WAR CRIMES TRIALS
Crystallization of the Principles of International Criminal Law
Immediately after the outbreak of World War II, when the first Nazi violations of the laws and customs of war as defined by the Hague and Geneva Conventions were revealed (and in particular as they affected the noncombatant population and prisoners of war), the Allies began to publish official notes, warnings, and declarations. On September 3, 1939, Czechoslovakia's president-in-exile, Eduard Beneš, sent a letter to the British prime minister Neville Chamberlain, reporting the persecution of his country's civilian population at the hands of the Nazis. In 1940 several statements were published by the governments of the United Kingdom, Poland, Czechoslovakia, and France on the violations of the laws of war in Poland. Crimes against Jews were likewise mentioned. These governments warned Germany and stressed the responsibility of the Nazi regime for the criminal acts. On October 25, 1941, President Franklin D. *Roosevelt of the United States – then a neutral nation – stated that "the Nazi treatment of civilian population revolts the world," while British prime minister Winston *Churchill declared that "retribution for these crimes must henceforward take its place among the major purposes of the war." But this was more an expression of outrage in a propaganda war than a concrete plan of action for a postwar world. After the German invasion of the Soviet Union in June 1941 and the ensuing crimes against the civilian population and prisoners of war, the Soviets also began to publish statements on the subject. The Soviet foreign minister, Vyacheslav Molotov, declared in his notes of November 7, 1941, and January 6, 1942, inter alia, that the Soviet government held the leaders of Nazi Germany responsible for the crimes committed by the German army. One of the important steps toward punishment can be seen in the St. James Declaration made in London on January 13, 1942, in which the representatives of the governments-in-exile – of Belgium, Netherlands, Yugoslavia, Norway, Greece, Luxembourg, Poland, Czechoslovakia, and the Free French – declared that the punishment, through the channels of organized justice, of criminal acts perpetrated by the Germans against civilian populations was among the principal war aims of the signatories. Also present at the St. James Conference were representatives of belligerent but nonoccupied countries, among them the United Kingdom and the United States. The St. James Declaration did not specifically mention the crimes against the Jews. This policy of Totschweigen ("hushing up" the Jewish tragedy) aroused Jewish opinion in the U.S. and Britain, and a protest against this policy was lodged on February 18, 1942. Only on December 17, 1942, did the British foreign secretary, Anthony Eden, make a statement in the House of Commons (published simultaneously in London, Moscow, and Washington) on the physical destruction of Jews, of which the Allies had a growing awareness, as it developed, in 1941 and 1942 (see *Holocaust).
Another important step toward this objective was the publication of the Moscow Declaration of November 1, 1943, in which the three principal powers, Britain, the United States, and the Soviet Union, solemnly committed themselves to the punishment of those responsible for war crimes. The Moscow Declaration distinguished between criminals whose acts were committed within the boundaries of specific countries and the "major criminals" whose "offenses have no particular geographical location and who will be punished by a joint decision of the governments of the Allies."
The first international body to make preparations for punishment of the criminals was the United Nations War Crimes Commission (UNWCC). A proposal for its formation was announced in October 1942 and it was constituted on October 20, 1943. Its objects were to investigate the atrocities and record the names of the individuals responsible. Participants in the commission were representatives of Australia, the United States, Belgium, Britain, Denmark, the Netherlands, Yugoslavia, Greece, Luxembourg, Norway, New Zealand, China, Poland, Czechoslovakia, France, and Canada. The Soviet Union, embroiled in controversy over the composition of its representation, did not join the commission.
At the Yalta Conference in February 1945, the last attended by Roosevelt, the president advanced the idea that an international tribunal should be convened to try Nazi leaders for planning and waging a war of aggression and for war crimes. Soviet leader Joseph *Stalin favored the legalist approach but wanted to confine the process to crimes committed in war; Churchill and Eden preferred summary trial and execution.
The various Allied activities culminated in the London Agreement of August 8, 1945, which established the International Military Tribunal, and in the Tribunal's charter, which dealt with substantive and procedural rules. One of the decisive contributions toward the formulation of the revolutionary principles of Nuremberg was made by Hersch *Lauterpacht, a British Jewish law professor originally from Galicia. Lauterpacht defined the three crimes in the charter: crimes against peace, war crimes, and crimes against humanity. In his studies and books, Lauterpacht, who later became a judge of the International Court of Justice, formulated the "Nuremberg principles," which were accepted not only in the London
The first comprehensive description of violations of international military law was offered by Raphael *Lemkin – a Polish Jewish legal scholar who had lost his family in the Holocaust – in his book Axis Rule in Occupied Europe (1944). It was Lemkin who coined the term "genocide," which was not adopted by the courts but served as the subject of a special international convention. The main theoretical and practical work in the field by world Jewish institutions was done by the *Institute of Jewish Affairs of the *World Jewish Congress. The political department of the *Jewish Agency also collected incriminating material, prepared lists of war criminals, and presented them to the institutions of the Allies dealing with the location and trial of Nazi criminals.
There were differences of opinion among the Allies as to what to do with the Nazi leadership. As the war was ending, President Roosevelt was at first convinced by Henry *Morgenthau, his Jewish secretary of the Treasury, that the top Nazi leaders should be summarily shot once caught. At the Quebec Conference in September 1944, Churchill also supported this approach. A list of 2,500 "archcriminals" set for execution by military firing squad was being created by Morgenthau's assistants. Secretary of War Henry Stimson strongly argued, however, for holding trials. After a great deal of intracabinet dueling, Roosevelt eventually abandoned the so-called Morgenthau Plan (which also called for destroying Germany's industrial capacity and turning it into "a country primarily agricultural and pastoral in its character") in favor of Stimson's legalist approach. Murray Bernays, a young Jewish lawyer in Stimson's office, drafted the first outline of how the Nazi archcriminals should be tried. Bernays also came up with the idea of putting on trial not just individuals but also Nazi organizations, using the Anglo-American legal doctrine of conspiracy liability. Stalin also favored trials, but the kind of show trials mounted by the regime in the Soviet Union, in which guilt was predetermined. The Soviet Union and France were uninterested in conspiracies and Britain shied away from conspiracies against the peace. The Soviet Union wanted to restrict the trials to the war years alone. Ambiguity papered over diplomatic differences. The importance of the trials was enhanced when President Harry S. Truman named Supreme Court Justice Robert Jackson, who took leave from the Court, as the chief American prosecutor. The move was virtually unprecedented and it enhanced the stature of all that was to follow.
Number of Nazi Criminals and Their Collaborators
As it is not possible to establish exactly the number of German criminals who participated in the annihilation of the Jews; only an estimate is possible. One ordinarily thinks of two main groups of criminals: the instigators, planners, and commanders who directed the killing operations or with whose knowledge, agreement, or passive participation these acts were committed; and the actual implementers of the plans and commands at various levels of authority and initiative. But there was also a wider circle of persons involved, including those who designed and engineered the gas chambers and the crematoria and those who built the economic infrastructure that allowed the camps to flourish. Also involved were the corporations that invested in these camps, and that used slave laborers there and worked them to death. The first group, to which the leadership of the German government belonged – the heads of ministries, the Nazi Party, the armed forces, the Gestapo, the SS, and the RSHA (Reichssicherheithauptamt, Reich Central Security Office) – numbered many hundreds. The second group included hundreds of thousands – members of the Gestapo, the SS, the Waffen SS, the SD, the police with its many branches, the armed forces; officials from special departments of the Foreign Ministry and Ministry of the Interior who dealt with Jewish matters, the staffs of the concentration camps, doctors who practiced in the concentration camps, lawyers, judges, and many others. The estimate of hundreds of thousands who participated actively in the annihilation of the Jews and other crimes is no exaggeration. This number, furthermore, does not include collaborators from the conquered territories – Croats, Ukrainians, Latvians, Lithuanians, Estonians, Byelorussians, Russians, and others. Many tens of thousands of collaborators who participated in the planning and execution of the murder of Jews, Soviet prisoners of war, and local civilian populations were able to retreat together with the Germans as they fled from Eastern Europe, and later escaped – posing as innocent refugees – to the United States, Canada, Great Britain, Australia, and Latin America. During the war, many of these killers were organized in special units – often referred to as Schutzmannschaft units – mostly within the framework of the Security Police (SD), among them such notorious murder squads as the "Special Detachment" (Ypatingas burys) and the 12th Lithuanian Auxiliary Police Battalion in Lithuania and the Arajs Kommando in Latvia. They not only carried out the orders of the Nazis, but also killed tens of thousands of Jews on their own initiative. The murder of the Jews of Kaunas and other areas in Lithuania, for example, began immediately upon the evacuation of the Soviet army from these places, even before the first German soldiers entered. The same was true in the parts of Poland that had been occupied by the Soviet Union in 1939, in western Ukraine, and elsewhere.
