Crimes of the Holocaust: The Law Confronts Hard Cases (review)

Crimes of the Holocaust seeks to find in four Holocaust-related prosecutions (Nuremberg, Eichmann, Demjanjuk, and Finta) some guidelines for the international community's contending with genocide, understood in this book as "the deliberate attempt to exterminate an entire people." Commenting on each of these cases and the trials they occasioned, the author meanders through the proceedings, sprinkling each with comments and criticisms from the standpoint of a specialist in American trial practice. His comments are sometimes insightful and sometimes, in my view, excessively limited by an American legal perspective. Many of his observations will be familiar to specialists in the field. Left out is the complicated political and historical context in which each of these Holocaust-related trials have taken place, the difficulties faced by the organizers of these proceedings, and the limitations of "the Anglo-American approach to adjudication through adversarial proceedings," Landsman's preferred solution for future prosecutions of genocide.

One problem with the book is its uncertain, sometimes changing, focus. This is not, as claimed, the story of "the world's halting development of a courtroom response to the Nazis effort to destroy all of Europe's Jews," because it leaves out questions of restitution and reparation that have so much preoccupied American courts, among others. It is not limited to "alleged Nazi criminals," because two of the trials (Demjanjuk and Finta) deal with collaborators and collaborating nations rather than Nazis themselves. Except in rare and hurried summary, it does not consider Soviet, French, East German, or other European trials, which might have substantiated the author's preferences for "the Anglo-American approach" through comparative analysis. And finally, we cannot even be sure about genocide. In his concluding chapter, Landsman shifts ground imperceptibly from genocide to "massive atrocities"—leaving unanswered the important question of just how the Holocaust should be characterized for purposes of legal reckoning and how its adjudication can be extended to other instances of mass killing.

At the heart of Landsman's discussion is an assessment of a "two-track approach to prosecution"—never defined, but by which I assume he means Holocaust prosecutors' preoccupation, from Nuremberg onward, with both "truth-telling and punishment," that is, with the compilation of a record of Nazi crimes on the one hand and the convictions of the accused on the other. "The central dilemma of Nuremberg," he writes, "was how to combine these two objectives," and to do so in a manner consistent with procedural fairness and the promotion of the rule of law. Holocaust-related trials, he contends, have all had to contend with the problems, difficulties, and sometimes contradictions that arise in pursuing both of these objectives simultaneously.

In all four cases, Landsman highlights departures from Anglo-American rules of evidence, deemed necessary in order to provide a grand narrative of genocidal events. To varying degrees, trials of Holocaust perpetrators saw plenty of "hearsay, prejudicial and entirely irrelevant material." Landsman is critical of these alterations of Anglo-American practice, an argument with which I have some sympathy; but he does not say much about the political, legal, social, and cultural forces that pushed powerfully in the opposite sense. In Nuremberg and in Eichmann, as Landsman notes, judges opposed the most egregious abuses and were able to constrain overzealous prosecutors. John Demjanjuk, accused of being a murderous guard at Treblinka, and Imre Finta, a member of the Hungarian gendarmerie accused of assisting in deportations from Szeged, Hungary, in 1944, did not benefit from such judicious oversight: In the former case the Israeli Supreme Court overturned the conviction of the Jerusalem district court in part because of the consideration of new evidence; and in the latter a Canadian jury (later sustained by the Canadian Supreme Court), applying standards appropriate for garden-variety murders, acquitted the Hungarian auxiliary policeman. In the latter two cases, Landsman argues persuasively that prosecutorial disasters derived from attempts to construct grand historical trials on the Nuremberg model around the cases of low-level perpetrators. In...