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Home , Auschwitz trial, Dachau Trials, War crimes trial

FORGOTTEN TRIALS OF INSTRUCTOR’S GUIDE

In the wake of the Second World , how were the Allies to respond to the enormous of the Holocaust? Even in an ideal world, it would have been impossible to bring all the perpetrators to trial. Nevertheless, an attempt was made to prosecute some. Most people have heard of the trial and the , though they probably have not heard of the —the fi rst trial of Germans for Nazi-era —or even the , in which war criminals were prosecuted by the American personnel on the former concentration camp grounds.

This book uncovers ten “forgotten trials” of the Holocaust, selected from the many Nazi trials that have taken place over the course of the last seven decades. It showcases how perpetrators of the Holocaust were dealt with in courtrooms around the world—in the for- mer , the , Israel, , , the and Ger- many—revealing how different legal systems responded to the horrors of the Holocaust. The book provides a graphic picture of the genocidal campaign against the through eyewitness testimony and incriminating docu- ments and traces how the public memory of the Holocaust was formed over time.

The volume covers a variety of trials—of high-ranking statesmen and minor foot sol- diers, of male and female concentration camps guards and even trials in Israel of Jewish Ka- pos—to provide the fi rst global picture of the laborious efforts to bring perpetrators of the Holocaust to . As law professors and lit- igators, the authors provide distinct insights 284 PAGES • 17 HALFTONES, 2 TABLES into these trials. CLOTH • 978-1-4798-8606-7

WWW . NYUPRESS . ORG NYU PRESS 2 INTRODUCTION Introduction interview ofGabrielBach, theprosecutor inthecase secondtoAttorney Lipstadt’s Hannah Yablonka’s TheStateofIsraelvs.Adolf EichmannandDeborah recommend it.AsfortheEichmanntrial,DavidCesarani’s BecomingEichmann, resorted toTelford Taylor’s bookTheAnatomyoftheNuremberg Trials —and trial, norabouttheEichmanntrial.Inteaching Nuremberg, wehave once more MilitaryTribunal abouttheInternational trial,themainNuremberg Because theyhavebeenadequatelycovered elsewhere, wehavenotwritten Ravensbrück donotpresent theentire Holocaustpicture ofHolocausttrials. Auschwitz andTreblinka, andtheconcentrationcamps atDachau,Plaszowand We appreciate thatthetentrialsinthisbook,coveringdeathcampsat has sunkin. the Holocausthasbeenshowngraphicallyand,judging bystudentcomments,it Tower Memorial,itwouldtaketheSears(Willis) Vietnam of todoit.Theenormity one wantedtoerect amemorialtoHolocaust victimscomparable tothe connection? HethenexplainsthattheChicagobuildingis120storiestall,andif of theSearsTower Tower. inChicago,nowcalledtheWillis What,heasks,isthe War.Americans killedintheVietnam Hethenshowsthestudentsaphotograph story plaqueseveralhundred feetlongcontainingthenamesofall50,000plus Memorial,asinglebegins byshowingstudentsaphotographoftheVietnam a simplephotographicdisplaynotconnectedatallwiththeHolocaust.He one ofus(FrankTuerkheimer) has,sincetheearly1990s,begunhiscoursewith become abstractions.Inaneffort toinsure thatabstractionsbecomereality, Teaching theHolocaustisdifficult,inpartbecausenumbersveryreadily perpetrators. CriminalLaw,of International allwithinthelifetimesofbothvictimsand force havelargely beenremoved, creating anentirely newanddifferent body the Nuremberg CriminalLawthenin byconceptsofInternational need notcomeatapacemeasured incenturies. Theconstraintsplacedon is importantforallstudentstoknowthatthelawnotstaticandchange can beadministered. Finally, aslawprofessors andlawpractitioners,wefeelit legal systemsandtoappreciate thattheirownisnottheonlywayinjustice through trialspresents aboutdifferent studentswithanopportunitytolearn have beenheldindozensofcountriesandundervariedlegalsystems,teaching and isinvitedtodosowhenvictimtestimonyconsidered. Third, sincetrials a microscopic aspectofthe Holocaustasawhole,everystudentcanmultiply all trialsinvolvevictimtestimonyandwhilesuchoftenpresents just thus present studentswith theHolocaustatground- orvictim-level.Virtually confrontation creates interest. Second,trials,bydefinition,are fact-focused,and We havedonesoforseveral reasons. First,trialsinvolveconfrontation and adopted asourcentralthemeforsuchcoursesthesubjectofHolocausttrials. We realize thatthere are manywaystoteachabouttheHolocaust.We have The EichmannTrial are excellentsources. Frank Tuerkheimer’s lengthy NYU PRESSINSTRUCTOR’S GUIDE 3 INTRODUCTION FORGOTTEN TRIALS OF THE HOLOCAUST Trials involve two sides where one side tries to show facts that lead to certain one side tries to show facts that lead to certain where involve two sides Trials should imprisonment or worse – and the other tries to show that there – results not just. This is an is, death or imprisonment are not be a conviction or if there important perspective. As a very rule, none of the defendants extremely was no denial of the in these trials challenged the underlying facts – there following on unawareness, of Jews – defenses centered intentional mass murder the stakes for these defendants were Yet did it too”, and coercion. “you orders, The absence as high as it can get and virtually all had excellent defense counsel. drawn from of any challenge to the underlying facts is an important lesson to be the Holocaust and its victims fade into the past and these trials in an era where denial – especially in the Age of the Internet Holocaust – will most likely where What is it about trials that makes them an ideal vehicle for learning about What is it about trials that makes them an ideal vehicle for learning about varied. the Holocaust? The answers to this question are To introduce any or all of these chapters to the students, the following questions following questions any or all of these chapters to the students, the introduce To might be helpful. Using trials to teach the Holocaust permits crossing the undergraduate/law permits the undergraduate/law Using trials to teach the Holocaust crossing enough law in the course to categorize the is easily There student boundary. learncourse as a law school course. Students about the origins of International its changes since the days of about Criminal Law and, in a closing lecture, country to country, vary from They learn how trial procedures Nuremberg. to the course. At the a comparative criminal law component providing thereby complex to either overwhelm or turnsame time, none of this is sufficiently off of law involved in this course is light students. Indeed, the level undergraduate courses on Constitutional for example, with undergraduate when compared, At the University of Wisconsin, course was taught to classes with both the Law. no presented and the mixture juniors, seniors and law students undergraduate the very nature school in , At the University of Giessen law problem. of law training in Germany combines what in the United States would be law students and undergraduates. While broader context to the Holocaust is provided in some of the readings readings in some of the the Holocaust is provided context to While broader a brief providing lecture a preliminary recommend we sure, in the book, to be – in particular, War to the Second World the background history of anti-Semitism, never We Germany– and a synopsis of the war. and Weimar War the First World modern of students knows much generation European assume that the current we might as well be talking about history; to many of them, we discovered, ancient Egypt. (continued) Introduction http://cargocollective.com/ a good source: is also Gideon Hauser, General in the book must not all of the trials Conversely, eichmannprosecutorinterview. many of the ten trials it is up to the instructor as to how be assigned as readings; should be read.