Trials in Allied Military Tribunals
Nazi war crime trials began during World War II itself. The first trial of perpetrators of crimes against civilian populations was conducted in the liberated territories of the Soviet Union. The trial dealt with the abominable actions committed by the German invaders in the city of Krasnodar in the northern Caucasus. It opened on July 14, 1943, after the liberation of the area, with eleven accused, of whom eight were sentenced to death. The second trial dealing with annihilation of civilian populations and prisoners of war took place in the city of Kharkov, Ukraine, in December 1943. Three Germans,
THE INTERNATIONAL MILITARY TRIBUNAL (THE FIRST NUREMBERG TRIAL)
The specific question of war crimes and crimes against Jews, defined then as "crimes against humanity" under the general policy of the infamous Final Solution, was considered only after World War II, first by the International Military Tribunal (IMT) at Nuremberg that tried the heads of the Nazi regime who had been captured by the Allies.
The IMT trial, the first of the Nuremberg trials, was conducted from November 1945 to October 1946. The defendants included Hermann *Goering, the most prominent Nazi the Allies had captured, who officially held the title of Commander of the Luftwaffe and several departments of the SS; Hans *Frank, governor general of occupied Poland; Ernst *Kaltenbrunner, head of the RSHA; Joachim von *Ribbentrop, Reich minister for foreign affairs; Julius *Streicher, gauleiter of Franconia and editor of Der *Stuermer, the infamous antisemitic publication; Martin *Bormann, chief of the chancellery of the Nazi Party and Hitler's private secretary, who was tried in absentia. (Some of the most prominent Nazi criminals and German government leaders managed to evade justice and were not brought to trial at Nuremberg, including *Hitler, *Himmler, *Goebbels, and Robert Ley, who committed suicide [the latter hanged himself in his cell while awaiting trial at Nuremberg]; Reinhard *Heydrich, charged by Goering with the implementation of the Final *Solution, was assassinated in 1942; Heinrich *Mueller, one of the heads of the *Gestapo, disappeared without a trace. Martin Bormann, tried in absentia, was never found. Having fled from the chancellery bunker on May 1, 1945 as the Red Army was closing in, he was said to have been killed by the Russians; his death in Berlin was supposedly confirmed by evidence found in 1972, but he was also rumored to have escaped to South America.)
In accordance with the principles of the London Charter of August 8, 1945, an indictment was brought by the principal prosecutors of the four main Allied powers, detailing the accusations against each of the defendants as well as against six organizations defined as criminal: the Reich cabinet, the Leadership Corps of the Nazi Party, the SS, the SA, the Gestapo and SD, and the General Staff and High Command of the German armed forces. In preparing the material, as well as during the trial, the four prosecutors had the cooperation of the delegations of the other members of the anti-Nazi alliance and some representatives of Jewish organizations, in particular the World Jewish Congress' Institute of Jewish Affairs, founded as a documentation center in 1941, headed by Jacob *Robinson. The latter assisted in the preparation of the material and in the formulation of the statement concerning the persecution and murder, which the Germans called "extermination," of the Jews. Nuremberg was chosen as the site of the trial not because of the Nuremberg Laws or its role as the location of grand Nazi Party rallies but because the city had not been completely ruined during Allied bombing raids and was in good enough condition to host the trials, with a standing courthouse (still in use today). Courtroom 600 of the Palace of Justice, where both the IMT trial and subsequent American zonal trials were held, is still in use as a working courtroom.
The proceedings began on November 20, 1945 and were concluded on October 1, 1946 – the date of Yom Kippur (the Jewish Day of Atonement) that year – with a judgment in which twelve defendants were sentenced to death, three to life imprisonment, four to prison terms, and three acquitted. The death sentences were carried out by hanging on October 16–17, 1946, except for that of Goering, who took poison before he could be executed.
Justice Jackson set the scene in his opening statement:
The charter of the International Military Tribunal at Nuremberg served as a basis for domestic laws later enacted in countries in which trials of war criminals were conducted (except for the Federal Republic of [West] Germany, which did not officially adopt the Nuremberg principles). The Tribunal, and four-power cooperation in general, did not continue after the judgment, due to the deteriorating relations between the Western Allies and the Soviet Union, leading to the onset of the Cold War.
British historian David Cesarani has assessed the importance of these trials: "The Nuremberg tribunal established a model for the future. It generated a detailed record and accumulated a mass of material, which ensured that the history of the Nazi era would not be forgotten easily and would make political distortions more difficult. The tribunal… satisfied the popular desire for retribution… and made, for the first time[,] the political echelon accountable in a court of international law for the planning and conduct of war." In 2005–06, on the sixtieth anniversary of the trials, conferences were held around the world commemorating their significance to the growth of international criminal law. A conference in Washington, D.C. cited the Nuremberg proceedings as "the birth of [modern] international law." The ad hoc international tribunals created by the UN Security Council in the late 1990s to try perpetrators of the atrocities in Yugoslavia and the genocide in Rwanda were
Certain dimensions of the IMT trial remained unclear. There was confusion between war crimes and crimes against humanity. The specific nature of what happened to the Jews became a background to the trial rather than its central theme; contrary to current popular belief, the crimes of the Holocaust played only a secondary role. The major emphasis, especially for the Americans, was to try the Nazi leadership for the crime of waging aggressive war.
Of significance also was that the Tribunal did not accept the defense of "merely following orders," though in many subsequent trials such a defense was invoked.
The proceedings also provided copious documentary evidence of the crimes committed by Nazi Germany. The material (trial transcripts, affidavits, and documents) was published in an official edition of 42 volumes in English, French, and German (English title: Trial of the Major War Criminals) between 1947 and 1949 (the "Blue Series") and constituted an invaluable contribution to the administration of justice to Nazi criminals in various countries, as well as to the study of the Nazi Party and the German administrative apparatus that implemented the "Final Solution to the Jewish Question" that is now known as the Shoah or Holocaust.
The Nuremberg judgment constitutes an important historical turning point, one of the great landmarks in the development of international law and international relations, whose importance has grown in recent years. Despite Nuremberg not being a trial specifically of the Holocaust, the IMT proceedings did expose the criminal measures against the Jewish people and did not submerge the victimization of the Jews in the general category of "racial persecution," "stateless persons," or other euphemisms. In this respect, it served as a binding precedent that was followed in subsequent trials almost everywhere. On the other hand, the IMT followed the provisions of the charter and considered as crimes against humanity only such crimes that were somehow connected with "crimes against peace" or war crimes – in other words with crimes committed after the outbreak of the war. Consequently, no attention was paid to such crimes as the April 1, 1933 boycott, the Nuremberg laws, Kristallnacht, etc.
There were many who found the trial problematic. Some Germans considered it victors' justice. Others regarded it as ex post facto law. The role of the Soviet Union in the invasion of Poland was deliberately ignored. Still others felt that Nuremberg was a distraction because they wanted to focus on the future and the swiftly developing Cold War – the next war – and not the last war. Others felt that the punishment given the convicted defendants, however great, was inadequate given the magnitude of the crimes. In subsequent years, as the punishments meted out to subsequent defendants became less severe, some questioned whether any real justice was achieved or merely the appearance of justice.
On December 20, 1945, the four Allied governments in occupied Germany enacted Control Council Law No. 10, which had special significance for the continuation of the Nazi trials and the definition of crimes against humanity. This law, with minor modifications, eliminated the connection between crimes against humanity and the two remaining crimes (crimes against peace and war crimes), and raised crimes against humanity to a level equal to that of the other two. This also extended the period covered by the law from the war years alone to the entire Nazi period. Control Council Law No. 10, whose articles dealt mainly with crimes against humanity, enabled each of the Allies, as well as military and civilian tribunals, to hold trials in conquered territories in Germany.
INDIVIDUAL ALLIED MILITARY TRIBUNALS
The 1945–46 trial at Nuremberg of the surviving Nazi leadership was the only one conducted by the IMT. Later trials, called Subsequent Nuremberg Proceedings or zonal trials (and also widely known as "Nuremberg Trials") were conducted by military tribunals of the four occupying Allied powers within their own occupation zones, under the terms of Control Council Law No. 10.
Twelve trials of special significance were conducted at Nuremberg by U.S. military tribunals ("Nuremberg Military Tribunals," composed of American judges) in 1946–49. (Other U.S. military tribunal trials were held at Dachau, also in the U.S. Occupation Zone, during the same period.) Justice Jackson's deputy, Telford Taylor, a lawyer serving in the U.S. Army and given the rank of brigadier general, took over the job as chief counsel for the prosecution after Jackson's return to the U.S. Supreme Court at the conclusion of the IMT proceedings.
The twelve cases were brought against groups of important Nazis who bore the chief responsibility for some of the most serious and significant of Nazi crimes. They were:
As noted above, the crimes committed against the Jews were not the main focus of the IMT trial. During the subsequent
One hundred seventy-seven Nazis were tried and convicted in these twelve trials. Of these, twelve were sentenced to death, 25 to life imprisonment, and the remainder to long prison terms. Proximity to the crime was taken as a measure of guilt. Those who were directly involved in the killing – doctors, concentration camp heads, Einsatzgruppen officers – received the most severe sentences. Thus, those who profited by the crime and developed the infrastructure that enabled the killings to proceed were treated more leniently.
