. endangering the democratic rule of law.”
418
215
America have done nothing so far which would frustrate the Jews'
expectations or their ambitions of becoming the world's slave masters.419
Canada twice tried to prosecute him for his activities under their laws criminalizing
intentional dissemination of false news.420 As Robert Kahn points out, these prosecutions
remain the only instances where a Holocaust denier was criminally prosecuted in a
common law country.421 Even though he was twice convicted, Canadian appellate courts
both times overturned Zündel’s convictions. On appeal of his second conviction in 1988
under a statute criminalizing the “spreading of false news,” the Supreme Court of Canada
in 1992 declared the False News statute as incompatible with Canada’s free speech
guarantees and therefore unconstitutional.422
Zündel’s legal troubles did not end with the cessation of criminal prosecutions in Canada.
In 2003, Germany issued an international arrest warrant for Zündel. Pursuant to the
warrant, Canadian immigration officials in 2005 succeeded in deporting Zündel back to
his native Germany to face trial.
In February, 2007, a state court in Mannheim found Zündel guilty of Holocaust denial
and racial incitement [or inciting racial hatred] and sentenced him to five years in prison,
the maximum sentence allowed under German law for such a crime. In his closing
statements to the court, Zündel called for Germany to set up an international commission
of experts to “examine” whether the Holocaust took place.
Later that year, the German Federal Court of Justice rejected his appeal. As of this
writing, Zündel is serving his sentence.
7.2.4. Growing Problem of Neo-Nazism in Germany and Continuing Need for
Holocaust Denial Criminal Legislation
To those living outside of Germany, and especially to Americans captivated with the
ideals of free speech, and especially abhorrence of censoring any political speech, such
vigorous prosecution of Holocaust denialism may seem strange and even an overreaction.
The key to understanding the phenomenon is the fear by the German public, and
especially the German elites, of the return of the Nazi state. The lesson that Germans take
from their pre-Nazi history is that the weak state under the Weirmar republic did not take
419
Cited and quoted by the ADL in http://www.adl.org/learn/Ext_US/zundel.asp?xpicked=2&item=zundel.
Section 177 of the Criminal Code of Canada punishes individuals for “knowingly publishing false
news.”
421
Robert A. Kahn, Holocaust Denial and the Law: A Comparative Study (New York: Palgrave Macmillan
2004), p. viii.
422
For detailed analyses of the Zündel criminal trials in Canada, see Kahn, p. 45-59; Lawrence Douglas,
The Memory of Judgment: Making Law and History in the Trials of the Holocaust
(New Haven, R.I.: Yale U. Press 2001), pp. 185-256; and Gabriel Weimann and Conrad Winn, Hate on
Trial: The Zundel Affair, The Media, Public Opinion in Canada (Oakville, Ont: Mosaic Press 1985).
420
216
sufficiently aggressive actions in the early rise of the Nazis, and thereby allowed the
Third Reich to come into existence. Kahn succinctly explains this view:
One of the most feared consequences was that the Federal Republic would
become a new Weimar. Critics of the Weimar Republic accused it of coddling
Hitler and his followers. The soft sentences meted out to Hitler and his
confederates following the 1923 Munch putsch led to complaints that German
justice was “blind in the right eye.’ The image of a weak government terrified the
founders of the postwar Federal Republic. . . The fear of a right-wing revival
colored the German response to Holocaust denial. For the citizens of the Federal
Republic, denial was more than a historical argument about the Holocaust. Nor
was it simply a clever form of anti-Semitism. It was, rather, a symbolic
affirmation of Nazism. If remembering the Holocaust was a safeguard against the
return of the Nazis, Holocaust denial was Nazi propaganda, no different from the
Hitler salute, the Swastika, and the first verse of Deutschland Uber Alles, all of
which the Federal Republic bans. . . .[T]he greatest harm flowing from Holocaust
denial was not its falsity, but the implicit stamp of approval it gave to neo-Nazi
activity.423
One can understand, therefore, the need for Holocaust denial legislation in the early ears
of the Federal Republic, when the memory of Nazism was still fresh and many former
Nazis quickly returning to their positions of wealth and power.
The publication of books like The New Germany and the Old Nazis424 in 1961, arguing
that Nazism in Germany was far from dead because so many former Nazis held positions
in the government and military and postwar Germans still holding antisemitic views,
stoked these fears.
Sixty years after the end of World War II, one can ask, however, whether such laws are
vestiges of a bygone era, with the threat of Nazism or another authoritarian takeover no
longer credible. Some in Germany make this argument and call for a reevaluation of both
sets of laws: those banning vestiges of Nazism and those criminalizing denial or
trivialization of the Holocaust. One of the taboos for which most calls exist for it to be
broken is the availability for public sale of Hitler’s notorious autobiography Mein
Kampf. The ban is maintained by the German state of Bavaria, which owns the copyright
to Hitler’s writings until 2015 and refuses to give permission to have the book printed.
423
Kahn, supra, p. 15.
424
T. H. Teetens, The New Germany and the Old Nazis, (New York: Random House 1961). According to
Teetens: “Surveying the entire political structure of the Bonn Republic, one comes to the inescapable
conclusion that the Nazis have had quite a comeback almost everywhere. From chancellery down through
every cabinet office, through the parties, the parliaments of the Laender, the police, the school system, and
the press, former Nazis are deeply entrenched in many key positions." Id, p. 37.
217
English newspaper columnist Ben Macintyre succinctly describes the book and its
infamous history.
Mein Kampf is the central defining text of racial hatred, a lurid paranoid
diatribe founded on the lie of Aryan supremacy. It is not only evil but amazingly
badly written, being repetitious, anti-factual, rambling and turgid, the testimony
of a furious self-pitying failure with a slender grasp on reality and none
whatever on grammar. It was a huge bestseller: each newly married couple,
graduating student, and soldier at the front was presented with a copy by the
Third Reich; Hitler earned more than $1 million a year in royalties. It is wicked
rubbish, at once stomach-turning and soporific; everyone should read it, once.425
In 2007, leading German historian Horst Möller, director of the Institute for
Contemporary History in Munich, called for the book to be published and available in
Germany, but only in the form of an academic edition with comprehensive footnotes.
"As long as Mein Kampf' is not available in a carefully annotated edition, there will be
no end to the oft simple-minded speculation about what is actually in the book. An
academic edition could break the peculiar myth which surrounds Mein Kampf," said
Möller in a newspaper interview.426 The repeated calls for unbanning Mein Kampf 427
are most appealing because it focuses on the desire of individuals being able to read all
materials. It is also a ban that today is practically impossible to enforce since the book
can be easily purchased on the Internet from sources outside Germany. As English
columnist Ben Macintyre points out, “Today any neo-Nazi with half a brain (rather
more than the usual complement) can download Mein Kampf and feel aggrieved and
special for having to do so in secret.”428 Macintyre also argues, as have other
opponents of the ban, that making the book freely available removes its mystery.
“Allowed to fester in the dark corners of neo-Nazism, Hitler’s ideas continue to hold a
spurious glamour for the twisted few; held up to the light, they shrivel. In treating this
diseases, exposure to fresh air is always more effective than quarantine.”429
425
Ben Macintyre, “Publish and debunk this relic of history,” Times (of London), July 27, 2007.
426
David Gordon Smith, “Should Germany Republish Mein Kampf'?,” Spiegel, July 17, 2007.
See e.g. Julia Pascal, “Unbanning Hitler,” New Statesman, June 25, 2001; Ben Macintyre, “Publish and
debunk this relic of history,” Times (of London), July 27, 2007.
428
Ben Macintyre, “Publish and debunk this relic of history,” Times (of London), July 27, 2007.
427
429
Ben Macintyre, “Publish and debunk this relic of history,” Times (of London), July 27, 2007.
218
Opponents fear, however, that once this taboo is broken others will follow. For example,
Martin Hohmann, a parliamentary representative of the mainstream Christian Democratic
Union (CDU) in the German Bundestag, made a speech in arguing that one had no right
to speak of the Germans as a "people of perpetrators" (Tätervolk) because the Jews-presumably those making that argument--were themselves a "people of perpetrators."
Hohmann allusion was to the significant number of Jews among the ranks of Bolsheviks
during the Russian Revolution and thereafter. As Omer Bartov has pointed out: “This
was the first time since the end of Nazism that a member of the Bundestag made an antiSemitic argument based on the very logic of Hitler's rationalization for war against the
Soviet Union.”430 Shortly thereafter, a German general publicly expressed agreement
with Hohmann's speech. Hohmann was eventually ejected from the party but, as Bartov
notes,
“20 percent of his colleagues opposed his removal. And Hohmann knew, like so many
fascists before him who said what he said, what many others were thinking. In a poll
recently conducted by the University of Bielefeld, it was found that 70 percent of
Germans resent being blamed for the Holocaust, and 25 percent believe that the Jews are
trying to make political capital out of their own genocide (and another 30 percent say that
there is a measure of truth in this assertion), and three-quarters believe that there are too
many foreigners in Germany.”431
In September 2007, popular TV talk show host Eva Herman caused a major furor when
she praised Nazi family policies. According to Deutsche Welle: “By praising the Third
Reich family values, however, Herman managed to raise the scandal bar to
unprecedented heights. While it is true that the Nazis offered incentives to child-bearing
women, their family policies were an integral part of their racist ideology whose goal was
the creation of a master race.” 432 Her employer, public broadcaster ARD, immediately
fired her.
Soon after her firing, a poll found that she was not alone in her views. According to the
poll, one in four Germans saw some positive aspects in Nazi rule. Moreover, the poll
showed that “people 60 or older had the highest regard for aspects of the era . . . while
those who grew up directly after the war, now aged 45 to 59, were the least enthusiastic
about the Nazi era, with only 15 percent responding [positively].”433
Supporters of the Holocaust denial laws also note that despite the passage of time, the
threat of Nazism has not dissipated. In some respects it is even growing in Germany. In
2005, a total of 1,658 antisemitic offenses were registered with German police.434 The
Omer Bartov, “Did Hitlerism Die With Hitler?, The New Republic, Feb. 2, 2004.
Id.
432
“German TV Sacks Talk Show Host for Praising Nazi Family Politics,” Deutsche Welle, September 10, 2007.
433
David Rising, “Poll: Some Germans See Good in Nazi Rule,” AP News Wire, October 17, 2007
434
Thomas Haury, “Current Anti-Semitism in East Germany,” Post-Holocaust and Anti-Semitism, no. 59,
August 1, 2007, available at <www.jcpa.org>
430
431
219
police authorities reported that racist crimes increased by nineteen percent from 2005 to
2006, and that their number, over 12,000, reached the highest level in six years. 435 The
European Union Agency for Fundamental Rights (FRA) issued in 2007 its own findings
for the same period. 436 The FRA report indicated a 14% increase in the amount of racist
violence and crime in Germany from 2005 to 2006, with 18,142 incidents reported in
2006.
According to another expert on antisemitism in Germany, a Jewish cemetery is
desecrated in Germany about every ten days.437 In 2006, former government spokesman
Uwe-Karsten Heye caused a sensation when he identified "no-go areas" for foreigners in
Eastern Germany. Explained Heye: “In Germany's east there are unfortunately areas that
people with dark skin color should avoid. This sad reality is confirmed almost daily."438
In September 2007, when a rabbi was stabbed in Frankfurt, Charlotte Knobloch,
president of the Central Council of Jews, wondered aloud: "In view of the increasing
number of attacks on minorities in the country, one should think about whether the
discussion about 'no-go areas' should now be expanded to include other regions in
Germany and not only its eastern parts."439
In August 2007, an incident took place in Mügeln, a small town in the Eastern German
state of Saxony where the NDP extremist party sits in the state parliament in Dresden,
that shook the nation. On an early Sunday morning following a Saturday night town
festival, a mob of some fifty Germans chased eight Indians through the town yelling
"Foreigners Out!" The Indians sought refuge in a pizzeria owned by a fellow Indian,
but the mob broke down the doors and beat up the victims, who had to be hospitalized.
Some seventy police officers were needed to quell the violence. Reporters that came to
Mügeln after the incident reported seeing graffiti with Nazi swastikas and the numbers
88, which stand for “HH” or "Heil Hitler."
In the wake of the incident, the Central Council of Jews in Germany accused the
government of lacking a national plan of action to combat the far right. Stephan Kramer,
general secretary of the Council, noted: "Yesterday it was colored people, today it's
foreigners, tomorrow it will be lesbians or homosexuals or perhaps Jews."440 A 2006
survey of attitudes of the German public found that 11.6 percent agreed with the
statement "If Hitler hadn't exterminated Jews he would be seen as a great statesman
today."441 While the figure may seem small, it is similar to the level of popularity of
“German Far-Right Crimes Up 19 Percent in 2006,” Spiegel, Feb. 7, 2007.
European Union Agency for Fundamental Rights, Report on Racism and Xenophobia in the Member
States of the E.U., available at <www.fra.europa.eu>
437
Thomas Haury, “Current Anti-Semitism in East Germany,” Post-Holocaust and Anti-Semitism, no. 59,
August 1, 2007, available at <www.jcpa.org>
438
“Germany Wonders How to Stop the Neo-Nazis,” Spiegel, August 23, 2007.
439
“Politicians, Jewish Leaders Condemn Attack on Rabbi in Germany,” Deutsche Welle, Sept. 10, 2007.
440
“After Attack on Indians, Germany Fears For its Reputation,” Spiegel, August 20, 2007.
441
“Far-Right Views Established Across German Society,” Spiegel, November 8, 2006.
435
436
220
Hitler not long before he took power. In light of Germany’s history, therefore, the
number is cause of alarm. The survey noted that far-right views are firmly anchored
throughout German society, regardless of social class or age.442
A major reason for the increase in neo-Nazi activity has been the economic hardships that
have befallen Germany upon unification in 1991 of the Federal Republic of Germany
(West Germany) and the German Democratic Republic (East Germany or GDR). While
the entire unified Germany has suffered economically, the greatest hardships have been
upon Germans living in the former GDR. With growing unemployment in the East, and
especially among the disaffected youth, the Nazi message again has found a receptive
audience seeking a solution to their problems based on the blaming “of the other.”
Another reason is the failure of the former GDR to deal with the German people's
responsibility for the Holocaust and World War II. As explained by one expert:
The starting point of the German Democratic Republic was that everyone is
forgiven for what happened in the Third Reich. . . As far as the government is
concerned, all East German citizens were victims, a working class abducted by a
fascist leadership. Overnight they all became anti-fascist, anti-racist and filled
with fraternal comradeship. The whole debate about guilt in the West didn't take
place in the East. We see the results today in the rise of the radical right wing
there.443
Most of the suspects implicated in neo-Nazi crimes in eastern Germany are under 21
years old. Explains the German weekly Der Spiegel:
Politicians and sociologists have detected a breakdown of civil values in the east,
an undercurrent of xenophobia at the heart of the region's society, an inability to
show understanding for other people's point of view, and a propensity towards
violence, possibly stemming from decades of authoritarian state rule. That could
explain why passers-by in the east simply ignore assaults or watch them happen.
In western Germany, where racist assaults happen as well but are far less frequent
on a per capita basis, people at least tend to call the police.444
In 2004, the neo-Nazi NPD made international headlines in 2004 after winning twelve
seats in the state parliament of the eastern state of Saxony. In 2006, the NDP scored
another election success when voters in the eastern state of Mecklenburg-Western
Pomerania elected the party’s representatives to its state legislature. Another extremist
442
Id.
INSERT CITE FROM HAARETZ ARTICLE BELOW (quoting Anetta Kahane, head of the AmadeuAntonio Foundation, which aims to rein in extreme right-wing violence in Germany.
444
David Crossland, “Germany Seems Powerless to Outlaw Far-Right NDP Party,” Spiegel, August 28,
2007.
443
221
party, German People’s Union (known by its German acronym “DVU”), sits in the state
parliament of Brandenburg.
Extremist parties, therefore, are now represented in three of the five eastern states of
Germany created after unification. “Relative to population size, the five new federal
states [constituting the former GDR] occupy the top ranks regarding acts of violence:
these states comprise almost 20 percent of the German population, but, also, almost fifty
percent of the potentially violent right-wing extremists.”445
The successes of the NDP have been unprecedented; until recently, it had usually
received less than one percent of the votes in any election in postwar Germany.446 A poll
in July 2007 by the Forsa Institute found that the NDP surpassed the mainstream Social
Democratic Party (SDP) in popularity in Saxony.447 Martin Dulig, the SPD's
parliamentary faction leader in Saxony, expressed disbelief: "The fact that poll shows the
NPD ahead of us cannot be. . . I cannot be compared with Nazis."448 The NPD issued a
statement from Dresden, the capital of Saxony, calling the results "sensational."449
Focusing on the disattisfaction by the populace in the east with the German mainstream
parties, the NDP adopted a new motto that reverberated with the voters: “"A strong state
for the small man."450
According to Thomas Haury, a German professor whose research focuses the subjects of
antisemitism and anti-Zionism, part and parcel of the NDP ideology is a rehabilitation of
National Socialism.
Party chairman Udo Voigt considers Hitler “undoubtedly. . .a great German
Statesman.” The NDP member of Saxony’s federal-state government, Jürgen
Gansel, cites a “just economic order,” “national sovereignty,” and “internal
pacification” as great achievements of National Socialism. At the same time, the
NDP vehemently denies, minimizes, and relativizes German crimes, and it
agitated against the Holocaust Memorial in Berlin with slogans such as
“Kindergartens and old-age homes instead of the Holocaust Memorial!” and
“Stop the memorial! Seventy six million for the people!”
For the NDP, the Allies were the true warmongers and the Germans the real
victims of World War II. In January 2005, the anniversary of the Allied air raid
Thomas Haury, “Current Anti-Semitism in East Germany,” Post-Holocaust and Anti-Semitism, no. 59,
August 1, 2007, available at <www.jcpa.org>
446
Id.
447
“Poll: Far-Right NPD Overtake Social Democrats in Saxony, “ Deutsche Welle, July 9, 2007
448
Id.
449
Id.
450
Id.
445
222
on Dresden, the NDP members of the Saxony parliament spoke of the ‘bombHolocaust of Dresden” stemming from British “eliminatory anti-Germanism,”
“of industrial mass murder of the civilian population that was planned in cold
blood.” They said a memorial for German victims should be built instead of the
Berlin Holocaust Memorial.
Although open anti-Semitism is prohibited in Germany, the NDP uses it in only
slightly moderated form throughout its propaganda. . . Even when not explicitly
mentioning Jews, the NDP says the world is dominated by a conspiracy of
“controllers of capital,” globalists” and “plutocrats.”
For the NDP, the Jews are the driving force behind every evil: globalization,
immigration, “Wall Street,” “East Coast,” “U.S. imperialism,” the pluralization
of values, the democratizing and dissolving of “people”,” the state, culture and
family. This classical anti-Semitism is supplemented by the specifically German
accusation that the Jews seek to impose a guilt complex on the innocent
Germans and destroy their national identity. This is the old, anti-Semitic
principle: the Jews, now in combination with the United States, function as the
global evil, the counterimage that is necessary for forming an integrated
[German] Volksgemeinschaft 451
The German weekly magazine Spiegel notes that an NDP booklet “for party
candidates and officials states that the party's aim is to ‘restore the capability of the
German Reich’ and calls the German constitution a ‘diktat of the western victorious
powers.’”452 Spiegel points out that “NPD flags and symbols are unmistakably similar
to Nazi paraphernalia, and party members are on record praising Hitler and his
henchmen.”453 NDP’s platform is based on hatred of foreigners.
An "African, Asian or Oriental" can never become German, regardless of
whether they obtain a German passport, the party states. Members of other races
will "always remain foreign bodies physically, mentally and spiritually,
regardless of how long they live in Germany."454
Thomas Haury, “Current Anti-Semitism in East Germany,” Post-Holocaust and Anti-Semitism, no. 59,
August 1, 2007, available at <www.jcpa.org> (endnotes and citations omitted).
452
David Crossland, “Germany Seems Powerless to Outlaw Far-Right NDP Party,” Spiegel, August 28,
2007.
453
Id.
454
Id.
451
223
NPD poster in the German state of Hesse for a January 2008 state election. The poster is deliberately
modeled on the poster created by a far-right party in Switzerland involving color-coded sheep. "We're
cleaning up in Hesse!" says the poster.
A number of politicians have been calling for years to have the NPD banned under the
anti-Nazi legislation cited above. To date, the efforts have been unsuccessful and the
NDP remains a legitimate political party in today’s Germany. As result, the NDP is
able not only to conduct political activities, including fielding candidates throughout
Germany, but in 2006 it received €1.4 million [US $2 million] in public funds.
A major setback in the efforts to ban the NDP took place in 2003, when it turned out
that statements cited by the government during a judicial proceeding seeking the ban
were made by NDP party members who were paid informants. As a result, the German
Constitutional Court rejected the ban on the grounds that a party cannot be outlawed
when its policies may have been shaped in part by government agents. As of this
writing, the coalition government of Chancellor Angela Merkel is pondering on how
to best proceed with a second judicial attempt so that this time it will be successful455
However, as Spiegel explains:
Legal experts have also warned that any ban faces major hurdles. Given the
earlier ruling, it seems inevitable that the Office for the Protection of the
455
Id.
224
Constitution would have to withdraw its agents from the NPD to satisfy the
constitutional court, leaving the intelligence service without any insight into the
internal workings of the party. And the government would have to prove that the
NPD isn't just opposed to the constitution -- which is pretty evident given that it
keeps saying so -- but is actively working to overthrow it. That latter point is
harder to prove.456
Moreover, as German interior minister Jörg Schönbohm noted: "A lot of NPD
members would just move to other far-right parties after a ban. That's how it is: You
can't legislate against attitudes."457
A second defeat would make the NDP ever more popular. After the 2003 failure, party
ranks increased and public popularity rose. Explained Wolfgang Bosbach, a member
of the German parliament's internal affairs committee: “[Another failure] would be a
"gigantic embarrassment for the state. . . And we should all spare ourselves that."458
Since new judicial proceedings to ban the NDP could take years, police and the Office
for the Protection of the Constitution would have to withdraw their agents during that
time. Both are loathe to take this step for fear of losing critical intelligence as a result
of the withdrawal of the undercover operatives working within the party.
Moreover, a ban of the NDP would not eradicate the far- right in Germany. According
to Oskar Niedermayer, a mainstream expert on the NPD, “A ban would help a bit but
it would by no means erase the problem. . . .The NPD's members could simply form
another party or join other far-right parties."459 Niedermayer points out that the NPD
itself emerged from the Socialist Reich Party, which was outlawed in 1951.460
Today, for the far right in Germany the other is not just “the Jews” but also the
foreigners living in Germany. For outsiders observing increasing anti-foreign
sentiment in Germany, the increasing popularity of the far right, and the new-found
focus in Germany on Germans also being victims during World War II, the fears of a
reemergence of a nationalist and militarist Germany threatening its neighbors, that
gradually dissipated over the forty years of the existence of West Germany, have now
been rekindled. The federal government in Berlin provides local authorities €24
million per year to fight right-wing extremism but, in the wake of increasing hatebased violence, calls have gone out to dramatically increase the funding. On the other
456
Id.
“No Home for this Year’s NDP Convention,” Spiegel, Oct. 26, 2007.
458
Id.
459
Id.
460
Id.
457
225
hand, leading Christian Democrat Ronald Pofalla argues that “‘we don't need more
money, rather we need more civil courage -- in other words, more people who are
willing to stand up to stop right-wing extremist thugs when they try to act.’”461
Haury concludes that “Anti-semitism and right-wing extremism will continue to be an
acute problem in East and West Germany.”462 As a result, anti-Nazi laws and
criminalization of the Auschwitz lie are likewise bound to continue to exist in Germany
in the foreseeable future. In fact, as the discussion on the European Union-wide
legislation will show below, the present German government is engaged in efforts to
extend such laws throughout Europe.
Germany's neo-Nazis are increasingly using music to spread their message, particularly
among the unemployed youth of the former communist East Germany. "Music is our
weapon, more dangerous than tanks or shells," says a song from “Sturmwehr,” a band
popular in Germany's hate-music rock scene.463
In 2004, neo-Nazis applied for permission to hold 137 concerts, mostly in the poor
eastern provinces of the former East Germany. Figures released by the Federal Office for
the Protection of the Constitution show that from January to September 2005, the
authorities had received one-hundred such requests and the "trend shows no sign of
slowing down." In 2007, 160 such conerts were held, which is a doubling of the number
of neo-Nazi and skinhead concerts held in Germany doubled over the past seven years.
Germany is also home to about 100 right-wing rock bands. The amount of racist audio
and video material seized by German authorities had also increased.
Recently, the extreme right National Democratic Party (NPD) in Germany, recognizing
the inroads it could make through the music file-sharing technology made possible by the
digital revolution, began using music as part of its strategy to spread racist, antisemitic
and anti-capitalist messages to German youth by distributing thousands of free CDs in
front of schools. A rap group called Dissau Crime released a song called "Zyklon D,"
named after the type of gas used by the Nazis in their gas chambers during the Holocaust.
The song includes the lyric: “I shoot with my flak at the Jewish pack.”464 A skinhead
band named Kommando Freisler issued a song titled “Judenschwein” [Jewish Swine],
containing the lyrics: “Jew. . .you better flee when the brown-clad are roaming the streets.
Every child in Germany knows that Jews are only for heating.”465 Another band,
“Volkszorn,” issued a song titled “Der Ewige Jude” [The Eternal Jew] with the lyrics:
“Germany Wonders How to Stop the Neo-Nazis,” Spiegel, August 23, 2007.
Thomas Haury, “Current Anti-Semitism in East Germany,” Post-Holocaust and Anti-Semitism, no. 59,
August 1, 2007, available at <www.jcpa.org> (endnotes and citations omitted).
463
Andrew McCathie, “Neo-Nazis Use Music to Spread Vicious Message,” The Age (Australia),
September 8, 2007.
464
Thomas Haury, “Current Anti-Semitism in East Germany,” Post-Holocaust and Anti-Semitism, no. 59,
August 1, 2007, available at <www.jcpa.org>
465
Id.
461
462
226
“Eternal Jew, he is still around. Eternal Jew, the worldwide danger/ He poisons and
bribes the entire world. The Jew must die or our days are numbered.”466
Such songs are now distributed online through file-sharing networks. Hans-Joachim
Stockschlaeger, an expert on extremist politics in Germany, compares such songs to
“dangerous drugs” distributed among the youth.467
The impact of these messages cannot be ignored. In 2004, the NDP claimed its first
regional success when it obtained 9.2 percent of the votes in a regional election in the
German state of Saxony. According to Patrick Moreau, a French researcher who studies
extremist groups in Germany, "In the new states, where unemployment stands at up to 40
percent, the NPD offers the youth a haven where they feel they are among friends, where
they can drink beer and listen to music….It is a slow politicization through music.”468
According to another expert on antisemitism in Germany, the NDP’s recent successes
are attributable to its efforts to reach out to the disaffected youth in the former East
Germany. “It distributes free right-wing rock CDs at schools, projects an activist
rebellioius image for the NDP youth organization Junge Nationaldemokraten, and offers
free concerts by skinhead bands after NDP events.”469
German authorities have tried to clamp down on the spread of racist music. In 2005, the
lead singer of the German extremist band "Landser"-- Michael Regener – was sentenced
to three years in prison for belonging to a criminal organization. In a symbolic defiance
of authorities, Regener gave a performance on the evening before he was going to enter
prison. (Landser (in German „Foot Solder“) was formerly known as „The Final
Solution“).
The arrest appears to have, at most, a limited impact on Landser’s ability to spread its
message. In 2007, 472 films of Landser were available on the video internet site
YouTube, before YouTube agreed to remove the videos. Other internet sides are ready to
take up their place. “[R]ight-wing bands are springing up across Europe, including in
Switzerland, Britain, Italy and France.”470
7.2.5. The Internet
466
Id.
Andrew McCathie, “Neo-Nazis Use Music to Spread Vicious Message,” The Age (Australia),
September 8, 2007.
468
“Neo-Nazis Spreading Message and Recruiting Through Music,” Deutsche Welle, December 12, 2005,
available at <www.dw-world.de>.
469
Thomas Haury, “Current Anti-Semitism in East Germany,” Post-Holocaust and Anti-Semitism, no. 59,
August 1, 2007, available at <www.jcpa.org>
470
Andrew McCathie, “Neo-Nazis Use Music to Spread Vicious Message,” The Age (Australia),
September 8, 2007.
467
227
The main purveyor of neo-Nazi hate speech (including music), however, is still the
Internet. For music, the neo-Nazi websites offer free downloading of their antisemtic and
racist songs. These sites are set up outside Germany, such as in the United States and
Denmark, where their existence is not prohibited (see further discussion below).
As internet technology improves, the power of the Internet to disseminate the Nazi
message becomes more potent. In 2007, the popular video-sharing web site YouTube,
where users can both upload and exchange video clips, was found to have videos on its
site containing antisemitic propaganda. These included World War II Nazi propaganda
clips, including black-and-white clips from a 1940 antisemitic Nazi film, contemporary
clips from neo-Nazi groups in Germany, and music videos from the outlawed neo- Nazi
heavy metal band “Landser,'' one of them praising the life of the senior Nazi figure
Rudolf Hess. According to Information Week, one of these YouTube-aired clips was
viewed more than 400,000 times in eight months.471
After complaints from several German internet groups monitoring hate content on the
internet and threats of legal action under the anti-Nazi laws, Google, the parent company
of YouTube, finally took these videos of its web site.472 According to Kay Oberbeck, a
spokesman for Google in Northern Europe and based in Hamburg, “We don't want these
right-wing videos on our platform and they'll be removed.''473 Google also agreed to work
closer with state authorities in Germany regarding the content of the materials on its
internet sites.474
7.2.6. EU-wide law
For those in favor of laws criminalizing Holocaust denial and banning other hate
speech, the patchwork of laws in Europe – all carrying different standards –seemed for
a long time not to be entirely effective. As a result, and also as part of the general effort
to harmonize laws among the member states of the European Union (“EU”), member
states with Holocaust denial legislation have sought over the years to create a uniform
EU law applicable to all members.
Germany led the effort for a uniform EU Holocaust denial law but was rebuffed by
other member states – the United Kingdom, Denmark, and for a time, Italy – that had
no such laws on their books.
The EU began seriously considering such a law in 2001. The original proposal was
modeled on the German law and specifically banned Holocaust denial, promotion of Nazi
“Germans Call for Criminal Investigation of YouTube for Nazi Videos,” Information Week, August 28,
2007.
472
Patrick Donahue, “Google Plans to Remove Nazi Hate Videos on YouTube in Germany,”
Bloomberg.com, August 29, 2007.
473
Id.
474
Id.
471
228
ideology and use of Nazi symbols across the EU.475 Over the years, however, the
proposal was diluted to obtain the necessary unanimous consent of the member states. In
2005, it appeared dead when the EU’s Executive Commission recommended against
enactment of such EU-wide legislation. The Commission noted that it would be "unwise"
to seek a ban across the then-25-nation bloc, citing the differing views of the countries
involved.
Getting a deal proved difficult because – as shown above – the twenty-seven EU
member countries have vastly different legal and cultural traditions in combating
racism, including on how best to deal with Holocaust denial and denial of other
genocides. The best that it could do was for the European Parliament to adopt a nonbinding resolution in 2005 noting that “EP members. . .strongly reject and condemn
revisionist views and the denial of the Holocaust as shameful and contrary to historical
truth.”476
When Germany took over the rotating six-month EU presidency in January 2007, it made
the passage of a EU-wide Holocaust denial law a priority issue. German Justice Minister
Brigitte Zypries, after noting Germany’s enduring moral obligation to keep the memory
of the Holocaust alive, explained: “We have always said that it can’t be the case that it
should still be acceptable in Europe to say the Holocaust never existed and that six
million Jews were never killed.”477 Germany, however, quickly abandoned its original
plan to include a specific punishment of Holocaust denial after realizing that it would not
have the unanimous assent of the other member states for inclusion of such a specific
prohibition. As a result, after a six-year effort, in April 2007 the EU Council of Ministers
finally issued a law that was a far cry from the EU-wide law Holocaust denial prohibition
originally envisioned by the Germans.
Formally known as "Framework Decision on Racism and Xenophobia," the law aims to
make it a crime in all 27-member states to engage in “intentional conduct. . .publicly
condoning or grossly trivializing crimes of genocide, crimes against humanity and war
crimes…and directed against a group of persons or a member of such a group defined by
reference to race, colour, religion, descent or national or ethnic origin.” 478 The law
defines the three crimes as based on the definitions used in (a) “the Statute of the
International Criminal Court (Articles 6,7 and 8)” and (b) “crimes defined by the
Tribunal of Nuremberg (International Military Tribunal, London Agreement of
1945).”479 As shown above, one of these two definitions is found in many domestic
denial laws.
Council of the European Union, “Proposal for a Council Framework Decision On Combating Racism
and Xenophobia,” Doc. No. 8994/1/05 REV 1, May 27, 2005.
476
“EP –MEPs condemn ‘revisionist views’ of the Holocaust, Joint Motion for a Resolution on
rememrance of the Holocaust, anti-Semitism and racism,” Jan. 27, 2005.
477
Dan Bilevsky, “Germans Push Europe on Holocaust,” Int’l. Herald Tribune, Jan. 14, 2007.
475
Council of the European Union, “Framework Decision on Racism and Xenophobia,” April 19, 2007,
available at <www.consilium.europa.eu>
479
Id.
478
229
The law also contains a hate crimes provision by punishing those who "publicly incit[e]
to violence or hatred ... directed against a group of persons or a member of such a group
defined by reference to race, colour, religion, descent or national or ethnic origin."480
The Framework Decision is not a EU law. Rather, in the Decision, the 27-member
states agreed to enact domestic legislation within two years to comply with this EU
directive and to impose criminal penalties in their legislation “of a maximum of at least
between 1 and 3 years of imprisonment.”481
EU Justice and Home Affairs Commissioner Franco Frattini hailed the new rule and
noted that the EU had "a moral authority to reaffirm ... values of tolerance, of refusal of
any kind of violence. . . . There are no safe havens in Europe for racist violence, for antiSemitism, for people concretely inciting xenophobic hatred "482
Supporters of Holocaust denial and genocide denial laws and anti-hate groups, for the
most part, were disappointed with the Framework Decision.
First, the Framework Decision contains a number of exceptions and opt-out provisions
The EU rule specifically states: “Member States will not have to modify their
constitutional rules and fundamental principles relating to freedom of association,
freedom of the press and the freedom of expression.”483 It affirms this point by noting
that “the Framework Decision will not have the effect of modifying the obligation to
respect fundamental rights and fundamental legal principles, including freedom of
expression and association, as enshrined in Article 6 of the Treaty of the EU.”484 As a
final caveat, the Decision states that “Member States may choose to punish only conduct
which is either carried out in a manner likely to disturb public order or which is
threatening, abusive or insulting.”485 As a result, EU states that currently do not have
denial laws on their books, such as the U.K, Ireland, Denmark, and Sweden, will not have
to enact such laws. As of this writing, no member state has introduced domestic
legislation in reaction to the passage by the EU of the Framework Decision.