4 INTRODUCTION Introduction (continued) prosecutions inUnitedStatescourts. suchof theUnitedStatesConstitution, forexample,wouldnothavepermitted specifically designatedas suchundercriminalcodes.Theexpostfactoclause opposition totheconcept thatdefendantswere being charged withcrimes not While Nuremberg isalmostuniversallylauded,atitstimethere wasconsiderable not criminalizedintheordinary process? criminal lawstatutes.Was itfairtoprosecute thesedefendantsforconduct Most butnotallofthetrialsare basedontreaty violations,notspecific been anactiveparticipantintheHolocaust. would feeliftheythoughtaneighbor, agoodandseeminglykindneighbor, had for example,notthebetterwaytogo?Onemight askthestudentshowthey forgiveness. Are thetruthandreconciliation efforts undertakeninSouthAfrica, effort istoreconstruct half-centuryoldfacts?Thesequestionsgetus toissuesof and 90s,present nodangertosociety. Anddoesitnotinviteinjusticeifthe facts occurringinthe1940s?Certainlyagingdefendants,their70s,80s is thevalueofsinkingprosecutorial resources intoamajoreffort todealwith alllatertrials.Whatabiding citizenforoverthirtyyears,thequestionpermeates in Floridathoughtitinequitabletoprosecute apersonwhohadbeenlaw- While thisissueisdirectly raisedintheFedorenko casewhere thetrialjudge person foreventsoccurringhalfacenturyearlier? The trialsinthebookspanperiod1943to1999.Isitfairprosecute a placing himincharge ofthe“completesolutiontoJewishquestion.” we begininourintroduction withGöring’s July31,1941directive toHeydrich, conspiracy analogyonestepfurther. Thusallthesetrialsare related. Thatiswhy level; tothepersononstreet sellingthedrugs,tocarryourdrug-importation only tangentially. Thetrialswecoverinthisbookgetstudentstotheground trial alone,focusingasithadto,onEichmann,dealswithotherperpetrators into evidencefactshavingnodirect connectiontoEichmann.ButtheEichmann theEichmannprosecutorsThis all-embracingperspectivepermitted toplace them andeventhoughtheydon’t knoweachotheroranythingaboutother. United Stateseventhoughthere are severallayersofco-conspiratorsbetween criminally responsible for theactsofsmugglerbringingdrugsinto the conspiracy. ofadrug-importationringis Thus,forexample,themastermind conduct ofothersintheconspiracy, conductisundertakeninfurtheranceof under conspiracylaw, anymemberofthe conspiracyisresponsible forthe advantages, Astheprosecution correctly pointedoutintheEichmanntrial, take.Itdoes,however,the Holocaustisnotonehistoriansnormally havecertain murder European Jewry. Understandably, thiscriminallawyerperspectiveon We beginourintroduction byreferring totheHolocaustasaconspiracy not fadeawayatall. NYU PRESSINSTRUCTOR’S GUIDE 5 INTRODUCTION FORGOTTEN TRIALS OF THE HOLOCAUST We do not, by these few questions, mean to suggest that these are the only the only to suggest that these are do not, by these few questions, mean We to the course. But we have found ones that can be asked as an introduction and to establish a foundation for a deeper them to be a stimulus to students and the facts they reveal. understanding of the trials that follow (continued) Introduction Republican a prominent Robert Taft, Senator an open question. This remains on trials in 1952, opposed the Nuremberg candidate and serious presidential Robert Jackson, best answer was given by Justice Perhaps the these grounds. post trial. The purpose of the ex the main Nuremberg of as principal that on notice that persons are is to ensure facto clause, he explained, cover in the trials we All of the crimes charged their conduct is prohibited. had that murder beings and, as Jackson observed, of human include the murder be noted that the ex since Cain slew Abel. It should been unlawful ever crimes by the to current obviated in the United States as post facto issue is States in 1988. U.S.C. §1091, passed in the United Act, 28

6 CHAPTER 1 The Kharkov TrialThe (December 15-19,1943) Chapter One was thecase,Soviets. Ontheotherhand,expertreports provided bythe Katyn Forest, falselyconcludingthattheperpetrators were rather, Germans as Soviets produced asimilarreport ofexpertsexaminingthemassgravesin expert report bebelieved?Inthatconnection,weremind thereader thatthe testified aboutthemassgravestheyfoundoutat Drobitsky Yar. Shouldthis In discussingtheprosecution case,notethatateamofmedicalandlegalexperts to thedefendantsondock? procedural guaranteesusuallyassociatedwithafairtrialintheWest given the trialwasconductedfairly. Was thisaSoviet-style“showtrial”orwere the A gooddiscussionquestiontoexplore withstudentsiswhethertheybelieve that THE TRIAL TruthUncover the Murder Behindthe Jews. of1.5Million Jews were APriest’s shotinUkrainealone:HolocaustbyBullets: Journeyto backwaters ofUkrainehasuncovered gravesthatsuggestperhaps1.5million We highlyrecommend FatherPatrickDesbois’book,whosescouringofthe Holocaust trial. December 1943focusingontheseeventsdefinitelyfitsthedesignationasa invasion oftheSovietUnioninJune1941.TheKharkovtrialthattookplace burial inmasspitsofJewscommittedSovietterritoriesuponGermany’s ignoring orrelegating toapre-Holocaust periodtheshooting-by-bulletsand Poland,wronglythe JewsinindustrialslaughterhousesofGerman-occupied ofSo muchofthehistoryHolocausthasfocusedonextermination powers; and3)theword “Jew”wasnevermentionedinthetrial.We disagree. exist atthetime;2)genocideofJewswasnotfullyknowntoAllied A goodargument canbemadethatitisnotsince:1)theword Holocaust didnot Holocaust”? But isitcorrect tolabeltheKharkovtrialas“thefirstof and DawsonlabelstheKharkovtrialas“thefirstNaziwarcrimestrial.” Nuremberg: FirstNaziWar Ukraineandthe TheHolocaustinthe CrimesTrial, This trial,therefore, befitsthetitleofGregory Dawson’s book,Judgmentbefore law,was donepursuanttointernational specificallytheMoscowDeclaration. that thiswasthefirsttimeanyAlliedpowerheldsuchatrial;andit the SovietsheldatrialofNaziwarcriminalsinUkrainiancityKharkov; have neverheard ofthis trial. Theyare surprisedtohearthatinDecember1943 “forgotten.” We havespokentonumerousthatthey Holocausthistorianstolearn trial of1943(alongwiththekapotrialsinIsrael)bestfitsthedesignation Of allthe“forgotten trials oftheHolocaust”discussedinthisbook,Kharkov THE HOLOCAUSTINKHARKOV

