I  first  wish  to  thank  Prof.  Nunes,  Director  of  the  Institute  on  the  Holocaust and  the  Law  and  Moderator  of  this  panel,  for  the  opportunity  to  serve  on  this distinguished  panel

Krieger, Abraham B.

NSU Works

INTERNATIONAL LAW ASSOCIATION PANELDISCUSSION ON "THE HOLOCAUST ASCATALYST FOR INTERNATIONAL JUSTICE"Abraham B. KriegerI first wish to thank Prof. Nunes, Director of the Institute on the Holocaustand the Law and Moderator of this panel, for the opportunity to serve on thisdistinguished panel. I serve as General Counsel of the American Gathering ofJewish Holocaust Survivors. Benjamin Mead, its Chairman, was originally tohave served on this panel, but was unable to because of a conflict. I representan extraordinary group of people - Survivors of the Holocaust. They have twoimperatives, one to bear witness and the other to preserve memory.The murder of an individual is, of course, a crime. The murder of a peopleunder the euphemisms of "Final Solution" or "ethnic cleansing" should elicitbroader accountability, prosecution and punishment. Survivors, more thanothers, recognize that while the murder of an individual is a crime againstfamily and state, the murder of a people is, what we have come to refer to as, a"crime against humanity." If the Final Solution was not sufficientlyunfathomable, at the end of the war, Survivors, trying to return to their homes,continued to be killed by the thousands. The "final" solution was not quite thatfinal, while the suffering and losses continued.Prof. Peter Longerich of the Holocaust Educational Trust in Londonsuggests that "a dispute over the genesis of the Final Solution involves findinganswers, not only to questions of when and where, but also ultimately, why?"These questions are integral to the judicial process. But they are questions thatthe survivors alone live with each and every day of their lives. What likewisecomes to mind is Eichman's statement, also expressed by Josef Stalin, that "thedeath of an individual is a tragedy - the death of a million ...a statistic." Addthat to Hitler's statement in the early 30's that "after all, who now speaks of theArmenians?" and the Final Solution and later genocides become moreforeseeable. 0As lawyers, we recognize the importance of "choice of forum" decisions.Forum played a determinative role in the outcome of post-World War IIprosecutions, involving military tribunals, courts in East and West Germany andtrials in other countries, the most important of which remains the Eichman trialaddressing crimes against humanity, later serving as a model for the Rwandatrials and International Criminal Court.354 ILSA Journal of International & Comparative Law [Vol. 9:353The results in each forum are telling. The Nuremberg trials in particular,on which my co-panelist, Benjamin Ferenz, will speak in greater detail and withpre-eminent knowledge, were compelling and cathartic. Tragically however,there were too few convictions due to lack of prosecutors, judges, facilities andfunding.Statistics involving post-war prosecutions by East and West Germany aredistressing. Fully 80% of the judges in post-war Germany were formermembers of the Nazi party. Their appointments originated in the late 1800'sunder the authoritarian Bismark government. They retained their civil servicepositions through the liberal Weimar Democratic Republic and subsequent Naziregime which benefited from a supportive judiciary already in place. This,among other reasons, contributed to the relative ease and speed with whiich thelegal and legislative systems collapsed. Judges, lawyers and legislators, whoshould otherwise have served as a buffer, simply folded, permitting the FinalSolution to proceed for the most part unopposed.Between 1963 and 1967, approximately 300 war crimes cases werepending in the Berlin prosecutor's office. Almost every one was eventuallydismissed on statute of limitations defenses.Every survivor bears witness. But bearing witness in a prosecution isdifferent from personally remembering, which carries with it a differentresponsibility. How many war crime prosecutions failed to lead to convictionsbecause the survivor/witness was simply unable to recount and relive that whichremains unthinkable?Immediately after World War I1, many were arrested, fewer wereprosecuted, fewer yet were found guilty and even fewer were actually punished.After punishment, more often than not, those convicted had their sentencesreduced or commuted - a process, as we know, tragically continuing to this veryday. How unimaginable that must be to the survivors who committed no crimeand continue to suffer in part for the remainder of their lives, with no prospectof their suffering being commuted? Abe Foxman of the Anti-DefamationLeague suggests that the best an international tribunal can hope for is "symbolicjustice" since actual justice in the face of any genocide, is arguablyunachievable. Survivors are often asked about the subject of forgiveness. Mostexpress a much stronger preference for justice, recognizing at the same time theimpossibility of it ever being fully or even substantially realized, especially atthis late date.In closing, Prof. Yehuda Bauer, a renowned Israeli Holocaust scholarsuggests that, in the Post-Holocaust era, three commandments should be addedto the original ten: (1) Thou shalt not be a perpetrator; (2) Thou shalt not be a2003] Krieger 355victim; and finally and perhaps most importantly - (3) Thou shalt not be abystander.Abraham B. KriegerOct. 25, 2002International Law AssociationPanel Discussion on"The Holocaust as Catalyst for International Justice"Association of the Bar of theCity of New York

International Law Association Panel Discussion On  The Holocaust As Catalyst For International Justice

http://nsuworks.nova.edu/cgi/viewcontent.cgi?article=1424&context=ilsajournal

International Law Association Panel Discussion On The Holocaust As Catalyst For International Justice

Abstract

Similar works

Full text

Available Versions

NSU Works