Second, existing legislation in member states that criminalize Holocaust denial already
goes much further in criminalizing both denial and hate speech than the provisions in the
Framework Decision. For this reason, even those states that criminalize denial will not
have to do anything further in response to the Framework Decision.
480
Id.
Id.
482
“EU agrees on rules to combat racism,” Jerusalem Post, April 19, 2007.
483
EU Framework Decision, supra.
484
Id.
485
Id.
481
230
The consequence is that the goal of enacting a uniform anti-denial and anti-hate speech
law was not achieved. As Michaël Privot of the European Network Against Racism
(“ENAR”) pointed out, "We have ended up with a lowest common denominator law."486
Jewish organization such as the European Jewish Congress also criticized the rule for
failing to specifically refer to the Holocaust or antisemitism. Another Jewish group, the
Centre European Juif D’Information [European Jewish Information Center] or CEJI, as it
is popularly known, noted that – despite Commissioner Frattini’s lofty statement – “the
refusal to mention specific kinds of hatred [i.e. antisemitism] in the body of the decision
is a failure to show particular minorities that they can count on the European Union for
the protection of their rights.” 487 While CEJI acknowledged that the law “is a step in the
right direction,” it criticized the final text for “reflect[ing] the Member States’ fear of
commitment to creating a safe Europe for all its citizens.”488
The Baltic states, Poland and Slovenia were also disappointed that the law did not
criminalize the denial of Communist-era "Stalinist crimes." These former Communist
states and now EU members fought hard to add this provision, but the Cabinet ministers
voting on the final draft rejected this proposal. The members also rejected a Europe-wide
ban on the use of Nazi symbols, a provision that appeared in the original 2001 proposal.
Calls for such a ban reached their climax in 2005 after the release of photographs of
Prince Harry of Great Britain wearing a Nazi uniform, complete with swastika armband,
at a costume party.
For those seeking an EU-ban on Holocaust denial, CEJI’s ultimate assessment of the EU
directive aptly describes their feelings: “[T]he final text is mediocre at best. It is high
time that the European Union and its Member States face their fears, and deal decisively
with the scourge of racism in Europe today.”489 The end result of this effort is that even
after the Framework Decision, as ENAR’s Privot pointed out, a person publishing a
pamphlet denying the Holocaust could be punished in France but not in the U.K.490 The
original goal of the drafters of the 2001 initial proposal – “to define a common criminal
law approach in the European Union to the phenomenon of racism and xenophobia in
order to ensure that the same behaviour constitutes an offence in all Member States and
that effective, proportionate and dissuasive penalties and sanctions are provided for
natural and legal persons having committed or being liable for such offenses”491 – has yet
to be achieved.
486
Id.
CEJI Policy Response to Framework Decision on Racism and Xenophobia, April 20, 2007, available at
<www.ceji.org>.
487
488
Id.
Id.
490
Dan Bilefsky, “EU agrees it should be a crime to deny the Holocaust,” International Herald Tribune,
April 20, 2007.
491
Proposal, May 27, 2005, supra.
489
231
7.3. Holocaust Denial and Civil Litigation: David Irving v. Deborah Liptstadt
In 1994, Penguin Books published in England the paperback version of an
academic treatise describing the Holocaust denial movement. The book, Denying the
Holocaust: The Growing Assault on Truth and Memory, was written by an American
professor, Deborah Lipstadt, who holds the Dorot Chair in Modern Jewish and Holocaust
Studies at Emory University in Atlanta. In the book, Lipstadt named an Englishman,
David Irving, as one of those who fit the label of “Holocaust denier.”492[3]
Irving did not take kindly to the characterization. He sued for defamation,
claiming that his professional reputation had been damaged by the book. While
ostensibly a case for libel (the written form of defamation, as opposed to slander, the oral
form), the case became both a history lesson and a forum in which the reality of the
Holocaust could be proven using legal rules of evidence. As characterized by one writer,
the lawsuit of David Irving v. Penguin Books Ltd. and Deborah Lipstadt became a forum
for putting the Holocaust on trial.493[4]
II.
David Irving is the author of nearly thirty books on Hitler and related subjects. His bookwriting career began in 1963 with The Destruction of Dresden, focusing on the British air
force fire-bombing of the German city in February 1945. At this stage, Irving did not yet
question the Holocaust. What he did was to wildly exaggerate the death toll at Dresden,
using the figure of 250,000 rather than the more accepted number of around 35,000.494[5]
He also began to question the number of Jews killed during the war. As he later stated,
“The Holocaust at Dresden really happened. That of the Jews in the gas chambers of
Auschwitz is an invention. I am ashamed to be an Englishman.”495[6]
Irving’s great success came in 1977, when he published Hitler’s War. The book
was hailed as a innovative look at World War II, focusing on the war from the view of
the perpetrators. In the first edition of the book, Irving did not dispute the Holocaust as a
historical fact. In fact, he describes Auschwitz as a “ monstrous killing machine.”
However, one of Irving’s major aims in Hitler’s War was to show that the Holocaust
occurred without Hitler’s knowledge. As Irving likes to point out, no specific order has
ever been found signed by Hitler directing the implementation of the Final Solution.496[7]
492[3]
The book was first published in 1993, in the United States. Penguin brought out the British edition a
year later.
Guttenplan’s Holocaust on Trial is the leading study of the Irving v. Lipstadt trial. The author is an
American-born journalist based in London.
493[4]
494[5]
At trial it was shown that Irving based his figure of 250,000 on a typed copy of an alleged German
document that later turned out to be a forgery, and of whose dubious origins Irving had been aware.
Quoted in Kate Taylor, “Irving in Denial: The Trial,” in Holocaust Denial: The David Irving Trial and
International Revisionism, ed. Kate Taylor (London: Searchlight Educational Trust, 2000), p.11.
496[7]
As Holocaust historians rightly point out, the absence of a “Hitler order” does not prove Hitler’s lack
of knowledge or direction. As early as 1925 in Mein Kampf, Hitler made known his hatred of the Jews.
Historians have found various German documents connecting Hitler to the Final Solution. To cite just two:
495[6]
232
In 1983, Irving emboldened his view of Hitler’s clean hands in the Final Solution by
offering $1,000 to anyone who could prove that Hitler knew about the Holocaust.
By the time the second edition of Hitler’s War came out in 1991, all references to
the Holocaust had been excised. And Auschwitz was now referred to merely as “a slave
labor camp.” Irving proudly hailed the change. “You won’t find the Holocaust mentioned
in one line, not even a footnote, why should [you]? If something didn’t happen, then you
don’t even dignify it with a footnote.”497[8]
In 1988, Irving became the star witness in the criminal trial in Canada of
Holocaust denier Ernst Zündel. Irving’s role in the trial was to confirm the accuracy of
the report of Fred Leuchter, a quirky American engineer who had visited Auschwitz and,
after testing the chemical residue on the inner walls of Crematorium II, issued a report
that no traces of Zyklon-B, the cyanide poison gas used by the Nazis to exterminate the
Jews at Auschwitz and other death camps, could be found there. Leuchter concluded
from this finding that the use of this poison gas at Auschwitz was a myth. The Leuchter
lie, as will be discussed below, became an important element in the defamation trial
against Lipstadt.
Inviting further controversy, Irving began also to speak before neo-Nazi and rightwing groups worldwide. Seemingly pandering to these groups, his statements became
increasingly incendiary. Before a group of extremists in 1991 at a rally in Calgary,
Canada, he announced:
I don’t see any reasons to be tasteful about Auschwitz. It’s baloney. It’s a legend.
. . . I say quite tastelessly, in fact, that more women died in the back seat of
Edward Kennedy’s car . . . than ever died in a gas chamber at Auschwitz. Oh, you
think that’s tasteless, how about this? . . . I’m going to form an association of
Auschwitz Survivors, Survivors of the Holocaust and Other Liars, or the
A.S.S.H.O.L.S.498[9]
His outrageous statements, both at these appearances and in his writings, led the German,
Austrian, Canadian, and Australian governments to ban him from entering their countries.
By the time Liptstadt wrote her book, Irving was already a notorious figure on the
Holocaust denial scene. What made him different from others calling the Holocaust a lie
was that he was an author whose works were published by prominent publishing houses.
Despite his bizarre pronouncements, he was still viewed by some as a respected military
historian. This, according to Lipstadt, made Irving “one of the most dangerous
spokespersons for Holocaust denial.” 499[10] He was “familiar with historical evidence,”
she wrote, and “bends it until it conforms with his ideological leanings and political
In a telling speech in January 1939 to the Nazi Party faithful, Hitler warned European Jews of their
imminent destruction. And in a December 12, 1941 speech to the Nazi leadership, recounted in Goebbels’s
diary, Hitler states: “The world war is here, the annihilation of Jewry must be the necessary consequence.”
497[8]
Quoted in Taylor, p. 15.
Quoted in Taylor, p. 19.
499[10]
Deborah Lipstadt, Denying the Holocaust: The Growing Assault on Truth and Memory (New York:
Free Press 1993), p. 181 (published in England by Penguin Books,1994).
498[9]
233
agenda.” 500[11] Lipstadt goes on to describe Irving as a “Hitler partisan wearing blinkers”
and an “ardent admirer of Hitler.” 501[12]
III.
Irving first complained about Lipstadt’s book in November 1995, when he wrote to
Penguin Books asking that the statements about him be retracted. Penguin stood by the
account. In September 1996, he filed suit against Lipstadt, Penguin, and four
Waterstone’s bookstores in London that carried the book.502[13] (Irving later dropped the
action against the bookstores).
By that time, Irving’s career had already been going downhill. Earlier that year,
St. Martin’s Press had retracted its offer to publish Irving’s next book, a biography of
Nazi Propaganda Minister Joseph Goebbels.
Irving’s suit triggered an intensive three-year period of pre-trial discovery. During
this stage, Irving was forced to turn over voluminous materials, including all his
speeches, other writings, and even his private diaries. The latter proved critical at trial,
showing Irving’s racist and anti-Semitic mindset.
The final and most critical act of the saga began on January 11, 2000, with the
start of the actual trial. On a gray English morning, in the Royal Courts of Justice in the
Strand neighborhood of London, Courtroom 37 was packed. English newspapers had
been reporting over the years about the suit, and elderly Holocaust survivors and Irving’s
extremist supporters mixed with reporters in the audience.
At the plaintiff’s counsel table, Irving sat alone. Ignoring the old adage that only a fool
would hire himself as a lawyer, he chose to represent himself.503[14]
Lipstadt’s lawyer was Anthony Julius of the firm of solicitors Mischcon De Reya,
whose earlier claim to fame was representing Princess Diana in her divorce action against
Prince Charles. Julius was also a scholar of sorts in his own right, having written a book
on T. S. Eliot and anti-Semitism.
While Julius, representing Lipstadt, and Penguin’s own set of solicitors had done
the pre-trial discovery and all the background preparation for the case, the barrister
arguing the case for both defendants, and the one who would actually face off with Irving
at trial, was Richard Rampton, QC.504[15]
The judge randomly chosen to hear the case was Mr. Justice Gray, who, as
Charles Gray QC, years earlier had won a £1.5 million libel judgment, at that time the
Ibid.
Ibid.
502[13]
The formal method in England by which the suit was filed was the issuance by Irving of a writ
against the defendants, accusing them of libel and demanding damages.
500[11]
501[12]
503[14]
Putting up a spirited prosecution, Irving nevertheless committed some major whoppers. At one stage,
in one of the most bizarre moments of the trial, Irving inadvertently addressed the trial judge as "Mein
Führer."
504[15]
QC designates “Queen’s Counsel,” the senior and most experienced level of barristers in England.
234
largest defamation award in English history.505[16] The losing barrister on the other side
was Richard Rampton.
While the ancient trappings of English law were symbolized by the wigs worn by
both the judge and Rampton, and the stilted “My Lord” and other English-language
anachronisms of a bygone era, the small courtroom was surprisingly modern. Laptop
computers were placed at the counsel table and before the judge.
Reveling in the limelight, Irving often appeared to be addressing the media as
much as the judge. At one point, Judge Gray had to remind him that “this exercise is not
entirely for the press.”506[17]
In contrast to the United States, trials by jury for civil suits have for the most part
been abolished in England. One exception is suits for libel and slander. The rationale for
allowing juries in such cases is that the value of a person’s reputation—what is at stake in
a defamation case—should be judged by a community of the person’s peers as
represented by a jury.
Plaintiffs prefer jury trials, because they hope that the jurors’ reactions to
defamatory statements and the injuries caused by them will lead the jury to issue damage
verdicts much larger than would be issued by a more dispassionate judge. One might
think, therefore, that Irving would have chosen to have his case heard by a jury of his
peers, English men and women like himself, and especially when the litigant he was
confronting was an American professor. Surprisingly, Irving did not take that route,
agreeing with the defense lawyers to have the cases heard by a judge.
While Judge Gray often repeated that the trial was not meant to prove or disprove
the existence of the Holocaust, and both Irving and Rampton seemed to agree with this
view,507[18] the existence or non-existence of historical facts about the Holocaust became
the chief subject of the court proceedings. As aptly put by one detailed account of the
trial: “Despite every determined attempt to usher it politely out the door of the courtroom,
there will not be a single day in this trial when history is absent from the
proceedings.”508[19] Another observer pointed out the strange significance of the fact that
“the Holocaust was to be scrutinized in perhaps the most inappropriate place of all—a
British court.”509[20]
Since Irving was the complaining party, he went first. Much of his long opening
statement was taken up not with how his reputation had been damaged by Lipstadt, but
with how he had been unfairly maligned by Jews, what he labeled an “international
conspiracy” aimed to “destroy my legitimacy as an historian.” In Irving’s mind, the
actual defendant in the case was worldwide Jewry. As he explained, “The Jewish
One chronicler of the trial describes Justice Gray as follows: “A patrician in fact as well as
appearance (he was educated at Winchester and Trinity College, Oxford), Gray’s handsome face, hounddog eyes, and sash of office make him look like a leaner, more lugubrious version of Nigel Hawthorne, the
actor who played the mad King George III.” Guttenplan, p. 17.
505[16]
506[17]
Quoted in Taylor, p. 17.
“Judges,” Judge Gray solemnly announced at the outset of the trial, “aren’t historians.” Rampton
agreed: “This trial isn’t about the Holocaust.” Quoted in Guttenplan, p. 21.
507[18]
508[19]
Ibid.
509[20]
Taylor, p.10.
235
community, their fame and fortunes, play a central role in these proceedings.”510[21] To
Irving, the purported victims of the Holocaust were in fact the real victimizers.
Anti-Semitism is both the most odious and overworked of epithets. Almost
invariably it is wielded by members or representatives of that community to
denigrate those outside their community in whom they find disfavor. . . . It does
not seem to matter that the same community who thus labels him or her has
conducted an international campaign of the most questionable character in an
attempt to destroy his legitimacy. . . . If he defends himself against these attacks,
he is sooner or later to be described as anti-Semitic.511[22]
Rampton, in his opening statement, set the tone of the defendants’ case. As was to
become clear during the course of the proceedings, for the defendants the real party on
trial here was going to be David Irving, or more specifically, Irving in his purported role
as historian. This was emphasized early on when Rampton made it known that Lipstadt
would not even be testifying. As she later explained, as a woman never shy for words,
keeping silent turned out for her to be one of the most difficult parts of the case, since she
had to keep mum while her professional fate was being decided around her. Also, no
Holocaust survivor was called as a witness. As Lipstadt later explained, “[This] would
have exposed people who have suffered mightily to denigration [by Irving] . . . which
none of us wanted when it was not necessary.”512[23]
Rampton’s single-minded focus on Irving was also compelled by the peculiarities
of English libel law. In the United States, libel law had undergone a revolution since
1964, when the United States Supreme Court announced in a series of cases that it is the
plaintiff—here Irving—who bears the burden of proving both that he has been defamed
and that the statements made about him are false. And the libel plaintiff’s burden is even
higher than in an ordinary civil case, more closely akin to the burden placed upon the
prosecution to show guilt in a criminal trial. The First Amendment protection freedom of
speech, the Supreme Court found in the renowned 1964 decision of New York Times v.
Sullivan, mandates this procedure.
English law, however, has no First Amendment. English libel law is still mired in ancient
judge-made rules going back to the Middle Ages. All an English libel plaintiff has to
show is that the complained-of statements tend to expose him to “ridicule, hatred, or
contempt.” Once shown, the burden now shifts upon the defendant to prove that the
statements are either not defamatory or true. Thus, Lipstadt and Penguin, to successfully
rebut Irving, would have to show that he was in fact a “Holocaust denier.”
Rampton went straight to that point.
My Lord, Mr. Irving calls himself a historian. The truth is, however, that he is not a
historian at all but a falsifier of history. To put it bluntly, he is a liar. . . . Lies may take
various forms, and may as often consist of suppression or omission as of direct falsehood
or invention, but in the end all forms of lying converge into a single definition: willful,
deliberate misstatements of the facts. Mr. Irving has used many different means to falsify
510[21]
Quoted in Taylor, p. 17.
511[22]
Ibid, p. 18.
Richard J. Evans, Lying About Hitler: History, Holocaust and the David Irving Trial (New York:
Basic Books, 2001), p. 282 (quoting Jan Colley, Cathy Gordon, and John Aston, “ ‘Evil Racist’ Irving
Faces Libel Ruin,” Birmingham Post, April 12, 2000, p.7).
512[23]
236
history: invention, misquotation, suppression, distortion, manipulation and not least
mistranslation. But all of these techniques have the same ultimate effect: falsification of
the truth.513[24]
Using these methods, argued Rampton, Irving had consciously whitewashed both
Hitler’s knowledge of, and role in, the Final Solution and the scope of the murder of Jews
during the war. This became the defense strategy during the trial. Devised by Julius, the
defense would hire prominent Holocaust historians to investigate Irving’s historical
methods and to use his own words—in speeches, interviews, and diary entries—to show
that he was a Holocaust denier.
Put under such close scrutiny, Irving was forced during the trial to concede a
number of significant historical points that he had previously denied.
Before the trial, Irving had argued that there was no Nazi policy to exterminate
the Jews through mass shootings after the German attack on the Soviet Union. At trial, he
was forced to concede that he had been wrong: the mass shootings by the
Einsatzgruppen, the German military’s special-action killing squads, were part of a
systematic extermination policy, and between 500,000 and 1.5 million men, women, and
children were so murdered. Irving also was forced to concede that Hitler must have
known of this mass-shootings policy after the German historian Peter Lonegrich entered
into evidence a Nazi document ordering that “the Fuhrer should be presented with
continuous reports on the work of the Einsatzgruppen.” [25]
Irving also conceded that the next stage of the Holocaust—the use of carbon
monoxide to gas Jews in trucks—was not “experimental” or “occasional,” but systematic.
This concession came when Rampton showed that in one instance, 97,000 Jews had been
gassed over a period of three weeks in three such trucks.
As to Auschwitz, the most potent symbol of the Final Solution, Rampton
demonstrated that the Leuchter report, which Irving so eagerly latched on as proof that
there were no gas chambers in Auschwitz, was “bunk.”514[26] Irving had been so excited
about Leuchter’s “findings” that he had them published in England by his own publishing
company and even penned a flattering introduction to the report.
To rebut the report, the defense presented the testimony of Robert Jan Van Pelt, a
professor at the University of Waterloo, Canada, and the co-author of the definitive study
of Auschwitz. The Dutch-born Van Pelt was commissioned by the defense to present a
special study to counteract Irving’s misstatements about the death camp. In both his study
and trial testimony, Van Pelt indisputably showed that a million Jews were murdered at
Auschwitz and that the gas chambers were the main instruments for the
murders.515[27]The leading expert for the defense was Richard J. Evans, a distinguished
513[24]
Quoted in Guttenplan, pp. 31-32.
514[26]
Quoted in Taylor, p. 23.
Accordingly to Van Pelt, “It will be clear that by early 1947 there was a massive amount of evidence
of the use of the camp as a site for mass extermination. This evidence had become available during the war
as the result of reports by escaped inmates, had become more substantiated through eyewitness accounts by
former Auschwitz inmates immediately after their liberation, and was confirmed in the Polish forensic
investigations undertaken in 1945 and 1946. . . .Finally, this evidence was corroborated by confessions of
leading German personnel at Auschwitz during its years of operation. . . It is highly implausible that
knowledge about Auschwitz was a wartime fabrication by British propagandists. In short, it has become
515[27]
237
professor of modern history at Cambridge University and a fellow of the British
Academy and of the Royal Historical Society. 516[28] Evans was given the task of
demonstrating that Irving was, as Lipstadt asserted, a falsifier of history. When first
approached by Anthony Julius, Evans did not know Irving and had no prior opinion of his
work. He also had never met Lipstadt.
Evans, with the assistance of two Ph.D. students, spent eighteen months
researching Irving’s books, other publications, and public speeches and, in a detectivelike manner, checking his statements against his sources. His conclusion was
unambiguous: Irving was, in fact, a Holocaust denier, and he was ready to so testify.
Evans found Irving’s historiography—the methodology used by Irving to present
a history of World War II based on a critical examination, evaluation, and selection of
material from primary and secondary sources—to be seriously flawed.
His 740-page report showed that Irving’s body of work had been built on “a tissue of lies
. . . a shameless manipulation of text.”517[29] One example highlighted by the defense was
possible to assert as moral certainty the statement that Auschwitz was an extermination camp where the
Germans killed around one million people with the help of gas chambers.” Van Pelt Report, quoted in
Taylor, p. 24).
Van Pelt subsequently published his findings in a book. See Robert Jan Van Pelt, The Case for
Auschwitz: Evidence from the Irving Trial (Bloomington: Indiana University Press, 2002).
516[28]
Another prominent expert testifying at trial was the American Holocaust historian Christopher
Browning, professor at the University of North Carolina and author of numerous works on the
extermination policies of the Nazis. None of the experts testifying at trial were Jewish.
517[29]
Evans Report, (quoted in Taylor, p. 22). Evans later published his report in a book. See Richard J.
Evans, Lying About Hitler: History, Holocaust and the David Irving Trial ( New York: Basic Books,
2001). The subsequent publication history of Evans’s book in England produced its own saga. It also
provides a good illustration of how anachronistic English libel laws can dissuade publishers, even after the
Irving judgment, from issuing respected books for fear of being sued.
The original publisher, William Heinemann, Ltd., an imprint of Random House UK, the largest
publishing house in England and part of the German publishing media giant Bertelsmann, decided to pulp
the book after fearing another libel action from Irving. It earlier had advertised the book in glowing terms.
No other large publisher in England stepped up to take over the publication. Even Basic Books, its
American publisher, declined to issue the book in England. Ironically, the publisher willing to take the risk
was Verso, a small publishing house known for its left-wing works, including books critical of Israel. It
published the book in 2002 under the title Telling Lies About Hitler. Irving, though threatening another
libel action, never sued Verso.
Irving, nevertheless, continued to make trouble for Evans. (On his Web site, Irving refers to Evans
as “the skunk,” adding a skunk graphic whenever he is mentioned.) As reported by the London Guardian
newspaper, in early 2003, the online bookseller Amazon pulled Evan’s book off its UK Web site after
Irving threatened to sue. According to Amazon, “We will not list Telling Lies About Hitler or any other
book over the objections that the book contains defamatory content, at least not without a commitment by
the publisher to defend us in any legal action brought against us under UK law.” Guardian, March 8, 2003.
Verso declined to indemnify Amazon. Eventually, Amazon relented and returned the book to its Web site.
Amazon continues also to sell Irving’s books. It drew the line, at least for a while, at Hitler’s Mein Kampf.
It now offers a 2003 reprint of Hitler’s book for sale, however.
According to Amazon, “[English libel] law as it stands has ‘a chilling effect on free speech’.” Ibid.
Evans, from his bitter experiences with Telling Lies About Hitler, agrees. “There is a climate of fear in
British publishing, spread by this country’s iniquitous libel laws. . . .We badly need a reform of the law that
will put some burden of proof on claimants, and we need legislation that will enshrine free speech as a
basic human right. Otherwise those who are unscrupulous enough to use the threat of invoking the law to
prevent criticism of their views and their actions will continue to be able to intimidate publishers into
238
a document reporting a telephone call by SS chief Heinrich Himmler to his deputy and
right-hand man Reinhard Heydrich, dated November 30, 1941, which states,
“Judentransport aus Berlin. Keine Liquidierung [Jew transport from Berlin. No
liquidation].” Even though the document referred only to one transport of Jews from
Berlin, and made no reference to Hitler, Irving, in his writings, seized upon this document
as “incontrovertible evidence” from Himmler’s private files that Hitler had issued an
order protecting the Jews.
Evans testified that in undertaking a rigorous examination of Irving’s writings, he
had not been prepared for the “sheer duplicity which I encountered in Irving’s treatment
of the historical sources, nor for the way in which this dishonesty permeated [Irving’s]
entire written and spoken output. It is as all-pervasive in his early work as it is in his later
publications.”518[30]
As Evans explained,
It is clear . . . that Irving’s claim to have a very good and thorough
knowledge of the evidence on the basis of which the history of Nazi
Germany has to be written is completely justified. His numerous mistakes
and egregious errors are not, therefore, due to mere ignorance or
sloppiness; on the contrary, it is obvious that they are calculated and
deliberate. That is precisely why they are so shocking.519[31]
Evans found that Irving’s conclusion that “no decision was ever taken, or that
the Nazis did not undertake the systematic extermination of the Jews at all, or that very
few Jews were in fact killed, lies wholly outside the limits of what is reasonable for a
professional historian to argue in the light of the available evidence.”520[32]
According to Evans, Irving should not be considered a legitimate member of the
historical profession.
Besides being a Holocaust denier, the defense also aimed to show that Irving was
a racist and an anti-Semite. One of the most memorable portions of the trial came when
Rampton recited before Judge Gray a “nursery rhyme” discovered in Irving’s diary,
which Irving taught his baby daughter.
I am a Baby Aryan
Not Jewish or Sectarian
I have no plans to marry an
Ape or Rastafarian.
Asked Rampton, “Racist, Mr. Irving? Anti-Semitic, Mr. Irving?” “I do not
think so,” replied Irving. Countered Rampton: “Teaching your little child this kind of
poison?” All that Irving could muster was, “Do you think that a nine month old can
understand words spoken in English or any other language?”521[33]
silence, to the detriment of all.” Richard J. Evans, “The Real Cost of Free Speech,” Times (London) Higher
Education Supplement, June 21, 2002 (relating Evans’s circuitous journey to have the book published).
518[30]
Evans Report, sec. 1.6.2.
519[31]
Evans Report, (quoted in Guttenplan, p. 218).
520[32]
Evans Report, (quoted in Taylor, p. 22).
521[33]
Quoted in Guttenplan, p. 51.
239
In a video shown at trial, Irving is seen making a speech to a group of Neo-Nazis
in Florida. In a reporter-like style, he poses to himself the following question, purportedly
asked by a Jewish heckler in England at a speech a few days earlier, “Are you saying that
we are responsible for Auschwitz ourselves?” Gleefully, he answers, “Well, the short
answer is yes!”522[34]
IV.
During the course of the two-month trial, Judge Gray heard from nine witnesses and sat
through more than a million pages of testimony. He also had to wade through stacks of
documentation and various expert historical reports. To help him make sense of all these,
the defense provided the judge with a ninety-page document, setting out in detail each of
the separate allegations of distortion in Irving’s works presented during the trial.
On March 13, 2000, Irving and Rampton concluded their closing arguments. On
April 11, 2000, following almost a month of deliberating, Judge Gray announced his
verdict. Irving decisively lost every point of his case. Irving, Judge Gray found, was both
a Holocaust denier and a racist.
Because this was a non-jury trial, Judge Gray, in his role as fact finder hearing all
the evidence, issued a detailed opinion setting out his reasons for finding against Irving.
Judge Gray’s 333-page opinion, in commenting on and evaluating the parties’
respective arguments, added a critical document to the postwar evaluation of the
Holocaust. He wrote:
It is my conclusion that the Defendants are justified in their assertion that Irving
has seriously misrepresented Hitler's views on the Jewish question. He has done
so in some instances by misinterpreting and mistranslating documents and in
other instances by omitting documents or parts of them. In the result the picture
which he provides to readers of Hitler and his attitude towards the Jews is at odds
with the evidence.523[35]
He further explained:
In my opinion there is force in the opinion by Evans that all of Irving’s
historiographical “errors” converge, in the sense that they all tend to exonerate
Hitler and to reflect Irving’s partisanship for the Nazi leader. If indeed they were
genuine errors or mistakes, one would not expect to find this consistency. I accept
the Defendants’ contention that this convergence is a cogent reason for supposing
that the evidence has been deliberately slanted by Irving.524[36]
522[34]
Ibid, p. 205.
Judgment, The entire judgment is available on line at
www.nizkor.org/hweb/people/i/irvinGodavid/judgment-00-00.html. Irving has also made it available on his
publishing house’s Web site, www.focal.org/judg.html. For legal scholars and others with access to
Westlaw (www.westlaw.com), the judgment is reproduced at 2000 WL 362478.
523[35]
524[36]
Judgment, sec. 13.142. Guttenplan, in his study of the trial, puts this finding by Judge Gray in plain
terms that Irving himself raised during his questioning of Professor Christopher Browning. “Like the
dishonest waiter in [Irving’s own] example, Irving had been repeatedly caught giving incorrect change—
always in his own favor.” Guttenplan, p. 263.
240
Judge Gray found Irving’s contention that “after 1933 Hitler lost interest in
anti-Semitism or that he ceased to be anti-Semitic when he came to power” to be without
support.
Despite his increasing preoccupation with other matters, Hitler reverted time and
again to the topic of the Jews and what was to be done with them. He continued to
speak of them in terms which were both vitriolic and menacing. . . . It cannot in
my view sensibly be argued that uprooting Jewish men, women and children from
their homes and dumping them in often appalling conditions many miles away to
the East was other than anti-Semitic. I therefore reject as being contrary to the
evidence Irving's claim that Hitler ceased to be anti-Semitic from 1933
onwards.525[37]
As to Auschwitz, Judge Gray rejected Irving’s perverse conclusion, as Judge Gray
characterized it, that the “killing by gas [there] was on a modest scale.” Entirely
accepting the historical record, Judge Gray held:
It appears to me that the cumulative effect of the documentary evidence for the
genocidal operation of gas chambers at Auschwitz is considerable. . . . What is to
me striking about that category of evidence is the similarity of the accounts and
the extent to which they are consistent with the documentary evidence. . . . My
conclusion is that the various categories of evidence do "converge.” . . . My
overall assessment of the totality of the evidence that Jews were killed in large
numbers in the gas chambers at Auschwitz is that it would require exceedingly
powerful reasons to reject it.526[38]
The judge also found that the Leuchter report, upon which Irving had seized to
deny the existence of gas chambers, was faulty and false. As Judge Gray explained,
In regard to the chemical analysis, Irving was unable to controvert the evidence . .
. that, because the cyanide would have penetrated the brickwork and plaster to a
depth of no more than one tenth of the breadth of a human hair, any cyanide
present in the relatively large samples taken by Leuchter (which had to be
pulverised before analysis) would have been so diluted that the results on which
Leuchter relied had effectively no validity. What is more significant is that
Leuchter assumed, wrongly as Irving agreed, that a greater concentration of
cyanide would have been required to kill humans than was required to fumigate
clothing. In fact the concentration required to kill humans is 22 times less than is
required for fumigation purposes. . . . As Irving was constrained to accept,
Leuchter's false assumption vitiated his conclusion. . . . In the light of the
evidence of van Pelt and Irving's answers in cross-examination, I do not consider
that an objective historian would have regarded the Leuchter report as a sufficient
525[37]
526[38]
Judgment.
Ibid..
241
reason for dismissing, or even doubting, the convergence of evidence on which
the Defendants rely for the presence of homicidal gas chambers at Auschwitz.
The most devastating part of the decision came at the end.
“My conclusion [is] that Irving displays all the characteristics of a Holocaust denier.
He repeatedly makes assertions about the Holocaust which are offensive to Jews in
their terms and unsupported by or contrary to the historical record.”527[39] Echoing
Lipstadt’s original statements in her book, the judge found that Irving has for his own
ideological reasons persistently and deliberately misrepresented and manipulated
historical evidence; that for the same reasons he has portrayed Hitler in an
unwarrantedly favourable light, principally in relation to his attitude towards and
responsibility for the treatment of the Jews; that he is an active Holocaust denier; that
he is anti-Semitic and racist and that he associates with right wing extremists who
promote neo-Nazism.528[40]
In summary, the judge held:
Irving is an antisemite and a racist . . . [who] associates regularly with extremist
and neo-Nazi organisations and individuals. The conclusion which I draw from
the evidence is that Irving is sympathetic towards and on occasion promotes the
views held by those individuals and organizations.529[41]
V.
A Canadian Holocaust historian, Gord McFee, cogently explains why Irving lost his suit
and his right to be called a legitimate historian.
The historian must above all present the truth. What Irving was found to have
done violates that most fundamental principle. . . . The importance of this lay in
the fact that the average reader. . . does not possess the time or the means to get to
the bottom of these things and must therefore rely on the integrity of the historian.
In Mr. Irving’s case, as it turned out, readers have been seriously misled.
David Irving lost his libel suit against Deborah Liptstadt for a variety of
legal and historical reasons. But the seeds for that loss were sown long before,
when he decided to manipulate history to make it conform with the facts as he
wanted them to have been. Rather than reinterpret the past, Mr. Irving attempted
to reinvent it.530[42]
Having lost his case, Irving might have wished that he now was in an American
rather than an English court. In England, unlike in the United States, the losing party does
not have an automatic right to an appeal. Rather, an appeal is allowed only if it has merit.
527[39]
Ibid..
Ibid..
529[41]
Ibid..
530[42]
Gort McFee, “Where Did David Irving Go Wrong?” (www.holocaust-history.org/irving-wrong).
528[40]
242
In Irving’s case, the appellate court found no reason to review the case. In so doing, Lord
Justice Stephen Sedley confirmed Judge Gray’s findings, noting that “what might, in
another historian have been casual misreadings of evidence, emerge in the applicant’s
case as sedulous misinterpretation all going in the direction of his racial and ideological
leanings. Hence the verdict for the defendants.”531[43]
Even more critical, the losing party in England has to pay the attorney’s fees of
the prevailing party. Penguin spent £2 million in defending the case, and sought
reimbursement from Irving. In May 2000 Irving was ordered to pay an interim amount of
£150,000, which he failed to do. As a result, in March 2002, he was forced into
involuntary bankruptcy, and two months later lost his flat in the posh Mayfair
neighborhood of London, where he had lived for thirty years. His personal possessions,
including furniture, computer disks, and research papers, were also seized.