The U.S. tribunals met in 1,200 sessions, and the trial transcripts cover 330,000 pages, aside from documents entered in evidence. This vast corpus of material supplements extensively that from the International Military Tribunal. A large part of the documentation of the military tribunal trials was published by the U.S. authorities in 15 volumes (Trials of War Criminals – "Green Series") in 1949–53.
In the U.S. military tribunal trials conducted in Dachau, 1,517 of the 1,941 defendants who were tried by 1949 were found guilty. Of these, 324 were sentenced to death, and 278 of these sentences were actually carried out.
In the British Occupation Zone, in Lueneburg, Hamburg, and Wuppertal, 1,085 defendants were tried before British military tribunals and 240 were sentenced to death. Among the more important trials in the British Zone, that of the SS guards at the *Bergen-Belsen concentration camp (the Bergen Trial, September 17–November 17, 1945) should be mentioned. Josef Kramer, the camp commandant, and his accomplices were convicted. Kramer was put to death.
In the French Zone, 2,107 defendants were tried and 104 sentenced to death.
The total number of Nazi criminals convicted in the three Western occupation zones between 1945 and 1949 was 5,025, of whom 806 were sentenced to death. Four hundred eighty-six death sentences were carried out; the remainder were commuted to prison terms of varying lengths.
Official or semiofficial figures are not available for the trials of Nazis in the Soviet Occupation Zone. It is assumed, however, that tens of thousands of Germans were tried there and that most of them were convicted and in large measure deported to Soviet territories to serve their sentences. (In 1955, in the wake of a Soviet-West German agreement, 8,877 criminals were freed. Another 749 were handed over to West Germany for further investigation.)
In the course of its work, the United Nations War Crimes Commission prepared 80 lists of war criminals, which together comprised 36,529 names (including Japanese). The Commission published a number of partial statistics on the period until March 1, 1948. The authorities of the United States, Great Britain, France, Greece, Netherlands, Norway, Poland, and Yugoslavia conducted 969 trials, in which 3,470 German defendants were tried. Death sentences were passed for 952; 1,905 were sentenced to varying prison terms, and 613 were acquitted.
Before the trials concluded, the political climate changed. The Cold War had begun and both the Americans and the Soviet Union were vying for the esteem of the German people. For some Americans, the Korean War made putting the Nazi period in the past ever more urgent. John J. McCloy, a former assistant secretary of war who became U.S. high commissioner for Germany in 1949, promulgated the Clemency Act in January 1951, commuting many of the convicted war criminals' sentences. By 1958 nearly all prisoners had been freed.
Trials in Liberated Countries and Israel
WEST GERMANY AND AUSTRIA
Courts in postwar Germany began to function at the end of 1945, when some of the Allies reinvested the Germans with the right to hold trials. According to a summary prepared by the Federal Department of Justice in Bonn, indictments were issued by the West German authorities against 9,401 Nazi criminals between 1945 and Jan. 1, 1969. Of these, twelve were condemned to death (through 1949), 98 to life imprisonment, 6,002 to various prison terms, and the remainder acquitted or never
Three periods are discernible in the trial and punishment of Nazi criminals in West Germany: 1) from the close of the war until 1952, the "denazification period"; 2) 1952–57, a period of relative cessation of legal activities in this area; and 3) from 1958 on, with the establishment of the Central Office of the State Judicial Authorities (Zentralstelle der Landesjustizverwaltungen) in Ludwigsburg.
Immediately after the end of World War II, the Allies realized that in the interests of international security, Germany must be thoroughly purged of its Nazi elements. "Denazification," the process of purging the German state and civil society of their Nazi elements, began in 1945 and had several aspects: military, political, and legal. In the military sphere, the magnitude of the German defeat ensured that the German military posed no threat to the occupying armies; the Allied military governments in occupied Germany further secured themselves by means of preventive arrest of members of all Nazi government, military, police, and party bodies. In the political sphere, denazification proceedings were intended to prevent Nazis not included in the list of war criminals from assuming influential positions in the political, economic, and social life of Germany, and to assure the process of German democratization. In the legal sphere, investigations of Nazi functionaries were carried out and those accused of crimes prosecuted, when the evidence warranted (trials and denazification were not the same thing). More than 3,000,000 Germans were obliged to undergo this process, and trials were conducted against accused Nazi criminals in both Allied and German courts. From 1946 to 1952, trials were held by the West German states of, inter alia, participants in the *Kristallnacht riots (November 9–10, 1938), and the number of accused reached several hundred.
When a state and civil society are dominated so totally by a ruling party that all officials either willingly or by necessity adhere to its expressed ideology, it is difficult to purge these people from its institutions, including the judiciary and legal community and the government bureaucracy, and still have a functioning system. Denazification, therefore, was not at all successful, and most former Nazis, especially in the judiciary, returned to their old posts.
After 1953, denazification ceased in West and East Germany. Searching for criminals not yet brought to trial abated, and many were able to flee Germany and go elsewhere. Latin America was a frequent destination, as were Arab countries. As a result murderers lived freely and with only vague fears throughout the world – Adolf Eichmann lived in Argentina; the physician Josef *Mengele lived in Argentina until 1960 and later in Paraguay and Brazil; Horst Schumann, who performed medical experiments on Jewish prisoners in the concentration camps, lived in Ghana until his extradition; Franz Stangl, commandant of the *Treblinka and *Sobibor death camps, lived in Syria and Brazil until his extradition; and there were plenty of others. And many lived freely in East and West Germany as well. West German authorities rationalized this by claiming that the Nuremberg trials, even though they had been held in Germany, did not evoke the appropriate reaction in the country. After its overwhelming defeat, the German nation was busy repairing the ravages created by the war. Appropriate documentation was lacking, as the victors had taken all the German archives that remained after the war. The reservoir of potential witnesses that existed in Germany between 1945 and 1950 and constituted an important element in gathering complaints and evidence, disappeared with the elimination of Displaced *Persons camps and the migration of the refugees to Israel and other countries. Most importantly, the Cold War became a central concern of the Allies and the politics of fighting it predominated. There was less incentive for the Western allies to pursue war crimes trials. In addition, Germans in general, and their official institutions, maintained that they were not completely aware of the extent of the crimes committed by the Nazis. It was only in the wake of the 1958 Ulm trial against the members of the Einsatzkommando Tilsit, which operated in Lithuania, that most Germans learned of the extent of the crimes – or so it was argued.
Whatever the validity of this claim, it is a fact that 1958 marked a turning point in the attempt to bring Nazi criminals to justice within the territory of the Federal Republic of Germany, and, to a far lesser extent, in Austria. In a number of places suitable conditions and tools were created for renewed activity in this field, especially in West Germany, Israel (where Yad *Vashem, the memorial institution whose work includes documentation of the Holocaust, was established, as was a special police unit for Nazi criminals), and the United States (where the Institute of Jewish Affairs concentrated exclusively on assistance to German and Austrian judicial authorities). In the Ulm trial, it became clear to the prosecution that until that time the crime of the Final Solution was barely considered by the German courts and that those mainly responsible for its planning and execution were not tried at all. This had to do with the restrictions placed by the Allies on the authority of the West German courts, which were loosened only later.
As a result of this trial, there was an awakening among liberal jurists in Germany. Thirteen years after the end of the war, a special meeting of the ministers of justice of the 13 Laender (states) then constituting the Federal Republic was held in city of Ludwigsburg, near Stuttgart. Following the suggestion of the minister of justice of Baden-Wuerttemberg, the ministers of the federal Laender decided in October 1958 to create the aforementioned Zentralestelle der Landesjustizverwaltungen
According to the administrative agreement of the Laender, the task of the Central Office consisted of collecting and sifting all obtainable records about relevant criminal acts under investigation, examining crimes, classifying them and determining the whereabouts of the perpetrators. The office was obliged to coordinate preliminary inquiries and transmit relevant information to the appropriate public prosecutors and to be of further assistance to them.
As the Central Office itself was not a public prosecution office, it could not prefer charges, apply for arrest warrants, or examine property, but was obliged to pass its findings to the public prosecutors. The Central Office had no competence to investigate genuine war crimes. It also did not initially possess any jurisdiction to investigate killings in those concentration camps which were located in the area of the Federal Republic. Later on – at the end of 1964 – its jurisdiction was extended and it then investigated such crimes committed in German territory, with the exception of those committed by the Reich Central Security Office, which remained within the jurisdiction of the Chief State Prosecutor at the Supreme Court of Justice.
Under the terms of the Administrative Agreement, public prosecutors were obliged to forward to the Central Office all the findings they obtained during proceedings and present the minutes of the examination sessions of accused and witnesses, as well as other relevant documents together with their concluding notes. The Central Office registered these documents in card indexes. In January 1985, the central card catalogue in the Central Office contained more than 1.3 million cards arranged alphabetically as well as by the sites at which the acts were committed and by which division (Dienststelle). The data was obtained from witnesses, the accused, and other persons. The document collection included more than half a million individual documents about the Nazi era (mainly photocopies) and more than 500 microfilms. These were also available for use through separate document catalogues.
