Prosecuting Nazi War Criminals
By Eli Rosenbaum
The Holocaust, the Shoah, is a catastrophe too great even to be absorbed, much less comprehended. At the Office of Special Investigations (OSI) we have to deal with the reality of the acts which accomplished the near-total destruction of European Jewry.
After World War II, countries that were generous in accepting immigrants from war-torn Europe; countries like the United States, Australia, Canada and England, which collectively took in hundreds of thousands of displaced persons, also took in thousands and thousands of people who were implicated in the Shoah and other Nazi crimes. We know that at least hundreds and perhaps thousands of them came to the United States. And its simple arithmetic, my friends. Australia took in a large number of displaced persons. Your country had immigration investigation, background investigation procedures that were virtually identical to those the United States had. They were just as flawed as ours. And so, at a minimum, hundreds of these people came to your country as well. And probably just under half of them are still alive.
In my country, occasional prosecutions were attempted, civil prosecutions, we dont have criminal jurisdiction under our constitution. We can, at best, bring citizenship revocation cases. And then if we succeed in that, we attempt to deport these people from the United States. That was attempted in the 50s and early 60s with hardly any success. By the early 1960s, my government gave up and all the Nazi criminals who had moved to the United States were confident that they had gotten away with it.
In fact they almost had gotten away with it but for one courageous lady named Elizabeth Holtzman, who was a congresswoman from the state of New York and who received allegations that Nazi criminals had actually come to the United States and that the United States government was doing nothing about it. Hearings were held in our Congress in 1977 and 78. The result of those hearings was the enactment of a law now known as the Holtzman Amendment that rendered individuals who took part in Nazi crimes against humanity under the Nuremberg charter excludable from the United States.
Liz Holtzman put enormous pressure, almost single-handedly, on the Carter Administration to create a special unit. She understood that these cases cannot be investigated by regular police units. Even the Federal Bureau of Investigation, the FBI, as fine a national police force as I think you will find anywhere in the world, was not up to the task of investigating these cases. You need unique skills, you need language skills, you need historical skills, you need to know how to do research in foreign archives, you need to know how to find the proverbial needle in a haystack in these documents. You need to have a proper sense of understanding what happened in the various countries of Nazi Europe.
Finally in 1979 an office was established, now known as the Office of Special Investigations, and we were given this responsibility. But our supporters said to us, "Look, we are realists. We have a sense of the daunting obstacles that lay in your path." First of all, we would not have the kind of evidence that prosecutors the world over are accustomed to have. We wouldnt have a murder weapon. We wouldnt have a fingerprint. We wouldnt even have the corpus delecti, the body. And we were reminded that our best evidence, therefore, was likely to be documents. But do you know what? The typical Nazi crime was not reduced to writing; they did not record the name of each killer of each victim. And in the closing months of the war when the Germans and their acolytes realized that all was lost, they built huge bonfires to destroy the documentation.
So our supporters said to us that if we succeeded in citizenship revocation in a few cases, two or three or four, then consider that a victory. It would send a message to every other person in my country that took part in these crimes that the law might just catch up with them. But our supporters said to us that they really didnt think that we would be able to ultimately deport anyone; that there wouldnt be time, that the evidence mightnt be there. Does that sound a bit familiar here?
In light of those pessimistic projections, I am relieved to report as someone who has been at this almost since the beginning, that we have to date succeeded in obtaining the denaturalization of more than 60 individuals who took part in these crimes and we have thus far removed from the United States 53 of them.
I will say immodestly that our record in these cases exceeds that of all the other countries in the world in the past 10 years, combined and multiplied by five. And that, I think, is less a tribute to the dedication and talents of our staff, which are considerable, than it is so much a condemnation of the rest of the world, Europe in particular. Whatever responsibilities our countries have – Australia, Canada, the United States, England – lets face it, the principal responsibility for securing justice in these cases lies with Germany, Austria, Hungary and Romania, the countries that perpetrated these crimes. We in my country, you in your country, ought to be flooded with extradition requests from these countries. Of course, that is not happening. Austria has not prosecuted a war crimes case since 1971. Germany has largely ceased prosecuting these cases; the only case I think that they prosecuted in recent years was the Hering case which actually and ironically arose out of an SIU investigation here in Australia.
There is a Hollywood conception, I think, of our work, that is exemplified by any number of movies in which Holocaust survivors in the United States recognize their former tormentors on the street and give chase. The way we go about developing these cases is very different and only governments can do it. No private organization, no Nazi hunters can do this, only governments have the resources, and more importantly the access to information, to national data bases, thats required to do this work successfully. Our historians brought back to Washington nearly 70,000 names of Nazi suspects. They are checked methodically, name by name, in the US Immigration Services database of documented immigrants to the United States. It never fails to fascinate me the types of people that we identify in that way. And governments that havent engaged in that kind of process have absolutely no idea who the Nazi criminals are living in their country.
