This presentation was delivered on January 30, 2018, at a special program marking International Holocaust Remembrance Day, “Preventing Atrocities in the 21st Century: Seven Decades after the Holocaust, How Can the World Prevent Future Atrocities,” at the U.S. Institute of Peace in Washington, D.C., under the auspices of the Embassy of Switzerland in the United States of America.
Precisely 72 years ago today, on January 30, 1946, Charles Dubost, the Deputy Chief Prosecutor for the French Republic before the International Military Tribunal at Nuremberg, read into the record a document dated February 14, 1944, from Hermann Goering to Heinrich Himmler that read in relevant part:
I ask you to keep at my disposal for Air Force armament the greatest possible number of KZ prisoners.” [The initials “KZ” stood for Konzentrationslager, that is, concentration camp.] “Experience has so far shown that this labor can be put to very good use. The situation of the war in the air necessitates the transfer of this industry to underground workshops. In such workshops, work and housing can be particularly well combined for KZ prisoners.
Dubost went on to explain that the facilities to which Goering referred included the Dora-Mittelbau tunnels or caverns dug into the Harz Mountains some five kilometers from the city of Nordhausen in southern Germany where the V-2 rockets were manufactured.
The previous day, On January 29, Alfred Balachowsky, the head of a laboratory at the Pasteur Institute in Paris, had told the Tribunal what Dora had been like when he had arrived there in February of 1944 where what he called “asocial” criminals, who had been put in charge by the SS, “beat us from morning till night. We got up at 4 o’clock in the morning and had to be ready within 5 minutes in the underground dormitories where we were crammed, without ventilation in foul air, in blocks about as large as this room, into which 3,000 to 3,500 internees were crowded. There were five tiers of bunks with rotting straw mattresses. Fresh ones were never issued. We were given 5 minutes in which to get up, for we went to bed completely dressed. We were hardly able to get any sleep, for there was a continuous coming and going…. Furthermore, it was impossible to sleep because we were covered with lice; the whole Dora Camp swarmed with vermin. It was virtually impossible to get rid of the lice. In 5 minutes we had to be in line in the tunnel and march to a given place.”
Referring to the Goering-Himmler communication on January 30, 1946, Dubost told the Tribunal: “We know then who was responsible for the frightful conditions which the deportees of Dora had to endure. The person responsible [that is, Goering] is in the dock.”
I happen to have a personal interest in Balachowsky’s testimony and the Goering to Himmler communication. My father arrived at Dora on February 11, 1945, and was a prisoner there until early April when he was taken to Bergen-Belsen less than two weeks before liberation. He came to Dora wearing a uniform with a special red circle—the so-called Fluchtpunkt—identifying him as an escapee, after more than six months of torture in the notorious Block 11 at Auschwitz, and a brief two-month respite at the Langensalza concentration camp.
My father used to say that Dora was even worse than Auschwitz.
Why is any of this relevant today? Because 73 years ago, there was little reason to believe that those responsible for Auschwitz, Dora, and Bergen-Belsen, for Treblinka, Majdanek, Sobibor, and all the other sites where millions of Jews were murdered as part of the Hitlerite “Final Solution of the Jewish Question,” would ever be brought to justice.
Certainly there was no precedent for holding a Hermann Goering or a Hans Frank or an Albert Speer accountable for acts, many of them atrocities, perpetrated within the governmental framework of the Third Reich.
We have come a long way in the 72-and-a-half years since the end of World War II. From the vantage point of 2018, we have not only the International Military Tribunal and its Charter in our rearview mirror, but also the subsequent American Nuremberg trials, the Convention on the Prevention and Punishment of the Crime of Genocide, the International Criminal Tribunals for the former Yugoslavia and Rwanda, and the Rome Statute establishing the International Criminal Court.
Still, it behooves us to bear in mind that international criminal human rights law is in its jurisprudential infancy. The recent genocide conviction of Ratko Mladić by the I.C.T.Y serves to remind us that less than a quarter century ago, government officials still thought that they could and would get away with brutal mass killings of civilians based on their national, religious, racial, or ethnic identity.
Let us be perfectly clear. On January 27, 1945, when Auschwitz was liberated, and on May 8, 1945, V-E Day, when World War II in Europe came to an end, there was no basis in accepted international law for prosecuting the perpetrators of what we now call the Holocaust. Nor was there a forum where they could be brought to justice. As things stood on those two dates, arbitrary vengeance—vigilante-style or otherwise—or reliance on domestic courts were the conventional alternatives for not allowing the murderers of European Jewry to “get away with it,” as it were.