Initially, the Central Office was entrusted with the investigation, in addition to murders, of crimes classified as manslaughter. The statute of limitations ran out on these as of May 8, 1960. As a result only those murders which are defined as willful murders can be prosecuted. A law of December 1979 lifted limitations for all murders, not only Nazi killings.
The employees of the Central Office were generally prosecutors and investigating judges; the majority were devoted young people, who were not adults when the Nazi crimes were committed. They began their work by becoming acquainted with the problem, gathering documentary material and establishing ties with Israel and Jewish institutions in the United States. This office did not deal with crimes committed within German territory itself; those crimes were prosecuted by the regular judicial authorities in the states in which the alleged perpetrators resided, as were crimes committed outside Germany – the Central Office gathered information, and individual states undertook investigations and trials.
The Central Office came up against many problems. On the one hand, its activities were an annoyance and a threat to German circles that included many influential figures who wanted to forget the past, e.g., ex-Nazi politicians, judges and police officials, and adherents of *neo-Nazism. On the other hand, prosecutors encountered many difficulties and obstacles in gathering documentary material scattered in many countries. Certain countries, for political reasons, were not always willing to assist by placing the material in their possession at the disposal of the German authorities.
In addition, in dealing with Nazi crimes, investigation authorities had to take into consideration further difficulties. Many witnesses who were victims of National Socialism were no longer alive or were unwilling to give testimony about their terrible experiences, especially in the oppressive atmosphere of a courtroom. Proof becomes more difficult to establish over time. Some survivors refused to return to Germany even for a trial. Others were angry at what they considered the disrespectful tone of cross-examination. Ordinary victims had usually been in contact only with low-level perpetrators and not with those in charge, the leaders. In cases of culprits who were not known to their victims either by name or by appearance verification could be arrived at only through documentary evidence. Documents often arrived in the form of photocopies from the archives of Eastern European states and were therefore distrusted, or flatly rejected, by certain circles in the Federal Republic. In some trials in which such documentary evidence was introduced, counsel for the defense asked the courts not to accept it. (When, however, incontestable originals were placed at the courts' disposal, no further attempts were made to dispute the authenticity of these documents.) Unfortunately, in several cases, such documentary proof was entirely missing, as the documents had been destroyed shortly before the end of the war or never existed. These proceedings were almost always dependent on the testimony of witnesses. But it is only natural that, decades after the events, the value of such testimony becomes more and more questionable. In addition, the exterminations of the National Socialist era were not carried out openly, but in specially chosen localities, behind walls and fences and under the strictest secrecy.
The problem of locating witnesses was even greater with respect to German nationals, who were unwilling to give incriminating testimonies against their accomplices. The reservoir of witnesses was therefore usually limited to the circles of the perpetrators or the victims. Many of those who witnessed such acts or were in contact with those who committed them were afraid to expose themselves to investigation; they remained silent, because of misguided solidarity with the perpetrators, or because they had suppressed the terrible events from their memory. The victims were often able to recall the essentials, but had forgotten details which seemed to them
Many of the investigations handed over for legal action were completed with the trial and conviction of the accused, e.g., the trials of the SS men from the staff of the *Chelmno death camp; the members of the Einsatzgruppen who operated in Belorussia; the Heuser trial involving the destruction of the Jews of Minsk; the trials of the murderers of the Treblinka, Auschwitz, and Sobibor death camps and the Tarnopol, Czestochowa, Lvov, and Stanislav ghettos. Special units of the criminal police were established to assist the Central Office; their task was to interrogate witnesses in Germany, locate criminals, and make arrests on the basis of the office's data. Among the important cases dealt with by the Central Office are those of the Einsatzgruppen, with all their units, that operated mainly in the German-occupied Soviet territories, and the infamous Aktion Reinhard case, the operation aimed at murdering Polish Jews. The Central Office also investigated the crimes committed in the ghettos in Poland and in all German-occupied countries of Europe. Again, it is important to note that an enormous amount of investigatory work was also undertaken by each state prosecuting attorney's office – for example, in the Auschwitz trial, most of the investigation was done by the prosecution and the court in Frankfurt.
An important limitation of the prosecution of Nazi killings was the amendment of Article 50, Paragraph 2 of the Penal Code passed in October 1968, whereby persons who had participated in such murders could be punished only if their own special criminal characteristics, such as delight in murder, avarice, or other base motives such as racial hatred or lust for revenge, were proved. Failure to prove these meant that the act was covered by the statute of limitations and was not actionable as of May 8, 1960. Other related manifestations, such as extreme cruelty and malice, were, however, excluded from the above amendment.
In performing its functions the Central Office cooperated from the outset with private and state institutions in Germany and elsewhere – especially with institutions in Israel, the U.S., and France – to obtain documentary proofs or testimonies of witnesses. From 1965 the Central Office was also given the opportunity, after appropriate agreements were reached, to cooperate with states of the Eastern Bloc and to make use of the extensive documentary material in their archives. Difficulties arose with regard to cooperation with the states of the Middle East, South American countries, and also the German Democratic Republic (East Germany). Interpol had declined to help in clarifying Nazi crimes, as it classified these in the category of political offenses, with which, according to its constitution, it is not supposed to deal. As a not insignificant number of persons sought for had succeeded, equipped with false personal documents and in some cases helped by the Vatican, in disappearing into Arab or South American countries, which as a rule declined extradition of these persons, proceedings against these accused often remained unsettled. For example, Walter Rauff, former SS-Standartenfuehrer and director of the technical department of the RSHA dealing with the use of gas, lived until his death in 1984 in Chile, and could not be extradited. It is also possible that some accused lived unidentified in the Federal Republic.
In comparatively numerous cases the accused committed suicide in detention or died during the proceedings. Often, the inability of a defendant to stand trial – supported by official medical examinations – resulted in the suspension of the proceedings. The fact that these suspensions have occurred more frequently in Nazi trials than in other legal proceedings is related not to the indulgence of the courts, but to the age of the defendants. 2005 was sixty years after liberation and thus a thirty-year-old officer in 1945 was by then 90 and likely to plead ill health and feebleness. With defendants at death's door, some have suggested that no trials be held and that the courts simply wait for time to take its toll.
All these circumstances now necessitate an especially careful and precise examination of testimonies by the courts. Proceedings have often terminated – in spite of very lengthy searches throughout the world for witnesses – with verdicts of acquittal because of possible errors in testimony, following the principle "in dubio pro reo" (when in doubt, favor the accused). As over the years the number of living witnesses has decreased and their memories have deteriorated, the proportion of acquittals in forthcoming cases will undoubtedly increase.
The fall of the Berlin Wall and the incorporation of the German Democratic Republic into the Federal Republic did not lead to identification or prosecution of East Germans now under the jurisdiction of the Central Office. The unified German government was more interested in trying former East German Communist Party leaders and former Berlin Wall guards responsible for the killing of East Germans attempting to escape than in prosecuting aged pensioners with a Nazi past.
As of 2004, the Central Office had 35 suspected Nazi war criminals under review. In 2003, two new indictments were filed for murder, and these were the only murder charges outstanding against former Nazis or collaborators anywhere in the world.
Chances of obtaining additional convictions, moreover, remain small, for reasons apart from failing memories. As the Canadian historian Rebecca Wittmann has pointed out, the conservative German judiciary has always been loath to convict aging German pensioners for wartime acts. A prominent example is the case of Friedrich Engel, a former Nazi SS officer
Despite the proclamations and claims of government circles in Austria about the desire to eradicate traces of Nazism and antisemitism from the country, the acts of the Austrian courts attest to the opposite. Only isolated trials against Nazi criminals were held in Austria in the 1960s, and all the verdicts constituted a mockery of justice and law, to the point of arousing wrath the world over. Among those brought to trial were Franz Novak, an SS member and aide to Adolf Eichmann, who organized the transport of tens of thousands of Jews to the gas chambers (he was tried in 1964 and sentenced to eight years. A new trial was held in 1966 and he was acquitted. He was tried again in 1969 and sentenced to nine years and a fourth trial was held in 1972 when he was found guilty and sentenced to seven years); Franz Murer, the murderer of Vilna Jewry, who was acquitted by the court in Graz of a charge of murder and is free; Erich Raja Rajakowitsch, another of Eichmann's aides, responsible for sending tens of thousands of Dutch Jews to the death camps, who was sentenced to two and a half years' imprisonment; and the Mauer brothers, criminals who committed atrocities and murdered the Jews of the city of Stanislav, Poland (now in the Ukraine).
While Austria as of 2004 had 27 ongoing investigations, the only convictions obtained there have been those discussed in the preceding paragraph. In February 2006, Ephraim Zuroff of the *Simon Wiesenthal Center called Austria "a paradise for Nazi criminals" after failing to convince the Austrian government of Prime Minister Wolfgang Schuessel to take more active measures to investigate and prosecute suspected former Nazis still living in Austria.