Stripped of any remaining legitimacy he might have had before the trial, Irving
was now left to cavort with his right-wing extremist friends. In December 2003, he was
the featured speaker at the Institute of Historical Review, a Southern California–based
pseudo-academic group dedicated to promoting Holocaust denial.
Lipstadt no longer had to keep silent. At a press conference after the trial, she
explained, “David Irving has done a lot of evil things. The way he has denigrated
survivors was truly horrible. The racism that he propagated in court was truly horrible
and evil. I see this not only as a personal victory, but a victory for all those who speak out
against hate and prejudice.”532[44] On the heels of her newfound notoriety, she went on a
worldwide lecture circuit.
Penguin Books, for its part, never recouped the £2 million it spent on defense
lawyers and experts. It did republish Denying the Holocaust soon after in paperback, with
sales jumping significantly upwards from the 2,000 or so copies sold of the book before
trial in England. Penguin also took the step of publishing the entire judgment in book
form.533[45]
The Irving judgment did not stop Holocaust deniers from spewing their poison.
Nevertheless, it added an important tool to counteract their lies. An English judge, using
evidentiary rules applied in a court of law, found the Holocaust to be a historical fact.
Looking at the significance of the trial, The Daily Telegraph concluded that the “Irving
case has done for the new century what the Nuremberg tribunals or the Eichmann trial
did for earlier generations.”534[46]
531[43]
Denial of Permission to Appeal, Irving v. Penguin Books Ltd. (Dec. 18, 2000), available at
www.fpp.co.uk/Legal/Penguin/Appeal/refusal.html (Web site of Irving’s publishing house).
532[44]
Quoted in Taylor, p. 41.
533[45]
The Irving Judgment: Mr. David Irving v. Penguin Books and Professor Deborah Lipstadt (Toronto:
Penguin Books Canada, 2000).
534[46]
“The Bad History Man,” Daily Telegraph (London), April 12, 2000, p. 29 (editorial).
243
Further Reading
Evans, Richard J. Lying About Hitler: History, Holocaust and the David Irving Trial.
New York: Basic Books 2001. Published in England as Telling Lies About Hitler
(London: Verso, 2002).
Guttenplan, D. D. The Holocaust on Trial. New York: Norton, 2001. Published in
England by Granta Books, 2001.
The Irving Judgment: Mr. David Irving v. Penguin Books and Professor Deborah
Lipstadt. Toronto: Penguin Books Canada, 2000.
Lipstadt, Deborah. Denying the Holocaust: The Growing Assault on Truth and Memory.
New York: Free Press 1993. Published in England by Penguin Books, 1994.
Lipstadt, Deborah. History on Trial: My Day in Court with a Holocaust Denier New
York: Harper Collins 2006.
Schermer, Michael, and Alex Grobman. Denying History: Who Says the Holocaust Never
Happened and Why Do They Say It? Berkeley: University of California Press,
2002.
Taylor, Kate, ed. Holocaust Denial: The David Irving Trial and International
Revisionism. London: Searchlight Educational Trust, 2000.
Van Pelt, Robert Jan. The Case for Auschwitz: Evidence from the Irving Trial.
Bloomington.: Indiana University Press, 2002.
For website containing the David Irving v. Penguin Books and Deborah Lipstadt trial
materials
see < www.holocaustdenialontrial.com>.
7.3.1. Irving threatens to sue Jewish paper
October 23, 2007
David Irving has threatened to sue London’s Jewish Chronicle for calling him a
Holocaust denier.
In a letter sent recently to the newspaper's legal department, Irving claimed the term
"active Holocaust denier" is "demonstrably untrue" and that using it again would result
in a claim for defamation "without further notice."
The Chronicle had used the term in an article about Irving's plans for a British speaking
tour to rehabilitate his image.
Irving, 69, a writer and historian, served a prison sentence in Austria last year for
statements in a 1989 speech that the Auschwitz gas chambers were a fairy tale and that
Hitler had protected European Jews.
The Chronicle responded to the threatened suit with an article not only referring to
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Irving as a Holocaust denier, but also outlining exactly how the nuances in his position
as a denier have changed over time. The story included the address of the paper's libel
attorneys and invited Irving to contact them.
Irving lost a libel suit in 2000 against Professor Deborah Lipstadt, who had called Irving
one of the most dangerous spokespersons for Holocaust denial. The judge described
Irving as an “active Holocaust denier," as well as "anti-Semitic and racist.”
His letter to us in full
18/10/2007
Dear Sirs,
The purpose of this letter: This letter puts your publication on notice that if you should
print or otherwise publish anywhere including on your Internet website any statement
carrying the defamatory and now demonstrably untrue meaning, whether implicit or
explicit, that I am “an active Holocaust denier”, or any variations on that phrase carrying
the same purport, then I shall without further notice issue a Claim in Defamation against
yourselves and the author or authors of the libel, and I shall produce this letter at the
hearing of the action as evidence that you published the said libel in the face of such a
written warning in support of a possible claim for aggravated damages.
Argument: I refer you to the many statements I have made in public which are a matter of
record and will destroy any pleaded defence of justification. These include but are not
limited to my biographies of Dr Joseph Goebbels (1966) and of Hitler (1977, 1991, and
2002), where I describe in detail the mass shootings of Jews and others behind the eastern
front.
My statements in both the Lipstadt trial (2000) and the Vienna trial (2005) left no doubt
that I believe (accepting that Höfle document and Korherr report are authentic and not
forgeries) the Nazis and their accomplices murdered 2.4 million Jews in the “Reinhardt”
camps along the Bug River (Treblinka, Belzec, and Sobibor); minor questions arise over
Auschwitz, but Holocaust historians have also asked them.
I have demonstrably stated so in public since 1991 (my discovery of the Adolf Eichmann
files), 1992 (my discovery of the Hans Aumeier manuscripts and subsequently the full
exploitation of the CSDIC files): you will find these statements throughout my website
(go to www.fpp.co.uk/search) and repeated in my interview with The Guardian
newspaper published on September 29, which you can read most easily at www.fpp.co.uk
/online /07/09/Guardian_interview.html, and repeated in The Forward, the foremost US
Jewish newspaper (ibid., /online/07/09/Forward.html).
The published diaries of my recent visits to these death camps will destroy any doubts
you might still entertain:
245
www.fpp.co.uk/docs/Irving/RadDi/2007/020307.html et seq.
Notice: Should you recklessly and maliciously repeat the lie as defined in the first
paragraph to this letter — as you may feel tempted to do now — I shall issue and serve a
Claim in Defamation without further notice.
Yours faithfully
David Irving
David Irving: Call me a denier and I'll sue the JC
18/10/2007
By JC Reporters
Holocaust denier David Irving this week threatened to bring a libel
action against the Jewish Chronicle for continuing to suggest that he holds the same
discredited views on the second world war.
Irving, 69, who was jailed in Austria last year following speeches in which he denied the
existence of the Nazi gas chambers, walked free in December.
Last week, after the JC revealed how he plans a nationwide speaking tour in an attempt to
rehabilitate himself, he insisted that we stop calling him “an active Holocaust denier” or
he would sue.
In a letter to “the legal department” of the JC, Irving claims that the term is
“demonstrably untrue” and warned that any repetition would result in a claim for
defamation “without further notice”.
American academic Professor Deborah Lipstadt, whom irving unsuccessfully sued in
london in 2000 for calling him “one of the most dangerous spokespersons for Holocaust
denial”, immediately dismissed the threat.
“He hasn’t changed,” she said. “OK, so he said he has a document showing that 2.4
million Jews were killed in three camps. What about auschwitz, what about the
Einzatsgruppen [SS death squads] and all the rest? He is playing the media like a skittle.
He needs publicity for his speaking tour and for his book sales. Irving is denying the
246
documentary evidence and has said that the Jews have caused all the wars in the past 100
years.”
In his judgment on his london action, Mr Justice Gray branded Irving an “active
Holocaust denier... antisemitic and racist” who “has for his own ideological reasons
persistently and deliberately misrepresented and manipulated historical evidence”.
Not only had he “denied the existence of gas chambers at Auschwitz and asserted that no
Jew was gassed there, he has done so on frequent occasions and sometimes in the most
offensive terms”.
When he was jailed in Austria last year, state prosecutor Michael Klackl said: “He’s not a
historian, he’s a falsifier of history.”
The charges related to 1989 speeches in which he had described the Auschwitz gas
chambers as a fairytale and maintained that Hitler had protected european Jews. He had
been arrested in austria in November 2005 on a warrant dating back to the time of his
comments.
Pleading guilty, Irving said he had made a mistake in asserting that there were no gas
chambers in europe, conceding: “the Nazis did murder millions of Jews.”
But interviewed in his cell by the BBC shortly afterwards, Irving asked: “Given the
ruthless efficiency of the Germans, if there was an extermination programme to kill all
the Jews, how come so many survived?”
He was freed in December after an appeal, despite the prosecutors’ argument that the
three-year sentence was insufficient and that irving was an idol for far-right elements in
Austria and abroad.
Irving told the JC on Wednesday: “I am indignant at being called a Holocaust denier. i
am not sure that i have changed my position, it is just that i was not properly represented
in the press.”
At the libel trial, he said, “I spoke about the killings in the Reinhardt camps and in the
eastern front. But i question much about Auschwitz. Jews were killed in two villas... just
outside the camp. they were used probably for gassings but on a relatively small scale.”
Meanwhile, Irving has said he will not now participate in a “free speech” debate at the
oxford union next month, alongside British national Party leader Nick Griffin.
OK, Mr Irving, here are our lawyers' details:
Reynolds Porter Chamberlain LLP
Tower Bridge House, St Katharine’s Way, London, E1W
247
Tel: 020 3060 6000; Fax: 020 3060 7000
248
Chapter 8: Legal Legacy of the Holocaust
8.1. Introduction
8.1.1. Michael Igantieff, The Danger of a World Without Enemies
Michael Ignatieff:
The Danger of A World Without Enemies.
Lemkin's Word
in The New Republic, 21 February 2001 © The New Republic 2001
MICHAEL IGNATIEFF is Carr Visiting Professor of Human Rights at the Kennedy
School of Government at Harvard University. A different version of this essay was
delivered as a lecture for the Committee on Conscience at the U.S. Holocaust Memorial
Museum in December.
When Claude Lanzmann was filming Shoah, he asked a Polish peasant whose fields
abutted a death camp what he felt when he saw human ash from the crematoria chimneys
raining down on his fields. The peasant replied: "When I cut my finger, I feel it. When
you cut your finger, you feel it." The man's reply takes us to the heart of the problem of
genocide. Why exactly is genocide a "crime against humanity"? Why is a crime
committed against Jews or any other human group a crime against those who do not
belong to that group?
The obvious answer seems obvious only if you assume what in fact requires
demonstration, namely that we belong to the same species and owe each other the same
duties of care. This concept came late to mankind, and to judge from the horrible century
just past it is still struggling to make headway against the more evident idea that race,
color, or creed mark impassible frontiers of moral concern. The Polish peasant was not
implying that he had no feelings towards Jews. He was admitting only that he did not feel
very much about them, and that his stronger feelings were reserved for people more like
himself. To the extent that ethics follow feeling, his codes instructed him to care only for
his own. In this, he reasoned as most human beings do.
Most moral principles take root within tribal boundaries and remain confined by the
tribe's allegiances and interests. According to this conception of the ethical life, morality
articulates identity and identity depends on difference. For millennia, human beings saw
nothing odd about slavery, about selling and disposing of persons as if they were things.
The Romans distinguished explicitly between war against civilized peoples, which had to
obey certain rules of honor and mercy, and war against barbarians, which could be
conducted without restraint of any kind. Moral universalism is a late and vulnerable
addition to the vocabulary of mankind.
If all this is true, we need to force ourselves to think beyond the platitude that genocide is
an abomination, and to understand the more difficult thought that it represents an
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unending moral temptation for mankind. The danger of genocide lies in its promise to
create a world without enemies. Think of genocide as a crime in service of a utopia, a
world without discord, enmity, suspicion, free of the enemy without or the enemy within.
Once we understand that this utopia is the core of the genocidal intention, we have to
realize that this utopia menaces us forever. Once we understand genocide as utopian, we
understand also the vulnerability of universalism. The idea that there can be a "crime
against humanity" is a counterintuitive one that has to make its way against the more
alarming thought that what humans actually desire is not a world of brotherhood, but a
world without enemies.
It will be said that moral universalism has an ancient pedigree, and that we can take
comfort in how deeply the idea of the brotherhood of mankind runs in our religious and
secular faiths. I am not so sure that we can derive such comfort from history. The moral
world of the Old Testament is not only a universe of monotheistic universalism and
prophetic justice; it is also a world of tribal moralities, of righteous slaughter rationalized
by those who believed themselves chosen of God. The New Testament extends its new
ideal of human equality only to the class of all believers. The precondition for Christian
brotherhood is conversion.
Secular people, disgusted by the ingenious ways in which human beings have used
religion to justify slaughter, may turn in relief to the secular universalism that we date to
the Enlightenment. But as we now know, the Founding Fathers of the American civil
religion did not see any contradiction between the universal claim that all men are created
equal and the particularistic claim that slavery was merely a legitimate exercise of a
constitutional right to property. It took the Civil War, the Fourteenth Amendment, and the
repeal of Jim Crow for the most egalitarian society on earth even to begin to narrow the
gulf between principle and practice. We cannot date effective legal universalism in the
United States any earlier than 1964, and the passage of the Civil Rights Act.
All of this is prologue to the thought that moral universalism is a modern conviction,
established in our souls only after the most tenacious struggle to convince the powerful
that they must practice what they preach. If we turn from the struggle to give equality a
universalistic application to the struggle to establish the idea that the extermination of any
group is a crime against all human groups, we discover again the modernity of moral
universalism. To be sure, there are anticipations of the idea in the Roman conception of
offenses against jus gentium, the law of all nations; but this is still a large conceptual step
away from the idea of a common human race with equal rights and equal duties. The
phrase "crime against humanity" enters the language of international law very late, only
after World War I. The word "genocide" was not coined until 1943.
The man who coined it was Raphael Lemkin, a lawyer born in Bialystok in Poland a
hundred years ago. Cast ashore in America by the Holocaust, and acting as a private
citizen, without state support or salary, he single-handedly drafted and lobbied for the
passage of the Genocide Convention, approved by the U.N. General Assembly in
December 1948. This would be achievement enough, but Lemkin died alone and remains
almost forgotten. The word that he coined--"genocide"--is now so banalized and misused
that there is a serious risk that commemoration of his work will become an act of
forgetting, obliterating what was so singular about his achievement.
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To appreciate Lemkin's achievement, we must see it not as the ratification of easily
available common sense, but as a counterintuitive leap of the imagination beyond the
realm of what common sense deemed possible. For the extraordinary fact is that Lemkin
coined the word "genocide" before the reality it applied to had revealed itself in its
demonically modern industrial form. Already in August 1941, Churchill had said, in the
face of Nazi atrocities in Eastern Europe, that the world was faced with "a crime without
a name." Yet when Lemkin coined the word, in 1943, while writing Axis Rule in
Occupied Europe at Duke University, it was fully two years before the world knew the
words Auschwitz, Buchenwald, Belsen, and Dachau.
By the middle of 1942, to be sure, prophetic figures such as Jan Karski and Szmul
Zygielbojm had begged official Washington and London to grasp the reality of
extermination in Poland. But those to whom they brought the news--Justice Felix
Frankfurter, for example--could not bring themselves to believe what they were told.
Isaiah Berlin was in the British Embassy in Washington from 1942 onwards, and was
constantly in touch both with Frankfurter and with Nahum Goldman, Chaim Weizmann,
and other key figures in the Zionist movement. None of them could believe that what was
happening in Europe was more than a massive pogrom, a continuation of an immemorial
pattern of persecution. What escaped them was the terrible novelty of industrialized mass
slaughter sustained by an ideological desire to wipe a people from the face of the earth, to
grind salt into the earth, as the Bible would say, so that nothing would ever grow again.
How are we to explain that Lemkin had the moral imagination these great figures lacked?
It cannot be because he was privy to what they knew. He came to Washington in 1943,
but he remained an isolated outsider and was not aware of the secret that insiders refused
to believe. Instead he had to extrapolate, by a leap of the mind, from his own particular
experience to the terrible general reality, the continental catastrophe that all but a handful
refused to see. In 1939, he was in Warsaw, a lawyer in private practice, when the
Germans invaded. He joined in the defense of the city and then fled eastwards. On the
way, he hid with a Jewish baker and his family in a small town. He begged the family to
flee and the family refused. Lemkin never forgot what the baker said to him: "We Jews
are an eternal people, we cannot be destroyed. We can only suffer."
This noble adherence to an ancient truth almost certainly cost the baker and his family
their lives. This very Jewish endurance was an essential element of that inability to see
against which Lemkin was to struggle throughout the war. He fled to Sweden, leaving
behind more than forty members of his own family. He set himself up in a Stockholm law
library and began a study of the legal decrees of the New Order in Europe, using
evidence that reached him through the neutralist Swedish embassies, the Red Cross
delegations in Germany, and German occupation radio.
Nobody before Lemkin had studied the German occupation from the standpoint of
jurisprudence. His central insight was that the occupation, not just in Poland but all across
Europe, had inverted the equality provisions of all the European legal traditions. Food in
Poland was distributed on racial grounds, with Jews getting the least. Marriage in
occupied Holland was organized entirely on racial lines: Germans responsible for getting
Dutch women pregnant were not punished, as would be the case under normal military
law; they were rewarded, because the resulting child would be a net addition to the
Nordic race.
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Lemkin was the first scholar to work out the logic of this jurisprudence. From its
unremitting racial bias, he was able to understand, earlier than most, that the wholesale
extermination of groups was not an accidental or incidental cruelty, nor an act of revenge.
It was the very essence of the occupation. Lemkin published his findings, with the help of
the Carnegie Endowment for International Peace, in 1944, in Axis Rule in Occupied
Europe. This book is a rare example of scholarship as heroism: a patient, detailed,
unprecedented, and unflagging demonstration, decree by decree, of modern despotism's
infernal logic.
As Lemkin slowly worked out where this logic was headed, he was just as concerned
about the fate of the Polish people as he was about the fate of his fellow Jews. In the
decrees penalizing the use of the Polish language and promoting the destruction of Polish
cultural monuments and treasures, the use of Poles for slave labor, the merciless
repression of all resistance, and the settlement of Germans on Polish land--in all those
awful edicts Lemkin could make out a concerted desire to subjugate, and if necessary to
exterminate, the Polish people. The concept of genocide was invented, in other words,
not only to describe the fate of his own people, but also to capture what was happening to
the people to whom he would have belonged, had he been permitted. He was one of those
Polish patriots never allowed membership in the nation that he claimed as his own.
Lemkin's theoretical innovation taught a universalist lesson not least by example.
In understanding why he had such unique premonitory capacity, such a special gift for
anticipating horror, we should remember that Lemkin was born and raised in a place
where it was a matter of life and death for a Jew to anticipate the worst. Born on a farm
near Bialystok, when Poland still belonged to the Russian czar, he remembered how his
father had to bribe the local constable to turn a blind eye to the fact that the family owned
a farm, a violation of Pale legislation against the Jews. He was twelve years old when
Mendel Beilis was put on trial for ritual murder, and the family lived in fear until Beilis
was released. In World War I, the Germans and Russians fought over the family's farm,
and it was destroyed. After the war, when Trotsky and Lenin fought Pilsudski, Lemkin
did service in Pilsudski's army. Later he trained as a lawyer and helped to draft the
criminal code of a newly independent Poland. He served as a state prosecutor in Warsaw
until anti-Semitic slurs forced him to withdraw into private practice in the 1930s.
Never secure in the Poland of his birth, he sought belonging in the law. He was not the
only Jew from Bialystok to do so. Hersh Lauterpacht, later the Whewell Professor of
Jurisprudence at Cambridge, was also from Bialystok, and made his escape to England in
the 1920s. Like Lemkin, he became an international lawyer; and like Lemkin, he devoted
his war work as a scholar to devising legal responses to barbarism. In Lauterpacht's case,
it was by drafting an international bill of rights that influenced both the Universal
Declaration of Human Rights of 1948 and, more directly, the European Convention on
Human Rights of 1950. Both men responded to barbarism in the same way: by seeking to
draft international legal instruments that would ban it. In a deeper sense, both these men
found a home in the law, and their passionate attachment to international law was a
consequence of their homelessness anywhere else.
This ideal of a world made civilized by international convention drove Lemkin first to
define genocide as a crime in international law, then to secure its inclusion in the
Nuremberg indictments in 1945, and finally to secure a convention making the crime a
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matter of universal criminal jurisdiction in 1948. When it was finally passed by the
General Assembly in 1948, he was discovered weeping in a corridor of the United
Nations. He wanted to be left alone, and in every sense he was alone. All of his family,
except one brother, had perished in the Holocaust.
Lemkin's faith in international law was not universally shared. The surviving Jews of
Poland put no trust in a world made safe by international covenants against genocide. For
them, safety and home lay where Herzl, Weizmann, and Ben-Gurion said it lay: in a
defensible nation-state of their own. But Lemkin never identified with the promise of
Zion. In an article written in April 1945, he rather poignantly identified himself as
"Polish but his viewpoint is international." There is pathos in this internationalism, since
internationalism had always betrayed him. He had believed in the League of Nations, and
he had presented his first legal ideas to outlaw barbarism and vandalism to League of
Nations experts in 1933, only to find himself laughed at by the German delegations.
Yet he was one of those rare people who take scorn as proof that they are right. Lemkin
never deviated from the conviction that only a just international legal order could protect
his own people. Zionism, a Jewish homeland, was a distraction. He never stopped to
consider that a defensible homeland is a more reliable remedy for genocide than any U.N.
convention. In his way, he too was a utopian. The young journalist A.M. Rosenthal of
The New York Times once challenged Lemkin to explain how a legal document, a "scrap
of paper" could stop a Hitler or a Stalin. Lemkin replied: "Only man has law. Law must
be built, do you understand me? You must build the law." Alas, his faith in law was not
only powerful, it was also poignant: the Genocide Convention Lemkin labored so hard to
draft and to have ratified has secured only one conviction in its fifty-year existence.
He was also a prisoner of his past in his strange scorn for human rights. As Samantha
Power shows in a forthcoming study of the history of the Genocide Convention, Lemkin
was contemptuous of the work of Eleanor Roosevelt and the drafters of the Universal
Declaration of Human Rights, which secured General Assembly approval within days of
the vote on his Genocide Convention. Mere declarations, he believed, were meaningless.
What was needed was a binding convention, with universally enforceable powers.
But here, too, history has been ironic. Human rights have gone on to become the faith of
a faithless age, while the Genocide Convention has been honored only in the breach.
Against all of Lemkin's expectations, conventions have proved less influential than
declarations. Indeed, his own convention has had perverse effects. During the genocide in
Rwanda, State Department spokesmen refused to use the word "genocide" to describe it,
lest it entrain the very responsibilities that Lemkin had written into the convention.
Those who should use the word "genocide" never let it slip their mouths, and those who
do use the word "genocide" banalize it into a validation of every kind of victimhood.
Thus slavery is called genocide, when--whatever else it was--it was a system to exploit
the living rather than to exterminate them. Aboriginal peoples in North America speak of
a microbial genocide, when it should be evident that microbes do not have intentions.
Genocide has no meaning unless the crime can be connected to a clear intention to
exterminate a human group in whole or in part. Something more than rhetorical
253
exaggeration for effect is at stake here. Calling every abuse or crime a genocide makes it
steadily more difficult to rouse people to action when a genuine genocide is taking place.
Towards the end of his life, with his convention a dead letter and its ratification by the
United States stalled in the Senate, Lemkin wrote mournfully that there had been three
things he had wanted to avoid in his life: wearing eyeglasses, losing his hair, and ending
up as a refugee. All three, he said ruefully, had taken place. He died alone and forgotten
in a Manhattan hotel in 1959.
Was he a failure? I do not believe so. The achievement that cannot be taken away from
Lemkin is the intelligence and the courage to have identified an abominable new
intention when others saw only immemorial cruelty, and to have given this new intention-to live in a world without enemies--the name that it deserves. It must be said, too, that it
was Lemkin who gave meaning to what has to be the central concept in the postwar
moral imagination: the idea of a crime against humanity.
Yet we cannot share the meaning that Lemkin gave to his concept. For if you were to ask
Lemkin the question that I posed at the outset--why is a crime against Jews also a crime
against Gentiles?--he would have replied that what human beings share is a common
civilization, in which the achievements of one group are shared by all. Thus in a passage
written in April 1945, at the very moment that the world was discovering what lay behind
the barbed wire at Auschwitz and Belsen, he continued to write:
Our whole heritage is a product of the contributions of all peoples. We can best
understand this when we realize how impoverished our culture would be if the so-called
inferior peoples doomed by Germany, such as the Jews, had not been permitted to create
the Bible, or to give birth to an Einstein, a Spinoza; if the Poles had not had the
opportunity to give to the world a Copernicus, a Chopin, a Curie; the Czechs, a Huss, a
Dvorak; the Greeks, a Plato and a Socrates; the Russians, a Tolstoy and a Shostakovich.
There is something affecting--and also something wrong--about this idea that what
humanity holds in common is civilization. Kultur did not prevent Germans from
massacring even their fellow citizens. Indeed, Kultur was Germanized in such a way as to
deny Jews any right to belong to the civilization that they had made in common with
Gentiles. Lemkin remained trapped by the hopeful optimism of a civilization in twilight,
just as he was trapped by the illusion that what was Western was universal. But when
Tutsis start massacring Hutus, when Khmers start killing fellow Cambodians, what
shared civilization is supposed to mobilize Europeans to intervene?
This perplexity returns us to the Polish peasant and the mysterious question of why the
fate of one group should concern the fate of another. What can we say that is truthful
enough to acknowledge the ineluctable difference between human beings that saved
Polish peasants from extermination and condemned their fellow beings to infamous
death? What we can say--what Lemkin did not say--is that it is not civilization we share,
but those very differences.
What it means to be a human being, what defines the very identity we share as a species,
is the fact that we are differentiated by race, religion, ethnicity, and individual difference.
These differentiations define our identity both as individuals and as a species. No other
species differentiates itself in this individualized abundance. A sense of otherness, of
254
distinctness, is the very basis of the consciousness of our individuality, and this
consciousness, based in difference, is a constitutive element of what it is to be a human
being. To attack any one of these differences--to round up women because they are
women, Jews because they are Jews, whites because they are whites, blacks because they
are blacks, gays because they are gay--is to attack the shared element that makes us what
we are as a species. In this way of thinking, we understand humanity, our common flesh
and blood, as valuable to the degree that it allows us to elaborate the dignity and the
honor that we give to our differences--and that this reality of difference, both fated and
created, is our common inheritance, the shared integument that we must fight to defend
whenever any of us is attacked for manifesting it.
8.2. The Economist, War Crimes Tribunals
Mar 10th 2006
From Economist.com
In the early 1990s, the UN Security Council set up international criminal tribunals for the
former Yugoslavia (ICTY) and for Rwanda (ICTR) to try perpetrators of genocide under
international law. The ICTY registered a spate of arrests in 1997-8. The trial of Slobodan
Milosevic, the former Serbian leader, began in 2002 but has been criticised for moving
slowly. A boost came in early 2005 when former military leaders poured in to stand trial,
and in February 2006 pressure mounted for Serbia to send Ratko Mladic, a Bosnian Serb
wartime general, to the ICTY. Meanwhile, the ICTR has been slow to arrest those
indicted (some of whom are clergymen). In June 2002 Rwanda's government declared
that most cases would be heard by grassroots tribunals, though many suspects have been
released.
In 2002 the UN and Sierra Leone set up a special court to try those responsible for crimes
in an 11-year war. Some consider the court a model for other tribunals, but as of March
2006 chief culprits were still at large.
In October 2005, a new tribunal, set up by the American-backed Iraqi Governing Council
in 2003, began its trial of Saddam Hussein, Iraq's former dictator.
War crimes
Bringing the wicked to the dock
Mar 9th 2006 | FREETOWN
From The Economist print edition
But does an international search for justice hurt or help the pursuit of peace?
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HITHERTO, the world's worst tyrants have usually managed to avoid being brought to
court for their crimes. Some, of course, were killed. Hitler took his own life. But Stalin
and Mao died in their beds. Pol Pot, responsible for the slaughter of 2m Cambodians in
the 1970s, lived on in Cambodia until his death in 1998. Idi Amin, Uganda's brutal
dictator, saw out his days in comfortable exile in Saudi Arabia; Ethiopia's Mengistu Haile
Mariam continues to live in Zimbabwe. The list goes on. But with the spread of
international justice over the past decade, the noose is tightening. It is now accepted that
there can be no immunity for the worst violations of human rights, not even for heads of
state.
Serbia's president, Slobodan Milosevic, was indicted for war crimes in 1999 and is likely
to be sentenced to life imprisonment when his trial ends later this year. After ten years on
the run, Ratko Mladic, the Bosnian Serb army chief held responsible for the Srebrenica
massacre, is expected to be arrested any day. In Chile, Augusto Pinochet is finally facing
a real possibility of trial 17 years after the end of his dictatorship. Hissène Habré, a
ruthless ex-president of Chad, exiled in Senegal for the past 16 years, could soon be
extradited to Brussels to face trial for crimes against humanity under Belgium's
"universal jurisdiction" law. Polish prosecutors are preparing to bring charges against
Wojciech Jaruzelski, their last communist leader. And Saddam Hussein, Iraq's former
dictator, faces near-certain execution at the end of his trial before a special tribunal in
Baghdad.
Debate has long raged about the best way to deal with gross violations of human rights. Is
it more important to punish the perpetrators or to bring an end to the atrocities? Can one,
in other words, secure both justice and peace, or are the two naturally antagonistic?
In the 1980s the concept of "truth and reconciliation" began to be the rage, and justice
was relegated to the back burner. Truth-telling, perhaps encouraged by amnesties,
appeared a good way of revealing the previously suppressed stories of the victims and
(much less often) the perpetrators of the covert state-sponsored violence (death squads,
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"disappearances" and such like) in Latin America. Indeed, the first truth and
reconciliation commission was set up not in South Africa, as many still believe, but in
Chile, in 1990. Others followed in quick succession in El Salvador, Chad, Haiti, South
Africa (1995), Ecuador, Nigeria, Peru, Sierra Leone, South Korea, Uruguay, TimorLeste, Ghana, Panama, Congo, Liberia and Morocco, the first in the Arab world. Algeria,
Afghanistan and Burundi are now considering following suit.
But for many, the idea that genocide, ethnic cleansing, torture and other such horrors
should go unpunished became increasingly troubling. Under the principle of national
sovereignty, nation states were supposed to have responsibility for enforcing their own
criminal justice. But all too often they had shown themselves unwilling or incapable of
prosecuting the worst culprits, either because those responsible were still in power, or
because they had taken refuge in other countries and were now out of reach. Hence the
turn to international justice.
In 1993, the UN's International Criminal Tribunal for ex-Yugoslavia (ICTY) in The
Hague became the first international war-crimes tribunal to be set up since the
Nuremberg and Tokyo trials after the second world war. It was followed a year later by
the UN tribunal for Rwanda, based in Arusha, Tanzania. Like their post-war forebears,
the two courts operate exclusively under international law and are staffed by foreign
judges. Since then, five other war-crimes tribunals, all with more or less international
input, have been-or are being-set up to deal with atrocities in Sierra Leone, Cambodia,
Timor-Leste, Iraq and Afghanistan. Lebanon has now asked the UN for help in setting up
a "tribunal of international character" to try the assassins of Rafik Hariri, the former
Lebanese prime minister who was killed a year ago.
What man can do to man
The Special Court for Sierra Leone, set up jointly by the UN and the Sierra Leonean
government in 2002, was the world's first "hybrid" court. Financed by voluntary
contributions from UN members, it operates under international law but with a mixture of
local and international judges. Based in Freetown, Sierra Leone's capital, it was also the
first modern war-crimes tribunal to be based "in theatre" (ie, in the country where the
crimes were committed). Desmond de Silva, the court's chief prosecutor, recounts his
first visit to an amputee camp in the town four years ago: "I saw a little girl with no arms
saying to her mother: 'Mummy, when will my arms grow again?' Nearby was a baby
suckling at his mother's breast: neither had any arms. These were sights that said to me:
do something. This is evil beyond belief."
Most conflicts, especially third-world civil ones, are marked by atrocities. But the wanton
cruelty of Sierra Leone's 11-year bloodbath was particularly barbaric. Although hacking
off limbs became the special trademark of the Revolutionary United Front (RUF), the
main rebel group, all sides were guilty. Child soldiers, some not yet in their teens, would
rip open pregnant women's stomachs after taking bets on the sex of the fetus. Women's
vaginas were sewn up with fishing line. Mouths were clamped shut with padlocks.
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Children were forced to batter their parents to death and then eat their brains. One man
was skinned alive before having his flesh picked off and eaten. Another had his heart torn
out and stuffed into the mouth of his 87-year-old mother. Thousands were burned alive in
their homes. In all, some 50,000-200,000 people were killed (there is no accurate count)
and three-quarters of the country's 6m inhabitants were forced to flee their homes. Should
such crimes really be forgiven and forgotten?
Charles Taylor, Liberia's ex-president and a notorious warlord, is regarded as one of the
greatest villains of the piece. Accused of arming the RUF rebels in exchange for "blood"
diamonds, he was indicted three years ago by Sierra Leone's court, but managed to flee
into exile in Nigeria after the collapse of his own regime a few months later. Since then,
he has been living undisturbed in a seaside villa, courtesy of President Olusegun
Obasanjo. The Nigerian leader granted him asylum as part of a peace deal brokered by
Nigeria, Britain and the United States. But prosecutors claim that Mr Taylor has broken
the conditions of that deal by continuing to meddle in politics, in Liberia and wider
afield. Both America's Congress and the European Parliament have demanded his
transfer to the Special Court.
But Mr Obasanjo has said he will not hand Mr Taylor over unless requested to do so by a
democratically elected Liberian government. In November, Ellen Johnson-Sirleaf was
elected Liberia's new president. She may not yet have made the request; in any case, Mr
Obasanjo has made no move. African leaders tend to watch each other's backs for fear
that it could be their own turn next. But the pressure is building up. In November, the UN
Security Council told its peacekeepers in Liberia to arrest and transfer Mr Taylor to the
Special Court if he sets foot in the country. And the United States, hitherto reluctant to
upset a valuable ally, has begun to speak out. "We think Obasanjo has an international
responsibility and we fully expect him to carry it out," Condoleezza Rice, the secretary of
state, recently told reporters.
