Prosecuting Nazi War Criminals

Alan S Rosenbaum

• Éditeur: Routledge
• Année: 2019
• ISBN:
  9781000308365
• Édition: 1
• Sujet: Law
• Sous-sujet: Criminal Law

It has been nearly fifty years since the collapse of the Nazi regime; is there any longer a point to presenting for the apprehension and prosecution of surviving Nazi war criminals? In this carefully argued book, Alan Rosenbaum makes it clear that there is. He contends that apart from concerns about obligations to the dead or vengeance against the

1
Introduction

In this book I propose to defend the thesis that the continuation of earnest efforts at prosecuting fugitive Nazi war criminals is an urgent moral imperative. The main reason for the assertion of a moral necessity behind my thesis is the indefeasible connection existing between the discharge of such an obligation and respect for basic moral values and principles of justice, social order, and democracy. A failure to fulfill this obligation by permitting the Nazi offenders to evade justice will be shown to violate the values and principles that bring an ideal standard and meaning to our lives as morally autonomous social beings. There is a supervening affirmative duty to prosecute the doers of serious offenses that falls on those who are empowered to do so on behalf of a civilized community. This duty corresponds to our fundamental rights as citizens and as persons to receive and give respect to each other in view of our possession of such rights. Dealing seriously with rights (and values and principles), i.e., fulfilling duties to others, entails dealing seriously with rights violations, As I will explore throughout this book, it is clearly a flouting of such a basic obligation to fail to bring Nazi persecutors to justice, especially by allowing rebuttable considerations like time and resource expenditures, and the dying off of remaining Nazi war criminals (and their surviving victims), to influence whether or not they get prosecuted.

Indeed, the urgency for pressing the case for prosecution, though secondary to the main argument, I believe springs from two sources. First, the population of surviving fugitives from justice is diminishing rapidly, and soon all the perpetrators as well as their surviving victims will perish by natural attrition. After all, it has been almost a half century since the commission of the Nazi crimes. Second, the unique evil of the Holocaust compels the political and judicial authorities in our generation to confront in a high-minded manner the question that future generations will ask about the rectitude of our generation's response: Did we do what was necessary to bring to justice those who committed the Nazi atrocities?

As the immediate poignancy of the Holocaust recedes into historical perspective, the growth of the postwar generations overwhelms the few remaining survivors in the totality of the world's population. The immense volume of indisputable documentation about what happened in the Holocaust is accessible, coherent, and reliable. The problem, then, is not what occurred but rather how the enormities of the Third Reich are to be remembered. I take this concern to be of paramount importance in framing my arguments for sustained prosecutions of Nazi war criminals. For in holding the perpetrators of the most serious of crimes accountable for their actions, we also demonstrate the seriousness with which we respect such considerations as the principles of justice.

Arguments that oppose the continuation of the process of prosecution, some of which stem from Holocaust deniers or have been resurrected from those marshaled against the original wave of trials at Nuremberg (1945-1946), have an attractive veneer of reasonableness, particularly to the increasingly large numbers of younger people who have little or no knowledge of the genuine nature and dimensions of the Holocaust. Therefore, my assessment of the various arguments relating to bringing Nazi criminals to justice must be framed within a context that characterizes or highlights the most egregious facets of the Holocaust.

In the next chapter, I offer a brief overview of the Holocaust. Philosophically it is important to suggest, at least in part, that the special nature of the Nazi crimes, coupled with the official accountability of the offenders, should constitute a paradigm case of the universal significance of prosecuting Nazi criminals for prosecuting future offenders suspected of serious wrongdoing. In Chapter 3, I explore certain aspects of the aftermath of the defeat of Hitler's Third Reich, including the Nuremberg trials and related legal and political issues such as the charge of "victor's justice" and the overall fairness of the concept and proceedings. In Chapter 4, I characterize a rights-based, democratic concept of the rule of law and contrast it with some core features of the Nazis' legal system. The concept of the rule of law will be used to further support my argument in favor of continuing to prosecute all remaining Nazi war criminals. Chapter 5 deals with the Nazi fugitives and their postwar escape from accountability. The general contours of their escape will suggest not only the complexity involved in tracking these people down but also the legal, political, and moral difficulties in bringing them to trial. In Chapter 6, I explore the questions about responsibility: Who is responsible for prosecuting Nazi war criminals, and who was responsible (either morally and/or legally) for the Holocaust and, in the end, who is to blame, morally and legally. Finally, I address a set of recurrent arguments against prosecuting Nazi war criminals and mount a rebuttal to these claims.