Former United Nations Secretary-General Kurt Waldheim, who later became President of Austria, was known to have lied about his whereabouts during World War II (he served in Yugoslavia in the vicinity of the places where atrocities were committed). He was placed on the "Watch List" for Nazi War Criminals by the Department of Justice of the United States, but his personal responsibility for crimes has not been established by a Court of Law.
Punishment of Criminals Tried in West Germany and Austria
In contrast to the period immediately after the war, when membership in a Nazi organization was sufficient for a prima facie case, current German criminal law stipulates that proof must be given that an individual defendant committed acts of murder or was an accomplice to such acts. The Federal Republic's Justice Ministry did not adopt any of the international criminal provisions and chose instead to try Nazi criminals under the existing pre-Nazi German penal code that had been established in 1871. Although it was still possible to find Jewish eyewitnesses to testify against low-ranking Nazis, it was almost impossible to do so in the case of high-ranking officials, those who gave the commands. Jews were seldom in direct, eyewitness contact with the leaders, merely with the lower-level officials who operated in the vicinity of Jews. Thus, it was only on the basis of testimony given by accomplices or documents from the period that they could be brought to trial, and these were often unavailable or nonexistent. The verdicts of trials against accused Nazi criminals in West Germany, and even more so in Austria in the 1950s, often reflected the tendency to acquit them or spare them severe punishment on the ground that they had committed their criminal acts out of "an error of conscience." Defendants were tried as either perpetrators of or accomplices to murder; they could not be tried for manslaughter after 1960, as noted above, because of the 15-year statute of limitations on manslaughter. There was a 20-year limitation on charges of murder, which was hotly debated throughout the 1960s and the 1970s but was ultimately never invoked vis-à-vis Nazi crimes. Defendants who were convicted were largely convicted as accomplices, because in order to convict them as perpetrators (earning an automatic life sentence) the prosecution had to show their inner motivations. Elements of inner motivation included lust for killing, sexual drive for killing, cruelty, treachery, base motives (defined in Nazi trials as racial hatred, and very hard to prove). Above all, the prosecution had to prove the individual initiative of the defendant in order to get a conviction of murder. This led to a strong focus on defendants who committed brutal acts in excess of their orders. The "just following orders" defense had already been thrown out at Nuremberg, as it had been proven there that no Nazi or SS officer or enlisted man had ever been punished or even investigated for refusing to carry out these kinds of orders.
Despite the substantial amounts of documentary material and testimony presented against them, many of the criminals convicted nonetheless received sentences that did not stand in any reasonable proportion to the extent of their crimes. Tens of thousands of other defendants enjoyed the immunity afforded by the German statute of limitations, twice extended. Prior to the 1979 amendment it was only 30 years in the case of murder. The reasons for this leniency included the fact that many German and Austrian judges or jurors themselves served the Nazi regime and some of them had been members of the Party. Even those who were not Nazis were not inclined to mete out severe punishments to their neighbors. The indifference of the bulk of the German and Austrian public to the question of Nazi criminals also played a role in this matter.
Various circles in Germany and a large part of the German press protested more than once against the absurdity of the light punishments or acquittals of the criminals in comparison to punishments meted out to ordinary thieves, murderers, and others. In contrast, the voices of Nazi sympathizers
Nevertheless, as discussed above, the overly strict legalistic approach adopted by German judges and the lack of political will or popular support to continue investigations and prosecutions of aged Nazis, has resulted in the failure to bring many Nazis to justice. As Rebecca Wittmann observes, "[C]hanges to the law made it easier and easier for those who had the most power in the Nazi regime – the desktop murderers – to go free or escape trial, and in the end only the most sadistic – and exceptional – of Nazi criminals, usually camp guards, were tried and convicted of murder. On the one hand, there were thousands of trials. On the other hand, the continuities in the judicial personnel made the sentences and interpretation of the laws extremely favourable to the defendants…. The law was not the setting in which Germans would come to recognize the wholesale complicity of an entire generation."
OTHER LIBERATED COUNTRIES
In the years after the end of the war, many countries that had been occupied by the Germans conducted a large number of trials of Nazi occupiers and their collaborators, most in accordance with special legislation, but the number of defendants of German origin was relatively low. The reason is that the Nazi criminals, except those who had been captured before the end of the war, were not always found within the borders of the countries in which the crimes were committed. Through 1949, hundreds of Nazi criminals were extradited to the legal authorities of these countries, but others remained free because no extradition agreements were in place. Extradition activities continued only until 1950 when the cold war set in. Summarized below are several trials, held in countries that are of special interest from a Jewish perspective.
In Poland, trials of Nazi criminals were held from 1944 in accordance with special legislation. Special tribunals were established that functioned until 1946, after which the accused were tried by ordinary courts. During the two years 2,471 defendants were convicted (out of about 10,000); 631 were sentenced to death and the remainder to varying prison terms. Especially significant in their bearing on the Holocaust were the cases of Amon Goeth, commandant of the *Plaszow concentration camp, in 1946, who was sentenced to death; of Ludwig Fischer, governor of the Warsaw district, who was found guilty and executed in Poland in 1947; and Rudolf *Hoess, commandant of the *Auschwitz death camp (Hoess was hanged on a gallows outside the gas chamber at Auschwitz; the gallows is still there as a kind of memorial to his crimes); of SS General Jakob Sporrenberg, responsible for the *Majdanek death camp, in 1950, who was found guilty and executed; and of SS General Juergen *Stroop, suppressor of the Warsaw ghetto uprising, in 1951, who was also found guilty and executed. According to unofficial statistics Polish tribunals dealt with about 40,000 persons, both Germans and collaborators, accused of Nazi crimes.
In Czechoslovakia, the following, inter alia, were tried for war crimes: Dieter *Wisliceny, an aide to Eichmann; Karl *Frank, commander of the police and the SS in Czechoslovakia; Monsignor Josef Tiso, president of the Nazis' Slovak puppet state, and Alexander Mach and Anton Vasek, leading collaborators responsible for the annihilation of Jews in Slovakia, who were found guilty and hanged. According to available statistics, 19,000 persons were brought to trial for Nazi crimes and collaboration in Czechoslovakia, the vast majority of them local collaborators.
In Hungary, according to official statistics of the Ministry of Justice, up to March 1, 1948, the Hungarian government instituted proceedings against 39,514 persons, of which 31,472 had been completed and 8,042 were still pending in 1948 when the regime changed. The courts dismissed 5,954 cases, 9,245 cases resulted in not guilty verdicts, and 19,273 defendants were sentenced to prison terms. Three hundred twenty-two persons were sentenced to death and 149 actually executed. No official data is available for post-1948 trials. The swift execution of the Holocaust in Hungary – the Germans occupied the country in March 1944, Jews were ghettoized in April and 437,402 deported between May 15 and early July – was an important ingredient in the war crimes trials in that country. Among the minor war criminals were those of the "labor battalions" and people involved in the deportation of the Jews. As to major war criminals, a former prime minister, László Bárdossy, was held responsible for the deportation of Jews to *Kamenets-Podolski and for the *Novi Sad massacre; he was executed. Another former prime minister, Béla Imrédy, was charged with responsibility for, among other things, the anti-Jewish laws and for the destruction of Hungarian Jewry; he, too, was executed. Three leading men of the Ministry of Interior – the minister, Andor Jaross, and the state secretaries, László Baky and László Endre, who played a leading part in the destruction of Hungarian Jewry – were sentenced to death and executed. Practically all members of the Szálasi and Sztójay governments (including the prime ministers) were tried and sentenced to death.
In the Netherlands, most of the trials took place between 1948 and 1952. More than 200 accused collaborators were tried, as well as several Germans. Among the latter, the trials of the following should be mentioned: Hans Rauter, commander of the police and SS in the Netherlands, in 1948; Wilhelm Harster, commander of the SD in the Netherlands, who bore the chief responsibility for the deportation of Dutch Jews to the death camps, and Ferdinand aus der Fuenten, Harster's aide, also responsible for the deportation of the Jews, both in 1949. Rauter was sentenced to death, and after being denied a pardon, was executed on March 25, 1949. Harster was sentenced to twelve years imprisonment (he was later sentenced to an additional 15 years in another trial in Munich). Aus der Fuenten's original death sentence was later commuted to life imprisonment.
Many trials were also held in Denmark, Belgium (610), Norway (81), and France (2,345), among them those of Karl Oberg and Helmut Knochen, police and SS commanders responsible for the deportation of French Jews to the death camps. All in all, according to West German sources, about 80,000 Germans were convicted in all countries (including the then Soviet Union and East Germany) for committing crimes against humanity. The number of local collaborators reached the tens of thousands. For example, 13,600 collaborators were tried in Denmark alone. More than 90 percent of all collaborators were sentenced to fewer than four years' imprisonment.