NYU PRESSINSTRUCTOR’S GUIDE 7 CHAPTER 1

FORGOTTEN TRIALS OF THE HOLOCAUST

A longer version of this chapter appears in Bazyler & Gold, ‘’The Judicialization A longer version of this chapter appears in Bazyler & Gold, ‘’The Judicialization of 1943,” San Diego of International Crimes: The Kharkov Trial Atrocity 14, p. 77 (Fall, 2012). Journal, v. The formation of Holocaust memory in the Soviet Union and the post-Soviet The formation memory in the Soviet Union and the post-Soviet of Holocaust Union and even West. In the Soviet that of the significantly from era differs and focuses on the atrocities Patriotic War, that period is called The Great today, and not just the Jews. For the region, population of committed against the entire “Holocaust” is only a term that began to be used after the the word that reason, Conferences as in the West. not as prevalent fall of the Soviet Union, and is still has any serious focus been placed on recently on the Holocaust abound, but only including a first-ever internationalthe Holocaust in the Soviet Union, conference II, Nazi Crimes, and the War held in Moscow in December 7-9. 2012: “World by the United States Holocaust Holocaust in the USSR” and co-sponsored focused on only one Nazi war crimes the program Memorial Museum. Strangely, in trial held in the Soviet Union in 1949, with no discussion of the proceedings Kharkov. FORMATION OF HOLOCAUST MEMORY IN THE SOVIET UNION MEMORY OF HOLOCAUST FORMATION We mention the prosecution of Nazi war criminals in the Soviet Union after the in the Soviet Union after the of Nazi war criminals mention the prosecution We 25,000 German approximately and war and state that the Soviets convicted taking place within a few years after the Austrian Nazis, with most of the trials estimates.” are our accompanying footnote 77: “The figures Note, however, war. of the postwar trials of Germans study has yet to be published A comprehensive and Austrians in the Soviet Union. THE AFTERMATH THE AFTERMATH Another good question to ask the students is what they think about the they think about the to ask the students is what Another good question with the not argue defense counsel did counsel. Here, conduct of the defense circumstances but only that extenuating for a guilty verdict, request prosecution’s strategy to take? this a wise trial less than death. Was called for a sentence admirably in this the defendants’ Soviet counsel acted think so, and feel that We trial. Soviets of mass graves found throughout the Soviet Union provided important important Union provided the Soviet throughout mass graves found Soviets of two years later. IMT trial at Nuremberg in the evidence introduced Chapter One Chapter (continued) The Trial Kharkov

8 CHAPTER 2 The Trial of Pierre Laval (October 4-9,1945) Pierre TrialThe of Chapter Two (Transaction Publishers,2010). into English.ItissummarizedinJ.KennethBrody’s TheTrial ofPierre Laval The trialitselfappearsinLeProces Lavalwhichhasnotbeentranslated justify theimpositionoflifeimprisonmentrather thanthedeathpenalty? Did Pétain’s ageandcontributiontoFranceduringtheFirstWorld War did not. been afigurehead, helentprestigeVichy andstabilitytothe regime thatLaval thehigher-upnormally receives theharshersentence.While Pétainmighthave a criminalventure, sincecollaboratingwiththeenemyviolatedFrench law, wasLaval, hisunderling.Ifweassumethatthecollaborationistgovernment regimePétain, theactualheadofVichy tolifeimprisonment,whileexecuting One questionthatmightbeconsidered ofsentencingMarshall isthefairness there islittledoubtthatLavaldidnotreceive afairtrial. significantly from howcriminalstrialsare supposedtobeconducted inFrance, There isnotmuchtoargue aboutwhetherthetrialwasfair:becauseitdeviated regimeGerman inBudapestandbegantooccupyHungarydirectly. and murdered, inMarch butonlyaftertheGermans 1944overthrew thepro- survived; inHungarythevastmajorityofHungarianJewrywassenttoAuschwitz DenmarkandHungary.by theGermans: InDenmarkallbutahandfulofJews puts Francesomewhere betweentwoothercountriesnotoccupiedinitially deaths, thefactremains thatthemajority of French Jewssurvivedthe war. This While there were thousandsofFrench Jewsamongthe75,000senttotheir this justifycollaboration? fled toFrancefrom theNazioccupiers,hesavedlivesofFrench Jewry. Does Laval claimedthatbycooperatinginthedeportationofnon-French Jewswho There were approximately 300,000JewsinFranceatthebeginningofwar. occupiers.WasFrance undertheruleofGerman Lavalright? better fortheFrench leavingtheentirety people thananexilegovernment, of occupierswas workingtogetherwiththeGerman Laval believedagovernment the trialofPierre Lavalpresents. The subtitletothischapter, “PatriotorCollaborator,” raisesthemainquestion NYU PRESSINSTRUCTOR’S GUIDE 9 CHAPTER 3 For For