In general, if my book contributes to the clarification of (what I believe is) the compelling moral case that these prosecutions ought to continue, it will have served its primary purpose. And perhaps, through promoting more successful prosecutions, it will reveal how the moral bond between past and future generations may be strengthened. It will indicate that for all those who perished in the Holocaust, "we in the present generation have not forgotten you." But also, to those who were responsible for the Nazi persecutions, "you, too, have not been forgotten!" In this vein, I am reminded of a "war" poem that may be interpreted as a metaphorical call to discharge the special obligation I believe we have in the wake of the Holocaust to restore a certain moral equilibrium:

Take up our quarrel with the foe:
To you from failing; hands we show
The torch; be yours to hold it high.
If ye break faith with us who die
We shall not sleep though poppies grow
in Flanders fields.¹

As we reflect in more general philosophical terms about our connection today to these events of the 1930s and 1940s, what do we tell ourselves and allow to be told about the Holocaust? And when our children and our children's children inquire about the Holocaust, an important recurring question is what will our generation teach them about how the Nazi genocidists and their collaborators were dealt with? Did we forgive them ex parte in the absence of any official regret or even acknowledgment by them of wrongdoing? Did we ignore or allow the persecutors who survived and escaped official accountability to assume positions of standing in respectable society? Were they permitted or even helped to resettle in some safe haven or to establish false identities, if necessary, to ensure their not being detected? Did we conscientiously bring to trial all those for whom justiciable evidence could be gathered? Successful prosecutions of Nazi war criminals not only do justice and provide a document of who did what to whom but, in addition, bolster our commitment to upholding—for us and the younger generations—our most cherished values by bringing to account those who assaulted them by advancing and implementing an anti-Western ideology based (among other things) on war and genocide.

In this vein, it is increasingly common for uninformed younger people born after the defeat of the German Third Reich to ask: What did the Nazis do that was so terrible that may explain or justify—so many years later—the pursuit of remaining Nazi fugitives to bring them to justice? Historical revisionism trades on such ignorance. Since the Holocaust occurred while the Nazi Reich was at war, it mistakenly appears or is made to appear to some people to have been a natural part of the war effort. For in the immortal words of General William Sherman, "War is hell!" Accordingly, whatever combatants do to one another in the course of hostilities can only be explained and even excused as essential to war. Yet, this reasoning goes, things sometimes do get out of control, and excesses are committed; but this is what war is, "war is hell."

Although I deal with the established rules of war in Chapter 3, a terse reply to this hidden but specious assumption (that war explains if not excuses all acts done in its name or under its cover) that lies behind the aforementioned—and perhaps innocent—question is the following. In the first wave of prosecutions against the Nazi leadership at Nuremberg, the charges against the defendants clearly distinguished between the essentials of war, i.e., the range of suitable conduct in furtherance of the aims of war and, on the other hand, crimes against humanity, crimes of aggression and war crimes. These crimes were regarded as a significant violation of established rules of war (see Chapter 4) and universal standards of morality. So in response to the question about what the Nazis did to warrant such charges and efforts to prosecute Nazi fugitives, the standard reply is that they masterminded and implemented a strategy to exterminate systematically the Jews of occupied Europe, viz., the Holocaust, and they also persecuted and murdered many millions more, including Gypsies, Slavs, Poles, the handicapped, gays, and political dissidents.