THE SOVIET UNION
The Soviet Union played a major role in the prosecution of Nazi war criminals and collaborators in Eastern Europe. During the initial decade after the war, thousands of accused perpetrators were put on trial in the Soviet republics that had been under German occupation – although not always for their role in the murder of the Jews. Unfortunately, no exact figures exist on the number of such trials and their results, but from the information available in the post-Communist era, it is clear that the number of those punished is relatively high when compared to Western countries. Since numerous local Nazi collaborators in these areas actively participated in the mass murder of Jews, these trials and the transcripts, documents and secondary sources published in their wake are of great importance for Holocaust history. Unfortunately, the trials were not, and the publications are not, entirely free of Soviet propaganda, which diminishes their value. The Soviets' policy of denying or minimizing (depending on the era) the singularity of the fate of the Jews and their suffering during World War II must also be considered in evaluating these sources.
Many of those convicted by Soviet courts were executed for their crimes, while others were sentenced to lengthy terms in prison camps or in exile. Many were freed in the 1955 amnesty granted by Nikita Khrushchev. Trials were held in the Soviet Union of Soviet citizens who collaborated in occupied territories during the war. Inasmuch as official publications and documents on these trials are not available, information about them was gleaned primarily from publications of the Soviet information agency, Tass. Also implicated in these trials were collaborators who had previously been Soviet citizens, i.e., those who had fled from the Soviet army – both deserters and Soviet POWs who were recruited by the Germans and later found asylum in Western countries. Trials since 1961 have not dealt explicitly with the annihilation of Jews qua Jews, while in trials held previously, Jews were submerged in the broad category of Soviet citizens, in keeping with the Communist interpretation of the war. There were notable exceptions such as the October 1965 trial in Riga, Latvia that considered the annihilation of the Jews and the role of Latvian collaborators in it.
The breakup of the Soviet Union led to the opening of wartime archival materials in Moscow and other Russian cities, and newly discovered Soviet documents became quite useful in the prosecution of aging collaborators living in the United States. Russia itself did not hold any trials, and there was no call for such trials to be held in Russian territory. But there were unprosecuted Holocaust perpetrators still living in Latvia, Lithuania, Estonia, and Ukraine at the end of the twentieth century. Unfortunately, these countries showed little or no interest in investigating their local populace. Latvia and Lithuania did mount some investigations and Lithuania was able to obtain one conviction of a local collaborator in the 1990s.
Trials Outside Continental Europe
Trials also occurred outside continental Europe, at a distance from the site of the crime.
In spite of all their problematic features and limitations, the trials recorded above can lay claim to notable achievements. A vast store of documentary material on the criminal policies of the Nazi regime toward the Jewish population and on the responsibility of the leaders for the crimes was collected by the Allies. Likewise, trial records and collections of documents from the main trials, in various languages, were also published. In all these trials, the specific persecution of Jews was considered as only one of the many facets of Nazi criminality, all of which were required to establish the responsibility of the accused for various violations of international law: crimes against peace, war crimes, and crimes against humanity. In contrast, the only trial that dealt specifically and comprehensively with the Final Solution was the *Eichmann trial held in Jerusalem in 1961–62. The Eichmann trial had important implications for the trials of Nazi criminals and their aides in those countries where such trials were still being conducted (West and East Germany, Austria, and the U.S.S.R.). In the wake of renewed interest in the prosecution of Holocaust perpetrators generated by the Eichmann trial, Simon *Wiesenthal opened an office in Vienna and relaunched his efforts to bring Nazi war criminals to justice. He had closed his first office in Linz in 1954 after the Cold War dampened Allied enthusiasm for the prosecution of Nazi war criminals in West Germany.
A second trial in Israel, that of death camp guard John Demjanjuk, was held more than a quarter of a century later, in 1988. Demjanjuk was tried as "Ivan the Terrible," who operated the gas chambers at Treblinka, but his original conviction and death sentence were overturned when doubt was cast on his identification as Ivan, doubt which also raised questions regarding the accuracy of survivor testimony. The Demjanjuk trial obviously had significantly less impact than the Eichmann trial, but by then the memory of the Holocaust was less dependent on trials and more institutionalized and broadly based on scholarship, writing and film. Demjanjuk, a naturalized American citizen, later returned to the United States after serving seven years in Israel for his role as a concentration camp guard (he was kept in prison while his case was being
THE UNITED STATES
Since the passing of the most intense phase of the Cold War in the 1950s and early 1960s, and the Eichmann trial in 1961–62, the country that has been most active in pursuing Nazi war criminals has been the United States, where the presence of many Nazi war criminals and collaborators was first exposed in the mid-1970s. Because of doubts about whether they had jurisdiction to prosecute crimes committed overseas in which neither the suspects nor the victims were American citizens, American legal authorities decided to press only civil charges against suspected war criminals, for immigration and naturalization violations. Thus, in effect, Nazi war criminals have been tried for concealing their wartime activities when they applied to enter the United States and/or when they applied for U.S. citizenship. In 1978 Congress passed the Holtzman Amendment, sponsored by Representative Elizabeth *Holtzman of New York, that enabled the United States to deport aliens if they had been Nazi criminals or accessories to Nazi crimes; in 1979 the U.S. Justice Department established its Office of Special Investigations (OSI) for this purpose. As of 2006, OSI has won verdicts against more than one hundred Nazi war criminals, with more than eighty having been denaturalized and more than sixty having been removed or deported.
The Demjanjuk case was a matter of overreach by OSI, which did not pursue him merely as a camp guard, which was easily provable, but as Ivan the Terrible. After Demjanjuk's conviction in Israel, the Supreme Court of Israel overturned the verdict because of questions relating to an essential document supplied by the Soviet Union supposedly identifying him as the notorious Ivan, and Demjanuk was freed and returned to the United States. OSI moved against him again and won both denaturalization and deportation rulings. In December 2005, after exhausting all his appeals, the 85-year-old Demjanuk was ordered by an immigration judge to be deported from the United States, presumably to Ukraine, his place of birth.
A statistical summary of OSI's activities since 1979 shows the following results as of early 2006:
Persons whose denaturalization and/or removal have been sought: 132
Persons denaturalized or removed to date: 101 (81 denaturalized and 60 removed, of whom 19 had never become citizens)
Persons placed on the "watch list" for possible exclusion from the U.S.: nearly 70,000
Persons excluded at U.S. ports of entry: 170 (during 458 border stops or inquiries)
[Emmanuel Brand /
Rebecca Wittmann and
Michael J. Bazyler (2nd ed.)]
THE UNITED KINGDOM
The presence of suspected Nazi war criminals in the United Kingdom was first exposed by Zuroff, who compiled an initial list of 17 suspects which was submitted to the British consul in Los Angeles by Rabbis Marvin Hier and Abraham Cooper on October 22, 1986 with a request that the U.K. government conduct a comprehensive investigation of the scope of the problem. Although the government initially refused to even consider any legal action in these cases, it ultimately agreed to the establishment of an official commission of inquiry following a series of exposés by Scottish Television on Nazi war criminals living in the U.K., pressure brought to bear by the All-Party War Crimes Group headed by Members of Parliament Merlyn Rees and Greville Janner, and groups such as the Wiesenthal Center.
On February 8, 1988, Home Secretary Douglas Hurd announced the appointment of an official War Crimes Inquiry, to be headed by Sir Thomas Hetherington and William Chalmers. The War Crimes Inquiry completed its report on June 16, 1989, and it was presented to Parliament in July 1989. The report confirmed that a number of persons implicated in Nazi crimes had managed to enter the U.K. after the war and were still alive, and recommended that legislation be introduced to give domestic courts jurisdiction over "acts of murder and manslaughter, or culpable homicide" committed as war crimes in Germany or in German-occupied territory during World War II by persons found in the United Kingdom. "Consideration should be given," it stated, to prosecution "in three cases in which there appears to us to be a realistic prospect of conviction on the evidence already available." Other cases, the report stated, merited investigation.
The proposed legislation twice passed in the House of Commons only to be rejected by the House of Lords. It became law on May 10, 1991, after it passed the Commons a third time, enabling U.K. courts to try British citizens and residents for murder and other culpable homicides committed between 1933 and 1945 in Germany and German-occupied territory. Later in 1991, war crimes units were set up in the Crown Prosecution Service and the Metropolitan Police (New Scotland Yard).
On July 13, 1995, the British government instituted its first prosecution, a criminal case brought against Semyon Serafimovich, the alleged former chief of police in the city of Mir, Byelorussia (Belarus), for complicity in the mass murder of Jews in 1941 and 1942. The case had originally been expected to go to trial in 1996. At the committal hearing, the prosecution's key witness was Oswald Rufeisen, a Jew who, while masquerading as a Pole, had actually worked for a time as an interpreter for Serafimovich. (Rufeisen, who saved the lives of several hundred Jews in Mir by tipping them off to the planned liquidation of the community, converted to Catholicism
On September 26, 1997, the government made its second arrest, taking into custody Anthony (Andrzej) Sawoniuk, 76, of East London. Sawoniuk was charged with murdering three unnamed Jewish women and two named Jewish men in 1942 in the vicinity of the town of Domachevo, Byelorussia (now in Poland), while serving as deputy commander of the Schutzmannschaft in Domachevo. Committal hearings began in London on April 20, 1998. On May 29, 1998, magistrate Graham Parkinson committed Sawoniuk for trial on four of the five charges brought by the government, and granted him bail. The fifth charge failed because the necessary witness was unable to travel from Poland to testify. The defense conceded that there was sufficient evidence for indictment with respect to three of the charges. In April 1999, at the conclusion of an Old Bailey trial, Sawoniuk was convicted of multiple murders and was sentenced to two life terms. On February 10, 2000, a three-judge panel of the Court of Appeal unanimously affirmed the conviction, rejecting Sawoniuk's contention that it was impossible to obtain a fair trial on charges involving events of so long ago. Sawoniuk died in a Norwich prison more than five years later, in November 2005.