If the Special Court does get Mr Taylor, it would be a tremendous coup both for it and for
international justice. Mandated to try only "those with the greatest responsibility" for the
atrocities, the court has indicted just 13 people (compared with the 162 indicted by the
ICTY). The trials of nine of them-three from each of the two main rebel groups and three
from the pro-government Civil Defence Force (CDF), in a demonstration of evenhandedness-are already well under way. But the four chief culprits are either still at large,
like Mr Taylor, or dead, like Foday Sankoh, dreaded leader of the RUF rebels. Their
absence has led some critics to question the continued existence of a tribunal which many
Sierra Leoneans see as irrelevant to their lives.
The court's decision to try Chief Samuel Hinga Norman, the former CDF leader, has
provoked particular anger. Many Sierra Leoneans regard the former government minister,
who helped oust a savage rebel junta in 1998, as a national hero. "Surely there has to be a
difference between a group of thugs and killers who go round butchering people
mindlessly, for no particular reason, and people trying to defend their lives, their homes
and their children," protested Peter Penfold, who was British high commissioner to Sierra
Leone in 1997-2000. Mr Norman should never have been indicted, Mr Penfold told the
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court last month. To such objections, which recur whenever an admired national leader is
prosecuted, Mr de Silva is wont to reply: "You can fight on the same side as the angels
and nevertheless commit crimes against humanity." Hence, again, the need for
international courts.
Sierra Leone's court is in many ways regarded as a model, with its two-to-one mix of
foreign and local judges, ambitious "outreach" (public relations) and victim-protection
programmes, tight timetable-it expects to complete its work in under five years as
opposed to the Yugoslav tribunal's 17 years-and relatively low budget, less than $30m a
year, a quarter of the ICTY's. Admittedly, the competition is not exactly fierce.
The Yugoslav and Rwandan tribunals, while doing good work, are regarded as slow,
costly and remote, while the special tribunals in Cambodia, with its majority of local
judges, and in Iraq, where Mr Hussein's trial before an all-Iraqi bench keeps threatening
to collapse in chaos, are regarded by many as counter-examples, lacking both impartiality
and competence. With results so mixed, it is perhaps not surprising that people have
begun questioning the need to finance such tribunals.
The court they love to hate
The International Criminal Court (ICC) is the world's first permanent war-crimes
tribunal. It is also the first not to have any direct UN involvement and has faced strong
opposition from America. Set up in The Hague in 2002, alongside the ICTY and the UN's
International Court of Justice (the much older body which rules on disputes between
states), it is designed to provide a fairer, cheaper, and more effective way of dealing with
the most serious violations of international humanitarian law.
Last October, it issued its first indictments-against Joseph Kony and four members of his
savage Lord's Resistance Army in northern Uganda. More indictments are expected soon
relating to the slaughter in Congo, where war has claimed 4m lives since 1998. The court
has also been mandated by the Security Council to investigate the current horrors in
Darfur, in western Sudan, and continues to keep watch on developments in five other
violence-racked countries, including Côte d'Ivoire and the Central African Republic.
Yet the ICC's reach is limited. Under its statutes, it cannot bring a prosecution unless the
accused's country of origin is "genuinely unable or unwilling" to do so. This is a potential
minefield: Sudan, for example, insists it is perfectly capable and willing to try those
responsible for Darfur and is refusing to co-operate with the court. It may not prosecute
crimes committed before its inception in 2002. And it has jurisdiction only over nationals
of countries which have ratified its statutes-100 have done so to date-or over those whose
crimes were committed in a country which has. The exception to this rule is if the
Security Council refers the matter to the ICC, as in the case of Sudan, a non-member. The
ICC is further hampered by the refusal of many of the world's worst human-rights
violators to sign up to it. Zimbabwe, Cuba, Uzbekistan, North Korea, Syria, Belarus and
Saudi Arabia are all non-members. So are the United States, China and Russia, all three
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veto-wielding permanent members of the Security Council and thus able to block any
Security Council referrals.
Imperfect justice
The purpose and value of the ICC and the other ad hoc war-crimes tribunals are now, in
their turn, coming under scrutiny. Critics complain that they are selective and politicised,
deliver only partial justice and perpetuate the bitterness, thus preventing social and ethnic
reconstruction. All too often, suggests Dominic McGoldrick, professor of public
international law at Liverpool University in Britain, they are seen as an attempt by the
West to impose its own concept of justice and morality on the third world.
Forgiveness in the offing, with the archbishop's blessing
Others, however, argue that ending impunity is vital, not only to reduce the victims' anger
and resentment, which might otherwise fuel a never-ending cycle of reprisals and
counter-reprisals, but also to deter further atrocities. Without justice, says Paul van Zyl of
the New York-based International Centre for Transitional Justice, you may be able to
bring a temporary stop to the killing, but there can be no sustainable peace.
Does deterrence work? It is easy to point to the apparent failures. Despite Nuremberg,
genocide has continued. The creation of the ICTY failed to prevent the massacres in
Srebrenica and Kosovo. The indictment of Mr Kony and his henchmen has not stopped
the Ugandan killings. And since the referral of Darfur to the ICC, the violence there has
got even worse. But to be effective, deterrence has to be credible. It works only when the
potential culprits have a reasonable expectation of being apprehended and punished. It is
too early to judge what effect the ICC and the other tribunals will have, says Mr van Zyl,
but he adds that there is no doubt "that there is a growing trend in the world toward
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justice for the top dogs." He believes Mr Taylor's capture would send a very strong signal
to other potential tyrants.
But what about the lower-level perpetrators-the middle-ranking officers who simply
follow orders out of fear for their own lives, or the child soldiers, dragged from their
homes, brutalised and forced to commit atrocities often under the influence of drugs or
alcohol? Should they, too, be held accountable? Here some kind of truth-telling
mechanism, backed up by traditional methods of mediation and reconciliation, might be
appropriate, argues Kenneth Roth, head of Human Rights Watch, another New Yorkbased lobby. Aimed only at the worst culprits, international justice is at best a blunt
instrument. But he is adamant that blanket amnesties are generally counter-productive,
except (a big exception) when used as a temporary expedient to bring warring parties to
the negotiating table, with the possibility of being "undone" once peace is restored.
In Sierra Leone, Mr Roth points out, the amnesty negotiated as part of the 1999 Lomé
peace agreement with the rebels did not prevent the resumption of atrocities a few months
later and was therefore annulled. In war-torn northern Uganda, a five-year-old
government amnesty, while successful in bringing thousands of middle- and low-ranking
rebels in from the bush, has failed to get Mr Kony and his pals to lay down their arms.
Prosecution is by no means necessarily an impediment to peace, Mr Roth insists; the
absence of any amnesty provision in the Dayton peace agreement on Bosnia, for
example, did not stop Mr Milosevic from signing up to it (because he never dreamt that
he, himself, would be prosecuted). Nor did it prevent Afghanistan's warring parties from
reaching a peace agreement in Bonn. Furthermore, he says, the amnesties that have been
introduced in the past are beginning to be unpicked in the courts, as in Chile in 2003, or
annulled outright, as in Argentina the same year. It is now generally accepted that, under
international law, amnesties can never apply to gross violations of humanitarian law.
Truth, reconciliation and punishment
Even South Africa's lauded truth and reconciliation process, presided over by Archbishop
Desmond Tutu, provided no automatic amnesty. Under the slogan "revealing is healing",
perpetrators were invited to confess to crimes committed under the three decades of
apartheid, and apply for an amnesty. But if their misdeeds were deemed too heinous,
amnesty could be denied. More than 7,000 applications were accepted, but 5,400 were
turned down. In addition, those who refused to confess remained liable to prosecution.
For a long time, it looked as if no charges would ever be brought. But now South Africa
has announced that it is ready to prosecute five people (no names yet given), with 15
more likely to follow.
Reconciliation and punitive justice are both necessary in the view of Messrs Roth and van
Zyl. Far from being antagonistic, the two approaches complement one another. Much
depends on local circumstances. Sometimes, as in South Africa, it is better to start with
truth and reconciliation, and prosecute later. At other times, as in Iraq, prosecution comes
first, and truth and reconciliation may follow when or if the violence ends. Sierra Leone
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is the only country that has set up a truth and reconciliation commission and a war-crimes
court at the same time. Locals grumble, but the wounded little country's bold experiment
could set a trend.
8.3. Christian Science Monitor: Why Genocide is Difficult to Prosecute
from the April 30, 2007 edition - http://www.csmonitor.com/2007/0430/p01s04wogi.html
Why Genocide is Difficult to Prosecute
Protesters in 35 nations and more than 280 US cities rallied Sunday for protecting those
being killed in the Darfur war.
By Robert Marquand | Staff writer of The Christian Science Monitor
The Hague
As public consciousness of the grim situation in Darfur grows, the difficulty of
prosecuting what is often popularly called genocide is becoming clearer.
For years, the term genocide was used to describe the ultimate crime. But that crime was
rarely – if ever – charged, since international courts were too weak.
Now, the mechanics of international justice are modestly rising to confront man's
inhumanity to man: take, for example, the International Criminal Court and the
Yugoslavia and Rwanda Tribunals here at The Hague.
Yet at the same time, the political sensitivity surrounding a genocide charge, which
requires nations to intervene under international law, is creating friction. The cases of
Rwanda, Bosnia, and now Darfur demonstrate this.
Sunday, protesters in 35 nations and more than 280 US cities marched against what a UN
mission calls "apocalyptic" scenes still emerging from the Darfur war, now spreading
from Sudan to Chad. Protest groups, including Amnesty International, called on Britain
and the US to help create a peacekeeping force.
So is Darfur a genocide? A US Holocaust Memorial Museum committee and Colin
Powell have said it is. So do at least two human rights reports. One French expert, Marc
Lavergne, calls it "worse than a genocide" since mass killings are not done out of racial
hatred, but because Darfurians are simply "in the way" of Sudan's plans to control land.
Yet many Sudanese experts and an International Criminal Court (ICC) don't term it
genocide. They say it doesn't fit the 1948 Geneva Convention definition to win a case.
This requires absolute proof of "mental intent" to kill or displace based on national,
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ethnic, or religious identity. Hence, an ICC prosecutor this winter did not charge a
Sudanese interior minister and a rebel Janjaweed militia leader with "genocide," but
crimes against humanity.
'An explicit call to action'
The word genocide raises deep legal and moral conundrums in a globalizing world,
experts say: The term has gained popular usage in a media age to describe mass
atrocities, as in Darfur, Rwanda, Bosnia. Yet prosecutors and world courts are ever more
cautious about leveling the charge, even when it may apply – since it raises a requirement
to intervene.
"Genocide is an explicit call to action under the 1948 treaty, a call to prevent and punish,"
says Diane Orentlicher at American University in Washington. Recent court rulings show
that "if you wait until there is a legal certainty to prove genocide, you have waited too
long," she adds.
That's where politics enter. A party or state charged with genocide will likely be isolated
and stigmatized in the global community, perhaps even making the situation worse. This
is disputed on Darfur. Some Darfur activists feel Sudan hasn't been charged with
genocide because that would make it impossible for governments to deal with Khartoum.
The politics of genocide rose in a ruling on Bosnia this February. The International Court
of Justice (ICJ) at The Hague did not find Serbia guilty of genocide in the ethnic
cleansing of Bosnian Muslims in the early 1990s. Rather, it found Serbia culpable in not
preventing genocide in the Srebrenica massacre, and awarded no damages.
The ruling outraged scholars like Ruth Wedgwood of Johns Hopkins University who told
the Monitor it "appeared to be a posthumous acquittal of [then President] Slobodan
Milosevic for genocide. The court didn't look at a pattern of crimes in Bosnia, but
selectively picked its evidence."
Early this month it came to light that ICJ judges did not read and did not seek to
investigate a huge range of materials from Belgrade that were used as evidence by the
UN-sanctioned Yugoslavia Tribunal, just down the street in this city.
New York Times reporter Marlise Simons wrote that the ICJ ruling "raised some
eyebrows because aspects of Serbian military involvement are already known from
records of earlier [Tribunal] trials.... In late 1993, for instance, more than 1,800 officers
and noncommissioned men from the Yugoslav Army were serving in the Bosnian Serb
Army, and were deployed, paid, promoted, or retired by Belgrade [and] given dual
identities" through a secret office known as the 30th Personnel Center of the General
Staff."
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ICJ defenders say it is a civil not a criminal court, and that its purpose is to settle disputes
between nations to keep amity and peace intact. Critics say the ruling seemed more about
conciliation than justice.
"A lot has changed in the past 12 years; the EU is anxious to normalize relations with
Serbia," says an American jurist with ties to The Hague, who requested anonymity. "I'm
sure there are political pressures. The court probably didn't want to send Serbia back to
the 1990s, isolate it, make it a pariah state in perpetuity.... When it came to the legal
standard required to prove genocide, the court shrank."
(Serb fugitives Radovan Karadzic and Gen. Ratko Mladic, architects of ethnic cleansing
in Bosnia, still face genocide charges at the tribunal.)
Tension between peace, justice
UNHCR head Louise Arbour, who as chief prosecutor at the Yugoslav tribunal charged
Mr. Milosevic with genocide, told the Monitor that courts should resist politics: "At the
end of the day, there's going to be tension between peace and justice. By saying that
genocide is a destabilizing charge [to the country accused], you politicize the justice
issue," she said. Regarding Darfur, she said, "The UN embraced a responsibility to
protect citizens from genocide…. But in Darfur, [head of the ICC investigation Antonio]
Cassese looked for three months with a large staff and could find no genocidal intent. He
couldn't find a case."
That document, "The 2005 Report of the International Commission of Inquiry on Darfur
to the UN Secretary-General," finds that the brutality in Darfur is for "purposes of
counter-insurgency warfare."
Yet legal scholar Nsongurua Udombana at Central European University in Budapest,
Hungary, states bluntly that the Cassesse report finds no genocide in Darfur – to avoid an
obligation to act.
In a closely argued essay, "An Escape from Reason" in the Spring 2006 issue of The
International Lawyer, he says Darfur is prima facie far closer to genocide than the report
finds.
One conundrum: "It is impossible to determine genocide while it is actually happening,"
Mr. Udombana says. He adds, "By not calling it a genocide, it appears to make the issue
less urgent than it actually is."
Indeed, mass killings can create new on-the-ground dynamics, he suggests: Whether or
not precise causes of intent can be determined by outside investigators, still, as rapes and
murders continue on their bloody way, war can breed an intent to exterminate on the
grounds of group identity.
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He agrees with Samantha Powers, author of "The Age of Genocide," that Darfur has
spawned a dynamic in which Arabs are killing Africans, and lighter skinned and darker
skinned groups are set against each other. He says a confession by a high ranking
Sudanese official isn't needed to prove genocidal intent. It can be shown via a common
standard of "practice and pattern" of crime.
Two motives in prosecuting
Mr. Lavergne of the National Center for Scientific Research in Paris says prosecuting
mass crimes boils down to two often different motives: an effort to change behavior, or
an effort to punish. In the midst of a nightmare like Darfur, he says, a genocide charge
may not be the best way to change behavior, though he admits the problem is ambiguous.
He also questions if Darfur is a genocide. The extermination is not aimed at Darfurian
identity: "Darfurians who live in Khartoum are not targeted," he notes.
For years "genocide" was a sanctified word, emerging from the Holocaust, and it defined
mass atrocities like the Armenian genocide, or the killing fields of Pol Pot in Cambodia.
But its popular use rose in the midst of the Rwanda and Bosnia wars.
French scholar Jacques Semelin, author of the book "Purify and Destroy: The Political
Uses of Massacres and Genocide," notes that "In Nuremburg, the charges were crimes
against humanity. Genocide didn't come into the legal framework until 1948 in Geneva."
Bosnia was an early instance of systematic mass killings in close proximity to a region,
Europe, with an incorporated value system based on history that contained an assumption
that such crimes would "never again" take place.
Reports of mass killings along the Drina River in 1992, with Bosnian Muslim villages
purged and teachers and elders shot, created a dilemma for Europe and the US. The US
State Department's initial downplaying of killings and prison camps led one mid-level US
diplomat, Richard Johnson, to write "The Pin-Stripe Approach to Genocide" – an early
effort to pair the term with an event that seemed to warrant it.
At the time, little notion existed of international courts as a tool to deal with mass crimes.
That has changed. The Rwanda and Yugoslavia tribunals, the 1998 Treaty of Rome, the
decision of the UN Security Council to empower indictments on Darfur by the ICC, the
pressure on Serbia and Croatia to hand over war criminals – have created pressure on
regimes to change behavior, though not a preventive one.
For John Packer of Human Rights Internet in Ottawa, the world is in an "awkward
moment" between the old Westphalian system of adjudication, "based on sovereign states
and designed to create peace and stability between them, and a new developing model of
international law."
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The ICJ ruling on Bosnia "brings this awkward moment into relief," he says. "The court
was caught willfully disregarding evidence showing Serbia's culpability, to avoid being
put in a difficult spot."
Genocide
The use of deliberate systematic measures (as killing, bodily or mental injury, unlivable
conditions, prevention of births) calculated to bring about the extermination of a racial,
political, or cultural group or to destroy the language, religion, or culture of a group.
Source: Webster's Third New International Dictionary
8.4. ICTY – Primary Sources
8.4.1. Amended Statute of The International Tribunal
AMENDED STATUTE OF THE INTERNATIONAL TRIBUNAL
(ADOPTED 25 MAY 1993 by Resolution 827)
(AS AMENDED 13 MAY 1998 by Resolution 1166)
(AS AMENDED 30 NOVEMBER 2000 by Resolution 1329)
(AS AMENDED 17 MAY 2002 by Resolution 1411)
AMENDED STATUTE OF THE INTERNATIONAL TRIBUNAL
(ADOPTED 25 MAY 1993 by Resolution 827)
(AS AMENDED 13 MAY 1998 by Resolution 1166)
(AS AMENDED 30 NOVEMBER 2000 by Resolution 1329)
(AS AMENDED 17 MAY 2002 by Resolution 1411)
Having been established by the Security Council acting under Chapter VII of the Charter
of the United Nations, the International Tribunal for the Prosecution of Persons
Responsible for Serious Violations of International Humanitarian Law Committed in the
Territory of the Former Yugoslavia since 1991 (hereinafter referred to as "the
International Tribunal") shall function in accordance with the provisions of the present
Statute.
Article 1
Competence of the International Tribunal
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The International Tribunal shall have the power to prosecute persons responsible for
serious violations of international humanitarian law committed in the territory of the
former Yugoslavia since 1991 in accordance with the provisions of the present Statute.
Article 2
Grave breaches of the Geneva Conventions of 1949
The International Tribunal shall have the power to prosecute persons committing or
ordering to be committed grave breaches of the Geneva Conventions of 12 August 1949,
namely the following acts against persons or property protected under the provisions of
the relevant Geneva Convention:
(a) wilful killing;
(b) torture or inhuman treatment, including biological experiments;
(c) wilfully causing great suffering or serious injury to body or health;
(d) extensive destruction and appropriation of property, not justified by military necessity
and carried out unlawfully and wantonly;
(e) compelling a prisoner of war or a civilian to serve in the forces of a hostile power;
(f) wilfully depriving a prisoner of war or a civilian of the rights of fair and regular trial;
(g) unlawful deportation or transfer or unlawful confinement of a civilian;
(h) taking civilians as hostages.
Article 3
Violations of the laws or customs of war
The International Tribunal shall have the power to prosecute persons violating the laws or
customs of war. Such violations shall include, but not be limited to:
(a) employment of poisonous weapons or other weapons calculated to cause unnecessary
suffering;
(b) wanton destruction of cities, towns or villages, or devastation not justified by military
necessity;
(c) attack, or bombardment, by whatever means, of undefended towns, villages,
dwellings, or buildings;
(d) seizure of, destruction or wilful damage done to institutions dedicated to religion,
charity and education, the arts and sciences, historic monuments and works of art and
science;
(e) plunder of public or private property.
Article 4
Genocide
1. The International Tribunal shall have the power to prosecute persons committing
genocide as defined in paragraph 2 of this article or of committing any of the other acts
enumerated in paragraph 3 of this article.
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2. Genocide means any of the following acts committed with intent to destroy, in whole
or in part, a national, ethnical, racial or religious group, as such:
(a) killing members of the group;
(b) causing serious bodily or mental harm to members of the group;
(c) deliberately inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part;
(d) imposing measures intended to prevent births within the group;
(e) forcibly transferring children of the group to another group.
3. The following acts shall be punishable:
(a) genocide;
(b) conspiracy to commit genocide;
(c) direct and public incitement to commit genocide;
(d) attempt to commit genocide;
(e) complicity in genocide.
Article 5
Crimes against humanity
The International Tribunal shall have the power to prosecute persons responsible for the
following crimes when committed in armed conflict, whether international or internal in
character, and directed against any civilian population:
(a) murder;
(b) extermination;
(c) enslavement;
(d) deportation;
(e) imprisonment;
(f) torture;
(g) rape;
(h) persecutions on political, racial and religious grounds;
(i) other inhumane acts.
Article 6
Personal jurisdiction
The International Tribunal shall have jurisdiction over natural persons pursuant to the
provisions of the present Statute.
Article 7
Individual criminal responsibility
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1. A person who planned, instigated, ordered, committed or otherwise aided and abetted
in the planning, preparation or execution of a crime referred to in articles 2 to 5 of the
present Statute, shall be individually responsible for the crime.
2. The official position of any accused person, whether as Head of State or Government
or as a responsible Government official, shall not relieve such person of criminal
responsibility nor mitigate punishment.
3. The fact that any of the acts referred to in articles 2 to 5 of the present Statute was
committed by a subordinate does not relieve his superior of criminal responsibility if he
knew or had reason to know that the subordinate was about to commit such acts or had
done so and the superior failed to take the necessary and reasonable measures to prevent
such acts or to punish the perpetrators thereof.
4. The fact that an accused person acted pursuant to an order of a Government or of a
superior shall not relieve him of criminal responsibility, but may be considered in
mitigation of punishment if the International Tribunal determines that justice so requires.
Article 8
Territorial and temporal jurisdiction
The territorial jurisdiction of the International Tribunal shall extend to the territory of the
former Socialist Federal Republic of Yugoslavia, including its land surface, airspace and
territorial waters. The temporal jurisdiction of the International Tribunal shall extend to a
period beginning on 1 January 1991.
Article 9
Concurrent jurisdiction
1. The International Tribunal and national courts shall have concurrent jurisdiction to
prosecute persons for serious violations of international humanitarian law committed in
the territory of the former Yugoslavia since 1 January 1991.
2. The International Tribunal shall have primacy over national courts. At any stage of the
procedure, the International Tribunal may formally request national courts to defer to the
competence of the International Tribunal in accordance with the present Statute and the
Rules of Procedure and Evidence of the International Tribunal.
Article 10
Non-bis-in-idem
1. No person shall be tried before a national court for acts constituting serious violations
of international humanitarian law under the present Statute, for which he or she has
already been tried by the International Tribunal.
2. A person who has been tried by a national court for acts constituting serious violations
of international humanitarian law may be subsequently tried by the International Tribunal
only if:
(a) the act for which he or she was tried was characterized as an ordinary crime; or
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(b) the national court proceedings were not impartial or independent, were designed to
shield the accused from international criminal responsibility, or the case was not
diligently prosecuted.
3. In considering the penalty to be imposed on a person convicted of a crime under the
present Statute, the International Tribunal shall take into account the extent to which any
penalty imposed by a national court on the same person for the same act has already been
served.
Article 11
Organization of the International Tribunal
The International Tribunal shall consist of the following organs:
(a) the Chambers, comprising three Trial Chambers and an Appeals Chamber;
(b) the Prosecutor; and
(c) a Registry, servicing both the Chambers and the Prosecutor.
Article 12
Composition of the Chambers
1. The Chambers shall be composed of sixteen permanent independent judges, no two of
whom may be nationals of the same State, and a maximum at any one time of nine ad
litem independent judges appointed in accordance with article 13 ter, paragraph 2, of the
Statute, no two of whom may be nationals of the same State.
2. Three permanent judges and a maximum at any one time of six ad litem judges shall be
members of each Trial Chamber. Each Trial Chamber to which ad litem judges are
assigned may be divided into sections of three judges each, composed of both permanent
and ad litem judges. A section of a Trial Chamber shall have the same powers and
responsibilities as a Trial Chamber under the Statute and shall render judgement in
accordance with the same rules.
3. Seven of the permanent judges shall be members of the Appeals Chamber. The
Appeals Chamber shall, for each appeal, be composed of five of its members.
4. A person who for the purposes of membership of the Chambers of the International
Tribunal could be regarded as a national of more than one State shall be deemed to be a
national of the State in which that person ordinarily exercises civil and political rights.
Article 13
Qualifications of judges
The permanent and ad litem judges shall be persons of high moral character, impartiality
and integrity who possess the qualifications required in their respective countries for
appointment to the highest judicial offices. In the overall composition of the Chambers
and sections of the Trial Chambers, due account shall be taken of the experience of the
judges in criminal law, international law, including international humanitarian law and
human rights law.
Article 13 bis
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Election of permanent judges
1. Fourteen of the permanent judges of the International Tribunal shall be elected by the
General Assembly from a list submitted by the Security Council, in the following
manner:
(a) The Secretary-General shall invite nominations for judges of the International
Tribunal from States Members of the United Nations and non-member States maintaining
permanent observer missions at United Nations Headquarters.
(b) Within sixty days of the date of the invitation of the Secretary-General, each State
may nominate up to two candidates meeting the qualifications set out in article 13 of the
Statute, no two of whom shall be of the same nationality and neither of whom shall be of
the same nationality as any judge who is a member of the Appeals Chamber and who was
elected or appointed a judge of the International Criminal Tribunal for the Prosecution of
Persons Responsible for Genocide and Other Serious Violations of International
Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens
Responsible for Genocide and Other Such Violations Committed in the Territory of
Neighbouring States, between 1 January 1994 and 31 December 1994 (hereinafter
referred to as "The International Tribunal for Rwanda") in accordance with article 12 of
the Statute of that Tribunal.
(c) The Secretary-General shall forward the nominations received to the Security
Council. From the nominations received the Security Council shall establish a list of not
less than twenty-eight and not more than forty-two candidates, taking due account of the
adequate representation of the principal legal systems of the world.
(d) The President of the Security Council shall transmit the list of candidates to the
President of the General Assembly. From that list the General Assembly shall elect
fourteen permanent judges of the International Tribunal. The candidates who receive an
absolute majority of the votes of the States Members of the United Nations and of the
non-member States maintaining permanent observer missions at United Nations
Headquarters, shall be declared elected. Should two candidates of the same nationality
obtain the required majority vote, the one who received the higher number of votes shall
be considered elected.
2. In the event of a vacancy in the Chambers amongst the permanent judges elected or
appointed in accordance with this article, after consultation with the Presidents of the
Security Council and of the General Assembly, the Secretary-General shall appoint a
person meeting the qualifications of article 13 of the Statute, for the remainder of the
term of office concerned.
3. The permanent judges elected in accordance with this article shall be elected for a term
of four years. The terms and conditions of service shall be those of the judges of the
International Court of Justice. They shall be eligible for re-election.
Article 13 ter
Election and appointment of ad litem judges
1. The ad litem judges of the International Tribunal shall be elected by the General
Assembly from a list submitted by the Security Council, in the following manner:
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(a) The Secretary-General shall invite nominations for ad litem judges of the International
Tribunal from States Members of the United Nations and non-member States maintaining
permanent observer missions at United Nations Headquarters.
(b) Within sixty days of the date of the invitation of the Secretary-General, each State
may nominate up to four candidates meeting the qualifications set out in article 13 of the
Statute, taking into account the importance of a fair representation of female and male
candidates.
(c) The Secretary-General shall forward the nominations received to the Security
Council. From the nominations received the Security Council shall establish a list of not
less than fifty-four candidates, taking due account of the adequate representation of the
principal legal systems of the world and bearing in mind the importance of equitable
geographical distribution.
(d) The President of the Security Council shall transmit the list of candidates to the
President of the General Assembly. From that list the General Assembly shall elect the
twenty-seven ad litem judges of the International Tribunal. The candidates who receive
an absolute majority of the votes of the States Members of the United Nations and of the
non-member States maintaining permanent observer missions at United Nations
Headquarters shall be declared elected.
(e) The ad litem judges shall be elected for a term of four years. They shall not be eligible
for re-election.
2. During their term, ad litem judges will be appointed by the Secretary-General, upon
request of the President of the International Tribunal, to serve in the Trial Chambers for
one or more trials, for a cumulative period of up to, but not including, three years. When
requesting the appointment of any particular ad litem judge, the President of the
International Tribunal shall bear in mind the criteria set out in article 13 of the Statute
regarding the composition of the Chambers and sections of the Trial Chambers, the
considerations set out in paragraphs 1 (b) and (c) above and the number of votes the ad
litem judge received in the General Assembly.
Article 13 quater
Status of ad litem judges
1. During the period in which they are appointed to serve in the International Tribunal, ad
litem judges shall:
(a) benefit from the same terms and conditions of service mutatis mutandis as the
permanent judges of the International Tribunal;
(b) enjoy, subject to paragraph 2 below, the same powers as the permanent judges of the
International Tribunal;
(c) enjoy the privileges and immunities, exemptions and facilities of a judge of the
International Tribunal.
2. During the period in which they are appointed to serve in the International Tribunal, ad
litem judges shall not:
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(a) be eligible for election as, or to vote in the election of, the President of the Tribunal or
the Presiding Judge of a Trial Chamber pursuant to article 14 of the Statute;
(b) have power:
(i) to adopt rules of procedure and evidence pursuant to article 15 of the Statute. They
shall, however, be consulted before the adoption of those rules;
(ii) to review an indictment pursuant to article 19 of the Statute;
(iii) to consult with the President in relation to the assignment of judges pursuant to
article 14 of the Statute or in relation to a pardon or commutation of sentence pursuant to
article 28 of the Statute;
(iv) to adjudicate in pre-trial proceedings.
Article 14
Officers and members of the Chambers
1. The permanent judges of the International Tribunal shall elect a President from
amongst their number.
2. The President of the International Tribunal shall be a member of the Appeals Chamber
and shall preside over its proceedings.
3. After consultation with the permanent judges of the International Tribunal, the
President shall assign four of the permanent judges elected or appointed in accordance
with Article 13 bis of the Statute to the Appeals Chamber and nine to the Trial Chambers.
4. Two of the judges elected or appointed in accordance with article 12 of the Statute of
the International Tribunal for Rwanda shall be assigned by the President of that Tribunal,
in consultation with the President of the International Tribunal, to be members of the
Appeals Chamber and permanent judges of the International Tribunal.
5. After consultation with the permanent judges of the International Tribunal, the
President shall assign such ad litem judges as may from time to time be appointed to
serve in the International Tribunal to the Trial Chambers.
6. A judge shall serve only in the Chamber to which he or she was assigned.
7. The permanent judges of each Trial Chamber shall elect a Presiding Judge from
amongst their number, who shall oversee the work of the Trial Chamber as a whole.
Article 15
Rules of procedure and evidence
The judges of the International Tribunal shall adopt rules of procedure and evidence for
the conduct of the pre-trial phase of the proceedings, trials and appeals, the admission of
evidence, the protection of victims and witnesses and other appropriate matters.
Article 16
The Prosecutor
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1. The Prosecutor shall be responsible for the investigation and prosecution of persons
responsible for serious violations of international humanitarian law committed in the
territory of the former Yugoslavia since 1 January 1991.
2. The Prosecutor shall act independently as a separate organ of the International
Tribunal. He or she shall not seek or receive instructions from any Government or from
any other source.
3. The Office of the Prosecutor shall be composed of a Prosecutor and such other
qualified staff as may be required.
4. The Prosecutor shall be appointed by the Security Council on nomination by the
Secretary-General. He or she shall be of high moral character and possess the highest
level of competence and experience in the conduct of investigations and prosecutions of
criminal cases. The Prosecutor shall serve for a four-year term and be eligible for
reappointment. The terms and conditions of service of the Prosecutor shall be those of an
Under-Secretary-General of the United Nations.
5. The staff of the Office of the Prosecutor shall be appointed by the Secretary-General
on the recommendation of the Prosecutor.
Article 17
The Registry
1. The Registry shall be responsible for the administration and servicing of the
International Tribunal.
2. The Registry shall consist of a Registrar and such other staff as may be required.
3. The Registrar shall be appointed by the Secretary-General after consultation with the
President of the International Tribunal. He or she shall serve for a four-year term and be
eligible for reappointment. The terms and conditions of service of the Registrar shall be
those of an Assistant Secretary-General of the United Nations.
4. The staff of the Registry shall be appointed by the Secretary-General on the
recommendation of the Registrar.
Article 18
Investigation and preparation of indictment
1. The Prosecutor shall initiate investigations ex-officio or on the basis of information
obtained from any source, particularly from Governments, United Nations organs,
intergovernmental and non-governmental organisations. The Prosecutor shall assess the
information received or obtained and decide whether there is sufficient basis to proceed.
2. The Prosecutor shall have the power to question suspects, victims and witnesses, to
collect evidence and to conduct on-site investigations. In carrying out these tasks, the
Prosecutor may, as appropriate, seek the assistance of the State authorities concerned.
3. If questioned, the suspect shall be entitled to be assisted by counsel of his own choice,
including the right to have legal assistance assigned to him without payment by him in
any such case if he does not have sufficient means to pay for it, as well as to necessary
translation into and from a language he speaks and understands.
274
4. Upon a determination that a prima facie case exists, the Prosecutor shall prepare an
indictment containing a concise statement of the facts and the crime or crimes with which
the accused is charged under the Statute. The indictment shall be transmitted to a judge of
the Trial Chamber.
Article 19
Review of the indictment
1. The judge of the Trial Chamber to whom the indictment has been transmitted shall
review it. If satisfied that a prima facie case has been established by the Prosecutor, he
shall confirm the indictment. If not so satisfied, the indictment shall be dismissed.
2. Upon confirmation of an indictment, the judge may, at the request of the Prosecutor,
issue such orders and warrants for the arrest, detention, surrender or transfer of persons,
and any other orders as may be required for the conduct of the trial.
Article 20
Commencement and conduct of trial proceedings
1. The Trial Chambers shall ensure that a trial is fair and expeditious and that proceedings
are conducted in accordance with the rules of procedure and evidence, with full respect
for the rights of the accused and due regard for the protection of victims and witnesses.
2. A person against whom an indictment has been confirmed shall, pursuant to an order
or an arrest warrant of the International Tribunal, be taken into custody, immediately
informed of the charges against him and transferred to the International Tribunal.