Definitions

Before I give an overview of the Holocaust, the term itself requires definition. The term has evolved from its earlier religious connotations of a "sacrifice wholly consumed by fire" (The Oxford English Dictionary, 1989) of a global conflagration to "the earth being burnt to a cinder in nuclear war" and finally to its current usage, the Nazis' so-called Final Solution to the Jewish Question; or the deliberate systemative "destruction of European Jewry."² However, the term has been used—or misused—to characterize diverse instances of suffering, e.g., the legacy of black slavery in the United States, the internecine slaughter of Cambodians under the Pol Pot regime, the Turkish genocide against the Armenians, and, ironically, the plight of Palestinians in relation to Israel; and some religious zealots have used it in reference to abortion. In short, the term has been applied to almost any instance of widespread suffering. These various applications of the term are not without dispute. Nor am I inclined to argue that these instances of suffering are somehow less worthy of consideration than the suffering of the Jewish people in the Holocaust. Without impugning the motives of those who deliberately inflate the meaning of the term "Holocaust" (unless it is clear that Jewish suffering is being downgraded for antisemitic reasons), I believe that it is intended as a paradigm of human suffering. This is not to suggest that Jewish suffering has "moral primacy" over the sufferings of other individuals or peoples, as if to diminish the horrors non-Jews have experienced. Rather, in the interest of fairness and truth, it is necessary to catalogue both the similarities and differences among cases of catastrophic suffering, thereby giving each case its due. Therefore, I would prefer to underscore the usage that has been reserved for the Nazi genocide against the Jews while stressing the universalizing character of the enormity of certain crimes like the Holocaust that human beings under quite specific circumstances and conditions can visit upon their fellow beings.

One other tack I shall note seeks to merge the Holocaust into the stream of universal abstractions such as "man's cruelty to man" or "human suffering." In doing so, the term tends to lose its special character, and even becomes trivialized. In fact, there is what seems to be a natural tendency among some of my colleagues in professional philosophy to find or bestow value on things only insofar as they can be categorized, subsumed, or construed as mere instances of a more general thing of importance. For example, causal historical explanations of the Holocaust that are encased in generalized abstractions like "human actions" (in R. G. Collingwood's idealist theory) or "insanity" (associated with positivism's hierarchy of laws) or even Hitler's Weltanschauung end up explaining very little of consequence or nothing.³ As such, the enduring value of the Holocaust is calibrated by its conceptual proximity or similarity to other similar expressions of the generalized abstraction. In this way, nothing "unique" or "singular" or paradigmatic remains of the Holocaust. In my view, giving full recognition to the unique evil of the Holocaust—in both event and name—one people's suffering ought to be seen as an essential condition for acknowledging the equally immoral suffering other people are made to endure.⁴

In the overview in Chapter 2, the universal implication of the Holocaust, as I intend it, is that it is a clear illustration of how people can do atrocious things to other people if preventive measures and conditions are not in place. In this sense, the Holocaust may be "a generic name for an ideologically motivated planned total murder of a whole people," but it is to date the worst case of genocide in this century. Yet an argument may be made that the Armenian genocide by the Turks (1914-1918) is sufficiently similar to the Holocaust so that the latter cannot be singled out as unique. The problem with this claim, despite a number of obvious parallels, is that it ignores the important differences between the two cases, viz., that the Turks, on the one hand, not only murdered Armenians within Turkey for practical reasons of political power but did so in violation of their own moral standards. The Nazis, on the other hand, killed Jews by moral imperative through a process of summary execution or ingathering from all occupied territories and then murdering them, the motive being that the Jews were regarded as the obstacle to world progress. The Turks never intended to wipe out the seed of the Armenian people everywhere, whereas the Nazis intended by murder to make the world "Jewish-free." In summary, the Armenian genocide ought to be placed on the "continuum of evil" closest to the Holocaust because ...