At the conclusion of the Sawoniuk trial, Scotland Yard announced that the War Crimes Unit, which had once employed eleven police officers, two historians and a support staff, was being scaled down to a small staff to conclude its work, and that any new allegations received would be investigated by Scotland Yard's Organised Crime Group. On October 13, 1999, Scotland Yard announced that it had been advised by the Crown Prosecution Service that there was insufficient evidence to mount a prosecution in the one remaining case that it had referred to the CPS under the War Crimes Act of 1991. The same day, a Scotland Yard spokesperson announced that in light of the CPS's decision in the case, all of the War Crimes Unit's inquiries had now been exhausted and the unit would be shut down, and by year's end it was closed.
Ironically, the case which had been instrumental in convincing the British government to take legal action against the Nazi war criminals in the U.K. – that of Lithuanian police battalion officer Anton Gecas (Antanas Gecevicius) of Edinburgh, whose unit murdered thousands of Jews in Lithuania and Belarus – was never brought to trial. Gecas had worked for British intelligence following his arrival in the U.K., a factor that apparently influenced the authorities. The Lithuanian government sought Gecas' extradition, but he died in 2001 before he could be sent to Vilnius for trial.
In April 1987, special units were set up within the Canadian Justice Department and the Royal Canadian Mounted Police to handle war crimes cases.
In September 1987, Canada's criminal code was amended to allow prosecution of persons implicated in war crimes and crimes against humanity committed anywhere outside Canada at any time before or after the law's enactment. The legislation received Royal Assent on September 16, 1987. This amendment was possible despite the fact that the Canadian Constitution's Charter of Rights and Freedoms, adopted in 1982, contains a provision, Section 11(g), barring the enactment of ex post facto criminal legislation, because the same section allows conviction for acts or omissions that were criminal "according to the general principles of law recognized by the community of nations."
During the period 1987 through 1994, six proceedings were initiated, four of them criminal cases. Only the two civil cases were successful. It was the 1994 decision in the case of the Hungarian gendarmerie commander Imre Finta, in which his defense of "superior orders" was accepted by the Supreme Court of Ontario, that ultimately forced the Canadian government to switch to the model employed by the United States. Thus on January 31, 1995, the Canadian government announced that it would henceforth emphasize the bringing of civil cases – citizenship revocation and deportation actions – rather than criminal prosecutions, since all previous criminal cases had been unsuccessful. This change meant that Canadian prosecutors would now be proceeding much as the U.S. Justice Department's Office of Special Investigations had since its inception in 1979. As of early 2005, a total of 21 civil cases have been brought with the following results: eight denaturalizations; two cases in which defendants voluntarily left Canada; three cases lost by the government. None of those denaturalized has yet been removed from the country.
The presence in Australia of Nazi war criminals was first exposed in April 1986 by journalist Mark Aarons. In response the government established an official commission of inquiry, headed by retired civil servant Andrew C. Menzies, which confirmed the suspicions raised by Aarons and others. These others included the Wiesenthal Center, which submitted to the Australian government on September 1, 1986 a list of forty suspects known to have emigrated to Australia. In April 1987, the authorities established a Special Investigations Unit (SIU) in the federal Attorney-General's Department to handle these cases. More importantly, in January 1989, the Australian War Crimes Act of 1945 was amended to permit the prosecution in ordinary Australian courts, rather than military tribunals, of persons who committed war crimes outside the country during World War II.
The government closed down the SIU on June 30, 1992, despite its being clear that the problem of Nazi criminals in Australia had hardly been solved. In fact, at that point, 841 persons had been investigated (of whom 542 had been located) but only three had been brought to trial, none of whom was convicted.
Subsequently, additional allegations against suspected Nazi war criminals living in Australia were raised, primarily
Cancellation of Pardons Granted to Holocaust Perpetrators
One of the byproducts of the efforts to bring Nazi war criminals to justice has been the attempt to prevent the granting of pardons and "rehabilitations" to convicted Nazi war criminals. Following the demise and dismemberment of the Soviet Union, each of the former Soviet Baltic republics launched an extensive rehabilitation program that included legal pardons and generous financial compensation for those considered illegally convicted by Soviet courts. Even though Nazi war criminals were not supposed to be eligible for such pardons, in practice at least dozens of such criminals were rehabilitated in Lithuania and Latvia. The Simon Wiesenthal Center exposed this process in Lithuania and Latvia and played a leading role in the efforts to cancel the pardons. So far, over 160 pardons for Nazi-era crimes have been cancelled in Lithuania and two in Latvia thanks to these efforts.
[Michael Berenbaum (2nd ed.)]
The Impact of the Trials
After 1958, and especially after the capture and trial of Adolf Eichmann, a change became noticeable in the pursuit of Nazi criminals. In Germany and in other countries, investigations were renewed against a number of Nazis who had long ceased to be of official interest; the search for Nazi criminals who had thus far succeeded in avoiding imprisonment was intensified; the possibilities for Nazis to exploit the rights of asylum in other countries were diminished; there was an increased awareness that the crimes of the Nazis must not be forgotten and that the criminals must be punished in order to prevent a recurrence of the crimes. Although the sentences meted out to Nazi criminals in most of the trials in West Germany, and especially in Austria, were in no way proportionate to the crimes (if proportion were at all possible), the careful preparation of the trials by the prosecution and the openness and thoroughness of the substantiated verdicts, based, inter alia, on testimony given by Jewish victims, resulted in their contributing significantly to the research of Holocaust history for the education of the German people, and especially German youth.
The investigation of Nazi crimes has remained a controversial chapter of postwar German history, both in private discussion and public debate. All nuances of opinion are represented, starting with the reproach of "fouling one's own nest" from right-wing, neo-Fascist, neo-Nazi circles, through the widespread criticism heard in Germany and elsewhere (and not only in Eastern Europe) that the investigation of Nazi crimes was, from the outset, carried out only half-heartedly, and ending with the repeatedly voiced opinion that people should try to forget what happened in those wretched times. Martin Hirsch, a former German federal judge, has said about the reproach of "mud-slinging" that he finds it shocking that the same people who "fouled the nest" in those days in such a terrible way should now level this accusation against those who try to cleanse it.
Oftentimes, trials in the latter years of the twentieth century had an unintended disquieting impact on the societies in which they were held. In France, Klaus Barbie, the former head of the Gestapo in Lyon – known as the "Butcher of Lyon" – was brought to trial after a decade of work by Nazi hunters Serge and Beate *Klarsfeld. French politicians had preferred to ignore the issue, as it once again raised questions about Vichy France and the participation in its government by postwar French politicians. Barbie stood trial in Lyon between May 11 and July 4, 1987. The evidence brought exposed the cooperation between fleeing SS men and Allied intelligence services (Barbie had worked for the Americans after the war, and they had helped him escape prosecution). The defense contested the moral standing of those who tried Barbie and the discrepancies in memory some four decades after the fact between resistance leaders and Jews. Barbie was found guilty but the trial was less than a clear success in the battle for memory.
Another French trial, that of Paul Touvier, was also disruptive to French self-perception. Touvier had been a high-ranking officer in the Vichy government. Convicted of collaboration in 1946 and sentenced to death, he went into hiding with the assistance of the Roman Catholic Church. In 1967 there was an attempt to clear his record, but it backfired as resistance veterans and Jews demanded that he be tried. He then disappeared, certainly not unassisted. He was tried and found not guilty because he had been an agent of Vichy France, but the outrage that greeted the verdict led to an appeal which overturned the verdict and Touvier was found guilty, the first Frenchmen to be found guilty of crimes against humanity.
The trial of Maurice Papon, another high-ranking functionary of the Vichy regime, was held in 1997 for his role in the deportation of the Jewish men, women and children from Bordeaux. A high-ranking civil servant in postwar France – he was chief of the Paris police and eventually became a minister in the cabinet of President Valery Giscard d'Estaing – Papon was found guilty of complicity in crimes against humanity and sentenced to ten years' imprisonment. (While Papon was chief of police, he was responsible for the murder of Algerian demonstrators – the number is disputed – in 1961.) He was released in 2002 on grounds of ill health and was still living as of early 2006.
No trial was held for Vichy police chief René Bosquet, who was finally indicted after being protected from prosecution for years. He was assassinated in 1993 by a deranged assailant shortly before his trial was scheduled to begin.