3. The Trial Chamber shall read the indictment, satisfy itself that the rights of the accused
are respected, confirm that the accused understands the indictment, and instruct the
accused to enter a plea. The Trial Chamber shall then set the date for trial.
4. The hearings shall be public unless the Trial Chamber decides to close the proceedings
in accordance with its rules of procedure and evidence.
Article 21
Rights of the accused
1. All persons shall be equal before the International Tribunal.
2. In the determination of charges against him, the accused shall be entitled to a fair and
public hearing, subject to article 22 of the Statute.
3. The accused shall be presumed innocent until proved guilty according to the provisions
of the present Statute.
4. In the determination of any charge against the accused pursuant to the present Statute,
the accused shall be entitled to the following minimum guarantees, in full equality:
(a) to be informed promptly and in detail in a language which he understands of the
nature and cause of the charge against him;
(b) to have adequate time and facilities for the preparation of his defence and to
communicate with counsel of his own choosing;
275
(c) to be tried without undue delay;
(d) to be tried in his presence, and to defend himself in person or through legal assistance
of his own choosing; to be informed, if he does not have legal assistance, of this right;
and to have legal assistance assigned to him, in any case where the interests of justice so
require, and without payment by him in any such case if he does not have sufficient
means to pay for it;
(e) to examine, or have examined, the witnesses against him and to obtain the attendance
and examination of witnesses on his behalf under the same conditions as witnesses
against him;
(f) to have the free assistance of an interpreter if he cannot understand or speak the
language used in the International Tribunal;
(g) not to be compelled to testify against himself or to confess guilt.
Article 22
Protection of victims and witnesses
The International Tribunal shall provide in its rules of procedure and evidence for the
protection of victims and witnesses. Such protection measures shall include, but shall not
be limited to, the conduct of in camera proceedings and the protection of the victim's
identity.
Article 23
Judgement
1. The Trial Chambers shall pronounce judgements and impose sentences and penalties
on persons convicted of serious violations of international humanitarian law.
2. The judgement shall be rendered by a majority of the judges of the Trial Chamber, and
shall be delivered by the Trial Chamber in public. It shall be accompanied by a reasoned
opinion in writing, to which separate or dissenting opinions may be appended.
Article 24
Penalties
1. The penalty imposed by the Trial Chamber shall be limited to imprisonment. In
determining the terms of imprisonment, the Trial Chambers shall have recourse to the
general practice regarding prison sentences in the courts of the former Yugoslavia.
2. In imposing the sentences, the Trial Chambers should take into account such factors as
the gravity of the offence and the individual circumstances of the convicted person.
3. In addition to imprisonment, the Trial Chambers may order the return of any property
and proceeds acquired by criminal conduct, including by means of duress, to their
rightful owners.
Article 25
Appellate proceedings
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1. The Appeals Chamber shall hear appeals from persons convicted by the Trial
Chambers or from the Prosecutor on the following grounds:
(a) an error on a question of law invalidating the decision; or
(b) an error of fact which has occasioned a miscarriage of justice.
2. The Appeals Chamber may affirm, reverse or revise the decisions taken by the Trial
Chambers.
Article 26
Review proceedings
Where a new fact has been discovered which was not known at the time of the
proceedings before the Trial Chambers or the Appeals Chamber and which could have
been a decisive factor in reaching the decision, the convicted person or the Prosecutor
may submit to the International Tribunal an application for review of the judgement.
Article 27
Enforcement of sentences
Imprisonment shall be served in a State designated by the International Tribunal from a
list of States which have indicated to the Security Council their willingness to accept
convicted persons. Such imprisonment shall be in accordance with the applicable law of
the State concerned, subject to the supervision of the International Tribunal.
Article 28
Pardon or commutation of sentences
If, pursuant to the applicable law of the State in which the convicted person is
imprisoned, he or she is eligible for pardon or commutation of sentence, the State
concerned shall notify the International Tribunal accordingly. The President of the
International Tribunal, in consultation with the judges, shall decide the matter on the
basis of the interests of justice and the general principles of law.
Article 29
Co-operation and judicial assistance
1. States shall co-operate with the International Tribunal in the investigation and
prosecution of persons accused of committing serious violations of international
humanitarian law.
2. States shall comply without undue delay with any request for assistance or an order
issued by a Trial Chamber, including, but not limited to:
(a) the identification and location of persons;
(b) the taking of testimony and the production of evidence;
(c) the service of documents;
(d) the arrest or detention of persons;
(e) the surrender or the transfer of the accused to the International Tribunal.
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Article 30
The status, privileges and immunities of the International Tribunal
1. The Convention on the Privileges and Immunities of the United Nations of 13
February 1946 shall apply to the International Tribunal, the judges, the Prosecutor and his
staff, and the Registrar and his staff.
2. The judges, the Prosecutor and the Registrar shall enjoy the privileges and immunities,
exemptions and facilities accorded to diplomatic envoys, in accordance with international
law.
3. The staff of the Prosecutor and of the Registrar shall enjoy the privileges and
immunities accorded to officials of the United Nations under articles V and VII of the
Convention referred to in paragraph 1 of this article.
4. Other persons, including the accused, required at the seat of the International Tribunal
shall be accorded such treatment as is necessary for the proper functioning of the
International Tribunal.
Article 31
Seat of the International Tribunal
The International Tribunal shall have its seat at The Hague.
Article 32
Expenses of the International Tribunal
The expenses of the International Tribunal shall be borne by the regular budget of the
United Nations in accordance with Article 17 of the Charter of the United Nations.
Article 33
Working languages
The working languages of the International Tribunal shall be English and French.
Article 34
Annual report
The President of the International Tribunal shall submit an annual report of the
International Tribunal to the Security Council and to the General Assembly.
8.5. ICTY Tribunal: How It Works
The New York Times, February 12, 2002
Tribunal: How It Works
278
ORIGIN -- The International Criminal Tribunal for the former Yugoslavia was
established by the United Nations Security Council in 1993 and opened in The Hague in
1994. It is the first international criminal court since the military tribunals that judged
Nazi and Japanese leaders after World War II.
OBJECTIVES -- The tribunal's mandate allows it to prosecute individuals for serious
violations of international humanitarian law committed on the territory of any of the
countries that were part of Yugoslavia before it began to disintegrate in 1991. The
mandate encompasses four broad categories: grave breaches of the 1949 Geneva
Conventions; violations of the laws or customs of war; genocide and crimes against
humanity.
JURISDICTION -- The tribunal and national courts have concurrent jurisdiction. The
tribunal can claim primacy over national courts and may take over national investigations
and proceedings at any stage if this is deemed to be in the interest of international justice.
Most defendants have been ethnic Serbs, but Muslims and Croats also have been
indicted.
JUDGES -- The court has 16 permanent judges, elected to four-year terms by the United
Nations General Assembly. The judges represent the main legal systems in the world.
They serve in panels of three judges each; there are seven appeals judges, who serve in a
panel of five .
PROSECUTION -- The Office of the Prosecutor operates independently of the Security
Council, of any state or international organization and of the other organs of the tribunal.
Its members are experienced police officers, crime experts, analysts and lawyers. It
conducts investigations by collecting evidence, identifying witnesses, exhuming mass
graves, prepares indictments and presents prosecutions before the judges of the Tribunal.
CUSTODY AND SENTENCES -- Presently 45 accused are held at the tribunal's
detention unit for The Hague, in the high security compound of the Dutch prison at
Scheveningen. Six have been released, pending trial. Another 30 have been indicted but
remain fugitives. The maximum sentence that can be imposed on an accused is life
imprisonment. The longest sentence handed down so far was 46 years for genocide.
8.6. ICTY – News Articles
8.6.1. Life in Prison for Dr. Milomir Stakic
From Associated Press
279
August 1, 2003
THE HAGUE - The U.N. war crimes tribunal for the former Yugoslavia imposed its
harshest punishment to date Thursday, sentencing a Bosnian Serb politician to life
inprison for exterminating or deporting thousands of Muslims and Croats in 1992.
Though acquitted of genocide, Milomir Stakic was convicted of being a leading figure in
a campaign of persecution "to achieve the vision of a pure Serbian state," according to a
summary of the verdict read in court.
Stakic, a 41-year-old doctor, was convicted of directly planning and coordinating war
crimes and was held responsible for subordinates who killed 1,500 people and forced at
least 20,000 non-Serb civilians from their homes in the northwestern Bosnian
municipality of Prijedor, where he was mayor.
It was the third acquittal on genocide charges by the tribunal and was another signal that
the court is demanding rock-hard proof of an intent to destroy a group of people because
of race, religion or ethnicity.
The Hague court has convicted only one defendant - Bosnian Serb Gen. Radislav Krstic of genocide. Until Thursday, Krstic's 46-year sentence was the harshest on record for the
tribunal. His case is under appeal.
Stakic was convicted on five counts of crimes against humanity and war crimes,
specifically extermination, murder and persecution.
Copyright 2003 Los Angeles Times
8.6.2. Srebrenica: Officers Say Bosnian Massacre Was Deliberate
http://www.nytimes.com/2003/10/12/international/europe/12HAGU.html?tntemail1
October 12, 2003
Officers Say Bosnian Massacre Was Deliberate
By MARLISE SIMONS
THE HAGUE, Oct. 8 - Eight years after the massacre of more than 7,000 Bosnians,
doubts have lingered about the degree to which the killings were coldly planned, or were
improvised in chaos.
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Most of those killed were unarmed prisoners, boys and men, shot in groups, or sometimes
one by one.
Among the executioners, only a few foot soldiers have talked about the events that turned
Srebrenica - its name means the "place of silver" - into a symbol of a modern European
nightmare. No architect of the crime has ever explained in public what was in the killers'
minds, or what made them believe that the murderous frenzy was acceptable to their own
society and to their leaders.
But now, two senior Bosnian Serb officers, both crucial figures involved in organizing
the bloodshed at Srebrenica, have spoken out at the war crimes tribunal here, describing
the countdown to the massacre and depicting a well-planned and deliberate killing
operation. They say it was largely coordinated by the military security and intelligence
branch of the Bosnian Serb Army and militarized police, forces that were on Serbia's
payroll.
The two, an intelligence chief and a brigade commander, recently pleaded guilty to
crimes against humanity and have now given evidence against two fellow officers.
They provided so many names, firsthand accounts, documents and even a military log of
the crucial days, that one court official blurted, "They've practically written the
judgment."
One of the insiders referred to a directive he received, which said that "the life of the
enemy has to be made unbearable." He also said it was his role to coordinate "the
separation, detention and killings of the men."
This officer, Momir Nikolic, a former intelligence chief, described with cool precision
the steps he took in coordinating the logistics, moving between army and police units,
avoiding phones and radios, as preparations for the mass executions were under way.
The second officer, a brigade commander, Dragan Obrenovic, recounted how in the final
hours, prisoners were moved to different detention and killing sites, in a deliberate move
to avoid detection by the Red Cross and the United Nations mission, which were active in
the area.
The officers' behind-the-scenes accounts from the Bosnian war represent sharp departures
from persistent denials on the part of the Bosnian Serbs, including a recent government
report maintaining that most of the men found in mass graves - many with their hands
tied behind their backs - were killed in combat.
The first officer to speak out, Mr. Nikolic, 48, the former chief of intelligence and
security of the Bratunac Brigade, said the countdown to Srebrenica's capture began a year
earlier, in June 1994. During eight days of testimony, he said his brigade commander sent
out a directive detailing Bosnian Serb policy toward the Muslims in the enclave protected
by United Nations peacekeepers.
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"The life of the enemy has to be made unbearable and his temporary stay in the enclave
made impossible so that they leave en masse as soon as possible, realizing they cannot
survive there," said the directive, as it was quoted and read in court.
That policy was carried out, said Mr. Nikolic, speaking with the precision of a math
teacher, which he once was. Civilians were fired at, aid was blocked and fuel, food and
other supplies for the United Nations peacekeepers were halted so "they could not be
ready for combat," he said.
The harassment went on for a year, until late May 1995, Mr. Nikolic said, and then the
military began to prepare its final assault. Bosnian Serb troops, aided by militarized
police officers and paramilitary fighters from Serbia, overran the enclave on July 11.
"They had been expecting Muslim forces to put up fierce resistance," said Mr. Nikolic.
"No one thought the resistance would be so short-lived."
Instead, he said, there was chaos, with thousands of civilians fleeing, many hoping for
safety near a United Nations base at Potocari.
The next day, at an early morning meeting at the Bratunac Brigade headquarters, Gen.
Ratko Mladic announced his plan to kill the prisoners, according to the testimony.
Mr. Nikolic said he learned about it from two of his superiors coming out of the meeting.
One of them, Col. Vujadin Popovic, "told me that women and children had to be deported
to Kladanj and the men had to separated and temporarily detained," Mr. Nikolic said.
"When I asked him what would happen then, he said that all balija had to be killed," he
said. Balija is a derogatory name for Muslims. "I was told my task would be to coordinate
the different forces."
Orders were to concentrate prisoners in Bratunac, a nearby town under Bosnian Serb
control, Mr. Nikolic continued, and he and his two superiors talked about suitable places,
including several schools, a sports complex and a hangar. Then the discussion turned to
sites for executions, including a brick factory and a mine, he said.
Mr. Nikolic also described an encounter on July 13 at which General Mladic addressed
several hundred Muslims who had surrendered in Konjevic Polje. The general told the
Muslims not to worry, that transport would be organized for them, according to the
testimony.
Later as General Mladic greeted him, Mr. Nikolic said, he asked what was to be done
with the men. General Mladic, who has been indicted by the war crimes tribunal and is a
fugitive, responded with a gesture, Mr. Nikolic said, and he repeated it in court, moving
his hand from left to right, palm down, in a cutting motion.
The prosecutor, Peter McCloskey, asked, "What did you think would happen to the
prisoners?"
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Mr. Nikolic said: "I did not think. I knew."
That same day, orders came that the executions would take place, not in Bratunac, but
near Zvornik, some 25 miles farther north.
Mr. Nikolic said he moved from place to place, informing regional commanders
personally, avoiding telephones and radios.
His version was corroborated in court by the second insider witness, Mr. Obrenovic, at
the time the acting commander of the Zvornik Brigade. Mr. Obrenovic said his brigade's
intelligence chief told him to prepare for some 3,000 prisoners in his area. Mr. Obrenovic
said he asked why the prisoners were coming to Zvornik, instead of going to the prisonerof-war camp at Batkovici.
The response, he told the court, was that orders were to evade the Red Cross and the
United Nations peacekeepers.
"The order was to take the prisoners and execute them in Zvornik," Mr. Obrenovic said.
When he questioned the order again, he was informed that it came from General Mladic,
the head of the army.
The prosecutor asked why he cooperated. Mr. Obrenovic replied that once he understood
the order was coming from the top. "I became afraid," he said. "I thought there was no
point in standing up to it."
That same night of July 13, the small town of Bratunac was extremely tense, Mr. Nikolic
said. About 3,500 to 4,500 prisoners were held in overcrowded schools, a warehouse and
a gym, and piled in buses and trucks parked around town, as more were arriving.
Soldiers, police officers and armed local volunteers were mobilized to guard them.
During the night, Mr. Nikolic said, 80 to 100 prisoners were taken off buses and from a
hangar and shot.
In the early hours of July 14, Mr. Nikolic said, he watched a long column of buses and
trucks pull out of Bratunac, heading for Zvornik. At the head of the column, as a decoy,
was a white United Nations armored personnel carrier, one of the vehicles stolen from
peacekeepers. On board were Bosnian Serb soldiers and police officers, Mr. Nikolic said.
In their testimony, the two officers said they were not present at the mass executions
around Zvornik that began on July 14 and lasted four days, but that like most members of
the forces in the area, they knew of them. Mr. Obrenovic said he understood when he was
asked to send engineers to dig mass graves. Mr. Nikolic said he became part of the coverup that followed the killings. He said that later on, in September, he helped to oversee the
operations to dig up uncounted bodies and rebury them at secret sites.
During lengthy cross-examination a defense lawyer for Col. Vidoje Blagojevic
challenged Mr. Nikolic's credibility, reminding him of a lie.
283
He said that earlier this year, when negotiating a plea agreement with prosecutors, Mr.
Nikolic confessed to his role in Srebrenica but also claimed a role in another massacre at
which he was not present. Before the agreement was completed, he retracted that
statement.
Mr. Nikolic provided an answer, in a show of emotion that is rather exceptional at a
tribunal where perpetrators' toughness and denial are far more common.
At the time, he said, he accepted more guilt, fearing that the plea agreement might fall
through. During his confessions, he said, he had lived through "a terrible" period he did
not want to remember, let alone talk about. "Everything that happened in and around
Srebrenica was always present in my mind," he said. "I did not want to go through that
process again and face a trial."
Michael Karnavas, the defense lawyer, also asked why he ignored the army's rule to grant
protection to prisoners of war under the Geneva Conventions.
Mr. Nikolic responded sharply: "Do you really think that in an operation where 7,000
people were killed that somebody was adhering to the Geneva Conventions? First of all,
they were captured, then killed and then buried, exhumed once again, and buried again.
Nobody, Mr. Karnavas, adhered to Geneva Conventions."
Copyright 2003 The New York Times Company
8.6.3. Milosevic Cheats Justice Through Death
The "Butcher of Belgrade" cheats justice through death
Mar 11th 2006
From The Economist Global Agenda
Slobodan Milosevic has been found dead in his cell at the Yugoslav war-crimes tribunal
in The Hague. By evading justice, he has ensured that his legacy will continue to poison
relations in the Balkans and beyond.
IN 1988, in front of hundreds of thousands of euphoric supporters, Slobodan Milosevic
thundered: "We enter every battle.with the aim of winning it." Just over two years later
the Yugoslav wars began. The Serbs, led by Mr Milosevic, lost every single one.
Politically he was history long before his death, which was announced on Saturday
March 11th. But he continued to cast a shadow across the Balkans from his cell at the
Yugoslav war-crimes tribunal in The Hague. By dying before the tribunal could pass
judgment on him, he has ensured that his legacy will long remain a potential source of
discord between his former friends and enemies.
Mr Milosevic was not the only bad leader from the former Yugoslavia. But he must bear
more responsibility than any other for the destruction of the old state and the misery that
caused. The Croatian war claimed some 20,000 lives, the Bosnian war 100,000 and the
284
Kosovo conflict 10,000. Millions of lives were shattered and most of the Balkan region is
still decades away from overcoming the legacies of the wars the "Butcher of Belgrade"
was instrumental in starting.
Many think Mr Milosevic was a nationalist. He was not. He was a political opportunist.
During the 1970s and early 1980s, he worked in various firms, including banks, and was
also a communist apparatchik. By 1986 he was head of Serbia's Central Committee but
still, despite the power that this implied, he had not yet really been noticed. He was, for
most people, just another colourless official.
It was Kosovo that was to give him his chance. An autonomous province of Serbia, its
majority Albanian population was restive, while Kosovo's minority Serbs felt harassed
and discriminated against. Mr Milosevic, sensing that communism was on the wane,
played the nationalist card and became the champion of the province's Serbs. His
subsequent seizure of power could not be accepted by leaders from other parts of
Yugoslavia. Indeed, his crushing of the Kosovo Albanians sparked rounds of competitive
nationalism which were to lead to the bloody wars in Croatia and Bosnia, and finally to
NATO's 78-day bombardment of Serbia during the 1999 Kosovo war.
Mr Milosevic fell from power in 2000, and in 2001 the new government of Zoran
Djindjic despatched him to face charges of genocide and crimes against humanity in The
Hague. His trial began in February 2002 and was still dragging on at his death. Mr
Milosevic refused to accept its legitimacy but he participated nonetheless, insisting on
defending himself. He argued that he had only sought to defend Yugoslavia from its
enemies and that these included the Vatican, Islamists and Austro-Hungarian revanchists.
The trial was repeatedly interrupted by Mr Milosevic's poor health-he suffered from,
among other things, a serious heart condition. It was adjourned earlier this month in
preparation for questioning of his next defence witness, which had been scheduled for
next week. Mr Milosevic was also waiting for a decision from the tribunal on his request
to subpoena former American president Bill Clinton as a witness.
Slobo's last laugh
For those who remember how many Serbs revelled in the fleeting Greater Serbia that Mr
Milosevic and his men carved out from the former Yugoslavia in the early 1990s, the idea
that his intentions were noble seems absurd. And yet, to judge from the reactions from
across the region on Saturday, few are happy that he has gone. Rather, there is anger that
he has evaded justice through death. It ensures that for many Serbs he will remain a
virtual saint who set out to save them from their foes. And it means that now there will
never be a judgment from outside the region which former Yugoslavs might one day be
able to view as impartial.
Yet in the short term, the death of Mr Milosevic will make little difference. Bosnia,
Serbia, Kosovo, Montenegro and other parts of the former Yugoslavia will go on
struggling with the legacies of the wars of the 1990s, both political and economic, with or
285
without the former Serb leader. The international status of Kosovo and Montenegro also
remains to be settled, probably this year. Mr Milosevic's passing will have no effect on
the outcome.
Though Mr Milosevic had no significant political influence in Serbia or the rest of the
Balkans after his toppling in 2000, some of his former allies are already seeking to
capitalise on his death and claim him as a political martyr. They point out that the Hague
tribunal recently refused to let him go to Moscow for medical treatment, and that he
himself feared he was being poisoned in custody. His lawyer has asked for an
independent autopsy.
It is not just pro-Milosevic Serbs who will point the finger at the tribunal. His premature
death is a blow for the prosecutors in The Hague. Though the trial process was slow (the
tribunal's work will take an estimated 17 years to complete) and costly (its two-year
budget for 2004/05 was $271m), it was at least grinding towards a verdict on the biggest
fish of all. But that fish has died in his bowl, and others are still swimming free, most
notably the former Bosnian Serb leader, Radovan Karadzic, and his erstwhile army
commander, Ratko Mladic (who remains at large despite recent rumours that he was on
the verge of giving himself up). Austria, which holds the rotating presidency of the
European Union, said on Saturday that Mr Milosevic's death does not absolve Serbia of
responsibility to hand over other war-crimes suspects.
Ivica Dacic, a leader of Mr Milosevic's now tiny Socialist Party of Serbia, has said: "It is
of major importance for the future of our country that through his defence and the fact he
died without being convicted, Milosevic managed to defend the national and state
interest." Many Serbs may reflect, however, that their country remains impoverished
thanks to his policies, and that soon Kosovo, which they regard as the cradle of their
history and culture, will probably be granted independence, against Serbia's wishes.
March 11, 2006, 10:58AM
8.7. Excerpts from U.N. indictment against Milosevic
Associated Press
Key excerpts from the U.N. indictment charging Slobodan Milosevic and several cronies
with crimes against humanity during Kosovo's 1998-1999 war:
-Throughout Kosovo, the forces of the FRY (Federal Republic of Yugoslavia) and Serbia
have looted and pillaged the personal and commercial property belonging to Kosovo
Albanians forced from their homes. Policemen, soldiers, and military officers have used
286
wholesale searches, threats of force and acts of violence to rob Kosovo Albanians of
money and valuables, and in a systematic manner, authorities at the FRY border have
stolen personal vehicles and other property from Kosovo Albanians being deported from
the province.
-Throughout Kosovo, the forces of the FRY and Serbia have engaged in a systematic
campaign of destruction of property owned by Kosovo Albanian civilians. This has been
accomplished through the widespread shelling of towns and villages; the burning of
homes, farms, and businesses; and the destruction of personal property. As a result of
these orchestrated actions, villages, towns and entire regions have been made
uninhabitable for Kosovo Albanians.
-Throughout Kosovo, the forces of the FRY and Serbia have harassed, humiliated, and
degraded Kosovo Albanian civilians through physical and verbal abuse. Policemen,
soldiers and military officers have persistently subjected Kosovo Albanians to insults,
racial slurs, degrading acts, beatings and other forms of physical mistreatment based on
their racial, religious and political identification.
-Throughout Kosovo, the forces of the FRY and Serbia have systematically seized and
destroyed the personal identity documents and licenses of vehicles belonging to Kosovo
Albanian civilians ... These actions have been undertaken in order to erase any record of
the deported Kosovo Albanians' presence in Kosovo and to deny them the right to return
to their homes.
- On or about 25 March 1999, the villages of Velika Krusa and Mali Krusa/Krushe e
Mahde and Krushe e Vogel (in the Orahovac/Rahovec municipality) were attacked by
forces of the FRY and Serbia. Village residents took refuge in a forested area ... where
they were able to observe the police systematically looting and then burning the villagers'
houses. On or about the morning of 26 March 1999, Serb police located the villagers in
the forest. The police ordered the women and small children to leave the area and to go to
Albania. The police then searched the men and boys and took their identity documents ...
Once the men and boys were assembled, the Serb police opened fire on the group. After
several minutes of gunfire, the police piled hay on the men and boys and set fire to it in
order to burn the bodies. As a result of the shootings and the fire, approximately 105
Kosovo Albanian men and boys were killed by the Serb police.
8.8. ICTR - Primary Sources
8.7.1. Statute Of The International Criminal Tribunal For Rwanda
287
UNITED NATIONS
STATUTE OF THE INTERNATIONAL CRIMINAL TRIBUNAL FOR RWANDA
STATUTE OF THE INTERNATIONAL TRIBUNAL FOR RWANDA
(As amended)
As amended by the Security Council acting under Chapter VII of the Charter of the
United Nations, the International Criminal Tribunal for the Prosecution of Persons
Responsible for Genocide and Other Serious Violations of International Humanitarian
Law Committed in the Territory of Rwanda and Rwandan Citizens responsible for
genocide and other such violations committed in the territory of neighbouring States,
between 1 January 1994 and 31 December 1994 (hereinafter referred to as "The
International Tribunal for Rwanda") shall function in accordance with the provisions of
the present Statute.
Article 1: Competence of the International Tribunal for Rwanda
The International Tribunal for Rwanda shall have the power to prosecute persons
responsible for serious violations of international humanitarian law committed in the
territory of Rwanda and Rwandan citizens responsible for such violations committed in
the territory of neighbouring States between 1 January 1994 and 31 December 1994, in
accordance with the provisions of the present Statute.
Article 2: Genocide
1.
The International Tribunal for Rwanda shall have the power to prosecute persons
committing genocide as defined in paragraph 2 of this Article or of committing any of the
other acts enumerated in paragraph 3 of this Article.
2.
Genocide means any of the following acts committed with intent to destroy, in
whole or in part, a national, ethnical, racial or religious group, such as:
(a)
Killing members of the group;
(b)
Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part;
(d)
Imposing measures intended to prevent births within the group;
(e)
Forcibly transferring children of the group to another group.
3.
The following acts shall be punishable:
(a)
Genocide;
288
(b)
Conspiracy to commit genocide;
(c)
Direct and public incitement to commit genocide;
(d)
Attempt to commit genocide;
(e)
Complicity in genocide.
Article 3: Crimes against Humanity
The International Tribunal for Rwanda shall have the power to prosecute persons
responsible for the following crimes when committed as part of a widespread or
systematic attack against any civilian population on national, political, ethnic, racial or
religious grounds:
(a)
Murder;
(b)
Extermination;
(c)
Enslavement;
(d)
Deportation;
(e)
Imprisonment;
(f)
Torture;
(g)
Rape;
(h)
Persecutions on political, racial and religious grounds;
(i)
Other inhumane acts.
Article 4: Violations of Article 3 Common to the Geneva Conventions
and of Additional Protocol II
The International Tribunal for Rwanda shall have the power to prosecute persons
committing or ordering to be committed serious violations of Article 3 common to the
Geneva Conventions of 12 August 1949 for the Protection of War Victims, and of
Additional Protocol II thereto of 8 June 1977. These violations shall include, but shall
not be limited to:
(a) Violence to life, health and physical or mental well-being of persons, in particular
murder as well as cruel treatment such as torture, mutilation or any form of corporal
punishment;
(b)
Collective punishments;
(c)
Taking of hostages;
289
(d)
Acts of terrorism;
(e) Outrages upon personal dignity, in particular humiliating and degrading treatment,
rape, enforced prostitution and any form of indecent assault;
(f)
Pillage;
(g) The passing of sentences and the carrying out of executions without previous
judgement pronounced by a regularly constituted court, affording all the judicial
guarantees which are recognized as indispensable by civilised peoples;
(h)
Threats to commit any of the foregoing acts.
Article 5: Personal Jurisdiction
The International Tribunal for Rwanda shall have jurisdiction over natural persons
pursuant to the provisions of the present Statute.
Article 6: Individual Criminal Responsibility
1.
A person who planned, instigated, ordered, committed or otherwise aided and
abetted in the planning, preparation or execution of a crime referred to in Articles 2 to 4
of the present Statute, shall be individually responsible for the crime.
2.
The official position of any accused person, whether as Head of state or government
or as a responsible government official, shall not relieve such person of criminal
responsibility nor mitigate punishment.
3.
The fact that any of the acts referred to in Articles 2 to 4 of the present Statute was
committed by a subordinate does not relieve his or her superior of criminal responsibility
if he or she knew or had reason to know that the subordinate was about to commit such
acts or had done so and the superior failed to take the necessary and reasonable measures
to prevent such acts or to punish the perpetrators thereof.
4.
The fact that an accused person acted pursuant to an order of a government or of a
superior shall not relieve him or her of criminal responsibility, but may be considered in
mitigation of punishment if the International Tribunal for Rwanda determines that justice
so requires.
Article 7: Territorial and Temporal Jurisdiction
The territorial jurisdiction of the International Tribunal for Rwanda shall extend to the
territory of Rwanda including its land surface and airspace as well as to the territory of
neighbouring States in respect of serious violations of international humanitarian law
committed by Rwandan citizens. The temporal jurisdiction of the International Tribunal
for Rwanda shall extend to a period beginning on 1 January 1994 and ending on 31
December 1994.
290
Article 8: Concurrent Jurisdiction
1.
The International Tribunal for Rwanda and national courts shall have concurrent
jurisdiction to prosecute persons for serious violations of international humanitarian law
committed in the territory of Rwanda and Rwandan citizens for such violations
committed in the territory of the neighbouring States, between 1 January 1994 and 31
December 1994.
2.
The International Tribunal for Rwanda shall have the primacy over the national
courts of all States. At any stage of the procedure, the International Tribunal for Rwanda
may formally request national courts to defer to its competence in accordance with the
present Statute and the Rules of Procedure and Evidence of the International Tribunal for
Rwanda.
Article 9: Non Bis in Idem
1.
No person shall be tried before a national court for acts constituting serious
violations of international humanitarian law under the present Statute, for which he or she
has already been tried by the International Tribunal for Rwanda.
2.
A person who has been tried before a national court for acts constituting serious
violations of international humanitarian law may be subsequently tried by the
International Tribunal for Rwanda only if:
(a)
The act for which he or she was tried was characterised as an ordinary crime; or
(b) The national court proceedings were not impartial or independent, were designed to
shield the accused from international criminal responsibility, or the case was not
diligently prosecuted.
3.
In considering the penalty to be imposed on a person convicted of a crime under the
present Statute, the International Tribunal for Rwanda shall take into account the extent
to which any penalty imposed by a national court on the same person for the same act has
already been served.
Article 10: Organisation of the International Tribunal for Rwanda
The International Tribunal for Rwanda shall consist of the following organs:
(a)
The Chambers, comprising three Trial Chambers and an Appeals Chamber;
(b)
The Prosecutor;
(c)
A Registry.
Article 11: Composition of the Chambers
291
1.
The Chambers shall be composed of 16 permanent independent judges, no two of
whom may be nationals of the same State, and a maximum at any one time of four ad
litem independent judges appointed in accordance with article 12 ter, paragraph 2, of the
present Statute, no two of whom may be nationals of the same State.
2.
Three permanent judges and a maximum at any one time of four ad litem judges
shall be members of each Trial Chamber. Each Trial Chamber to which ad litem judges
are assigned may be divided into sections of three judges each, composed of both
permanent and ad litem judges. A section of a Trial Chamber shall have the same powers
and responsibilities as a Trial Chamber under the present Statute and shall render
judgement in accordance with the same rules.
3.
Seven of the permanent judges shall be members of the Appeals Chamber. The
Appeals Chamber shall, for each appeal, be composed of five of its members.
4.
A person who for the purposes of membership of the Chambers of the
International Tribunal for Rwanda could be regarded as a national of more than one State
shall be deemed to be a national of the State in which that person ordinarily exercises
civil and political rights.
Article 12: Qualification and Election of Judges
The permanent and ad litem judges shall be persons of high moral character, impartiality
and integrity who possess the qualifications required in their respective countries for
appointment to the highest judicial offices. In the overall composition of the Chambers
and sections of the Trial Chambers, due account shall be taken of the experience of the
judges in criminal law, international law, including international humanitarian law and
human rights law.
Article 12 bis: Election of Permanent Judges
1.
Eleven of the permanent judges of the International Tribunal for Rwanda shall be
elected by the General Assembly from a list submitted by the Security Council, in the
following manner:
(a)
The Secretary-General shall invite nominations for permanent judges of the
International Tribunal for Rwanda from States Members of the United Nations and nonmember States maintaining permanent observer missions at United Nations
Headquarters;
(b)
Within sixty days of the date of the invitation of the Secretary-General, each State
may nominate up to two candidates meeting the qualifications set out in article 12 of the
present Statute, no two of whom shall be of the same nationality and neither of whom
shall be of the same nationality as any judge who is a member of the Appeals Chamber
and who was elected or appointed a permanent judge of the International Tribunal for the
Prosecution of Persons Responsible for Serious Violations of International Humanitarian
Law Committed in the Territory of the Former Yugoslavia since 1991 (hereinafter
292
referred to as 'the International Tribunal for the Former Yugoslavia') in accordance with
article 13 bis of the Statute of that Tribunal;
(c)
The Secretary-General shall forward the nominations received to the Security
Council. From the nominations received the Security Council shall establish a list of not
less than twenty-two and not more than thirty-three candidates, taking due account of the
adequate representation on the International Tribunal for Rwanda of the principal legal
systems of the world;
(d)
The President of the Security Council shall transmit the list of candidates to the
President of the General Assembly. From that list the General Assembly shall elect
eleven permanent judges of the International Tribunal for Rwanda. The candidates who
receive an absolute majority of the votes of the States Members of the United Nations
and of the non-member States maintaining permanent observer missions at United
Nations Headquarters, shall be declared elected. Should two candidates of the same
nationality obtain the required majority vote, the one who received the higher number of
votes shall be considered elected.
2.
In the event of a vacancy in the Chambers amongst the permanent judges elected
or appointed in accordance with this article, after consultation with the Presidents of the
Security Council and of the General Assembly, the Secretary-General shall appoint a
person meeting the qualifications of article 12 of the present Statute, for the remainder of
the term of office concerned.
3.
The permanent judges elected in accordance with this article shall be elected for a
term of four years. The terms and conditions of service shall be those of the permanent
judges of the International Tribunal for the Former Yugoslavia. They shall be eligible for
re-election.