FORGOTTEN TRIALS OF THE HOLOCAUST In our opinion, one lawyer cannot represent as many as fifteen defendants. For as many as fifteen defendants. For In our opinion, one lawyer cannot represent stated in the text, it is physically impossible to do what is necessary the reasons will undoubtedly be some famous case There representation. effective to provide a sharp contrast to in the news at the time the class is taught which will provide the crunch the defense lawyers faced at Dachau. It is tempting to ask what the students would do if in such a situation. It is tempting to ask what the students any one of the if told they must represent How would a student react the absolute defendants on trial in this case? How can one both recognize represent right of every defendant to a lawyer and at the same time decline to one of these defendants if asked to do so? What, if any, is the appropriate sanction against those GIs participation in participation in sanction against those GIs is the appropriate What, if any, the context of the time: the these executions? This question should be asked in for months, had seen death many times, liberating soldiers had been fighting they found at the horror never encountered had seen hideously wounded, but Dachau. of the first questions might be the quandary When we get to the trial itself, one the British soldiers Adams represented faced by the defense lawyers. John a case that had to be tried Massacre, with manslaughter in the Boston charged demonstrated the dramatically representation This a Massachusetts jury. before unpopular clients. obligation of the lawyer to represent The Dachau Trial (November 1945) 13, 15-December The Trial Dachau motivated the American soldiers liberating Dachau, is no question that There by the train with thousands of starved to the camp by their hideous introduction law into their own hands and summarily and disease-ridden bodies, took the to the The introduction across. they came executed many of the SS guards these executions. chapter on the Dachau trial summarizes summary justice to the who administered those who believe that the GIs be the same as for should the should be prosecuted, SS guards as well? Should that be prosecuted What about the cover-up? murder? While the death camps certainly resulted in the murder of more people, people, more of in the murder resulted death camps certainly While the Those worse. were such as Dachau, in one sense concentration camps, in German-occupied death at the death camps consigned to immediate Poland met and Treblinka) Sobibor, Belzec, Chelmno, Majdanek, (Auschwitz-Birkenau, Buchenwald in camps such as Dachau, Bergen-Belsen, a quick death; those at the liberation of painful death. The films taken much more and others died a readily are this horror graphic images that convey and containing Bergen-Belsen for the students. be screened and can available on YouTube Chapter Three Chapter

10 CHAPTER 4 The Trial of Amon Göth (August 27 - September 11,1946) AmonGöth (August27-September TrialThe of Chapter Four anyone forgenocide. interesting classdiscussioncouldfocusonwhyit tooksolongtoprosecute Since theGenocideConvention wasadoptedbytheUnitedNationsin1948, an criminal law. mentors; Rappaportwasoneofthefounders disciplineofinternational today isEmilRappaport,aprominent prewar PolishjuristwhowasoneLemkin’s CourtofJusticeafterthewar.a judgeontheInternational Theleastknown Hirsh Lauterpacht,whoemigratedtotheUKbefore thewarandservedas genocide.AnotherwasLemkin, thePolish-Jewishlawyerwhocoinedterm of beingpartthelegalprofession inPoland.ThemostnotableisRaphael Like withthepre-war benchandbar, German Jewsalsohadalonghistory unfair toexcludethePolesfrom theNuremberg proceedings. suffered agood argument atthehandsofGermans, canbemade thatitwas Nuremberg? Should thePoleshavebeenallowedtoparticipateasfellowprosecutors in including acourtinAuschwitz. were thirty-eightsuchcourtssetupthroughoutEurope, German-occupied prosecute victimsbutalsosometimestheirown. There notonlynon-German had itsownsetofcourts(theHauptamtSS-Gericht-SSCourtHeadOffice)to It isironic thatGöthwas arrested bytheSSandlargely unknownthattheSS and why? Nuremberg withprosecution before domestictribunals.Whichismore preferable Nazi warcriminalsbefore tribunalsliketheIMTandNMTat international Poland’s NTN.Thisprovides agoodopportunitytocompare prosecution of Compare theworkofAllied-establishedIMTcourtwith same havebeendonehere? defenseteamtocomeIsraelandrepresenta German Eichmann.Shouldthe Union were stillatwar. AttheEichmanntrial,likewise,Israelhired andpaidfor defendantsinKharkov,be donefortheGerman andtheSoviet sinceGermany Nuremberg, defendantscouldhirecounsel,somethingthatnot German elements thatmadethetrialfairandthoseitunfair. Forexample,at A goodquestiontoasiswhetherGöthreceived afairtrialandthenfocusonthe the war. in thefilmSchindler’s List,itiswidelyunknownthathewastriedinPolandafter his brutalityare widelyknown through hisrepresentation byactorRalphFiennes occupation.Last,whileAmonGöthanddestruction ofPolandduringtheGerman murder duringtheSecond World War. Italsoallowedustofocusonthe Poland,thelargestdiscuss theHolocaustinGerman-occupied siteofJewish We chosethistrialforavariety ofreasons. First,itprovides anopportunityto

In lightofthemassivephysicalandmaterialslossesthatPoland

NYU PRESSINSTRUCTOR’S GUIDE 11 CHAPTER 4

egarding the verdict of death by , given the extensive testimony of testimony of hanging, given the extensive of death by the verdict egarding FORGOTTEN TRIALS OF THE HOLOCAUST We also recommend the 2006 documentary “Inheritance” profiling Monica Monica profiling the 2006 documentary “Inheritance” also recommend We past. with her father’s and her confrontation daughter, Hertwig, Amon Göth’s And in 2013, a German whose mother is Monica Hertwig and her father woman published a book about her had a brief affair a Nigerian man with whom Monica translation The English language grandaughter. discovery of being Amon Göth’s Have My Grandfather Would Teege, becomes available in April 2015: Jennifer Nazi Past (translated by Carolin Discovers Her Family’s Shot Me: A Black Woman Sommer). The Untold Account of His Life, Wartime The Untold Account of His Life, Wartime we recommend For further reading, Also Story Behind The List by David M. Crowe. Activities, and the True The Road by Mietek Pemper, autobiography is this very readable recommended List. For additional material on the to Rescue: The Untold Story of Schindler’s website of the & Polish, see the Göth trial, translated from at www.holocaustresearchproject.org. (H.E.A.R.T.) Team Research Archive witnesses against Göth, could it have been otherwise? witnesses against R How does the conduct of fairness the of of the trial? How does the conduct from Does this take away the defense counsel to the conduct of in this trial compare the defense counsel in the Kharkov trial? Returning to the actual Göth trial, we suggest soliciting the students’ views of Returning views of the students’ we suggest soliciting Göth trial, to the actual as defense counsel attorneys.the two Polish defense to be relieved Both sought case. in the denied, played only a passive role was request and then, when the Chapter Four Four Chapter ofThe Trial Göth (continued) Amon