Zuroff is the last of the Nazi hunters. He has brought considerable pressure to bear on various governments, especially following
Each year the Wiesenthal Center issues an Annual Status Report on the investigation and prosecution of Nazi war criminals worldwide. In 2005 it reported that the investigation and prosecution of Nazi war criminals continued in sixteen countries, among them countries such as Germany, Austria, Lithuania, Latvia and Poland – where the crimes of the Holocaust were committed – and others, like the United States, Britain, Canada and Australia, which afforded postwar havens to Holocaust perpetrators. From April 1, 2004 until March 31, 2005, five convictions of Nazi war criminals were obtained, all in the United States. Most of those convicted served as armed guards in death camps and/or concentration camps in Poland and Germany. The number of convictions is lower by two than the number achieved during the previous year. From January 1, 2001 through March 31, 2005, a total of thirty-two convictions of Nazi war criminals were obtained all over the world. Of these convictions, 23 were in the United States, where the violations are civil, relating to providing false information on visa applications rather than to the actual crime, with the others in Germany (3), Canada (3), Poland (1), France (1) and Lithuania (1).
During the period from (April) 2004 through March 2005, legal proceedings were initiated against at least six Nazi war criminals in four countries – three in the United States, one in Hungary, one in Denmark and one in Lithuania. The number of indictments obtained in this period is lower by four than the figure achieved during the previous year. From January 1, 2001, through March 1, 2005, 33 new indictments have been submitted against Nazi war criminals, the majority in the United States. New investigations were initiated in eleven countries against at least 663 suspected Holocaust perpetrators. In 2005, there were ongoing investigations against more than 1,252 suspected Nazi war criminals in 16 countries, with the largest number of cases being investigated in Poland (450), the United States (246), Austria (199), Canada (190), Latvia (58) and Germany (46).
The Ukraine will not address the issue of Holocaust perpetrators, and Austria is unwilling to prosecute Milivoj Ašner, who served as police chief of Pozega, Croatia during World War II and played an important role in the persecution and deportation to concentration camps, where they were murdered, of hundreds of Jews, Serbs and Gypsies. Sweden and Norway no longer investigate Nazi war criminals due to existing statutes of limitation.
[Michael Berenbaum (2nd ed.)]
Implications for the Twenty-First Century
There is much about international criminal law in the twenty-first century that tends to be taken for granted: ousted tyrants such as Slobodan Milosevic, of Serbia and Yugoslavia, and Saddam Hussein, of Iraq, being brought to trial at the bar of justice; tribunals of various sorts springing up as the result of human rights violations in places such as Rwanda, Sierra Leone, and Cambodia; perpetrators of Nazi-era atrocities being hauled before courts in the United States, stripped of their citizenship and deported; and the existence of a permanent International Criminal Court, with wide-ranging jurisdiction to try the most serious offences in the international legal lexicon, though its authority is not accepted by all. Additionally, terms such as "crimes against humanity," "genocide," and "war crimes" have become part and parcel of the daily vocabulary, and are encountered with great frequency. In various ways, the world has become blasé about such matters – to the extent that it is often forgotten what a recent phenomenon all of this is. New generations growing up in the modern era could easily be forgiven for thinking that it has always been this way.
Yet, as recently as 1945, it would have been unthinkable. On November 20 of that year, Sir Geoffrey Lawrence of the British Court of Appeals, presiding over the opening of the International Military Tribunal trial of major war criminals at Nuremberg, solemnly intoned, "The trial which is now about to begin is unique in the history of the jurisprudence of the world…"
The uniqueness began with the very fact that there were trials at all. Thanks in large measure to President Truman and Justice Robert Jackson, who took leave from the Supreme Court of the United States to be the chief prosecutor, the British view favoring a "political solution" (translation: just take them out, put guns to their heads and shoot them) did not prevail.
The U.S. rationale was threefold: precedents had to be established in international law to place the relevant legal principles as well as the process of justice on a firm, well-established footing, and to send an unequivocal message to future would-be Hitlers of the fate that potentially awaited them; a high moral plane had to be established, in marked contrast to the wanton brutality practiced by the defendants, signifying that civilized society would not respond in kind; and a comprehensive historical record had to be collated systematically for the benefit of future generations, thereby enabling them to learn the lessons of the Nazi era.
Besides being the first international tribunal in history to try criminal offences, the IMT at Nuremberg also established two other precedents of a procedural nature: "Crimes… are
At the substantive level, Nuremberg added two major criminal offenses to the canons of international law: planning and conducting aggressive warfare, the culmination of the work of some three decades of whittling away at the unfettered right of states to declare and conduct wars; and crimes against humanity, contemplating acts such as extermination, enslavement, and other inhumane acts directed against civilian populations. The body of international law dealing with such crimes which was thereby established on a sound foundation was further enlarged in 1948, with the adoption of the Genocide Convention, directed against acts intended to wipe out whole populations, defined by race, religion, nationality, or ethnicity.
The precedents thus created have reverberated into the twenty-first century. The tribunals for Rwanda and Yugoslavia were based directly on the Nuremberg tribunals, while seeking to improve on the original model, for instance by conferring jurisdiction to investigate and prosecute alleged crimes by all sides to the conflict, not just the losers. In addition, other models have developed. National courts exercise jurisdiction to try the very same crimes referred to above, most famously in the trial of Adolf Eichmann in Jerusalem over his central role in the Final Solution. In Sierra Leone, what was established was a hybrid tribunal, combining national as well as international elements. In the "Pinochet model" a Spanish magistrate almost succeeded in having the former Chilean dictator extradited from Britain to face trial over atrocities committed by his regime. In 1998, the Rome Statute creating the new, permanent International Criminal Court was adopted by 120 nations, thus addressing yet another shortcoming of Nuremberg, namely the ephemeral nature of the tribunals. (It should be noted that the United States has refused to ratify the Rome Statute and thus exempts itself from the International Criminal Court's jurisdiction, while Israel, which has signed on to the Court, is currently refusing to obey a ruling against it declaring illegal the separation wall it is building on occupied Palestinian territory.)
The evolution of the procedural dimension has been matched at a substantive level. Thus, although crimes against humanity and genocide lie at the heart of prosecutions of large-scale human rights violations, both have evolved over the decades. For instance, the modern definition of crimes against humanity expressly includes rape. And, in patrilineal societies, rape may also constitute genocide, where it takes place across ethnic lines, with the aim of producing offspring which take on the father's ethnicity and prevent the mother's group from reproducing itself.
The Nuremberg model lay largely dormant for some 45 years. Beginning in the 1990s, however, prosecution of international crimes gained considerable momentum, to the extent that the world began to become a small and distinctly uncomfortable place for tyrants, or at least some of them. In this fashion, profound meaning began to be breathed into the remarks of Lord Justice Lawrence that followed his above-quoted opening: "… and it is of supreme importance to millions of people all over the globe." The revolution wrought by Nuremberg, and its abiding legacy, is indeed that.
[Harry Reicher (2nd ed.)]
United Nations War Crimes Commission, History of the United Nations War Crimes Commission (1948); World Jewish Congress, Unity in Dispersion (1948); J. Robinson, And the Crooked Shall be Made Straight (1965); idem and P. Friedman, Guide to Jewish History under the Nazi Impact (1960), 176–221; idem, in: Koveẓ Meḥkarim ba-Mishpat ha-Beinle'ummi ha-Pumbi le-Zekher Sir Hersch Lauterpacht (1961), 84–91; N. Robinson, Report on the Activities of the Institute of Jewish Affairs, World Jewish Congress, in the Field of the Prosecution of War Criminals in Germany (1961); idem, in: Gesher, 7 no. 2 (1961), 38–50; idem, in: Le Monde Juif, 26, no. 60/61 (1971), 16–23; E. Brand, in: Yad Vashem Bulletin, 14 (1964), 58–62; 19 (1966); 36–44; 20 (1967), 14–29; 21 (1967), 18–21; Lיvai, in: R.L. Braham, ed., Hungarian Jewish Studies, (1969), 253–96; German Federal Republic, Bundesministerium fuer Justiz, Die Verfolgung nationalsozialistischer Straftaten im Gebiet der Bundesrepublik Deutschland seit 1945 (1964); R. Vogel, ed., Ein Weg aus der Vergangenheit: Eine Dokumentation zur Verjaehrungsfrage und zu den nationalsozialistischen Prozessen (1969), Probleme der Verfolgung und Ahndung von nationalsozialistischen Gewaltverbrechen (1967); R. Henkys, Die nationalsozialistischen Gewaltverbrechhen (1964); Deutscher Bundestag, 175. Sitzung, Bonn, 25. 3. 1965; J. Gorzkowska and E. Zakowska, Zbrodniarze hitlerowscy przed sądami NRF (1964); N.S. Alekseyev, Otvetstvennost natsistskikh prestupnikov (1968). ADD. BIBLIOGRAPHY: G.J. Bass, Stay the Hand of Vengeance (2000); D. Bloxam, Genocide on Trial: War Crimes Trials and the Formation of History and Memory (2003); R. Wittmann, Beyond Justice (2005).
Source: Encyclopaedia Judaica. © 2008 The Gale Group. All Rights Reserved.