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The Legal Lessons of Bergen-Belsen

Considering the legacy of Nuremberg, and the jurisprudence of international criminal and human rights law, on the 71st anniversary of the liberation of Bergen-Belsen

Menachem Z. Rosensaft
April 18, 2016
Nigel Treblin/AFP/Getty Images
Visitors stand at the inscription wall on the grounds of Bergen-Belsen in Bergen, Germany, June 21, 2015. Nigel Treblin/AFP/Getty Images
Nigel Treblin/AFP/Getty Images
Visitors stand at the inscription wall on the grounds of Bergen-Belsen in Bergen, Germany, June 21, 2015. Nigel Treblin/AFP/Getty Images

Editor’s note: The following is a version of the speech delivered by the author on Sunday, April 17, 2016, at a ceremony in Germany marking the 71st anniversary of the liberation of Bergen-Belsen.

“Earth Conceal Not the Blood Shed on Thee!”

These words from the Book of Job are engraved on the Jewish monument that my father, Josef Rosensaft, unveiled here in the midst of the mass graves of Bergen-Belsen on April 15, 1946—the first anniversary of the liberation of this notorious Nazi concentration camp. Only one year earlier, thousands of corpses had borne mute witness to the mass murder that had been perpetrated in this place, and the photographs of the human devastation encountered at Belsen by British troops had forced much of the world to confront the undeniable reality of the Final Solution.

It is eerily symbolic, therefore, that exactly 70 years ago today, on April 17, 1946, Alfred Rosenberg, Nazi Party’s chief ideologist and pseudo-philosopher, was being cross-examined before the International Military Tribunal at Nuremberg about the precise meaning and context of the German term “Ausrottung,” meaning “extermination,” that he had used with respect to Jews in war-time communications with Hitler. Rosenberg also testified that day that he considered the shooting of hostages to be “an accepted act of reprisal.”

Certainly, my mother who was liberated at Belsen could not have imagined 71 years ago today, that less than six months later she would bear witness at the first Nazi war crimes trial, the Belsen Trial, held at Lüneburg from September to November of 1945. She testified against SS-Hauptsturmführer Josef Kramer, the commandant of Bergen-Belsen who had previously been the camp commandant at Birkenau, and against 31 other SS men and women, as well as 12 so-called kapos—inmates who had been assigned certain supervisory tasks—who had sadistically persecuted and tortured them and countless others at Auschwitz-Birkenau or Belsen.

But bear witness she did. Asked if she was of Polish nationality, my mother, then Dr. Ada Bimko, introduced herself as “a Jewess from Poland.” Over the course of two days in September 1945, she told the British military tribunal at Lüneburg of the horrors to which the inmates of Auschwitz and Bergen-Belsen had been subjected by men and women who had worn German uniforms, and who had murdered and tormented at will in the name of the government of the Third Reich, in the name of Germany.

Following selections of Jews for the gas chambers of Birkenau, my mother testified, “they had to go quite naked to a very ill-famed block, No. 25, where they were waiting often for days without food or drink, naked, until the trucks arrived to take them away to the crematorium.”

During roll calls, she said, “Blows were raining down and…we had to stand about for hours and hours in snow or in rain, in heat or in cold. The standing about alone exhausted us entirely… If anybody moved during roll call then the whole block to which he belonged had to stand for hours, and sometimes to kneel down, and even with their arms raised high.”

Through their testimony, my mother and the other witnesses at the Belsen Trial ensured that the crimes perpetrated at Auschwitz and Bergen-Belsen would not be concealed from history, and that the perpetrators of these crimes would not escape justice altogether.

Still, the Belsen Trial was never intended to make new law or to reformulate existing legal principles. It was convened by order of Field Marshal Sir Bernard Law Montgomery as a military court to try—and, it was implicitly understood, to punish—those Nazi war criminals of Auschwitz and Bergen-Belsen who had, as it were, blood on their hands. As was made clear in The New York Times at the outset of the Belsen Trial, it did not establish, and was not meant to establish, a precedent of any kind.