12 CHAPTER 5 (December 5,1946-July 18,1948) Chapter Five their release? execution ofhigh-rankingNazisin1944,wouldfouryearslaterbecallingfor Who couldhavepredicted thatWinstonChurchill, whourgedthesummary those imprisonedtogofree. how quicklytheBritishtired ofputtingNaziwarcriminalsontrial,andallowed sectionpresents The “Aftermath” thelittle-knownanddisappointingstoryof supervisory function.Was itfairforanyofthemtoreceive deathsentences? kapos, whothenexhibitedbrutalityagainsttheirfellowprisonerswhengivena butthenmadeof theprison-functionaries,initiallyimprisonedbyGermans A difficultaspect,raisedagaininthekapotrialsChapter7,isprosecution Wendy Lower, Hitler’s Women Furies:German intheNaziKillingFields. For adiscussionoftherole womenperpetratorsseethenotable ofGerman the defense. forcounsel, whileinDachau,Americanmilitarylawyersasactedtheattorneys One difference defense isthatthedefendantsinthiscasehadaGerman Which trialwasmore fair? Whodidabetterjob? discussed inChapter3. British militarywiththetrialconductedbyAmericanatDachau, A goodplacetostartthischapteriscompare thetrialsconductedby Trials Ravensbrück The inBritish-occupiedHamburg

NYU PRESSINSTRUCTOR’S GUIDE 13 CHAPTER 6

FORGOTTEN TRIALS OF THE HOLOCAUST The The Earl’s Hilary as additional reading: The following is recommended The Law and History. 1945-1958: Atrocity, SS- Trial, Nuremberg website is also highly informative: Ben Ferencz http://www.benferencz.org/ stories/4.html. Finally, some arithmetic. This chapter represents, as far as we know, the only the only as far as we know, This chapter represents, some arithmetic. Finally, taken in this of the Einsatzgruppen trial to include victim testimony, rendition reading the in Students, the Eichmann trial held fifteen years later. instance from by should be asked to multiply the scenario it presents testimony, Yoselewska committed by of the extent of mass murder about 150,000 to get a full picture these defendants. The instructor should be sure that the major theme of the trial as captured in the in the theme of the trial as captured that the major The instructor should be sure not lost on the students. One might – is chapter – no one had to follow orders to kill to save no one had to follow orders simply ask: what is the evidence that to own life? The chapter alludes to several factual examples that a failure one’s did not entail serious consequences. follow orders The last person convicted under this concept was Einsatzgruppen defendant concept was Einsatzgruppen defendant The last person convicted under this to time served. The sentences imposed by Matthias Graf, who was sentenced lightened – fourteen death subsequently were the court on all of the defendants a decade, all defendants to four – and within about reduced sentences were released These released. executed were other than the four who were overwhelming evidence of their convicted on the basis of defendants were in the history of trials. How could unparalleled participation in mass of the have happened? This leads to a discussion of the impact their release post-war trials the view ultimately prevailed: and that perhaps Göring’s Cold War should have been dealing with the a misfocus since Germany the West were and Soviet Communist menace. This trial represents the fulcrum between the immediate post-war enthusiasm post-war enthusiasm the immediate the fulcrum between represents This trial perpetrators and the aversion to such atrocity of Nazi prosecution for vigorous one chapter makes clear, As the War. decade of the Cold in the first prosecutions a concept was membership in a criminal organization, in the case of the charges Department, and by Murray Bernays,States War a lawyer in the United created , trial when the SS, the SD, the main Nuremberg implemented in the the German charged Command, the German High Cabinet and the SA were was that once as modified slightly by the IMT, The idea, as criminal groups. that only it would be necessary to prove found guilty were these organizations of the of the illegal actions and was aware the organization a defendant joined a massive and systematic prosecution This obviously contemplated organization. the peace, war crimes and crimes against of those complicit in – which never occurred. The Einsatzgruppen Trial (September - April 15, 1947 10, 1948) Chapter Six Chapter 14 CHAPTER 7 Chapter Seven Murmelstein wasreviledMurmelstein after thewarbymanysurvivors. Terezin [Theresienstadt] overlords. ghetto,appointedtothepostbyhisGerman thelast Jewishleaderofthe2012 documentaryonBenjamin Murmelstein, Last, wehighlyrecommend viewing“TheLastoftheUnjust,”ClaudeLanzmann’s Eichmann,” 34LoyolaL.A.Int’l&Comp.L.Rev. 417(2012). “The StrangeandCuriousHistoryoftheLawUsed toProsecute Adolf Justice., v.4, p.128(March 2006);MichaelJ.BazylerandJuliaY. Scheppach, Crimes CommittedbythePersecuted:TheKapoTrials inIsrael,”J.Int’lCrim. For furtherreading, Ben-Naftali&Yogev seeOrna Tuval, “PunishingInternational discussion, itshouldberemembered thatweare discussinglawandnotmorality. whether andhowthelawshouldhavedealtwith cruelkapos.Duringthis The dissentbyFrankTuerkheimer presents anexcellentopportunitytodiscuss except murder (andpossiblytreason). jurisdictions hasevolvedtorecognize duress asacompletedefensetoallcrimes not applytomostcrimes.Sincethen,thecommonlawinAnglo-American duress firstemerged asadefensein19th-centuryEnglishcommonlaw, itdid defense ofduress, sometimescalledthedefenseofnecessityorcoercion. When For lawstudents,afascinatingdiscussionwouldbetofocusonthecriminal counted byGod...” Lethissoulrestshould live. be Mitzvah[gooddeeds]hedid inpeaceandletthe was around washispower, hismouth that’s others that Jackrisked his life all. a CAPOheusedhislove,kindnessbutneverpower. Gestapo Whenthe We shouldofhavemore Jackandwewouldhavemore CAPOSlike survivors.As Watching others. than better daybyhowhetreated boysasaCAPO. the respect[ed]. IknewJack campsIfeelthat Jackintwoconcentration Beingwith “Dear Tonka! funeralofJackwhoIlovedand the Sorrywecouldnot attend part: Poland whodiedin1981.ThenotewaswrittenuponJack’s death,reading, in Green, thewidowofJack Green, kapofrom aHolocaustsurvivorandformer One ofus(MichaelBazyler)wasprovided ahandwrittennotewrittentoToni power, formanyofthekaposledtoabusefellowprisoners. necessarily meanbecomingacruelkapo.Authoritymeantpower, andwiththat possibility oflifeandalmostcertaindeath?Butbecomingakapodidnot would Ihavedoneifbecomingakapooftenmeantchoosingbetweenthe necessarily begsthequestionthateachstudentmustaskhimself/herself:What experience intheHolocaust. Puttingstudentintodailylifeoflager by Lawrence Langerhave entered thevocabularyofdescribingJewish the“grayzone”coinedbyPrimoLevyand“choicelesschoices”The terms Trials Kapo The inIsrael