Moreover, the Nazi leadership in Berlin as well as the concentration camp personnel on the ground still had available to them—at least in theory—three affirmative defenses: (1) what they did was legal under the laws of the Third Reich or as promulgated in the countries occupied by Nazi Germany; (2) they could claim immunity as government officials; and (3) they were obeying and complying with the orders of their superiors.
By August 8, 1945, when representatives of the United States, the United Kingdom, the U.S.S.R., and France formally approved the Charter for the International Military Tribunal, international criminal law was dramatically and, as it turned out, permanently transformed. A mechanism, albeit a short-lived temporary one, was established for bringing Nazi war criminals to justice; a brand new cause of action for crimes against humanity was created, with the provisions of the Charter applying retroactively; government leaders and officials would not enjoy immunity for their actions; and the defense of superior orders was barred.
All of which begs a central question: What took the international community so long to confront egregious mass atrocities which we all know have occurred long before the 20th century? The destruction of Carthage by the Romans at the end of the Third Punic War in the second century before the Common Era and the slaughter of tens of thousands of Cathars of Languedoc in southern France during the Albigensian crusade of the 13th century are but two examples of historical crimes against humanity. In August of 1209, the Abbot Ardauld-Amalric reported to Pope Innocent III that in the city of Béziers, “Our men spared no one, irrespective of rank, sex or age, and put to the sword almost 20,000 people.” This falls four-square into the category of what we today call genocide.
Fast forward to the 19th century: Forcible relocation of more than 16,000 Native Americans from the south-eastern part of the U.S. to western territories on brutal forced marches that resulted in the death of between 3,000 and 6,000 members of the Cherokee Nation, a harbinger of the way in which between 600,000—the most conservative estimate—and 1,500,000 Armenians would be murdered by Ottoman troops between 1915 and 1918.
What changed in 1945? I suggest that it was in large measure the vast scope and multi-national, trans-national nature of the Holocaust that caused the transformation in our collective international mindset that led to the watershed I.M.T, followed closely thereafter by the Genocide Convention. Unlike previous mass-atrocities where the victims were localized, the Jewish victims of the “Final Solution” came from all across Nazi-occupied Europe, and vast numbers were transported across national borders to the death camps the Germans had set up in Poland.
To put the issue in a somewhat different context, the stakeholders in the search for justice during and in the immediate aftermath of the Holocaust were not confined to a single country. The Soviet Union, France, Hungary, Belgium, and the Netherlands were only five among many founding members of the United Nations that had a deep personal interest in not allowing the Nazis’ mass-atrocities to go unpunished. And there were Jewish organizations, the World Jewish Congress foremost among them, that kept a similar pressure on the governments of the U.S. and Great Britain.
All of which leads us to our central question today: What, if anything, have we learned in the past three-quarters of a century?
In Article 1 of the Genocide Convention, the Contracting Parties undertake to prevent and to punish Genocide. After Nuremberg, it is implicit that the same approach should at least in theory hold true for crimes against humanity generally.
The reality is that the international community has done an adequate if not spectacular job in the area of punishment, even though the perpetrators of genocide and crimes against humanity in Darfur, Syria, Iraq and, in all likelihood, Myanmar are unlikely to sit in the dock of any tribunal anytime soon. Still, the post-World War II war crimes trials in Europe as well as the Far East, the Eichmann Trial, the I/C.T.Y and I.C.T.R, Cambodia’s Khmer Rouge trials, and other tribunals have resulted in the convictions of substantial numbers of war criminals on these charges.
When it comes to prevention, however, the same international community has in large measure failed to step up to the plate. The very fact that genocides and crimes against humanity were allowed to occur in Bosnia, Rwanda, and so many other places speaks for itself. There are, of course, multiple reasons for this. Still, we are far from being able to congratulate ourselves on our progress in the area of genocide or mass-atrocities prevention.
Menachem Z. Rosensaft is Associate Executive Vice President and General Counsel of the World Jewish Congress. He teaches about the law of genocide at the law schools of Columbia and Cornell Universities. He is the author of the forthcoming book, “Poems Born in Bergen-Belsen” (Kelsay Books, April 2021).