We have now the highest rate of successful litigation of any component of the Justice Department Criminal Division. We are busier than ever. And the reason we are busier than ever is one no one but a madman might have predicted as recently as 1989 and 1990. And that is the collapse of the Soviet Union. That has meant for us and others who investigate these cases that we can now get our own investigator-historians into the archives behind the former Iron Curtain. And what we have found there is a veritable treasure-trove of evidence. Cases that languished as investigations in our office literally for years suddenly became prosecutable cases, provable in court. And we learn from these records the identities of people living in our country who were previously unknown to us and weve been able to prosecute those cases as well. Interestingly, this newfound access to archives behind the former Iron Curtain occurred just as the Special Investigations Unit in your country was closing.
Weve learned so many lessons from our work. One I mentioned is that this work cannot be done by the police. This work can be done only by specialists.
Weve learned that you cant rely on outsiders to tell you who the Nazis are. They have sometimes useful information and it has to be pursued. But it is not right for governments to sit back and then expect somehow the Jewish community, the victims of this crime, to know who the perpetrators are. Its not the responsibility of the victims to do this investigative work. Its the responsibility of the governments of the countries that perpetrated the crimes and the governments of the countries where these people live today.
Weve learned that extradition, while important in some cases, is not going to be the answer because we will never get Europe to request extradition as often as it should. Let us be honest. As little as Europe cared to intervene while the crimes were being perpetrated, it cares even less to be reminded of those crimes now.
One of the lessons that we have learned, and we see it increasingly, is that defendants will, if all else fails, claim they are medically incapable of proceeding. And they will find doctors who will sign anything. This has been attempted in our country numerous times. And only rarely are they a genuine person of medical incapacity. As soon as there is a claim or even a suggestion of medical incapacity, we say to the opposing council ‘fine, we want our doctors to look at your client. And we have excellent doctors, with a lot of experience, mostly gained in organized crime cases, in seeing through these kind of ruses.
In a sense the most important lesson that weve learned is that even at this late date, these cases of 55 years ago and older are capable of successful investigation and they can be successfully proved in court.
Let us look, if you will, just at the past month, February 2000. In one month, my office won two prosecutions. One at the United States Board of Immigration Appeals, the other, two weeks ago, at the United States Supreme Court, involving the case of former Auschwitz SS man Ferdinand Hammer. The Canadian government, just last week, won its citizenship case against Helmut Oberlander, a member of a mobile killing unit. And just last month, the British authorities won the appeal of the Sawoniuk case, a Ukrainian perpetrator, at the High Court in London. And only a few months ago the Croatian government, which frankly had to be dragged kicking and screaming into this prosecution, successfully prosecuted Dinko Sakic, the former commandant of the Jasenovac concentration camp. In a very real sense, in these cases, some of them are actually easier to prosecute now than they were a few years ago for the reason that we now have better access to the documents of the Holocaust.
A few quick comments on the Australian situation. In the late 80s and early 90s, it was my privilege to serve as liaison for the Special Investigations Unit of the Australian Attorney-Generals Department. I worked very closely with Bob Greenwood and Graham Blewitt and their talented staff. They put together some important cases. And I shared and still share their disappointment that those cases failed. At least they failed in courts of law. They didnt fail in another sense. We all know that. By aggressively prosecuting some suspects, they sent a message to all the other people in your country who took part in these crimes and the message was: "You could be caught tomorrow. You didnt get away with it. Not necessarily. You may wake up tomorrow to find out that the SIU knows who you are."
One of the things that Ill be doing while Im here in Australia is meeting with officials with your government; once again offering the assistance of my office, in the event that they should decide to reinvigorate their investigations of these cases. We do what we do in my office, I like to think, on behalf of the millions of innocents murdered by the Nazis; on behalf of all of their families, of all of the other victims of the Nazis. I am pleased that we have outstanding support from the Administration and from all the Administrations that have served since 1979.
With the bipartisan support that we have in the United States and the broad support of the American public and especially with the help of the survivors who are, as I say, the heroes of our prosecutions, we will continue to try to leave no stone unturned in this effort, so no-one in my country who took part in these crimes can ever be able to think "I have gotten away with it."
Eli Rosenbaum is Director of the Office of Special Investigations at the US Department of Justice. He visited Australia as AIJACs guest in early March. The above is an edited version of an address given in Melbourne on March 6.
Source: The Review of the Australia/Israel & Jewish Affairs Council (AIJAC), (April 2000)