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15 CHAPTER 8

FORGOTTEN TRIALS OF THE HOLOCAUST Mauritius Berner was a survivor who saw his wife and three daughters disappear daughters disappear Mauritius Berner was a survivor who saw his wife and three in the line to the gas chambers. The defendant Victor Capesius, whom he knew saying he would see his as a traveling salesman for I. G. Farben, lied to Berner, at the selection In addition to his role family in an hour after they showered. the mouths of murdered ramp, Capesius stole some of the gold taken from and, although he could Jews. He was found guilty as an accomplice to murder year’s have been sentenced to life imprisonment, he was sentenced to nine Capesius lived another fourteen years. Berner imprisonment. After his release, light has returned to Israel and has learned a very that Capesius received worth it: traveling of Berner who complains that it wasn’t sentence. Play the role of his wife to Germany his time at Auschwitz and the murder and then reliving and then learning the same and children; that Capesius’ sentence was probably The role of Fritz Bauer should also be brought out. Bauer, a Jew, was briefly was briefly a Jew, Bauer, out. of Fritz Bauer should also be brought The role in the 1930s and then left Germanydetained in a concentration camp and spent and Sweden. After the war he was selected as the balance of the war in Denmark major German for the state of Hesse – a the entity that includes chief prosecutor important city of Frankfurt. Did Bauer do the right thing, as an official of the German government, to advise the Israeli Intelligence Agency to by-pass the Jerusalem? normal channels in capturing Eichmann and then bringing him to The role-playing should include the difficulty of being chosen at the ramp to live of being chosen at the ramp to live should include the difficulty The role-playing experience virtually every Auschwitz of the family was gassed – an while the rest summarized testimony of Mauritius Bernersurvivor had. See, for example, the at is to convince the Auschwitz survivor to pp. 239-240. The students’ assignment to convince the witness, the students By forcing come to Germany and testify. of Auschwitz. of the horror the class will have a much better understanding Be an Israeli citizen who survived Auschwitz and came to Palestine/Israel in the to Palestine/Israel in the who survived Auschwitz and came Be an Israeli citizen This person has avoided a new life after the Holocaust. late 1940s and began anything German at the thought of landing in Frankfurt and and is traumatized He/she also has enormous feelings of suddenly finding him/herself in Germany. with the administrators of the camp. The guilt about surviving by cooperating content of this component of the role-play: instructor can vary the emotional the from a function removed at Auschwitz was the potential witness’ role gruesome, such as or something far more dead, such as cleaning latrines, victims? the teeth of gassed extracting gold from To give students a sense of the drama of the trial and a taste of the psychological of the psychological the trial and a taste drama of of the give students a sense To role-play. witnesses, the instructor should involved for the survivor stress Auschwitz, of course, is the main symbol of the Holocaust even though more though more the Holocaust even main symbol of of course, is the Auschwitz, but was nearly as lethal Treblinka by the Einsatzgruppen. murdered Jews were those Jews who assisted in the a human slaughterhouse. Only functioned only as survivors. while Auschwitz had far more at Treblinka, spared were killing process Chapter Eight Eight Chapter The Frankfurt The Trial Auschwitz Frankfurt 1965) - August 19, 20, 1963 (December 16 CHAPTER 8 The Frankfurt Auschwitz TrialThe (continued) Chapter Eight minute snippetisavailableonYouTube. three hoursitistoolongtoscreen inclass,butportionscanbescreened. Atwo- Auschwitz Trial 1963-1965,”whichcameoutin2007,andisavailableonDVD.At recommend viewingthedocumentary“Verdict onAuschwitz:TheFrankfurt TheAuschwitzTrialLaw andRebeccaWhitmann,BeyondJustice: . We also Frankfurt AuschwitzTrial, Limitsof 1963-1965:Genocide,Historyandthe The followingisrecommended asbackground reading. DevinPendas,The measure ofsatisfactioninknowingthatthere aresoinclined. Germans to dealingasharshlypossiblewiththedefendantsandthere mustbesome to whathewasdoing,theprosecutors, were alsoGermans, totallycommitted ➥ ject toCapesius’whim,butasanaccuserwhomCapesiuscoulddonoharm. ➥ wasanimportantplayerinthispubliceducationrole.nity aswell.Berner commu- publicthatwaseducatedbuttheinternational was notonlytheGerman more press thananyparticular sentence. Theinternational attendedthetrialsoit ➥ Some suggestedresponses toBerner’s complaint: as forsomeonewhorobbed agrocery store. ➥ ➥ ➥

While thejudgewhoimposedsentencewascompletelyinsensitive He, Berner, wasabletoconfront Capesius,notasaprisoner totallysub- What happenedatAuschwitzisnowapublicrecord andthatmatters