Article 12 ter: Election and Appointment of Ad Litem Judges
1.
The ad litem judges of the International Tribunal for Rwanda shall be elected by
the General Assembly from a list submitted by the Security Council, in the following
manner:
(a)
The Secretary-General shall invite nominations for ad litem judges of the
International Tribunal for Rwanda from States Members of the United Nations and nonmember States maintaining permanent observer missions at United Nations
Headquarters;
(b)
Within sixty days of the date of the invitation of the Secretary-General, each State
may nominate up to four candidates meeting the qualifications set out in article 12 of the
present Statute, taking into account the importance of a fair representation of female and
male candidates;
(c)
The Secretary-General shall forward the nominations received to the Security
Council. From the nominations received the Security Council shall establish a list of not
less than thirty-six candidates, taking due account of the adequate representation of the
293
principal legal systems of the world and bearing in mind the importance of equitable
geographical distribution;
(d)
The President of the Security Council shall transmit the list of candidates to the
President of the General Assembly. From that list the General Assembly shall elect the
eighteen ad litem judges of the International Tribunal for Rwanda. The candidates who
receive an absolute majority of the votes of the States Members of the United Nations
and of the non-member States maintaining permanent observer missions at United
Nations Headquarters shall be declared elected;
(e)
The ad litem judges shall be elected for a term of four years. They shall not be
eligible for re-election.
2.
During their term, ad litem judges will be appointed by the Secretary-General,
upon request of the President of the International Tribunal for Rwanda, to serve in the
Trial Chambers for one or more trials, for a cumulative period of up to, but not including,
three years. When requesting the appointment of any particular ad litem judge, the
President of the International Tribunal for Rwanda shall bear in mind the criteria set out
in article 12 of the present Statute regarding the composition of the Chambers and
sections of the Trial Chambers, the considerations set out in paragraphs 1 (b) and (c)
above and the number of votes the ad litem judge received in the General Assembly.
Article 12 quarter: Status of Ad Litem Judges
1.
During the period in which they are appointed to serve in the International
Tribunal for Rwanda, ad litem judges shall:
(a)
Benefit from the same terms and conditions of service mutatis mutandis as the
permanent judges of the International Tribunal for Rwanda;
(b)
Enjoy, subject to paragraph 2 below, the same powers as the permanent judges of
the International Tribunal for Rwanda;
(c)
Enjoy the privileges and immunities, exemptions and facilities of a judge of the
International Tribunal for Rwanda.
2.
During the period in which they are appointed to serve in the International
Tribunal for Rwanda, ad litem judges shall not:
(a)
Be eligible for election as, or to vote in the election of, the President of the
International Tribunal for Rwanda or the Presiding Judge of a Trial Chamber pursuant to
article 13 of the present Statute;
(b)
Have power:
(i)
To adopt rules of procedure and evidence pursuant to article 14 of the present
Statute. They shall, however, be consulted before the adoption of those rules;
294
(ii)
To review an indictment pursuant to article 18 of the present Statute;
(iii)
To consult with the President of the International Tribunal for Rwanda in relation
to the assignment of judges pursuant to article 13 of the present Statute or in relation to a
pardon or commutation of sentence pursuant to article 27 of the present Statute;
(iv)
To adjudicate in pre-trial proceedings.
Article 13: Officers and Members of the Chambers
1.
The permanent judges of the International Tribunal for Rwanda shall elect a
President from amongst their number.
2.
The President of the International Tribunal for Rwanda shall be a member of one
of its Trial Chambers.
3.
After consultation with the permanent judges of the International Tribunal for
Rwanda, the President shall assign two of the permanent judges elected or appointed in
accordance with article 12 bis of the present Statute to be members of the Appeals
Chamber of the International Tribunal for the Former Yugoslavia and eight to the Trial
Chambers of the International Tribunal for Rwanda.
4.
The members of the Appeals Chamber of the International Tribunal for the
Former Yugoslavia shall also serve as the members of the Appeals Chamber of the
International Tribunal for Rwanda.
5.
After consultation with the permanent judges of the International Tribunal for
Rwanda, the President shall assign such ad litem judges as may from time to time be
appointed to serve in the International Tribunal for Rwanda to the Trial Chambers.
6.
A judge shall serve only in the Chamber to which he or she was assigned.
7.
The permanent judges of each Trial Chamber shall elect a Presiding Judge from
amongst their number, who shall oversee the work of that Trial Chamber as a whole.
Article 14: Rules of Procedure and Evidence
The Judges of the International Tribunal for Rwanda shall adopt, for the purpose of
proceedings before the International Tribunal for Rwanda, the Rules of Procedure and
Evidence for the conduct of the pre-trial phase of the proceedings, trials and appeals, the
admission of evidence, the protection of victims and witnesses and other appropriate
matters of the International Tribunal for the former Yugoslavia with such changes as they
deem necessary.
Article 15: The Prosecutor
1.
The Prosecutor shall be responsible for the investigation and prosecution of persons
responsible for serious violations of international humanitarian law committed in the
295
territory of Rwanda and Rwandan citizens responsible for such violations committed in
the territory of neighbouring States, between 1 January 1994 and 31 December 1994.
2.
The Prosecutor shall act independently as a separate organ of the International
Tribunal for Rwanda. He or she shall not seek or receive instructions from any
government or from any other source.
3.
The Prosecutor of the International Tribunal for the Former Yugoslavia shall also
serve as the Prosecutor of the International Tribunal for Rwanda. He or she shall have
additional staff, including an additional Deputy Prosecutor, to assist with prosecutions
before the International Tribunal for Rwanda. Such staff shall be appointed by the
Secretary-General on the recommendation of the Prosecutor.
Article 16: The Registry
1.
The Registry shall be responsible for the administration and servicing of the
International Tribunal for Rwanda.
2.
The Registry shall consist of a Registrar and such other staff as may be required.
3.
The Registrar shall be appointed by the Secretary-General after consultation with
the President of the International Tribunal for Rwanda. He or she shall serve for a fouryear term and be eligible for re-appointment. The terms and conditions of service of the
Registrar shall be those of an Assistant Secretary-General of the United Nations.
4.
The Staff of the Registry shall be appointed by the Secretary-General on the
recommendation of the Registrar.
Article 17: Investigation and Preparation of Indictment
1.
The Prosecutor shall initiate investigations ex-officio or on the basis of information
obtained from any source, particularly from governments, United Nations organs,
intergovernmental and non-governmental organizations. The Prosecutor shall assess the
information received or obtained and decide whether there is sufficient basis to proceed.
2.
The Prosecutor shall have the power to question suspects, victims and witnesses, to
collect evidence and to conduct on-site investigations. In carrying out these tasks, the
Prosecutor may, as appropriate, seek the assistance of the State authorities concerned.
3.
If questioned, the suspect shall be entitled to be assisted by Counsel of his or her
own choice, including the right to have legal assistance assigned to the suspect without
payment by him or her in any such case if he or she does not have sufficient means to pay
for it, as well as necessary translation into and from a language he or she speaks and
understands.
4.
Upon a determination that a prima facie case exists, the Prosecutor shall prepare an
indictment containing a concise statement of the facts and the crime or crimes with which
296
the accused is charged under the Statute. The indictment shall be transmitted to a judge
of the Trial Chamber.
Article 18: Review of the Indictment
1.
The judge of the Trial Chamber to whom the indictment has been transmitted shall
review it. If satisfied that a prima facie case has been established by the Prosecutor, he or
she shall confirm the indictment. If not so satisfied, the indictment shall be dismissed.
2.
Upon confirmation of an indictment, the judge may, at the request of the
Prosecutor, issue such orders and warrants for the arrest, detention, surrender or transfer
of persons, and any other orders as may be required for the conduct of the trial.
Article 19: Commencement and Conduct of Trial Proceedings
1. The Trial Chambers shall ensure that a trial is fair and expeditious and that
proceedings are conducted in accordance with the Rules of Procedure and Evidence, with
full respect for the rights of the accused and due regard for the protection of victims and
witnesses.
2.
A person against whom an indictment has been confirmed shall, pursuant to an
order or an arrest warrant of the International Tribunal for Rwanda, be taken into custody,
immediately informed of the charges against him or her and transferred to the
International Tribunal for Rwanda.
3.
The Trial Chamber shall read the indictment, satisfy itself that the rights of the
accused are respected, confirm that the accused understands the indictment, and instruct
the accused to enter a plea. The Trial Chamber shall then set the date for trial.
4.
The hearings shall be public unless the Trial Chamber decides to close the
proceedings in accordance with its Rules of Procedure and Evidence.
Article 20: Rights of the Accused
1.
All persons shall be equal before the International Tribunal for Rwanda.
2.
In the determination of charges against him or her, the accused shall be entitled to a
fair and public hearing, subject to Article 21 of the Statute.
3.
The accused shall be presumed innocent until proven guilty according to the
provisions of the present Statute.
4.
In the determination of any charge against the accused pursuant to the present
Statute, the accused shall be entitled to the following minimum guarantees, in full
equality:
(a) To be informed promptly and in detail in a language which he or she understands of
the nature and cause of the charge against him or her;
297
(b) To have adequate time and facilities for the preparation of his or her defence and to
communicate with counsel of his or her own choosing;
(c)
To be tried without undue delay;
(d) To be tried in his or her presence, and to defend himself or herself in person or
through legal assistance of his or her own choosing; to be informed, if he or she does not
have legal assistance, of this right; and to have legal assistance assigned to him or her, in
any case where the interest of justice so require, and without payment by him or her in
any such case if he or she does not have sufficient means to pay for it;
(e) To examine, or have examined, the witnesses against him or her and to obtain the
attendance and examination of witnesses on his or her behalf under the same conditions
as witnesses against him or her;
(f)
To have the free assistance of an interpreter if he or she cannot understand or speak
the language used in the International Tribunal for Rwanda;
(g)
Not to be compelled to testify against himself or herself or to confess guilt.
Article 21: Protection of Victims and Witnesses
The International Tribunal for Rwanda shall provide in its Rules of Procedure and
Evidence for the protection of victims and witnesses. Such protection measures shall
include, but shall not be limited to, the conduct of in camera proceedings and the
protection of the victim's identity.
Article 22: Judgement
1.
The Trial Chambers shall pronounce judgements and impose sentences and
penalties on persons convicted of serious violations of international humanitarian law.
2.
The judgement shall be rendered by a majority of the judges of the Trial Chamber,
and shall be delivered by the Trial Chamber in public. It shall be accompanied by a
reasoned opinion in writing, to which separate or dissenting opinions may be appended.
Article 23: Penalties
1.
The penalty imposed by the Trial Chamber shall be limited to imprisonment. In
determining the terms of imprisonment, the Trial Chambers shall have recourse to the
general practice regarding prison sentences in the courts of Rwanda.
2.
In imposing the sentences, the Trial Chambers should take into account such factors
as the gravity of the offence and the individual circumstances of the convicted person.
3.
In addition to imprisonment, the Trial Chambers may order the return of any
property and proceeds acquired by criminal conduct, including by means of duress, to
their rightful owners.
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Article 24: Appellate Proceedings
1.
The Appeals Chamber shall hear appeals from persons convicted by the Trial
Chambers or from the Prosecutor on the following grounds:
(a)
An error on a question of law invalidating the decision; or
(b)
An error of fact which has occasioned a miscarriage of justice.
2.
The Appeals Chamber may affirm, reverse or revise the decisions taken by the Trial
Chambers.
Article 25: Review Proceedings
Where a new fact has been discovered which was not known at the time of the
proceedings before the Trial Chambers or the Appeals Chamber and which could have
been a decisive factor in reaching the decision, the convicted person or the Prosecutor
may submit to the International Tribunal for Rwanda an application for review of the
judgement.
Article 26: Enforcement of Sentences
Imprisonment shall be served in Rwanda or any of the States on a list of States which
have indicated to the Security Council their willingness to accept convicted persons, as
designated by the International Tribunal for Rwanda. Such imprisonment shall be in
accordance with the applicable law of the State concerned, subject to the supervision of
the International Tribunal for Rwanda.
Article 27: Pardon or Commutation of Sentences
If, pursuant to the applicable law of the State in which the convicted person is
imprisoned, he or she is eligible for pardon or commutation of sentence, the State
concerned shall notify the International Tribunal for Rwanda accordingly. There shall
only be pardon or commutation of sentence if the President of the International Tribunal
for Rwanda, in consultation with the judges, so decides on the basis of the interests of
justice and the general principles of law.
Article 28: Cooperation and Judicial Assistance
1.
States shall cooperate with the International Tribunal for Rwanda in the
investigation and prosecution of persons accused of committing serious violations of
international humanitarian law.
2.
States shall comply without undue delay with any request for assistance or an order
issued by a Trial Chamber, including but not limited to:
(a)
The identification and location of persons;
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(b)
The taking of testimony and the production of evidence;
(c)
The service of documents;
(d)
The arrest or detention of persons;
(e) The surrender or the transfer of the accused to the International Tribunal for
Rwanda.
Article 29: The Status, Privileges and Immunities of the International
Tribunal for Rwanda
1.
The Convention on the Privileges and Immunities of the United Nations of 13
February 1946 shall apply to the International Tribunal for Rwanda, the judges, the
Prosecutor and his or her staff, and the Registrar and his or her staff.
2.
The judges, the Prosecutor and the Registrar shall enjoy the privileges and
immunities, exemptions and facilities accorded to diplomatic envoys, in accordance with
international law.
3.
The staff of the Prosecutor and of the Registrar shall enjoy the privileges and
immunities accorded to officials of the United Nations under Articles V and VII of the
Convention referred to in paragraph 1 of this article.
4. Other persons, including the accused, required at the seat or meeting place of the
International Tribunal for Rwanda shall be accorded such treatment as is necessary for
the proper functioning of the International Tribunal for Rwanda.
Article 30: Expenses of the International Tribunal for Rwanda
The expenses of the International Tribunal for Rwanda shall be expenses of the
Organisation in accordance with Article 17 of the Charter of the United Nations.
Article 31: Working Languages
The working languages of the International Tribunal for Rwanda shall be English and
French.
Article 32: Annual Report
The President of the International Tribunal for Rwanda shall submit an annual report of
the International Tribunal for Rwanda to the Security Council and to the General
Assembly.
8.9. ICTR - News Articles
300
1. Gacaca courts in Rwanda: Can the Gacaca Courts Deliver Justice?
Gacaca courts in Rwanda
Presentation of the Gacaca
In 1994, over a million Rwandan citizens were killed during the genocide perpetrated
against the Tutsi and the massacres of Hutu opponents, planned and carried out by the
previous government. Approximately three million people were forced into exile. The
country was laid to waste. The institutions in charge of upholding the law (courts, police,
prisons, etc.) ceased to function.
After the genocide, almost 130,000 people accused of having organised and taken part in
it were put into prison in the worst possible conditions. Eight years on, around 125,000
are still in detention awaiting trial. A general amnesty was out of the question as the new
government (Government of National Unity), the Rwandan people and the international
community all agreed that those responsible for the genocide should be held accountable
for their acts in order to eradicate the culture of impunity, reinforce respect for the law
and uphold the principle of punishment for crimes.
The government came to the conclusion that a conventional European-style justice
system could not be the only solution to the problems Rwanda was facing. This is why it
began searching for alternatives in 1998. In 1999, this led to the proposal of an alternative
justice system: the Gacaca jurisdictions, a new system of participatory justice (a
reworking of the traditional community conflict resolution system) in which the whole of
society would take part. In July 1999, the government published a paper on the "Gacaca
jurisdictions", which was the follow-up document to a series of discussions with a
number of groups of representatives of the Rwandan population and the international
community.
After several redrafts, the "Gacaca law" was adopted and published in March 2001.
Objectives and organisation of the Gacaca courts
The main principle of the Gacaca courts is to bring together all of the protagonists at the
actual location of the crime and/or massacre, i.e., the survivors, witnesses and presumed
perpetrators. All of them should participate in a debate on what happened in order to
establish the truth, draw up a list of victims and identify the guilty.
The debates will be chaired by non-professional "judges", the inyangamugayo, elected
from among the men of integrity of the community, who will have to decide on the
sentence for those found guilty.
According to the government, the advantages of the new Gacaca jurisdictions will be as
follows:

Neither the victims nor the suspects will have to wait for years for justice to be
done. This means the process will be sped up.
301

The cost to the taxpayer for the upkeep of prisons will be reduced, enabling the
government to concentrate on other urgent needs.

The participation of every member of the community in revealing the facts of a
situation will be the best way to establish the truth.

The Gacaca courts will enable the genocide and other crimes against humanity to
be dealt with much faster than the formal justice system. This should end the
culture of impunity that currently exists.

The new courts will put into practice innovative methods in terms of criminal
justice in Rwanda, in particular sentencing people to Community Service to aid
the reintegration of criminals into society.

The application of the law should aid the healing process and national
reconciliation in Rwanda, which is seen as the only guarantee of peace, stability
and future development of the country, as well as obliging the Rwandan people to
take political responsibility.
The people accused of genocide are divided into four categories:

No. 1 Category: the planners, organisers and leaders of the genocide, those who
acted in a position of authority, well known murderers and those guilty of rape
and sexual torture.

No. 2 Category: those guilty of voluntary homicide, of having participated or been
complicit in voluntary homicide or acts against persons resulting in death, of
those having inflicted wounds with intent to kill or who committed other serious
violent acts which did not result in death.

No. 3 Category: those who committed violent acts without intent to kill.

No. 4 Category: those who committed crimes against property.
The accused in the first category will be judged by the ordinary courts, i.e., Courts of
First Instance / Magistrates' Courts.
For all other cases the government created around 11,000 Gacaca jurisdictions, each
made up of 19 elected judges known for their integrity. Over 254,000 of these civil
judges were elected between the 4th and 7th October 2001 and received training in 2002
before the courts began to function.
There are four levels of jurisdiction for the different categories of crime (2, 3 and 4) tried
by the Gacaca courts. Only the first and second categories may appeal. The judgements
are then examined by the highest district and provincial levels of the administration.
The 9,201 Gacaca jurisdictions at "cell" level investigate the facts, classify the accused
and try the fourth category cases (no appeals).
302
The 1,545 Gacaca jurisdictions at sector level are in charge of third category crimes.
The 106 Gacaca jurisdictions at district level hear the second category cases and the third
category appeals.
The 12 Gacaca jurisdictions at provincial level or of Kigali are in charge of appeals of
second category cases.
Three structures coexist at each jurisdictional level:
1. The General Assembly (at cell level, the entire population over the age of 18; at
all other levels a group of 50 or 60 elected "people of integrity"),
2. The Chair: 19 judges in each jurisdiction,
3. The coordination committee made up of 5 people
The Gacaca courts do not have the right to pass the death penalty. Defendants who were
aged between 14 and 18 at the time of the crimes receive sentences that are half as long
as those for adults. Those who were less than 14 years old at the time are not sentenced
and are set free.
With the exception of defendants in the second category who refuse to confess and plead
guilty, it has been decided that all the other prisoners in categories 2 and 3 may serve half
their prison sentences doing Community Service. The time already spent in prison will be
deducted from this sentence.
The defendants in No. 4 Category will not be sentenced. If no agreement can be reached
on the return of stolen or destroyed goods, the Chair of the cell's Gacaca jurisdiction will
decide on the damages to be paid.
The new Gacaca system is based on a participatory justice system and on its
reconciliatory virtues. According to the Justice Ministry, the population that was in the
hills at the time of the genocide will be "witness, judge and plaintiff".
Source: Excerpt from http://www.penalreform.org/english/theme_gacaca.htm
Can the Gacaca Courts Deliver Justice?
Rachel Rinaldo
Inter Press Service
April 8, 2004
As Rwanda commemorated the 10th anniversary of the 1994 genocide this week,
attention focused on the hundreds of thousands of people who lost their lives in the
303
killing spree. But, what has become of the machete-wielding individuals who carried out
the plans of the genocide masterminds? The International Criminal Tribunal for Rwanda,
which began work in Tanzania in 1995, has concentrated on bringing the ringleaders of
the massacres to book. To date, over 60 people accused of playing a major role in the
killings have been detained, including former Prime Minister Jean Kambanda, who was
later sentenced to life imprisonment. But, tens of thousands of other genocide suspects
still await trial in Rwanda's crowded jails.
"In Rwanda you have a situation in which a large part of the population participated in
the genocide," says Elizabeth Onyango of African Rights, a non-governmental
organisation (NGO) with offices in Kigali and London. "A select few might have
orchestrated it, but they did it so cleverly that they got a lot of the population implicated and how do you try cases like this, all these people?"
Given Rwanda's shortage of judges and lawyers, it would take decades for conventional
courts to try the suspects - which sources put at about 80,000 and upwards. As a result,
the government has turned to a traditional system of justice known as "gacaca" to relieve
the burden on prisons and courts. Gacaca hearings are traditionally held outdoors (the
word loosely translates as "justice on the grass"), with household heads serving as judges
in the resolution of community disputes. The system is based on voluntary confessions
and apologies by wrongdoers.
Over 250,000 community members have been trained to serve in panels of 19 judges in
gacaca courts all over Rwanda. The tribunals will operate in several stages, first
identifying victims, then suspects - and finally holding trials. Local residents will give
testimony for and against the suspects, who will be tried in the communities where they
are accused of committing crimes. The initiative was launched in June 2002. But, with
the exception of courts involved in a pilot phase of the operation, most are not yet
operational. They are expected to begin work in May or June this year. Many of those on
trial will be prisoners who have already been released from jail after making confessions.
Those who confess in gacaca courts will have their sentences reduced, or may in some
cases be freed if they have already served enough time in prison.
"As a country we have now decided to try to find the truth behind the genocide," said
Robert Bayigamba, Minister of Culture, Youth and Sports. Gacaca, he said, is intended
"to accelerate the process of knowing the truth so that justice may be done".
But some international observers have reservations about the gacaca system. Richard
Haavisto, who researches Central Africa for Amnesty International, visited gacaca courts
during the pilot phase, and was concerned by what he saw - particularly the low level of
participation by community members. According to Haavisto, people often failed to
attend the trails, or did not give testimony when they did appear. "The objective is a
truthful accounting of what happened in the genocide and (non-participation) really
undermines the whole premise," he told IPS. Fear appears to be a major issue. "Many of
those who might be willing to give evidence are afraid of retribution," Haavisto said. In
fact, there have been reports in the last few years of killings and attacks on witnesses who
were expected to testify in gacaca courts.
304
Haavisto adds that many communities also perceive the tribunals as being one-sided something that contributes to a lack of confidence in the system. He recommends that the
courts should deal with crimes committed by the Rwandan Patriotic Front (RPF), a rebel
movement which took control of the country after the killings - as well as the so- called
"genocidaires". "The government has to create a climate which convinces people that
there is an equitable system of justice at work," Haavisto says.
The ranks of the RPF were dominated by members of Rwanda's minority Tutsi group,
which was targeted during the genocide by militants from the Hutu majority, (Hutu
moderates also found themselves in the firing line). The killings began after a plane
carrying Rwandan President Juvenal Habyarimana and his Burundian counterpart was
shot down over Kigali on Apr. 6 1994. Prior to the massacres, peace talks had been
underway between Kigali and the RPF, which is accused of committing human rights
abuses as it advanced across Rwanda. According to the New York-based Human Rights
Watch, United Nations consultant Robert Gersony found that "the RPF had engaged in
widespread and systematic slaughter of unarmed civilians". In addition, Haavisto warns
that gacaca trials may eventually prove to be a drain on community members who
participate, as most are not compensated for their involvement.
Outside the Rwandan capital views about gacaca are mixed. In the province of
Ruhengeri, which has a large concentration of Hutus, many people appear favourably
disposed to gacaca - at least when they speak to a foreign journalist. "It's up to the people
to make it work," said Cyril Munyanya, a farmer. "If they put their minds to it there's no
reason it can't work."
Dacile Nyirabazungu, a female survivor who works at the Ntarama Church genocide
memorial, says the trials will help Rwanda "find out who are the killers." Nyirabazungu
and other survivors at Ntarama proudly point out the new brick building across from the
church that will serve as the gacaca headquarters in the community. For Musavimana, a
24-year old ex-prisoner in the western Rwandan town of Kibuye, the system has already
proved beneficial. He was arrested in 1994 for a murder he says he did not commit, and
spent eight years and three months in jail. Finally, he was released because the men who
carried out the murder confessed in a special prison gacaca.
But, others dread the moment at which the courts will become fully operational.
Mbezuanda, a woman in Kibuye, is emotionally shattered from her ordeal at the hands of
Hutu militia - and has also contracted HIV. She is afraid to testify in a public court
because she says it will be her word against the accused: there are no other witnesses.
Without anyone to back her up, Mbezuanda feels it would be dangerous to give evidence.
She is also worried that the courts are moving too slowly. "Maybe by the time it comes I
will be dead," she says. But at the very least, says Elizabeth Onyango, gacaca might help
Rwandans talk about what happened in 1994 rather than shutting it away, as has been
done before. "Rwanda is a society where people, because of all they've been
through...don't really speak up," Onyango notes. "Gacaca does give people a chance to
begin to talk about genocide."
Source: http://www.globalpolicy.org/intljustice/tribunals/rwanda/2004/0408justice.htm
305
8.10. ICC
8.10.1. Benjamin Ferencz: Heed the Lesson of Nuremberg: Let No Nation Be Above
the Law
Heed the Lesson of Nuremberg: Let No Nation Be Above the Law
By Benjamin Ferencz
November 18, 2005
"We must never forget that the record on which we judge these defendants today is the
record on which history will judge us tomorrow," Chief Justice Robert Jackson warned at
the opening session of the Nuremberg war crimes tribunal, on November 20, 1945. "To
pass these defendants a poisoned chalice is to put it to our own lips as well."
As we mark the 60th anniversary of the Nuremburg trials this week, it increasingly
appears that Jackson's warning is falling on deaf ears in America.
Six decades have passed since we condemned Nazi war crimes and crimes against
humanity, since "Never again!" became a universal slogan. Six decades have passed, but
the more peaceful and humane world we envisioned at Nuremberg - one protected by
rules of law that bind all nations large and small - remains elusive.
In response to the tragedy of the Holocaust laid bare at Nuremberg, the United Nations
assigned legal committees to codify international law and establish a permanent
international criminal court. The proposed court, commonly known as the ICC, would
help deter such crimes in the future by holding personally accountable those leaders
responsible for genocide and massive crimes against humanity. But faced with opposition
by conservative American senators, it took 40 years before our government ratified the
Genocide Convention in 1988.
A decade later, American obstinacy against codifying international law was again on
display. In 1998, high representatives of 120 nations voted to accept carefully negotiated
statutes for a permanent ICC. It was a historic achievement, hailed by U.N. Secretary
General Kofi Annan as "the hope of future generations."
Only seven countries voted against the new court. The United States, under pressure from
the Pentagon and congressional conservatives, was among them. So, too, was Israel,
which found, despite having worked long and hard for the establishment of such a court,
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a minor technicality for objection and reluctantly followed the United States in voting
"no."
The next year, President Clinton told the U.N.'s General Assembly that he supported the
establishment of an ICC. On December 31, 2000, shortly before he left office, Clinton
instructed his ambassador, David Scheffer, to proceed to the U.N. on a snowy New
Year's Eve to sign the ICC treaty. By pre-arrangement, Israel again followed America's
lead and signed.
However, without ratification by two-thirds of the Senate, America's signing of the treaty
merely indicated support for the ICC's goals and bound it only to not sabotaging its
objectives. The powerful chairman of the Senate Foreign Relations Committee, Jesse
Helms of North Carolina, quickly made clear his unalterable opposition to the ICC. And
so, despite hesitations by several other major powers, including China, India and
Pakistan, nearly 100 nations ratified the Rome Treaty in record time and the ICC went
into effect July 1, 2002 - without America's participation.
Helms no longer serves in Washington, but the Republican administration of President
Bush has more than made up for the senator's absence. Two months before the Rome
Treaty was ratified, John Bolton - a protégé of Helms who was then an assistant secretary
of state and is now America's ambassador to the U.N. - sent a one-paragraph letter to the
U.N., stating that the United States has no intention of ever becoming a party to the Rome
Treaty, and hence is not legally bound by Clinton's signature. The repudiation of the
official signature of an American president was unprecedented, and was seen by many as
an unnecessary slap in the face of the great number of nations that had supported the ICC.
The Bush administration, backed by the Republican-led Congress, has boycotted the new
court and done everything possible to destroy its power. Opponents of the ICC allege that
its prosecutors may subject American servicemen to politically motivated charges that
would inhibit foreign intervention for humanitarian purposes. Yet no other country in the
world has raised this objection.
In fact, according to its own statute the ICC is permitted to deal only with crimes "of
concern to the international community as a whole." This means that only leaders
responsible for planning or perpetrating major crimes against humanity will be targets of
the court.
The Bush administration's other objections to the court are equally untenable. To begin
with, guilty knowledge and criminal intent must be established beyond reasonable doubt.
Furthermore, the U.N. Security Council can direct the ICC to suspend any prosecution
that might interfere with peace negotiations. And American objections on constitutional
grounds are also unsupported by the facts.
Jingoistic slogans about protecting national sovereignty may sound appealing to an
uninformed public, but try as the current administration might, it cannot eliminate the
need for certain universally binding rules of humanitarian law in an increasingly
interdependent world.
307
Simply put, current American fears are both misguided and unpersuasive. Not only does
the ICC's carefully negotiated statute guarantee no retroactivity and fair trials, but it also
requires nations to have priority to try their own citizens. The ICC can exercise
jurisdiction only if the state of the perpetrator is unable or unwilling to provide a fair trial.
No prosecutor in human history has been subjected to as many controls as exist in the
ICC. The prosecutor is under strict administrative and budgetary controls of the court's
Assembly of State Parties, which includes such staunch allies of America as Great
Britain, Canada, Australia and the European Union. The American Bar Association,
every former president of the American Society of International Law and a host of the
most renowned and respected international lawyers in the United States, Israel and
around the world support the ICC.
How, then, to explain America's objections - which, to many informed observers, seem to
border on the irrational?
The American public deserves to be told the truth: The stated opposition of the Bush
administration to the ICC is a sham. It is disgraceful that our government expects the rest
of the world to simply swallow the argument that the United States is above the law.
Those who oppose the ICC - whose most fundamental premise is that law applies equally
to everyone - do not believe in the rule of law.
One need only look at the American Service-Members' Protection Act to find evidence of
the administration's belief in American exceptionalism. The legislation, mockingly called
"The Hague Invasion Act" by many Europeans, authorizes the president to use "all
necessary means" to liberate any American who might be held in custody by the ICC in
The Hague.
For further proof, one could examine the various "immunity agreements" that all nations
receiving American aid are requested to sign. If they refuse to stipulate that no
Americans, or their employees, will be sent to the ICC, the nations risk forfeiting all
American military and economic aid - even if the recipient country needs the funds in
order to pursue terrorists and drug traffickers.
Such irrational behavior, of course, can only evoke suspicion about American intentions
and resentment toward Washington by intimidated signatories. Not one single American
has been helped in any way by these coerced agreements - not one.
And little wonder that many are suspicious of our intentions. Earlier this year, Secretary
of Defense Donald Rumsfeld proclaimed America's intention to bypass, if necessary,
restraints on the use of force codified by the U.N. Charter. Washington reserves the right,
he warned, to anticipate hostilities and to strike first and pre-emptively - alone, if
necessary - to counter a perceived threat to our national security.
Now, I do not wish to compare any Americans to the Nazi leaders. But after hearing
Rumsfeld's words, I could not avoid being reminded of the argument put forward by the
lead defendant in the Einsatzgruppen trial at Nuremberg, S.S. General Otto Ohlendorf.
When asked to explain why his unit murdered more than 90,000 Jews, including their
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children, the remorseless defendant casually explained that it was justified as anticipatory
self-defense.
Germany anticipated an attack from the Soviet Union, Ohlendorf argued, and since Jews
were perceived as supporters of Bolshevism, they presumably posed a potential future
threat to German national interests. And if Jewish children knew that their parents had
been executed, he continued, they, too, might become enemies of Germany, and therefore
they had to be killed.
In a carefully reasoned judgment by the three judges presiding over the case - all of them
American - Ohlendorf's defense was held to be untenable, and the S.S. general was
hanged.
Sixty years later, I am afraid, this and other lessons from Nuremberg are lost on the Bush
administration.
Benjamin Ferencz was chief prosecutor in the Einsatzgruppen trial at Nuremburg.
Copyright 2005 © The Forward
http://forward.com/main/printer-friendly.php?id=6903
8.10.2. Nuremberg Trials and the ICC
SPIEGEL ONLINE - November 23, 2005, 03:52 PM
URL: http://www.spiegel.de/international/0,1518,386327,00.html
International Criminal Court
Nuremberg Trials a Tough Act to Follow
By David Crossland in Berlin
Sixty years after the Nuremberg trials blazed the trail for a global system of justice, the
head of the International Criminal Court dismisses U.S. concerns it may engage in
politically motivated prosecutions and appeals for world recognition to help the court
bring mass murderers to trial.
The proceedings of the Nuremberg Trials are projected on a screen during the 60th
anniversary ceremony commemorating the first major effort at international justice.
For Philippe Kirsch, the Canadian president of the new International Criminal Court,
traveling to Nuremberg for the 60th anniversary of the trials of Nazi leaders must have
309
been a tad frustrating. Veteran lawyers and interpreters convened in the southern German
city last Saturday to commemorate the launch in 1945 of the first multinational court to
try Hitler's henchmen for the worst crimes ever committed.
But the ceremony also served as a reminder that the ICC, inspired by Nuremberg and
created by a conference of states, hasn't yet attained the global legitimacy it needs to do
its job -- bringing to justice the perpetrators of genocide, crimes against humanity and
war crimes.
The United States, the driving force behind the Nuremberg trial, has refused to join the
ICC because it is worried that U.S. soldiers on missions abroad might be subject to
politically motivated prosecutions by such a court.
That stance is totally unwarranted, says Kirsch with more than a hint of irritation. "The
spectre of politically motivated prosecution which is a running theme against the ICC is
so unfounded that it is to me intellectually difficult to understand," he told journalists in
Berlin earlier this week ahead of a speech he held at the American Academy.
According to media reports, William Timken, the new U.S. ambassador to Berlin,
declined to participate in a discussion with Kirsch and German Justice Minister Brigitte
Zypries in Nuremberg.
China, India, Pakistan, Indonesia and Turkey have not signed the treaty under which the
court was set up in 2002. Among countries that signed up but have not yet ratified it are
Egypt, Iran, Israel and Russia. So far 100 countries have ratified the court, including
Germany, France and Britain. Jordan is the only Arab state which has thus far joined.
