Nazi Crimes and the Law (review)

The German Historical Institute's recent publication Nazi Crimes and the Law covers a range of legal and political issues from early postwar problems of prosecution of German war criminals to present-day Holocaust denial. This anthology of eleven articles drawn from a 2003 conference in Amsterdam reveals the complexity of efforts to confront the totality of Nazi crimes. Justice appears illusive and its absence is clear; no punishment can fit the crime. Consistently throughout the chapters, the reader encounters defendants' efforts to appeal to the basic legal principles that were denied their victims. Eyewitness testimony and material evidence clearly did not guarantee convictions, but together the documentary evidence provided historians with an important resource—one that personalized the impact of Nazi policy upon its surviving victims. Since the demise of communist regimes in Eastern Europe, archival sources there have significantly supplemented the tools available for identifying war criminals and successfully prosecuting them. Henry Friedlander outlines the difficulties prosecutors face in trying German war criminals, and Gerhard Weinberg emphasizes in his contribution the oft-overlooked potential for additional research. Each article could stand alone as a contribution to our understanding of the complications faced in addressing Nazi crimes. The volume includes a number of references that only specialists will fully understand; nevertheless, its strengths include its readability, its capacity to inspire further research, and the implied application of its lessons in contemporary settings.

Friedlander's opening article introduces the reader to the wide range of issues that pre-dated the Nuremberg trials but had clear consequences even into the 1980s. The author finds that two key factors facilitated the prosecution of German war crimes. First, the German Rechtsstaat reflected public expectations that the state should be guided by legal principles. Cognizant of the illegality of their actions, many German leaders took refuge in obscure legal terminology within German law or pointed to extenuating circumstances to justify their actions. On the other hand, Germany had been a party to many international agreements governing the actions of belligerents towards soldiers and civilians. Second, the International Military Tribunal's Control Council Law No. 10 made possible prosecution for more broadly defined crimes, including crimes against humanity. As Law No. 10 crossed the legal Rubicon of nullum crimen sine lege, its direct impact remained limited to the period from December 1945 through 1951. Thereafter, prosecuting war criminals became difficult as legal definitions of criminal activity shifted towards burying the past rather than assuming responsibility for it.

While Friedlander emphasizes the uncomfortable fact of the limits of prosecution, Patricia Heberer suggests that effective prosecution of war criminals could have proceeded without Law No. 10. Appealing to American precedents, American military courts had prosecuted "offenders of military and international law" in cases extending back to the American Civil War (p. 47). In a somewhat ironic twist, the sentences handed down in these cases proved significantly heavier than those imposed after the promulgation of Law No. 10. However, the 1945 Hadamar trial revealed serious obstacles to prosecuting Germans for actions taken against their fellow Germans. American prosecutors closed the loop by appealing to international laws governing piracy, which establish that the victim's nationality is secondary to the question of punishing criminal activity (p. 59). Similarly, Michael S. Bryant points out that during the various Dachau concentration camp trials American prosecutors effectively applied existing international law combined with insights gleaned from British experience in trials held in Bergen-Belsen. In addition to achieving a high rate of conviction, American prosecutors broadened the definition of prosecutable crimes by demonstrating defendants' clear involvement in criminal enterprises—notably in the cases of Rudolf Höss and Adolf Eichmann (pp. 78–79). Unfortunately, the political pressures of the Cold War and the delicate political balance in the new West German Bundestag pushed these guiding principles onto the sidelines.

Four authors explored specific examples of West German reluctance to prosecute war criminals. In Joachim Perels' assessment, the German justice system departed from Allied norms of prosecution...