NYU PRESSINSTRUCTOR’S GUIDE 17 CHAPTER 9

FORGOTTEN TRIALS OF THE HOLOCAUST There has been some concern expressed over the fact that some naturalized over the fact that some naturalized been some concern has There expressed citizens have been permitted to return to their countries of origin without going giving up their right to return to the United the denaturalization process, through is the right to collect a States. What they gain in this arrangement, however, DENATURALIZATION AND SOCIAL SECURITY DENATURALIZATION The following is recommended as background reading. Aside from the case the case Aside from reading. as background The following is recommended Court, itself, at the trial, intermediate the Supreme appellate level and before . This book provides Treblinka see Witold Christowski’s and escape. revolt considerable detail on the Treblinka It is not unusual to ask, as Judge Roettger did, how could so many have let did, how could so many have let It is not unusual to ask, as Judge Roettger one provides The chapter by so few and not resist? themselves be murdered being jammed into a box car for of effect answer: the almost unimaginable people. But suffering or toilet facilities with other days without food, water, Uprising tends the and to the extent that question remains the larger is something Treblinka the escape from to be the focus of Jewish resistance, invites the discussion since the first The case almost that should be addressed. mechanic who made the key the government Turkowski, witness was Eugun with weapons. Of the three the escapees providing to the ammunition room, the orchestrated Sobibor and Belzec, Jews carbon monoxide camps, Treblinka, They Sobibor. escape from instrumental in the and were Treblinka escape from at Auschwitz that led to the unsuccessful October 1944 revolt also orchestrated but no successful escapes. Turkowski’s the demolition of one of the crematoria questions invite a discussion of this aspect of the testimony and Judge Roettger’s Holocaust. THE ESCAPE Another perspective: Judge Roettger noted that the government spared no government no Judge Roettger noted that the Another perspective: spared at counsel table, daily transcripts – several lawyers expense in its prosecution resources had no Israel – while Fedorenko witnesses flown in from of testimony, as a person a non-entity and underdog other than his lawyer and was as much and an understanding Fedorenko could be. Can one muster for sympathy for position? of Judge Roettger’s Judge Roettger was dismissive if not insulting to survivor witnesses. While he witnesses. While he dismissive if not insulting to survivor Judge Roettger was total Fedorenko’s at least one survivor and found that the testimony of credited lived had felt that because Fedorenko he nevertheless not credible, denials were 25 years (just one parking life in the United States for over a lawful and quiet be justified? be left alone. Can this position ticket) he should One perspective: Was Judge Roettger totally biased against the Government in Government against the totally biased Judge Roettger in Was One perspective: and then deport Fedorenko? to denaturalize its efforts The Fedorenko Denaturalization Trial Trial Denaturalization The Fedorenko 23, 1984) 14, 1977 - December (August Chapter Nine Chapter 18 CHAPTER 9 The FedorenkoThe Denaturalization Trial (continued) Chapter Nine to them? denaturalization case,resulting intheallegedperpetratorlivingnextdoor to liveincomfortsomewhere inEurope?isalost Whatifthealternative How dotheyfeelthatsomeofmoneypermitsallegedperpetrators period oftime,theywillbepayingintotheSocialSecurityTrust Fund. This questioncanbemadepersonaltothestudents:eithernow, orinashort your abilitytocollectSocialSecurity? agreement butyouretain withtheallegedperpetrator–youleavepermanently comprises theUnitedStates,isitamistaketoreach whatisessentiallyaplea crimes againsthumanityandgenocidesothattheyare notpartofthepolitythat If theunderlyingpurposeofOSIistoridUnitedStatespersonsinvolvedin leave, SocialSecurityrightsintact? few andshakyintheirtestimonytheallegedperpetratoragrees to todoinacasewhereWhat isthegovernment witnessesitneedsare standard applicabletocriminalcases. denaturalization caseisextremely high:justshortofthereasonable doubt As theFedorenko chaptermakesclear, theburden ina onthegovernment Centerregularly givestotheUnitedStates.the Wiesenthal others from enteringthe United Statesisprincipallyresponsible fortheAgrade which hasdeportedoveronehundred perpetratorsandprevented hundreds of fail tosubmitdata).Inthiscontext,theOfficeofSpecialInvestigations(OSI), highest grade–Awhileothercountriesreceive gradesaslowF(orXifthey andtheUnitedStateshaveconsistentlyreceivedand genocide.Germany the efforts todealwithSecond World War perpetratorsofcrimesagainsthumanity Centergradesvariouscountriesfrom AtoFbasedontheirThe Wiesenthal it really? funds paidoutoftheUnitedStatesTreasury. Onitsface, thisisdisturbing.But themtoliveverycomfortablywithcountries towhichtheyreturn, thispermits Social Securitypensionfrom andinsomeofthepoorer theU.S.government

NYU PRESSINSTRUCTOR’S GUIDE

19 CHAPTER 10

FORGOTTEN TRIALS OF THE HOLOCAUST After the war, Oberlander emigrated to Canada, and since 1995 the Canadian emigrated to Canada, and since 1995 the Canadian Oberlander After the war, his wartime to reveal authorities have been seeking his extradition for failure have been unsuccessful. In date, these efforts membership in EK 10a. To September 2012, the Canadian federal cabinet issued its latest Canadian courts. After Ivan which Oberlander is now appealing through order, successful conviction in Germany in 2011, German also prosecutors Demjanjuk’s began seeking to have Oberlander tried in Germany as an accomplice to the committed by EK 10a. In doing so, they aimed to take the predecedent murders In the Demjanjuk the Demjanjuk conviction one step further. emanating from trial, the District Court specifically noted that Demjanjuk was a guard in the at a Nazi extermination participated center in Poland, and that all guards As of this writing (January 2015), there is only one active prosecution going on going on one active prosecution is only As of this writing (January 2015), there The case presents old Helmut Oberlander. in Canada, against ninety-one year whose ancestors facts. Oberlander is an ethnic German (Volkdeutch) interesting ago. Because of his language skills, settled in the Ukraine over two centuries invasion of the Ukraine ’s he was conscripted at age 17 following Detachment] 10a (“EK 10a”), for Einsatzkommando [Special as an interpreter show that EK 10a was part of a Nazi death squad. German wartime records (see Chapter 6) A Otto Ohlendorff Einsatzgruppe D, headed by the infamous that Einsatzgruppe D “executed” report sent in April 1942 to states field 1942, EK 10a was issued a poison to 91,678 persons. In the summer of not dispute that he served as a Oberlander does now carry out mass murders. in the unit, he never that, as an interpreter member of EK 10a, but maintains that Oberlander participated in any killings. No evidence has been produced that as a general matter, or, personally participated in the mass murders in these Nazi death squads also actually killed individuals. interpreters It is estimated that between 2,000 and 5,000 war criminals emigrated criminals emigrated between 2,000 and 5,000 war Canada: It is estimated that ever been but not a single Nazi has War, after the Second World there to its Criminal In 1987, Canada passed an amendment successfully prosecuted. in Canada for of suspected Nazi war criminals the prosecution Code allowing for Crimes the War – akin to what the UK did under elsewhere crimes committed was 7(3.71), as amended. The first prosecution Act. See Canada Criminal Code § but Finta was acquitted after the Ukraine, Finta, a Nazi collaborator from of Imre was upheld on appeal by the Supreme a six-month jury trial, and the acquittal from its efforts authorities to refocus Court of Canada. This led Canadian – using the U.S. model, of citizenship and deportation to revocation prosecution yet also without much success. A good discussion for this chapter is to compare the prosecution efforts of the of the efforts prosecution the chapter is to compare for this A good discussion This chapter the war. Nazis fled after countries to where various English-speaking Chapter 9 (the Nazis in the United Kingdom and of discusses prosecution for the United States. trial) does the same Fedorenko Chapter Ten Chapter 1999) 1, April - 8 The in Sawoniuk Trial (February