In Kirsch's view, it's only a matter of time before acceptance of the ICC grows
worldwide. "Over a period of time the court will demonstrate that it is acting in a fair,
non-political way as it is supposed to do, and support should in my view follow," he said.
A number of states which have not joined the ICC were showing more interest and less
apprehension about the court than a couple of years ago, he said.
He noted that the ratification of the ICC treaty by 100 states -- most recently Mexico -would not have been thought possible by most people just a few years ago.
Unlike the two temporary international tribunals set up to try individuals for crimes
against humanity in the former Yugoslavia and Rwanda, the Hague-based ICC is a
permanent institution. It can only deal with crimes committed after July 1, 2002, when it
was formally set up. This means, of course, that it can't take the case of a leader like
Saddam Hussein, whose alleged crimes against humanity took place before the court's
creation.
Its remit is also limited in other respects. It only has jurisdiction if it has the consent of
the nation where the crime was committed or of the nation the accused person belongs to,
or when the United Nations Security Council refers a case to it.
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So far, its activities have been limited to Africa where it is investigating allegations in the
Democratic Republic of Congo of thousands of deaths by mass murder and summary
execution since 2002.
International Criminal Court President Philippe Kirsch: "The spectre of politically
motivated prosecution which is a running theme against the ICC is so unfounded that it is
to me intellectually difficult to understand."
The ICC's biggest investigation so far is into mass killing and rape in the Sudanese region
of Darfur. It has also unsealed warrants of arrest for five leaders of the Lord's Resistance
Army for crimes committed in Uganda -- the first warrants issued by the ICC.
ICC prosecutors have received more than 2,000 communications about alleged crimes,
but they have already dismissed 80 percent of the possible cases because they didn't fit
the court's mandate, Kirsch said. The court is also monitoring seven or eight further
"situations" in addition to the cases it is already dealing with in Africa, he said.
Kirsch said the ICC was intended as a court of last resort, able to take over when a
nation's courts were unwilling or unable to prosecute people for committing atrocities.
Ultimately, it should act as a deterrent, he said.
Understanding of the court was still limited because it was so young, said Kirsch. He
then appealed to states to help make the court effective by co-operating in arresting
suspects and gathering information. "That cooperation has to come not only to
demonstrate the fairness of the court but also the effectiveness of the system as a whole,"
said Kirsch. Enforcing international law was "a shared responsibility between the ICC,
states and international organizations," he said.
© SPIEGEL ONLINE 2005
http://www.spiegel.de/international/spiegel/0,1518,371348,00.html
8.10.3. An Argentine Prosecutor Turns Focus to New War Crimes Court
An Argentine Prosecutor Turns Focus to New War Crimes Court
By MARLISE SIMONS (New York Times)
Published: September 29, 2003
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THE HAGUE - Back in 1985, Luis Moreno Ocampo joined the team to prosecute
Argentina's generals and admirals who stood accused of secretly torturing and killing
thousands of civilians.
The nation's fragile new democracy was barely two years old, and the hard-line military
was restive. Other lawyers had refused the post of deputy prosecutor out of fear. When
Mr. Moreno Ocampo accepted it, his own family was furious, he said. His grandfather
had been a general in the military, and one uncle, a colonel, never spoke to him again.
But the young lawyer from Buenos Aires told friends he had to play his part to
consolidate democracy. The trial of the nine junta members shook Argentina for months
and reverberated through the pro-military powerhouses of Latin America.
"I thought that trial would be the height of my professional life," Mr. Moreno Ocampo
said in a recent conversation. "But when I see where I am today, it turns out that this
period was only training."
Three months into his new job as the first chief prosecutor of the first permanent
International Criminal Court in The Hague, Mr. Moreno Ocampo, now 51, is just setting
out to navigate through a global minefield of justice and politics.
His task is to set the court's prosecution policy and seek out, on a worldwide scale, the
people responsible for the sort of large-scale crimes that brought such pain to Argentina.
The court's purpose is to deal with genocide, crimes against humanity and war crimes if
they are going unpunished elsewhere. The United States is not only opposed to the
global court, but actively campaigning against it, pressing countries into bilateral deals to
exempt Americans.
Mr. Moreno Ocampo declines to give interviews about his personal life, but has held
monthly press briefings. "I will not answer any personal questions," he told reporters
recently. "You can say, this is a crazy guy, whatever you want. But there is a huge
distance between my personal information and the real issues of this office."
This new court, unlike the tribunals for the former Yugoslavia and Rwanda, does not
answer to the United Nations Security Council but to the 92 countries that have agreed to
take part in it since it was created by the Rome treaty in 1998. It can deal only with
crimes that occurred after July 1, 2002.
Mr. Moreno Ocampo, who has an easy, affable style, has so far moved with caution,
aware that his decisions will be minutely scrutinized.
"Inevitably the prosecutor will be the public face of the institution," said Edmond
Wallenstein, a Dutch diplomat involved in setting up the court.
Mr. Moreno Ocampo recently told a group of reporters, "This is only an emergency
court," picking another of his favored phrases to deflate any image of an unconstrained,
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arbitrary political weapon. "We are not here to replace national judicial systems. We
will act only when they need us."
In the glass-and-steel office tower where he has his office, a temporary home while the
court awaits a permanent headquarters, he is putting together a staff of lawyers,
researchers and investigators. They are writing regulations and sorting through the first
avalanche of complaints arriving from all over the world.
But given the high expectations from member countries, the myriad human rights groups
and the court's 18 judges, who are eager to take on cases, he is under pressure to prepare
his first prosecution.
"There's a range of opinions," he said, when asked about his plans. "Some people want
us to act fast and aggressively - others prefer us to be slow and conservative. But I'll say
that we will start with a very clear situation."
Plans are for his office to be able to handle up to three investigations in a year's time. He
has said he is already closely looking at the recent killing, torture, rape and mutilations of
thousands of civilians in the Ituri region of the eastern Congo.
But the business behind mass killings must also be examined, he said recently, citing the
illegal trade in diamonds and arms, and the banks that enable it. He said he was calling
on national prosecutors for help.
In one early but important policy decision, he said that even in the case of "massive
crimes," investigations would focus only on the top leaders responsible. That means he is
not likely to deal with some of the lower-ranking war criminals of the kind tried at the
Yugoslavia tribunal, which initially was not handed high-ranking prisoners.
"The number of cases taken up by the court should not be a measure of its efficiency," he
cautioned. On the contrary, he added, the absence of trials would be a success because it
means national institutions are functioning properly and are handling these cases
themselves.
One of Mr. Moreno Ocampo's first acts in office was to organize two days of public
discussions with lawyers, judges and human rights workers about the role and structure of
his office. He has put draft regulations and other documents relating to the working of
his office on the Internet, soliciting public comments, a far cry from the secrecy that
surrounded the Yugoslavia and Rwanda tribunals in their early days.
In August, while screening candidates to be his deputy, he asked other international
prosecutors, including Carla Del Ponte, Richard Goldstone and Louise Arbour, for
advice.
His own appointment as prosecutor may not be a surprise, given his past record.
Although he was not a household name outside his own country, he became well known
at home not just because of his role in the trials of the members of three military juntas including two former presidents - but also in trials of the chief of the Buenos Aires
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police, the military leaders responsible for the Falkland war and many public corruption
cases.
Because of his activities, he gained numerous admirers and critics. He was often the
target of threats, he has told friends, but he pressed on. Aside from a number of legal
texts, he has also written a more personal book, with his four children in mind, friends
say. The book, in Spanish, is titled: "How to Explain the Dictatorship to Our Children."
Copyright 2003 The New York Times Company
8.10.4. War Crimes Tribunal Becomes Reality, Without U.S. Role
New York Times, April 12, 2002
War Crimes Tribunal Becomes Reality, Without U.S. Role
By BARBARA CROSSETTE
More than half a century after it was proposed in the ruins of World War II, the world's
first permanent court for the prosecution of war criminals and dictators became a reality
today as the United States stood on the sidelines in strong opposition.
The treaty that established the court, which is expected to take shape in The Hague over
the next year, went into effect after the 60th nation had ratified it. The court closes a gap
in international law as the first permanent tribunal dedicated to trying individuals, not
nations or armies, responsible for the most horrific crimes, including genocide and crimes
against humanity.
Until now, just ad hoc courts like the Nuremberg trials after World War II and the
Balkans tribunal that is now sitting in judgment on Slobodan Milosevic, the former
Yugoslav president, have done that work.
"The long-held dream of the International Criminal Court will now be realized,"
Secretary General Kofi Annan said at a news conference in Rome, where 120 countries
first agreed in 1998 to set up the tribunal. "Impunity has been dealt a decisive blow."
But the Bush administration again demonstrated its readiness to go it alone when it deems
necessary, boycotting the ceremony here that celebrated the birth of the court. That
attitude has prompted concern in Europe and elsewhere over a new American
unilateralism.
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The establishment of the court has been broadly welcomed by most democratic nations,
American lawyers' associations and human rights groups. But it has an implacable foe in
the Bush administration, which argues that the court will open American officials and
military personnel in operations abroad to unjustified, frivolous or politically motivated
suits.
The court will assume jurisdiction over charges of genocide, crimes against humanity and
war crimes committed after July 1 of this year. Washington fears that a country as
powerful as the United States, with its unchallenged military might and troops around the
world, would be uniquely vulnerable to prosecutions. In theory, any American, from
high-ranking officials like the Secretaries of Defense or State to soldiers in the field,
could be accused of a crime.
President Bush appears to be on the verge of not only renouncing the tribunal, but also
removing the signature of the United States from the treaty.
Even so, no country is deemed to be outside the court's jurisdiction. American
participation would strengthen the court considerably, and by not taking part the United
States will lose influence over court proceedings.
The United States signed the treaty for the court in December 2000 in the last days of the
Clinton administration. Bush administration officials say it will never be sent to the
Senate for ratification.
Congress has passed a law to forbid Americans at all levels of government to cooperate
with the new court, and the United States is trying -- so far without success -- to insist on
exemptions for Americans from its jurisdiction.
Today, five members of Congress, led by Henry J. Hyde, chairman of the House
International Relations Committee, sent a letter to Secretary of State Colin L. Powell
requesting that he ask the Security Council to write into every future peacekeeping
resolution a grant of absolute immunity from the court for Americans who take part in
operations. That would start with a renewal of the international force for Bosnia in June.
The New York City Bar Association was one of many organizations that wrote to Mr.
Bush this week urging a reconsideration of what is apparently a decision to renounce the
court treaty. The action, the president of the lawyers' group, Evan A. Davis, said would
"weaken U.S. international standing at the very time we need international cooperation
for the war against terrorism."
The United States ambassador for war crimes, Pierre-Richard Prosper, said in a
conference call from Washington with reporters that Mr. Bush had not decided to
"unsign" the treaty. But all his comments on the relations, or lack of them, between the
United States and the court point to that end. Symbolically, the American seat at the
ceremony today was empty.
It was a ceremony, Mr. Prosper said, "that we felt there was no need for us to attend, and
there was no role for us to play."
315
Mr. Prosper seemed to rule out allowing the treaty to remain in limbo, perhaps to be
reconsidered by a future administration.
"Our position is that we continue to oppose the treaty and do not intend to become a
party," he said. "It is important that our position is made clear and that we operate here in
good faith and not create expectations in the international community that we will be a
party to this process in the near term."
Asked whether the United States would cooperate in handing over war criminals or
information for prosecutions, Mr. Prosper said, "We have no obligation to the court."
David J. Scheffer, who signed the treaty for the United States as the ambassador for war
crimes in the Clinton administration, said in an interview today that backing out now was
"a very ill-advised strategy."
"The only reason you would unsign the treaty is if your intention was to wage war against
the court," Mr. Scheffer said. "If your intention is not to wage war against the court but
rather to try to preserve American interests, defend American interests, protect American
interests, then the best strategy would be to remain as a signatory."
Michael Posner, executive director of the Lawyers Committee for Human Rights, said in
an interview that unsigning the treaty would set a terrible precedent. "No American
president in 200 years has unsigned a treaty, as far as we can find," he said. "It would
also send a signal to other governments around the world that treaties they signed are
unsignable."
Most democratic nations and all European Union countries have ratified the treaty -except Greece, which is in the process of doing so -- along with Canada, New Zealand
and a number of African, Eastern European and Central Asian countries. Israel has signed
it but not ratified. Egypt, Iran and Syria have signed. India and Pakistan have neither
signed nor ratified.
Besides the United States, other powerful nations have held themselves aloof, as well.
Russia has signed but not ratified. China has done neither.
European allies have been among those trying to convince the United States that many
safeguards are built into the court that can prevent frivolous or politically inspired
prosecutions. Most cases will be brought by a chief prosecutor or the Security Council. A
pretrial review panel will be able to throw out charges. Moreover, the court will be
required to allow national courts to handle cases in the first instance.
Mr. Prosper said today that those steps were not enough. "The point is that we do view
the safeguards as being insufficient," he said.
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Mr. Annan tried to calm American fears today. "The court will prosecute in situations
where the country concerned is either unable or unwilling to prosecute," he said.
"Countries with good judicial systems who apply the rule of law and prosecute criminals
and do it promptly and fairly need not fear.
"I don't think this a court that is going to run amok."
http://www.nytimes.com
LOAD-DATE: April 12, 2002
8.10.5. ICC Prosecutor Names Darfur Suspects
ICC PROSECUTOR NAMES DARFUR SUSPECTS
Moreno-Ocampo asks pre-trial judges to consider his evidence, and issue summonses for
two suspects to appear before the ICC.
By Katy Glassborow in The Hague
The International Criminal Court’s chief prosecutor, Luis Moreno-Ocampo, said today,
February 27, that he believed a minister from the Government of Sudan, GoS, and a
Janjaweed militia leader are criminally responsible for crimes committed in the Darfur
region of Sudan.
The suspects are Ahmad Muhammad Harun, a former interior minister, and Ali
Muhammad Ali Abd al-Rahman, also known as Ali Kushayb, a leading figure in the
government-backed Janjaweed militia.
At a packed press conference at the ICC, Moreno-Ocampo said that “over the past 20
months our office has collected evidence which suggest there are reasonable grounds to
believe” the men jointly committed crimes against the civilian population.
Now the prosecutor is asking pre-trial judges to consider the evidence, and issue
summonses for the men to appear before the court - adding that he has been informed by
the GoS that Kushayb was arrested by Khartoum in November 2006.
Pre-empting complaints that only two individuals have been named, and not on suspicion
of genocide, the chief prosecutor said “our office has focused on some of the most serious
incidents and individuals who, according to evidence, bear the greatest responsibility”.
He added that his office is continuing to gather information about current crimes being
committed by parties in Darfur, and also violence which is spilling over into refugee
317
camps in Chad and the Central African Republic.
The prosecutor said the two men are suspected of responsibility for 51 counts of alleged
crimes against humanity and war crimes, committed during attacks on the villages and
towns of Kodoom, Bindisi, Mukjar and Arwala in West Darfur between August 2003 and
March 2004.
These counts include rape, murder, persecution, torture, forcible transfer, destruction of
property, inhumane acts, outrage upon personal dignity, unlawful imprisonment and
severe deprivation of liberty.
The attacks occurred during a an armed conflict between the GoS and armed rebel forces,
including the Justice for Equality Movement, Jem, and the Sudan Liberation Army, SLA.
Moreno-Ocampo admitted the investigation into a situation of ongoing violence was
complicated, as “victims and witnesses are a priority, and we have a duty to protect
them”.
This meant that prosecutors collected over 100 witness statements from individuals
during 70 missions in 17 countries outside Darfur, as it was “not possible to protect
victims and witnesses inside Darfur”.
Moreno-Ocampo said the “vast majority of attacks” were carried out by government and
Janjaweed against civilians, not against rebels.
He added that “they targeted civilians based on the rationale that they were supporters” of
anti-government rebels, with this logic “becoming the justification” for crimes such as
mass rape of civilians, who were known not to be participants in the armed conflict.
Answering criticism that no evidence of genocide seems to have been gathered, despite
the White House classifying the Darfur conflict as such in September 2004, MorenoOcampo said, “We are prosecutors and are following evidence, and have enough to
present against these individuals for these crimes.”
In 2003, Harun was appointed head of the “Darfur Security Desk”, and tasked with
recruiting, funding and arming the Janjaweed, and said during a public meeting that he
had the “power and authority to kill or forgive whoever in Darfur for the sake of peace
and security”.
Shortly after Harun’s appointment, Moreno-Ocampo said “the recruitment of janjaweed
increased into the tens of thousands”.
In a 100-page document submitted to the judges, the chief prosecutor reveals evidence
that Harun visited Darfur on a regular basis and became known as the official from
Khartoum who armed the janjaweed from an unlimited budget.
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Harun was seen in an aircraft loaded with supplies of weapons and ammunition,
including G-3s and Kalashnikov rifles destined for use by the Janjaweed, and flying
every three months from Khartoum to Mukjar to pay the Janjaweed in cash.
When civilians complained of attacks and looting, they were apparently told that the
Janjaweed militia “could do what they wanted” because they were “acting on the orders
of the Minister of State”.
Moreno-Ocampo’s evidence alleges that Kushayb led the attacks on villages,
commanding thousands of Janjaweed militia in West Darfur, and issuing orders to
victimise civilians through mass rape and other sexual offences.
This is a significant move for ICC prosecutors, who have been criticised by human rights
groups for not so far issuing charges of sexual violence against anyone involved in the
conflict in the Ituri region of the Democratic Republic of the Congo.
The chief prosecutor gave one example of an attack in Arawala in December 2003, when
Kushayb is said to have personally inspected a group of naked women before they were
raped by men under his command.
A witness said she, and the other women, were tied to trees with their legs apart and
continually raped.
One of the main obstacles to ICC prosecutions has been Khartoum’s insistence that the
Special Criminal Court on the Events in Darfur, SCCED, is fully capable of prosecuting
its own war crimes suspects.
However, the Sudanese authorities also severely downplay the scale of violence and
number of deaths in Darfur, and many human right organisations feel that the SCCED is
a sham and not intent on holding anyone accountable for grave crimes against humanity.
As the Darfur case was referred to the ICC by the UN Security Council rather than by the
Sudanese themselves, and Khartoum insists it does not need outside help, prosecutors
have been forced to sit and wait until they can prove SCCED prosecutions are not up to
scratch.
Moreno-Ocampo told journalists that in accordance with the Rome Statute, which
governs the working of the court, prosecutors had the responsibility to determine whether
SCCED was investigating the same cases as the ICC and stressed his team have devoted
“considerable resources to assessing the admissibility of this case”.
He said that prosecutors conducted five missions to Sudan, during which they
interviewed SCCED judges, prosecutors and members of the police who were part of the
Sudanese investigations.
Although investigations in Sudan do involve Kushayb, they are “not in respect of the
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same incidents or conduct” that are the subject of the case now before the ICC.
Moreno-Ocampo said “our case is about Harun and Kushayb attacking the civilian
population, but there is no such investigation in Sudan”.
Therefore, the prosecutor says the case is admissible.
But this could create a stumbling block if the SCCED decides to launch similar charges
against the two suspects - which is possible seeing as they established the SCCED days
after the prosecutor opened his investigations in Darfur.
When answering a question from this IWPR reporter about whether this could cause
confusion, Moreno-Ocampo said “different parties will challenge our admissibility and
different parties will challenge our assessment”, and made it clear that prosecutors are
“not issuing any judgment on the Sudanese justice system as a whole”.
Now it is up to the pre-trial judges to review the prosecution evidence and determine
whether there are reasonable grounds to believe that Harun and Kushayb are culpable,
and how best to ensure their appearance in The Hague.
No one knows how long this might take.
When prosecutors submitted their evidence surrounding the Lords Resistance Army in
Uganda, it took pre-trial judges three months to chew over the evidence and give the goahead for indictments.
Even though Kushayb is in custody in Sudan, critics of the court will be keen to see
moves being made to ensure both are delivered to The Hague.
Despite arrest warrants issued in July 2005 for five members of Uganda's Lords
Resistance Army, the militia leaders have evaded capture and even entered into peace
deals with President Museveni which could lead to an amnesty from ICC prosecutions.
Moreno-Ocampo was firm that the onus is now on pre-trial judges to make up their
minds, and ensure the appearance of the two men in court.
Katy Glassborow is an IWPR reporter in The Hague.
COMMENT: ACCOUNTABILITY IN DARFUR
ICC proceedings against two Darfur suspects signal that the court may be able to succeed
in western Sudan, where there is little international political will for tough action and the
UN Security Council is deadlocked.
By David Mozersky
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Today's ground-breaking application by the chief prosecutor of the International Criminal
Court, Luis Moreno-Ocampo, to start proceedings against senior
Sudanese minister Ahmed Harun and militia leader Ali Muhammad Ali Abd al-Rahman,
also known as Ali Kushayb, may be a turning point in the ongoing civil war in Darfur.
Since the conflict broke out in 2003, violence, chaos and impunity have increasingly
become the norm in the western region of Sudan.
The international community's engagement has been heavy on rhetoric, but short on
action, thereby allowing all parties to continue ignoring pleas for peace and the ceasefires
they've signed. These proceedings are hopefully the first step to bringing to justice those
most responsible for the large-scale atrocities that have taken place over the past four
years.
Accountability and compensation are two of the core demands of the more than two
million Darfurians who have been displaced over the course of the conflict. While
compensation was dealt with - albeit insufficiently - in last May's Darfur Peace
Agreement, the negotiations purposefully left the topic of accountability untouched
because the African Union mediators hoped that this would be dealt with the by the ICC.
Yet almost two years have passed since the ICC was first mandated by the UN Security
Council to investigate atrocities in Darfur, and little has changed on the ground. The
threat of prosecution failed to stop the flow of attacks against civilians, perhaps in part
because the Sudanese government, which engineered most of the military campaigns
against civilian populations, believed it could evade ICC action just as deftly as it has
most other international threats thus far.
The government of Sudan has rejected the ICC's jurisdiction in Darfur and is now
scurrying to re-establish a domestic judicial system to try war criminals - the same war
criminals that the government armed and mobilised, for the most part.
Today's ICC proceedings change all these dynamics, at least temporarily. They
demonstrate that the mountains of evidence and documentation of war crimes - by the
ICC, UN, governments and human rights organisations - have finally translated into
something tangible in the international legal system. And they signal that the ICC may be
able to succeed in Darfur, where there is little international political will for tough action
and the UN Security Council is deadlocked.
Ultimately, success and impact in Darfur will be measured over many years. One
challenge that must be overcome is the ICC's lack of independent enforcement
mechanisms, and its reliance on member states for help. A second challenge is whether
the ICC is able to maintain full independence and continue to go after those most
responsible for crimes in Darfur, or whether it will be pressured to go after only lowerranking players so as not to rock the boat, as has occurred with the UN Security Council
Sanctions Committee on Darfur.
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Both challenges must be met if the ICC is to maintain its credibility, and if accountability
is to return to Darfur.
The ICC proceedings are one important part of an eventual solution to Darfur that must
include a paradigm shift in the international community's actions in Darfur, and Sudan
more generally. The Sudanese government and the Darfur rebel groups must be held
accountable for their commitments and promises - ceasefires, peace deals, and
disarmament programmes. Without these changes, the ICC will ultimately be ignored by
the Sudanese government, based on its assessment that the ICC - like all other
international bodies addressing the Darfur crisis - speaks as a weak institution that lacks
the political will to enforce its decisions.
David Mozersky is Horn of Africa Project Director at the International Crisis Group,
www.crisisgroup.org
8.10.6. 2 Face Trials at The Hague Over Darfur
By MARLISE SIMONS
The New York Times
Published: February 28, 2007
THE HAGUE, Feb. 27 — International prosecutors on Tuesday designated their first
suspects in atrocities in the Sudanese region of Darfur, selecting a government minister
and a militia commander to bring to trial.
Luis Moreno-Ocampo, the chief prosecutor of the International Criminal Court, said he
had presented close to 100 pages of evidence and asked the judges to issue summonses
for the two men, Ahmad Harun and Ali Muhammad Ali Abd-al-Rahman.
Mr. Harun, currently Sudan’s deputy minister for humanitarian affairs, was a senior
government official in charge of the military and police and intelligence forces in Darfur
as civilians were killed, raped and chased from their homes in the region, the prosecutors
said.
His “unlimited” budget, the prosecutors said, allowed him to arm and finance Mr.
Rahman, also known as Ali Kushayb, the militia leader who led fighters in a brutal
campaign of violence against civilians. “We have focused on some of the most serious
incidents,” Mr. Moreno-Ocampo said.
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The announcement came after 20 months of criminal investigation into Darfur’s
enormous bloodshed and humanitarian disaster. Human rights activists described the two
suspects as powerful but not among Sudan’s top leaders.
At a news conference in The Hague, Mr. Moreno-Ocampo declined to say whether the
most important figures in Sudan’s political or military hierarchy would be held
accountable for the mass killing, looting, rape and general devastation in Darfur, which
has uprooted more than two and a half million people, according to the United Nations.
The prosecution is believed to be investigating crimes by the government, the militias
aligned with the government and the rebel forces they oppose.
Court officials said the prosecutor favored a strategy of focusing on specific events to
which he can link individuals, rather than pursuing broad, ambitious indictments. He may
also be following the path of other war crimes tribunals, building a base of evidence with
lesser cases before moving up the chain of command. But the arrival of any Sudanese
suspects at the court is far from assured.
In Khartoum, the Sudanese minister of justice immediately said the nation did not
recognize the court’s jurisdiction, did not intend to hand over anyone and would try any
cases itself. Sudan has told Mr. Moreno-Ocampo that it has already arrested 14 people for
human rights violations, including Mr. Rahman. Even so, human rights groups said most
of those arrested in Sudan have been low-level fighters.
The prosecutors’ decision, and the reaction from Khartoum, raised the basic difficulty the
court faces: how to investigate, let alone put on trial, officials from sitting governments.
The International Criminal Court, embraced by 104 countries but independent from the
United Nations, has a broad mandate to investigate war crimes and crimes against
humanity. But it has no police to enforce its summonses or arrest warrants, leaving it
dependent on the very governments it may be investigating, as in the case of Sudan.
Such issues have confronted United Nations war crimes tribunals for a decade, with
prosecutors for Uganda’s genocide and the wars in the Balkans still begging for the
arrests of important suspects.
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For the first Darfur case — the court is handling cases in three other African nations —
the prosecution has focused on violence in four villages and towns, starting in the
summer of 2003.
In April of that year, Mr. Moreno-Ocampo said, rebels attacked Al Fasher airport in
Darfur, destroying planes, killing government soldiers and kidnapping the Sudanese air
force commander. That was a turning point in the conflict, the prosecutor said, and led to
intense recruiting of Arab militiamen, or janjaweed, who have been aligned with the
Arab-dominated government.
The janjaweed focused on the civilian population, he said, on the rationale that they were
supporters of the rebels.
“This strategy became the justification for the mass murder, summary execution and
mass rape of civilians,” Mr. Moreno-Ocampo said.
At the time, Mr. Harun was the minister of state for the interior, and oversaw the Darfur
Security Desk.
Mr. Harun was seen traveling with well guarded boxes of cash and was observed
distributing money, weapons and ammunition throughout Darfur, according to the
prosecutor’s statement, and worked closely with the militia leader, Mr. Rahman.
On one occasion, in early August 2003, Mr. Harun arrived by helicopter in the Darfur
town of Mukjar as janjaweed militia were moving in and gave a public speech.
According to the prosecutor, Mr. Harun said that since the children of the Fur tribe had
become rebels, the Fur people and their possessions had become booty for the militia.
Immediately upon his departure, the janjaweed “looted the entire town,” the prosecution
statement said.
Mr. Rahman personally led the attack on Mukjar and three other villages and towns, the
statement said. By mid-2003 he was commanding thousands of janjaweed. His forces
pillaged and burned homes and shops, killed hundreds of people and tied women to trees
and repeatedly raped them. According to the prosecution, Mr. Rahman took part in a
number of summary executions.
He was arrested in Sudan in November and is being held on a different set of human
rights violations.
324
Mr. Moreno-Ocampo said his staff tried to meet with him, and with Mr. Harun, in recent
weeks, but the Sudanese government prevented it.
8.10.7. Sudanese Pair Accused of War Crimes
International Court Names Member of President's Inner Circle, Darfur Militia
Leader
By Nora Boustany and Stephanie McCrummen
Washington Post Foreign Service
Wednesday, February 28, 2007; Page A13
The International Criminal Court's prosecutor in The Hague outlined what he called
operational, logistical and command links between Sudan's government in Khartoum and
horse-mounted nomadic militias it recruited and bankrolled to carry out mass killings in
the Darfur region, and he named a member of President Omar Hassan al-Bashir's inner
circle as a suspect in the atrocities.
In a 94-page prosecution document filed with the court's judges, Luis Moreno-Ocampo
singled out Ahmad Muhammad Harun, now a state minister for humanitarian affairs who
was state minister of the interior, along with Ali Muhammad Ali Abd-al-Rahman (also
known as Ali Kushayb), a leader of the Darfur militia known as the Janjaweed, in a total
of 51 crimes against humanity and war crimes. The filing marked the first accusations
against named individuals as a prelude to a trial. The chief prosecutor's accusations -which fall short of a formal indictment -- come after a 21-month investigation that led to
60 countries and focused on the worst crimes committed in 2003 and 2004. The
prosecutor also said his office was expanding its probe to look at current crimes, and in a
teleconference with foreign journalists, he warned that other Sudanese government
officials could be held responsible.
"We will exonerate no one," he said. "I did it with Harun, and I will follow the evidence
wherever it is going."
The prosecutor described what he said was a pattern of incitement and recruitment that
allowed the crimes to be committed. The U.S. government has labeled the killings in
Darfur a genocide.
"The system produced massive crimes in Darfur, and evidence shows how Harun
personally led the effort and how he and Kushayb joined together to commit the worst
atrocities against villagers in Darfur," Moreno-Ocampo said. "They bear criminal
responsibility for 51 counts of crimes against humanity and war crimes, and we have very
strong evidence."
325
In Khartoum, Sudanese Minister of Justice Mohammed Ali al-Mardi rebuffed the
prosecutor's accusations as "lies" and said his government would not hand the men over
for trial in response to Moreno-Ocampo's summons.
"We are not concerned with, nor do we accept, what the ICC prosecutor has opted for,"
Mardi said in Khartoum yesterday. He also said the two suspects named in The Hague
had already been questioned.
"The Sudanese government will not allow any Sudanese to be tried and punished outside
the national justice framework," the justice minister said.
Moreno-Ocampo confirmed that Rahman (Kushayb) had been in custody in Sudan since
November. He said the Sudanese government had arrested Kushayb for incidents
committed when he participated in the Popular Defense Forces, which the prosecutor said
was integrated into the army.
But Moreno-Ocampo said the international court's case against Kushayb was different. "It
is not just about Ali Kushayb but about how they worked together to attack civilian
populations," he said.
Moreno-Ocampo's filing said, "The evidence shows that Ali Kushayb issued orders to
militia/Janjaweed and armed forces to victimize the civilian populations through mass
rape and other sexual offenses, killings, torture, inhumane acts, pillaging and looting of
residences and market places, the displacement of the resident community" and other
criminal acts.
The prosecutor said that during a public meeting, Harun was heard boasting that his
appointment to the Darfur Security Desk gave him "all the power and authority to kill or
forgive whoever in Darfur, for the sake of peace and security."
The United States is not a signatory to the International Criminal Court and does not
officially cooperate with it. But Washington refrained from blocking a U.N. Security
Council move to refer the Darfur case to the international court, which human rights
groups and others said signaled a turning point in U.S. relations with the new tribunal.
Moreno-Ocampo said the court had neither requested nor received any assistance from
the U.S. government in its investigation. He said it would not turn down any evidence
that would help its case.
In Washington, State Department spokesman Sean McCormick said, "We fully support
bringing to justice those responsible for crimes and atrocities that . . . have occurred in
Darfur. We are at a point in the process now where we could call upon the Sudanese
government to cooperate fully with the ICC."
Humanitarian and nongovernmental organizations here and in Europe welcomed
Moreno-Ocampo's announcement and pressed for further measures against more, and
more senior, Sudanese officials.
326
Richard Dicker, head of the international justice program at Human Rights Watch, said
the prosecutor's court filing "signals the beginning of the end of the impunity associated
with the horrific crimes in Darfur. The two individuals named were major players, but
this can only be the first of many cases, and we expect the ICC prosecutor to press his
investigation further up Khartoum's chain of command."
Dicker said Kushayb was connected to a "large set of summary executions in several
villages, and Harun played a central role in arming the Janjaweed. These are serious
players, not minor thugs."
John Prendergast, an Africa specialist and senior analyst with the International Crisis
Group, said, "Finally, after four years of total impunity from the international community
for the immense crimes committed in Darfur, the ICC has struck the first blow for
accountability." He added, "The fact that the prosecutor went up the food chain right into
the presidential palace is significant, as it sends a message to the other orchestrators of
these horrific crimes."
News of the prosecutor's finding was also welcomed by some residents of Khartoum. In a
cafe, Ali Mansur, who fled to the capital from the Darfur region two years ago, said,
"There are more criminals than two." He added, "The situation on the ground is worse
than what the government says."
Tariq Said, a retired Sudanese military officer, expressed hope that "this will give Sudan
a chance to go in the right direction. This issue is the concern of all Sudanese. Everyone
wants peace in Darfur."
The prosecutor also said that in addition to the investigation of Darfur, "we are
monitoring the spillover of violence into Chad and the Central African Republic." He
said that because both countries are among the 104 full members of the international
tribunal, he did not need a special referral to investigate what was happening there.
"We are getting information about current crimes, of what happens today, because this
will affect the lives of the victims," Moreno-Ocampo said. "The court has to contribute to
the prevention of crimes, because people who are displaced are now exposed, and it is my
responsibility. We are just doing our job. Our mandate is to investigate and end
impunity."
McCrummen reported from Khartoum.
Copyright 2007 The Washington Post Company
8.11 Saddam Hussein Trial in Iraq
1. Saddam Trial Legacy
327
New York Times
January 3, 2007
New U.N. Chief Invites Controversy by Declining to Oppose Hussein Execution
By JULIA PRESTON
UNITED NATIONS, Jan. 2 — On his first day of work as secretary general, Ban Kimoon, the mild-spoken South Korean diplomat who had suggested he would bring new
caution to the post, invited controversy by declining to criticize the death penalty applied
to Saddam Hussein.
Mr. Ban commented on the execution of Mr. Hussein just after entering United Nations
headquarters on Tuesday morning to start his job.
“Saddam Hussein was responsible for committing heinous crimes and unspeakable
atrocities against the Iraqi people,” Mr. Ban said in response to questions from a crush of
reporters outside the Security Council’s chambers. “We should never forget the victims
of his crimes, “he said.
“The issue of capital punishment is for each and every member state to decide,” he
added.