In contrast, however, a number of far-reaching international legal precedents were established at the IMT which formally opened at Nuremberg on November 20, 1945, just three days after the sentences in the Belsen Trial had been handed down. For the first time in history, senior government and military leaders of what had been until only seven months earlier a sovereign nation were on trial for decisions, actions, and orders they had considered to be within the scope of their authority. At Nuremberg, the defendants were charged with a brand new cause of action—crimes against humanity—which was about to permanently transform the jurisprudence of international criminal and human rights law, as well as with war crimes, crimes against peace, and with participation in a conspiracy to commit these crimes.

As set forth in the Charter of the IMT, crimes against humanity encompassed what we now know as genocide but was considerably more general in scope. It covered “murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.”

Taken for granted today, the crimes against humanity charge was revolutionary in 1945 because there had been little if anything in the pre-Nuremberg international jurisprudence to suggest that any of the individuals who ordered or otherwise played a role in the mass killing of Jews or other civilians would ever be held accountable for their actions anywhere, let alone in a court of law.

Indeed, the perpetrators of atrocities such as the Armenian Genocide of 1915-1918 were widely considered to be beyond the reach of any judicial authority. Henry Morgenthau, the U.S. Ambassador to the Ottoman Empire, cabled the State Department from Constantinople on July 16, 1915, stating that the “Deportation of and excesses against peaceful Armenians is increasing and from harrowing reports of eye witnesses it appears that a campaign of race extermination is in progress.” He subsequently wrote in his memoirs that, “Technically, of course, I had no right to interfere. According to the cold-blooded legalities of the situation, the treatment of Turkish subjects by the Turkish Government was purely a domestic affair.”

To be sure, in 1943, in what is known as the Moscow Declaration on Atrocities, the United States, Great Britain, and the Soviet Union served notice that those responsible for the “atrocities, massacres and executions” perpetrated in Nazi-occupied Europe would be sent back to the countries where these acts were committed “in order that they may be judged and punished,” and that those individuals “whose offenses have no particular geographical localization” would be “punished by joint decision of the government of the Allies.”

The form that such punishment would take, however, remained undetermined for the better part of two years. Some Allied government officials opposed large-scale trials. Others believed that the summary execution of the most notorious Nazis should suffice. And by the way, if any Germans were to be put on trial, what specific laws would they be accused of having violated? After all, the persecution of Jews in Nazi Germany was “legal” under laws that had been duly promulgated in Nazi Germany and, more generally, under the prevailing legal system of the Third Reich. According to the positivist school of legal thought, laws did not require any moral predicate to be valid.

It is against this backdrop that United States Supreme Court Justice Robert H. Jackson, the American chief prosecutor at the IMT and the principal architect of its Charter, explained precisely why and how he justified rooting this trial in what many at the time considered to be controversial and untested legal principles.

International law, Justice Jackson declared in his opening statement, “is more than a scholarly collection of abstract and immutable principles. It is an outgrowth of treaties and agreements between nations and of accepted customs. Yet every custom has its origin in some single act, and every agreement has to be initiated by the action of some state. Unless we are prepared to abandon every principle of growth for international law, we cannot deny that our own day has the right to institute customs and to conclude agreements that will themselves become sources of a newer and strengthened international law… Innovations and revisions in international law are brought about by the action of governments such as those I have cited, designed to meet a change in circumstances. It grows, as did the common law, through decisions reached from time to time in adapting settled principles to new situations.”

Under Justice Jackson’s approach, mass murder and mass atrocities had violated international law long before the “crimes against humanity” charge was formulated, and the defendants at Nuremberg—and, by extension, the defendants in the Belsen Trial—knew it. All the Charter of the IMT had done, he maintained, was to codify what were already accepted principles of international law.

Alongside but totally separate from the IMT, Gustav Radbruch, a German legal scholar who had been Minister of Justice in the early years of the Weimar Republic, concluded in 1946 that the discriminatory laws promulgated during the Third Reich were invalid from their very inception. In a seminal article entitled “Statutory Injustice and Supra-Statutory Law” (“Gesetzliches Unrecht und Übergesetzliches Recht”), that was to have jurisprudential impact, Radbruch wrote that, “Legal character…is lacking in all those statutes that treated human beings as subhuman and denied them human rights.”