20 CHAPTER 10 The Sawoniuk Trial Sawoniuk The inLondon (continued) Chapter Ten Australian WarAustralian CrimesTrials. For discussion,seeDavidFraser’s Daviborsch’s Holocaustin the Cart:Narrating prosecution. trial.” In1992,theunitwasshutdownafterfailingtoproduce asinglesuccessful to bringsuchindividualsjustice“onthesamebasisasanordinary criminal the UK.Theunitwouldpresent evidencetotheDirector ofPublicProsecutions alleged SecondWorld War criminalswhofledtoAustraliaafterthewar, similarto Australia: Gröning. interesting classdiscussion. SeealsotheConclusionsectiondiscussionofOscar committed inthe“pirateshipofgenocide”?Thisquestioncanprovide an worked asacookatAuschwitz,)beprosecuted asanaccomplicetomurder Should Obelander, theinterpreter (or, forthatmatter, aGermanwho all partofthepirateshipandtheyhelpedoilwheelsgenocide...” Congress, disagrees: “Itmattersnotifhewasatranslatororcook–theywere Farber,actual killing.Bernie executivedirector former oftheCanadianJewish to carryouttheirmurderous duties,suchenablingneverthelessisdifferent from Soviet Union.WhileOberlander, through histranslationskills,enabledEK10a murder process. Notsoforinterpreters ofNazideathsquadsoperatinginthe In 1987, the Australian government establishedaunittoinvestigateIn 1987,theAustraliangovernment

NYU PRESSINSTRUCTOR’S GUIDE 21 CONCLUSION a. No denial of the underlying facts a. No denial of the working prosecutors hard dedicated and b. Incredibly c. Committed defense lawyers (the four Einsatzgruppen a. In some cases: Sawoniuk, Fedorenko, Göth, Kapo trials, of Matthias Graf) executed and the release defendants, major Einsatzgruppen b. Not in others: remaining trial. defendants in Frankfurt Auschwitz and Reconciliation Commissions? a. Truth to do justice is futile. b. Move on, conclude that trying c. Do nothing? FORGOTTEN TRIALS OF THE HOLOCAUST In December 2014, a court in the northern German city of Lüneburg announced In December 2014, a court in the northern German announced city of Lüneburg case and the health of the accused, it will the prosecution’s that after reviewing At Auschwitz, a former allow the trial of 93-year old Oskar Gröning, SS officer. trains unloaded arriving Jews. His other as incoming freight stood guard Gröning who were duties included counting money and other possessions, of dead Jews Last, an update. After the book was published, charges against former Auschwitz against former published, charges Auschwitz Last, an update. After the book was that he was unfit to stand trial on the grounds dropped Lipschis were Hans guard due to illness. And in December 2014, a German court in Cologne acquitted a Werner participating in the infamous identified only as C., of former SS member, by massacred when 642 were in France, massacre Oradour-sur-Glane - operation. The pros resistance for a French the SS on June 10, 1944 in reprisal village in the French defendant was present that the 89 year-old ecution proved the court nevertheless however, as part of the SS unit involved in the massacre; evidence to connect the was insufficient that there did not convict on the ground defendant to the murders.

What do these trials have in common? have in common? What do these trials these trials, that justice was done? Do you feel, after reading generally. What is a better alternative? Conclusion for the course, have been selected trials in the book do not know which Since we discussion. But respect to a suggested wrap-up specific with it is difficult to be trials be questions to ask once all the the following might as a general matter, discussed. assigned have been

22 CONCLUSION Conclusion Should Gröning beprosecuted? leave me.Icanonlypleadforforgiveness andprayforatonement.” Gröning maintainsthathisguiltismoralandnotcriminal:“Thiswillnever deniers cannotdiscredit. important eyewitnesstestimonybyanunimpeachable source thatHolocaust 300,000 inHolocaust,”(London)Express, Dec.16,2014.Nodoubt,thisis See AllanHall’s SSOfficer, “Former Will Stand 93, Trial forMassMurder of registering itbacktoBerlin.” itandsending ly involvedremoving money, the valuablesfrom jewelsandother inmates, the there. Iwasanofficialthe prisoner’s in whichbasical- possession administration mySSchiefsordered itwassilent....Itin1942that truckuntil of the me baby’s legs.Hesmashedthe [crying]babybythe the iron headagainstthe side every dayIremember nightmare itforthe grab itwas....Isaw[an]SSsoldier that day.... gassed.ThesecriesIhaveringinginmyearstothis ally Everynightand the Jewsweretime how first “On onenightinJanuary1943Isawforthe actu- who wasthere. Here ispartofwhathehassaid: that hedidsotocombattheliesofHolocaustdenierswithtruthaGerman on Netflix,withclips YouTube). Inhisvariousappearances,Gröning contends story, supra;andBBCdocumentaryAuschwitz:“InsidetheNaziState”(available forward andopenlyrevealed tothemediahisrole atAuschwitz.SeeSpiegel from thaterawhohaveadmittedtheirNazipast.In2005hevoluntarilycame What makesGröning’s caseinteresting isthatherare breed ofGermans an agonizingmanner.” ers were really goingtothegaschamberswhere theywouldbeputtodeath in lection process,those not chosenforworkandtoldtheywere goingtotheshow- 2014 statement,thecourtexplained:“Theaccusedknewthat,aspartofse- 425,000 people.Atleast300,000were murdered immediately. InaSeptember an estimated137trainsarrivedatAuschwitz,mostlyfrom Hungary, andcarrying The charge isbasedonthe two-monthperiodbetweenMayandJuly1944,when Gröning isexpectedtobe charged with300,000countsofaccessorytomurder. dubbed “TheBookkeeperfrom Auschwitz.” gassed, andshippingthelootbacktoGermany. Forthisrole Gröning hasbeen (continued) NYU PRESSINSTRUCTOR’S GUIDE

23 CHAPTER 9 FORGOTTEN TRIALS OF THE HOLOCAUST