“While I am firmly against impunity, I also hope the members of the international
community should pay due regard to all aspects of international humanitarian laws.”
…………….
Saddam Hussein
Hanging the dictator
Jan 4th 2007
From The Economist print edition
The repulsive end of a repulsive man
A BOTCHED war, a botched trial and now a botched execution: Iraq obstinately refuses
to behave in accordance with the script its American conquerors have written for it.
Bringing the loathsome Saddam Hussein to justice should have been a propaganda
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victory for the United States. But his execution on December 30th looked less like the
meting out of justice than like one of the sordid snuff videos circulated on the internet by
al-Qaeda. Had the Americans hanged him themselves, the condemned man might have
been treated with a modicum of dignity. His Iraqi executioners had other ideas. Some
preferred to tease and taunt him to his death, and then continued to taunt his hanging
corpse. In the end it was he who showed dignity—together with defiance and an utter
lack of remorse. And it was his executioners who turned what could have been a moment
of catharsis for Iraqis into something that looked primitively cruel, more likely to deepen
than to heal Iraq's lethal sectarian divisions.
It is only natural for decent people around the world to be repelled by such an execution.
But neither the bungled hanging nor the many inadequacies of the trial that preceded it
should obscure the fact that Saddam was a criminal and murderer on an epic scale.
Although many people will condemn his hanging as “victors’ justice”, this was no
miscarriage of justice in the normal sense of the phrase. There can be no doubt that the
former dictator was guilty of heinous crimes against humanity, including the slaughter of
scores if not hundreds of thousands of Iraq's own Kurds and Shias (see article). The
megalomaniac who styled himself after Nebuchadnezzar and Saladin also launched two
wars of aggression. The invasion of Iran consumed more than a million lives; the
invasion of Kuwait set in motion a chain of events that led ultimately to his own country's
occupation by America.
The tribunal that sentenced him was indeed imperfect. The Iraqi judges squandered the
opportunity to show a country emerging from dictatorship how due process ought to
work. All the same, theirs was not a kangaroo court. The judges examined evidence and
heard the case for the defence. They did not send an innocent man to the gallows. As for
the sentence itself, many people believe, as does The Economist, that capital punishment
is wrong in principle. This view is not, however, universal even in the rich and peaceful
societies of the West. In Iraq, whose people have experienced decades of extreme
political violence, a principled objection to capital punishment strikes many as bizarre.
The millions who lost loved ones at the dictator's hands expected him to pay with his life,
and would have felt cheated if he hadn't. It was not victors' justice but victims' justice that
condemned him to hang.
Disposing of a man is easier than disposing of a myth. In life Saddam had admirers and
helpers even during his worst excesses. The Americans and the French supported him
against revolutionary Iran. The Arab masses loved him for lobbing missiles at Tel Aviv.
He was fawned over at different times by Donald Rumsfeld and by George Galloway, a
left-wing British MP. The danger now is that the gloating of his Shia executioners will
make him into a martyr for the Sunni cause. That would be a travesty. Saddam's legacy
was blood and misery for all. It is a pity he was executed before the full extent of his
crimes could be investigated and revealed in court. Iraq's government could make amends
for the mistake of his over-hasty execution by making sure those investigations continue
329
Saddam Hussein
The blundering dictator
Jan 4th 2007 | CAIRO
From The Economist print edition
AFP
The life, death and uncertain legacy of an Arab villain and hero
IN THE spring of 1990, Iraqi state television commemorated Saddam Hussein's 53rd
birthday by playing, over and over, extended footage of the leader touring an art gallery.
Room after room, the display consisted entirely of works sent as birthday tributes. To the
jolly strains of Mozart's “Eine Kleine Nachtmusik”, Iraq's president and his train of
uniformed henchmen nodded, smirked and gestured appreciatively before paintings
featuring Saddam, Napoleon-like, atop a rearing white stallion, or Saddam, commanding
a tank, gesturing towards a blazing battlefront, or Saddam, in profile, facing the Dome of
the Rock, clad in the chain-mail tunic and spiked helmet that Saladin, the Muslim
liberator of Jerusalem, was made to wear in Egyptian costume dramas.
This was springtime indeed for Saddam Hussein. He had recently emerged undefeated
from the winter of a bloody eight-year war with Iran, and had just successfully crushed
another Kurdish uprising. This fatherless son of dirt-poor peasants, raised by better-off
relatives, who had been given the ungainly name of Saddam (a conjugate of the Arabic
words for “shock” and “collision”), had already ruled Iraq for two decades. He had
eliminated all rivals, cowed the potentially restless Shia majority and packed the state
with his own trusted relations. Museums, hospitals, parks and whole cities bore his name.
And then he blew it all by invading Kuwait, the small, rich neighbouring emirate, on
August 2nd 1990. Asked in later years, following his capture in a “spider hole” by
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American invaders, why he had done this, Saddam first blustered that it was because
Kuwait was rightfully Iraq's 19th province. Then, in his slightly nasal whine, he growled,
“When I get something into my head I act. That's just the way I am.”
Saddam Hussein was one of the last of the 20th century's great dictators, but not the least
in terms of egotism, or cruelty, or morbid will to power. He rose fast, like Stalin and
Mao, from within an ostensibly secular, progressive political party. In Iraq's case this was
the Baath, or Renaissance, Party, a vehicle which he ultimately transformed, through
terrifyingly capricious ruthlessness, into a fascistic tool for his own absolute control. Like
Enver Hoxha of Albania or North Korea's Kim Il Sung and son, Saddam succeeded in
turning the entire apparatus of the state into an expression of his own paranoia. His rule
cost the lives of perhaps half a million Iraqis. Two-thirds fell in unnecessary wars; the
rest were civilian “enemies”, rounded up and shot, usually by firing squad.
Yet, like those other thuggish rulers, Saddam won not just fawningly insincere adulation
but a surprising degree of support from his people. Much took the form of a Stockholm
Syndrome-like response to captivity, whereby hostages end up sympathising with their
captors. Yet Saddam attracted real constituents, and not only from the favoured among
his own clan, tribe and fellow Sunni Muslims. If police repression was politically
deadening, it did also mean security from such historical Iraqi plagues as coups, tribal
vendettas and religious strife. Baathist secularism promoted such modernising trends as
inter-faith marriage and scientific education. The state ideology was rigid but it did, in a
way, succeed in strengthening Iraq's fragile sense of nationhood. For many Iraqis,
Saddam inspired pride.
A hero to many Arabs—and the West
Saddam was luckier than rival dictators in one major respect. His rule coincided with a
huge surge in oil revenues. During the 1970s, a relatively peaceful interlude when he
exercised real control as second-in-command to a weak president, dozens of ambitious
projects swiftly created a first-class infrastructure of expressways, power lines and social
services. In neighbouring countries, the oil boom generated garish consumption and
commission billionaires. Iraqis could fairly claim that their national wealth had been used
instead to create a broad, home-owning middle class, the symbol of which was the
“Brazili”, a stripped-down Volkswagen bought by the million from Brazil. Generous
state subsidies lifted even the very poor out of need. Corruption was unknown.
Much as Adolf Hitler won early praise for galvanising German industry, ending mass
unemployment and building autobahns, Saddam earned admiration abroad for his deeds.
He had a good instinct for what the “Arab street” demanded, following the decline in
Egyptian leadership brought about by the trauma of Israel's six-day victory in the 1967
war, the death of the pan-Arabist hero, Gamal Abdul Nasser, in 1970, and the “traitorous”
drive by his successor, Anwar Sadat, to sue for peace with the Jewish state. Saddam's
self-aggrandising propaganda, with himself posing as the defender of Arabism against
Jewish or Persian intruders, was heavy-handed but consistent as a drumbeat. It helped, of
course, that his mukhabarat (secret police) put dozens of Arab news editors, writers and
331
artists on the payroll. As a result, to many poorer Arabs, his lunge for Kuwait, and the
subsequent, strategically inconsequential lobbing of 39 Iraqi Scud missiles at Israel,
appeared as Robin Hood-like acts of retributive justice.
Refuge in Islam
Following the debacle of Operation Desert Storm, America's crushingly efficient counterthrust, Saddam hastened to burnish his tarnished lustre by switching to a new posture as a
champion of Islam. The cry of Allahu Akbar, Mighty is God, was added to the Iraqi flag
in a script modelled on the president's own. With his country now besieged under UN
sanctions that systematically impoverished its middle class, Saddam posed as the victim
of a relentless American-led campaign to weaken and hold back the world's Muslims.
While few took his religious pretensions seriously, this message meshed with a growing
sense among Muslims, fanned assiduously by a resurgent fundamentalist movement, of
thwarted ambitions and generalised victimhood.
Saddam's showy return to the faith was perhaps not entirely cynical. It was in some ways
an expression of his feeling of having been used, then betrayed, by the West. Back in the
late 1950s, when Saddam consecrated his party membership by wielding a pistol in a
botched assassination attempt against Iraq's then president, Abdul Karim Qasim, the
Baath was favoured by Western powers as a foil to both the powerful Iraqi Communist
Party and to the pro-Russian Nasserists. The West welcomed the 1968 coup that brought
Saddam into power. When he invaded revolutionary Iran in 1980, America and its allies
helped quietly but generously with credits, arms and satellite intelligence. Later, they
turned a blind eye to his use of chemical weapons, first against Iranian soldiers and then
against his own unruly Kurds. Donald Rumsfeld paid the Iraqi leader a courtesy visit in
1983. For a time, the CIA helpfully contended that it was Iran, not Iraq, that had dumped
poison gas on the Kurdish city of Halabja.
Many Arabs still contend that America goaded Saddam to invade Kuwait, by pushing the
emirate to provoke him by demanding repayment of wartime loans and then telling the
dictator that America would not intervene in inter-Arab disputes. More likely, Saddam
simply overplayed his hand. As April Glaspie, America's ambassador to Baghdad at the
time, said, “Obviously, I didn't think, and nobody else did, that the Iraqis were going to
take all of Kuwait.”
Saddam's brashness, and the criminal abandon with which his officers looted Kuwait,
stripping even the marble from its palaces to add to Saddam's own, revealed for all to see
his nature as an unworldly and power-mad brute. His isolation from reality, the now
rapidly increasing venality of his family and regime and his lack of judgement in dealing
with the world led to his final undoing.
332
Chastened by defeat, Saddam actually did move in 1991, as
demanded by the UN, to dismantle his programmes to build
weapons of mass destruction. Yet having built his power on
fear, he was loth to admit that he had been de-clawed, and so
allowed the interminable and ruinous saga of sanctions to
continue. To a dwindling constituency of Arabs, his
posturing continued to inspire a certain awe, mixed with
sympathy for the apparent underdog. But to the rest of the
world he had become the perfect villain. As news leaked
from Baghdad of the murderous excesses of his sons and of
the vicious retribution meted out to Shias in the south, who
had the temerity to revolt, it became easy to label him as a
kind of devil incarnate.
AP
Following the terrorist attacks on New York and
Washington of September 11th 2001, Saddam's mix of
A martyr to some
obduracy, ambivalence and belligerent rhetoric attracted the
interest of an American administration that was keen to persuade its public that the
superpower was doing its utmost to prevent future attacks. To powerful neoconservatives, a strike against Iraq was appealing for several reasons. It would send a
blunt message to malingering governments everywhere. It would place American troops
in a position to threaten other alleged sponsors of terrorism, such as Iran and Syria. And,
it was presumed, the overthrow of a dictator such as Saddam would be greeted with
cheers, and stimulate a domino effect of democratic change in a region whose repressive
rulers had primed their youth for Islamist extremism.
As the world now knows, such dreams built Saddam into a far greater catch than he
proved in fact to be. The famous weapons of mass destruction did not exist. His capture,
eight months after the fall of Baghdad, was little more than a brief flash of triumph in a
remorselessly darkening sea of gloom. Rather than melting away at the sight of its
presumed leader's humiliation, Iraq's burgeoning Sunni insurgency gained strength, since
it could now claim to act out of pure nationalist motives, dissociated from the criminal
past of the tyrant. America's adventure, immensely costly in terms of blood and treasure,
turned into a debacle.
Towards the gallows
The Iraqi state that Saddam had created was dismantled, but with such crudeness that the
wider polity he had built also began to fall apart. As it did so, cracking with ever greater
force into Sunni, Shia and Kurdish components, a slogan appeared on Baghdad's walls:
“Better the tyranny of Saddam than the chaos of the Amerkan.” In captivity and then
during a messy, ill-conducted trial, the reviled dictator began to regain stature among his
core Sunni constituents. The sordidness of his hanging, and its ugly timing on the day of
the Muslim Feast of Sacrifice—contrasting with his composure before death—reinforced
333
the Sunni sense of injury at the hands of what many see as a puppet sectarian regime. In
Saddam's final communication to the world, a letter released following his conviction for
crimes against humanity, he adopted the role of a martyr to the nation, calling nobly for
Iraqis to unite and to forgive invaders for their leaders' folly.
It is difficult to judge what Saddam's legacy will be. Many Iraqis, especially among the
Kurds and Shias, rejoiced at his death. Others simply shrugged at the inevitable passing
of a delusional has-been. But quite a few regret his departure, less out of admiration for
the man than out of sadness for the deeply flawed but at least secure and predictable Iraq
they have lost. And in Iraq and beyond the rage against the world felt by many other
Arabs and Muslims, which the dictator once harnessed, has yet to be assuaged.
SPIEGEL ONLINE - January 7, 2007, 06:55 PM
URL: http://www.spiegel.de/international/spiegel/0,1518,458223,00.html
INTERVIEW WITH SADDAM HUSSEIN'S PROSECUTOR
"The Execution Was Done Correctly"
Iraqi prosecutor Munqith al-Faroon, 53, discusses the execution of former dictator
Saddam Hussein and the investigation into the execution video that is now
circulating on the Internet.
AFP
Munqith al-Faroon: "It isn't unlike the hunt. First you hunt down the animal, but once you
look your prey in the eyes, you ultimately feel pity. That was the way I felt."
SPIEGEL: Mr. Prosecutor, you were a witness to the execution of Saddam Hussein.
What did you see and hear?
334
Faroon: I, together with 13 other official observers, was flown by helicopter from the
Green Zone to the execution site. There were seven of us in each helicopter. We entered
the execution chamber, where there were already four other people: the condemned man
and three masked men. Two of these men prepared Saddam Hussein for the execution,
and the third man later opened the trap door.
SPIEGEL: How many people were present in total?
Faroon: Only the 14 official observers, Saddam and three masked men. However, the
door between the execution chamber and another room was open, and a few men
gathered at this door over time -- guards who had been assigned to protect this facility.
SPIEGEL: Who shouted the first insults at Saddam?
Faroon: It was one of those guards, who called out the name of Muqtada al-Sadr.
SPIEGEL: If this man can be identified -- did he commit a crime?
Faroon: No. And I attach importance to the conclusion that the execution was done
correctly -- as required by the law. Otherwise I would have stopped the procedure at that
point.
SPIEGEL: Who was it who called out to Saddam that he should go "to hell?"
Faroon: It was one of the official observers, and this also made me especially angry. My
reaction can be heard on the video: "Please stop. This man is being executed." There had
already been an angry exchange between Saddam and one of his guards. Saddam said,
speaking to all of us: "I built Iraq for you." One of the guards replied: "Oh, and what else
have you done for us?" I stepped in and said: "I will not permit anyone to say anything
here."
SPIEGEL: You have said that two official observers filmed the execution with their
mobile phones. Who were they?
Faroon: That is the subject of the investigation that has now been launched.
SPIEGEL: The video was apparently shot from the stairs to the gallows. Who was
standing there?
335
Faroon: The execution chamber is about six by four meters (20 by 13 feet) in size. The
stairs to the gallows lead up from the door at the left, which was open. That was where
the court guards had gathered. We 14 officials were standing in a row along the wall,
from right to left. The last of the officials stood directly at the open door.
SPIEGEL: If the author of the video is identified, what will he be charged with?
Faroon: It depends. Filming the video alone was undoubtedly against the law. But it
would have been a criminal act, in a narrower sense, if it is determined that the film was
made and distributed with the intention of inciting religious tensions. If the investigation
arrives at this conclusion, the defendant will be punished -- no matter what his position in
the government is. He can expect a fine at the very least, and possibly even a prison term
of up to six months.
SPIEGEL: Who is directing this investigation?
Faroon: That's the business of the government and the justice minister. We members of
the Iraqi Special Tribunal are not responsible. The length of this investigation will depend
in part on the experience of the investigators and the quality of their work. It could take a
few weeks, or perhaps even months.
SPIEGEL: It was apparently a very tense atmosphere.
Faroon: Saddam and one of his co-defendants threatened me personally during the trial.
"We will pursue you," Saddam said, "here in the courtroom and outside." His supporters
made good on this threat. My brother was murdered a month ago. But even though I was
Saddam's opponent in the trial, I behaved very correctly during the execution. It isn't
unlike the hunt. First you hunt down the animal, but once you look your prey in the eyes,
you ultimately feel pity. That was the way I felt.
2. Saddam Trial Was Fair
FOR EDUCATIONAL USE ONLY
12/1/06 Ethics & Int'l Affairs 517
2006 WLNR 23364025
Ethics & International Affairs
Copyright 2006 Carnegie Council on Ethics and International Affairs
336
December 1, 2006
Volume 20; Issue 4
Saddam Hussein's trial meets the "fairness" test.
Moghalu, Kingsley Chiedu
War crimes trials are often controversial, and few such trials in history have been more so
than that of Saddam Hussein, the former president of Iraq. In this trial, controversy has
raged over the very nature of war crimes justice, the relevance or otherwise of the legality
of the invasion of Iraq and the subsequent formation of a war crimes tribunal to try the
ousted Iraqi leader and his top lieutenants, and the courtroom problems of inherently
political trials. Despite legitimate concerns in these areas, however, Saddam Hussein has
received an appropriate and fair trial, both in light of the specific details of the judicial
proceedings and in light of the political nature of war crimes justice in an anarchic system
of states.
POLITICAL JUSTICE
War crimes justice is political justice. It is justice at the interface of law and politics. War
crimes trials involve crimes committed for political reasons, by persons with political or
military leadership roles or under their command, and the trials seek an outcome that is
essentially political. Such outcomes include the removal of, or the establishment of
particular kinds of, political order. Often, this outcome is achieved through the
convenient individualization of guilt as a way of dealing with historical memory in
situations where all the potential defendants, such as all Nazi or all Baathist leaders,
cannot conceivably be put on trial, even though the destruction of their ideology or
political order is what is sought by the trial. This establishment of guilt by proxy is
unnecessary in domestic criminal trials, where the defendants are easily identifiable and
their numbers manageable, but it is an essential component of political justice. War
crimes trials deal with wider issues of societal order, while normal criminal trials address
narrower questions of law and order within a generally agreed societal framework. For all
these reasons, war crimes trials, which typically deal with situations involving multiple
victims or mass atrocity, are fundamentally different from ordinary criminal trials in
domestic legal systems.
The tribunals in which presumed war criminals are prosecuted have historically been
established ad hoc. They are formed by the political decisions of a victor state or
collection of victors in war (as in the case of the Nuremberg and Tokyo tribunals) or
states acting through the political organs of multilateral international organizations, such
as the United Nations Security Council (as with the tribunals for Rwanda and
337
Yugoslavia). In all these cases the decisions are essentially driven by the wills of
powerful states, and are often preceded by political debates. These debates, through
which consensus is reached on the need for and the role of tribunals, are necessary
because trying defeated leaders is essentially a political act. In contrast, no such
controversies precede the trial of a serial killer or rapist in, say, the city of Denver,
because by virtue of the sovereign powers vested in the Colorado and U.S. governments
through their constitutions, the forums for such trials already exist and their jurisdiction is
uncontested. The debates in such cases usually concern only the facts and whether guilt
has been proved or not. In a war crimes trial, however, there are prior questions to be
addressed: should the defendant be put on trial, and if so, who should try him? The
impossibility of answering these questions without recourse to politics is one reason why,
even in the case of the permanent International Criminal Court--a court established by
willing states--roughly half of the world's countries have yet to sign on to its jurisdiction.
That war crimes trials such as those of Saddam Hussein are inherently political does not
make them wrong. But it is important to understand them for what they truly are. The
Nuremberg Trials of the Nazi leaders after World War II were undoubtedly morally
justified by the horrendous nature of Nazi crimes, including the Holocaust. They were
nonetheless political trials. It was the victors' justice, in which legalism was utilized by
the Allied Powers to destroy Nazi ideology--by demonstrating to the German people and
the wider world its chilling logical consequences--and to establish the foundation of a
new political order in which Germany progressively became a liberal democracy.
The Tokyo trial of Class A Japanese war criminals served the same purpose. In an
indication of its ultimately political motivation, General Douglas MacArthur, the
American Supreme Commander for the Far East, decided to exempt Emperor Hirohito
from prosecution since, it was believed, a trial of the god-monarch would lead to a
breakdown of the very society the Allies were seeking to rebuild by forcing it to confront
its militarist past.
Against this backdrop, we can now proceed to examine briefly another important
background factor in assessments of the trial of Saddam Hussein--the relationship
between the U.S.-led invasion that ousted him and the establishment of a war crimes
tribunal to prosecute him. The legality and legitimacy of the invasion are both contested,
certainly by Saddam himself, who has frequently asserted during his trial that the war
crimes tribunal and its proceedings are fundamentally illegitimate. Saddam's position is
that precisely because he was forcibly removed from power by an external invasion, a
tribunal established to try him as a result of that legally questionable use of force cannot
be legitimate.
But the legal and practical position is that, whatever anyone's position on the war may be,
the hostilities did take place, and the U.S.-led coalition acquired the status of an
Occupying Power in Iraq under the Geneva Conventions, with the power to make laws
for the occupied territory. In cases of leaders such as Saddam Hussein, who have
positions of power and well-known histories of brutality, it is only the use of force,
internal or external, that can bring them to justice. Where the use of such force is
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successful, it creates facts on the ground and overtakes legal, even if not political,
questions about its legitimacy. In order words, the trial of Saddam Hussein is legally
valid even if the origins of the trial are legally and politically controversial. As the
common-law maxim so elegantly puts it, possession is nine-tenths of the law. It is
precisely on similar grounds that, although few would say that there was any moral
justification for colonialism, the artificial boundaries established among African and
Latin American states by colonial powers were accepted as lawful under the international
law principle of uti possedetis ("have what you have had") even after those states gained
their independence.
If Saddam's domestic political opponents could have executed a successful uprising and
put him on trial, the result would have been much the same, although it surely would not
have been as internationally controversial as the current context of an external invasion.
Thus, many Iraqis, whether or not they agreed with the actions of the U.S.-led coalition,
believe that Saddam Hussein is exactly where he deserves to be--in the dock. This local
perception of the fact of Saddam Hussein's trial and the trial process--which must be
distinguished from the occupation itself--is fundamental to any assessment of the
proceedings, and we can now turn to that factor.
IRAQI OR FOREIGN JUSTICE?
The Iraqi Special Tribunal (IST) was established by a statute enacted by the Iraqi
Governing Council on December 10, 2003. The Iraqi Governing Council was wholly
comprised of Iraqis but was established by the Coalition Provisional Authority. The IST
is thus an Iraqi war crimes court. To be sure, the fact of the occupation leaves the IST
open to charges that it is Esau's hand but Jacob's voice. But it is nevertheless not quite the
same as the Nuremberg and Tokyo tribunals, which were entirely foreign in their
conception and composition. The Iraqi Governing Council was made up mainly of
dissidents opposed to the regime of Saddam Hussein who are also legitimate political
leaders of Iraqi communities. Here, a people were empowered by foreign assistance to
put on trial a man many Iraqis wished to see prosecuted if they could have their way. Call
it a "mixed" victors' justice, then.
At the time the IST was established, debate raged in international policy and human
rights circles about the appropriate forum in which to prosecute Saddam Hussein--an
international tribunal established by the United Nations, a "hybrid" national-international
tribunal with local and international judges in the model of the Special Court for Sierra
Leone, or a pure Iraqi tribunal.
The argument in favor of an international trial of Saddam Hussein was that it would
guarantee the application of international human rights standards, including the exclusion
of the death penalty. But this position does not satisfactorily answer the question, Whose
justice is it, anyway? Justice for the Iraqis who were the victims of the crimes for which
Saddam Hussein is on trial, or justice for the "international community," even if such a
trial is disconnected from the reality of Iraqi society?
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Justice, especially war crimes justice, must be credible and relevant to the society of the
victims (who have rights too) if it is to effectively accomplish its punitive, restorative,
and transformational goals. The whole point of prosecuting Saddam Hussein is to make
the point to present and future generations of Iraqis that political and military power is
not a license for mass murder. This is why the forum in which Saddam Hussein was
ultimately put on trial--an Iraqi court, in Iraq, by Iraqis, and in Arabic--is by far the most
appropriate one.
Saddam's crimes were committed predominantly against his own Iraqi people, although
Kuwaitis and Iranians were also victims of Iraqi war crimes in the Gulf War in 1991 and
the Iran-Iraq War in the 1980s. A trial of Saddam Hussein that bypassed this critical
audience, either through a choice of an alien forum or language, would have had little
impact in Iraq. In contrast, the wider sectarian violence in that country notwithstanding,
most Iraqis have followed the trial with interest and full comprehension. After all, as the
British journalist John Simpson noted in his reporting on the trial, at the Baghdad
University law school before the U.S.-led invasion, the statue of justice at the building's
entrance was that of Saddam Hussein himself holding the scales! If the Iraqi ruler was
thus defined as justice itself, one can only imagine the deep psychological impact on his
own people of their former dictator's trial in a local context.
The lessons of the international war crimes tribunals established by the United Nations
Security Council in the early 1990s to prosecute the architects of ethnic cleansing in the
former Yugoslavia and genocide in Rwanda are clear. These courts, for reasons that
appeared persuasive at the time, were established in countries distant from the societies
where the crimes they are judging occurred. They are manned exclusively by foreign
judges as a matter of policy. Thus, while Iraqis have been able to participate directly at a
psychological level in the trial of Saddam Hussein, in Rwanda and the former Yugoslavia
the victims of genocides were on the outside looking in at the trials at Arusha and The
Hague--and not always comprehending it all.
These trials have generally focused far more on the rights of the defendants, which are
certainly important, but have neglected those of the victims to restitution and courtroom
participation in addition to retributive justice, largely because of the legal tradition--the
common-law system of proceedings--that is dominant in those trials. This is not to argue
that defendants' rights are not important. But, where their rights clearly trump those of the
victims, as at Arusha and The Hague, the conception of justice embodied in the trial is
skewed toward process at the expense of outcomes.
More than a decade of international war crimes trials later, the jury is in: these tribunals
are out of touch with the societies for which they were ostensibly created, and their
achievements and impact have been stunted by this fundamental disconnect. In striving
for perfection--which invariably has not been attained-their proceedings became
protracted to the point of near farce, as eloquently demonstrated by the four-year trial of
Slobodan Milosevic at The Hague, which ended inconclusively with the defendant's
death and no verdict in sight. There is surely something incomplete about international
war crimes trials in which the rights of the defendant appear to be far more important
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than those of hundreds of thousands of victims and survivors and become the sole
yardstick for assessments of such trials.
The answer, then, is not to consistently seek international trials even when the
circumstances call for alternative approaches, but instead to utilize, wherever possible,
local justice that meets standards that can be objectively regarded as adequate. As U.S.
President George Bush put it in relation to the trial of Saddam Hussein, such a trial
should "withstand international scrutiny." The IST statute incorporates international
humanitarian law in addition to Iraqi law. Clearly, despite difficult beginnings, the Iraqi
tribunal has sought to conduct Saddam Hussein's trial in a manner that is credible without
sacrificing its authentic Iraqi character, which is its only hope of long-term relevance in a
country torn by fundamental divisions and sectarian violence stoked, ironically, by the
invasion and occupation.
FAIR TRIAL RIGHTS
Saddam Hussein's rights have, for the most part, been respected in his trial. From the
perspective of some international human rights observers, the most objectionable aspect
of the trial is that Saddam will face the death penalty if convicted. This is a difficult issue
to grapple with, as the death penalty is the subject of extensive philosophical debates that
go well beyond the scope of this essay. The United Nations and several European and
other states, consistent with evolving norms of international human rights, oppose capital
punishment. All the UN-sanctioned war crimes tribunals exclude it from their penal
universe. The U.S. government, on the contrary, favored its application in trials at the
IST. It is an open question how the inclusion of the death penalty affects the assessment
of the trial, for, while there are several valid arguments against capital punishment, it
remains a sovereign choice exercised by several countries.
But perhaps the most important point is that, for Iraqis, this dilemma was nonexistent.
For them, justice for Saddam Hussein is the death penalty upon conviction for the killing
of 148 Iraqis in the village of Dujail in 1982 or the use of chemical weapons on Kurdish
Iraqi citizens during the al-Anfal campaign in 1989, all crimes with which he has been
charged. Without the death penalty a war crimes prosecution of Saddam Hussein would
have no legitimacy in the eyes of Iraqis. This factor, among others, made the trial of
Saddam Hussein by an Iraqi tribunal rather than an international one inevitable.
Another key issue is that international human rights standards require that the accused
person in a criminal trial have the right to counsel. Saddam Hussein has exercised this
right throughout his trial, though it appears to have been breached when, in the pretrial
phase, he was arraigned before the IST without the benefit of legal assistance and
representation. As is well known, three lawyers in Saddam Hussein's defense team have
been assassinated in the context of the political and sectarian violence that has wracked
Iraq. These assassinations are not the result of Iraqi government policy or even
encouragement, however, but have more to do with the breakdown of order and random
insecurity in the country. The government and the IST have a responsibility to offer
effective protection to Saddam Hussein's defense team, but there is no evidence pointing
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to a lack of will on the tribunal's part to afford him the right to a defense. The trial
process itself, including the appointment of defense lawyers by the court for the
defendant following a sustained walkout by him and his defense team, bears out this
conclusion.
The next factor to consider in assessing Saddam Hussein's trial is that of courtroom
decorum and the extent to which judges can, or should, exercise control over the
dynamics of courtroom proceedings. Putting ex-leaders on trial for war crimes is never a
cakewalk. From Arusha, Tanzania, where Rwanda's ex-leaders have been on trial for the
past decade, to The Hague, where Slobodan Milosevic ran rings around his trial,
articulate and intelligent former leaders have sought to undermine the credibility of their
trials. They have painted the proceedings as victors' justice, gone on hunger strikes, made
rambling, lengthy speeches, and staged cacaphonous walkouts.
Thus, similar occurrences in the trial of Saddam Hussein--and the judges' efforts to
restore discipline to the proceedings--are not unique. Dramatic television images
notwithstanding, no objective observer can interpret the assertion of judicial control over
such proceedings as a violation of the defendant's rights or a descent of the trial into a
farce. Indeed, it is the responsibility of the presiding judge to ensure the right balance
between the defendant's rights and the need for expeditious justice, for justice delayed is
also justice denied. In this context, the trial of Saddam Hussein holds up better than that
of Milosevic.
The standard of proof for convictions in war crimes trials is also pertinent. In the
international war crimes tribunals at Arusha and The Hague, in which the common-law
legal tradition is dominant, the standard used is proof beyond a reasonable doubt. In the
Iraqi tribunal, under Iraqi law, it is proof to a standard of "moral certainty." Despite the
difference in wording, in practice there is little if any substantive difference. The Iraqi
tribunal is modeled on the "inquisitorial" civil law system in which investigative judges
prepare cases based on evidence, and thus have a much more active initial role than
judges in the "adversarial" common-law tradition, in which the role of the defense
counsel is much more robust while the judge appears more neutral. This is thus a matter
of legal systems. There are several legal traditions and they are not illegitimate--or
necessarily violate the defendant's rights--simply because we may be unfamiliar with
them; this is a cultural problem rather than a legal one.
CONCLUSION
In conclusion, then, the trial of Saddam Hussein passes the test of fairness. The statute of
the Iraqi Special Tribunal provides the necessary safeguards--a public trial, a right to
counsel, a presumption of innocence of the accused, a right to confront witnesses, and the
right of appeal. To be sure, the trial has not been perfect, but then war crimes trials never
are. There is always room in a criminal trial--even in domestic trials, let alone
international ones--for the wisdom of hindsight. It was a mistake, for example, not to
have provided Saddam with the services of counsel before his pretrial arraignment, and
greater effort should have been made to protect the judge and the defense lawyers who
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have been assassinated during the course of the trial. But, if we were to say that the
political context of Saddam Hussein's trial or its genesis in his defeat in a war makes it
illegitimate, we might as well conclude that all such trials, including those at Arusha and
The Hague, which have also been criticized for their political selectivity in determining
who is brought to trial for war crimes, are kangaroo courts.
To hold such a position would discount the objective reality of the crimes committed-and for which the victims demand justice. Saddam Hussein's trial is no exception. A
wider contextual reality is that because, unlike in the domestic sphere, there is no
overarching sovereign in the international society of states, war crimes trials are often
either a product of political consensus among groups of states or a straightforward
weapon of the strong against the weak. Often, they are both. But this is a truth that does
not negate the crimes of tyrants such as Saddam Hussein, who also frequently happen to
be rulers of weak states.
There lies the rub: Who will try the infractions committed by powerful states? For the
foreseeable future, the internal democratic or judicial processes of powerful states are
best positioned to act as an effective check on arbitrariness. The decision of the United
States Supreme Court in Hamdan v. Rumsfeld, ruling that the military commissions set
up by the U.S. government to prosecute terrorist suspects are not authorized by law, and
that the provisions of Common Article 3 of the Geneva Conventions relating to the
treatment of prisoners of war apply to suspects captured in the war against terrorism,
demonstrates this prospect.
This concluding point is pertinent because it brings us back to where we began--the
nature of war crimes trials as political justice, in which power relations undeniably play a
major role. There is simply no solution to this problem in the foreseeable future except
the prospect of self-enforcement of humanitarian law by the domestic institutions of a
great power. The point addresses, even if imperfectly because we live in an imperfect
world, the central argument against the trial of Saddam Hussein--that his trial is "unfair"
because he was ousted by a superior military power, or because he was not prosecuted
before an international tribunal. As I have demonstrated, these are political, not legal,
arguments. Some critics who make the point, however, deny the political nature of their
argument, and interpret political or ideological positions as legal ones.
In contrast, I have sought to establish the objective point that, because all war crimes
trials are political, the test of fairness in the trial of Saddam Hussein must factor in this
inherent characteristic of such trials. Within that context, the real issues are those of
whether the procedure utilized was a fair one (it generally has been) and whether the trial
is also "fair" to the victimized individuals and society as well as to the defendant (it is,
because Saddam Hussein is facing justice at home), and whether the guilt of Saddam
Hussein for the grave crimes alleged against him is convincingly established.
Kingsley Chiedu Moghalu *
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