According to Radbruch, “Where there is not even an attempt at justice, where equality, which constitutes the core of justice, is repudiated in the issuance of positive law, then the statute is not merely ‘false law’, but it lacks completely the very nature of law. For one cannot define law, including positive law, otherwise than as a system and an institution whose very purpose is to serve justice. Measured by this standard, whole portions of National Socialist law never attained the dignity of valid law.” In other words, Radbruch believed that whenever the conflict between a statute and justice becomes unbearable, then such a statute “as ‘false law’ must yield to justice.”

Taken together, Justice Jackson’s and Gustav Radbruch’s respective legal philosophies lie at the heart of the system of international criminal and human rights law that has developed since the end of the Holocaust.

The positive legacy of Nuremberg is evident in the charters of the International Criminal Tribunals for the Former Yugoslavia and Rwanda, and in the 1998 Rome Statute that established the International Criminal Court. All three of these documents simultaneously ingrain and reinforce the prohibition against, and provisions for the punishment of, both crimes against humanity and genocide as a matter of accepted international law. And the trials and convictions of many of the most notorious perpetrators of crimes against humanity and genocide in Rwanda and what was once Yugoslavia, most recently the Republika Srpska’s erstwhile strongman Radovan Karadžić less than one month ago, would not have been possible but for the legal principles first put forward in the Charter of the IMT.

At the same time, we must never lose sight of the somber reality that our progress—our evolution—since Nuremberg has been imperfect at best. For many years after the end of World War II, the Nuremberg judicial process was considered illegitimate by most Germans. It took decades for German authorities to start to bring Nazi war criminals to justice, with the result that far too many lived out their days in freedom without ever having to account for the evil in which they had participated.

Omar al-Bashir remains in power in Sudan despite having been indicted by the International Criminal Court for both crimes against humanity and genocide. In Syria, hundreds of thousands have been slaughtered in what are beyond question crimes against humanity for which, I am very much afraid, no one of consequence will ever be put on trial. And then there are the countless atrocities being perpetrated by the Islamic State against Yezidis, Christians, and non-Sunni Muslims. Once again, there is no realistic likelihood that the perpetrators of these crimes against humanity and acts of genocide will ever be brought to justice. And we cannot, and must not, ignore the alarming resurgence of xenophobic extremism, neo-Nazism, and anti-Semitism, we are seeing in many parts of Europe.

At Nuremberg, one of the arch-purveyors of anti-Semitic venom, Julius Streicher, who was the notorious publisher of Der Stürmer, was tried for and convicted of crimes against humanity. Today, manifestations of blatant anti-Semitism, whether emanating from the reactionary right or from Jihadists on the other side of the spectrum, are frequently condoned, minimized or ignored. The often vitriolic rhetoric hurled at the State of Israel from many quarters, including especially in the United Nations Human Rights Council in Geneva, only adds fuel to an already volatile atmosphere of incitement to hatred and violence.

But Jews are far from the only or even the main targets and victims of this growing contemporary intolerance. Today’s refugees generally, many of them Muslims, are being subjected to invectives reminiscent of the pre-Auschwitz, pre-Belsen, and pre-Nuremberg era. Roma and Sinti, homosexuals, and members of other minorities continue to be targeted in an atmosphere of ever-growing bigotry.

Standing here today, I am conscious that the dead who are buried in the mass graves of Bergen-Belsen may be listening to us. Certainly, we owe them remembrance. That, after all, is the principal reason why we gather at this sacred place every year. But we owe them much more than that. We owe them the assurance that the international legal framework that was set in motion at Nuremberg 70 years ago will protect today’s and tomorrow’s victims of hatred, persecution and oppression. We owe them our solemn pledge that we will do everything in our power to prevent the fate of the dead of Belsen from becoming anyone else’s reality.

Menachem Z. Rosensaft teaches about the law of genocide at the law schools of Columbia and Cornell universities and is general counsel emeritus of the World Jewish Congress. He is the author of Poems Born in Bergen-Belsen.