Murder, extermination, enslavement, deportation, and other inhuman acts committed against civilian populations, 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. (The 1945 London Charter of the International Military Tribunal (Nuremberg Charter), Article 6(c))

 The end of the Second World War brought the Allies a huge moral and legal problem. How were they going to deal with the people of Nazi Germany, who had made depravity a way of life? The unique response to this dilemma was to formulate a retrospective law covering the entire Nazi period (1933-45). This retrospective law was crimes against humanity. The Allies couldn’t permit themselves to be dragged down to the level of the Nazis. Crimes against humanity was a legal device for the Allies to transparently, openly and in the face of history, prosecute these people. They intended to prosecute them in a way that even the Germans would have to acknowledge was fair and judicious, in the fullest sense of the words.

I

Retrospective justice is deeply problematic. Nazi Germany was declared to be a criminal state where the policies of the government, and all those who served that government, were conducting criminal activities. The extent of the criminal activity was far reaching and beyond anything seen before. In a sense the new law, crimes against humanity, was descriptive. The law was framed to mirror the actuality of the actions of the Nazis and was written to criminalize their deeds. There is an air of desperation in this law. The Allies were confronted by genocide; they were also confronted by persecution and the ruthless elimination of groups of citizens who were denied citizenship because of lifestyle or cultural ‘deviance’. Once the Nazis denied citizenship to a group or to individuals they also lost the right to life. Normal legal redress was simply unavailable to the Allies. Summary justice against those Nazis who had been captured alive was also rejected as being unworthy of civilized nations.

Retrospective legal devices are flawed. The flaw lies in the new form of citizenship which had been implicitly created. The citizen qua citizen becomes a moral arbiter of the laws of their country. All laws are rendered tentative, ‘Do I obey this law, or not?’ Normally internal debates about the legitimacy of laws are merely egoistic but a retrospective law converts egoism into a moral imperative. Failing to notice that your country has created laws which are immoral and probably criminal now jeopardises your subsequent position. A retrospective law appears to claim that a citizen should monitor the legal basis of the state: that is it is a duty of the citizen to monitor the legal basis of the laws current in their country. In Nazi Germany the moral challenge doesn’t appear too great. After all it doesn’t take a finely developed moral sense to notice that concentration camps are vehicles for mass murder. Furthermore, that it couldn’t be legitimate to create a system where persecution is the principal activity of the State, which must be wrong. Jews weren’t hauled into court to admit their Jewishness, or failing that, the ‘crime’ of having been born into a Jewish family. There was no attempt at legal justification; there wasn’t a fig leaf of probity.

Jews were deprived of citizenship and then, through a perverted elision, followed through with the draconian ‘punishment’ that they had also lost the right to life. This made Stalin’s ‘kangaroo’ courts look like sophisticated legal processes.

Even though concentration camps were amoral at the very least, in international law they reflected the sovereign right of a country to order their affairs as they saw fit. Denying that sovereign right implies that sovereign rights are not final. Sovereign rights could (and should?) be externally monitored and adjudicated as the ‘monitors’ felt fit. National pride denies this position. Crimes against humanity is a legal concept applicable to the defeated Nazi regime not to any action of the Allies. Reflecting on the concept of ‘mass murder’ in the context of Nazi Germany’s concentration camps is troubling. After all if they are not vehicles for mass murder what else could they possibly be? To even question this is to raise the spectre that in some sense they were legitimate. The Allies were horrified as they rolled up the Nazi regime, even though they had long known about concentration camps. Uncovering atrocities in warfare was nothing new. Finding numerous concentration camps where war had been declared against civilians for ideological reasons was unprecedented. Even the apparatus of the police state was familiar (compare the Soviet Union’s NKVD) but the Nazi state was organised for the slaughter of sectors of the European population and it was legal within the domestic sovereign Germany of the Nazi era. The application of German law (or Polish, or any other conquered nation) couldn’t do the job and therefore ­supra-national laws needed to be formulated. The alternative could have been to offer an escape route to the defeated Nazis from their just desserts. No one wanted Rudolf Hoess or any of the numerous Nazi murderers to escape justice on, as it were, a technicality.

Retrospective laws listing heinous crimes in an unnamed country (though everyone knew the target nation) does however open a Pandora’s Box. What if the crimes were not unique? What if they could be applied to Allied actions either during or prior to the war? Worse: what does it mean to commit a crime in these circumstances? There was no statute of limitations on this law, which meant, and means, that perpetrators can be pursued even into extreme old age, even if there is an appetite for the pursuit.

It is a commonplace that ‘ignorance of the law is no defence’ but is ‘ignorance of a law that hasn’t yet been written’ a defence? Any coherent answer to this depends on who was doing what. Rudolph Hoess masterminded the Auschwitz death camp under strict orders from Himmler and from the very beginning there was a sense that the enormity of the enterprise was criminal. The following is from Hoess’s account immediately prior to his execution, demonstrating that even Himmler knew that mass murder of Jews and others was criminal. Himmler put Hoess in charge of the destruction of all European Jews and, “He (Hoess) was ordered to keep this secret, even from his superiors.” Neither Himmler nor Hoess knew that a new law, crimes against humanity, would be enacted by the victorious Allies but they did know that the mass murder of European Jews and others was a crime. If it wasn’t a crime against humanity what sort of crime was it? Hoess, who was brought up in a strictly Roman Catholic household, wrote in his last testament that:

“My conscience compels me to make the following declaration. In the solitude of my prison cell I have come to the bitter recognition that I have sinned gravely against humanity. As Commandant of Auschwitz I was responsible for carrying out part of the cruel plans of the ‘Third Reich’ for human destruction. In so doing I have inflicted terrible wounds on humanity. I caused unspeakable suffering for the Polish people in particular. I am to pay for this with my life. May the Lord God forgive one day what I have done.”

For Hoess, a crime against humanity is a ‘sin’. The Allies were not theocracies and people could be not punished for sinning. The Allies required a legal basis for the punishment of Hoess and others like him. Hoess was a paradigm example of the new law working to perfection. He was executed and Himmler, anticipating execution, decided to commit suicide which he did immediately after capture.

If Himmler was the architect of the Final Solution and Hoess was an enthusiastic acolyte, then Adolf Eichmann was the ‘office boy’. At the infamous Wannsee Conference (1942) Eichmann received his orders. The Final Solution of the Jewish ‘Problem’ was given direction. Eichmann was an expert on management and logistics. He was also a senior SS officer (lieutenant-colonel). Being ordered to facilitate the destruction of European Jewry was the culmination of Eichmann’s career. He saw it as an accolade to be cherished. Hoess was instructed to follow Eichmann’s orders in relation to the logistics of the management of Auschwitz.

Eichmann was an irresistible force in the organisation and management of Auschwitz but he had no blood on his hands. There was no ‘smoking gun’ demonstrating that he actually killed anyone though he caused people to die, which he freely admitted at his trial. He was a gruesome traffic controller knowing exactly the outcome of the train schedules that he carefully planned. For this, Hannah Arendt immortalised him with the epithet, ‘the banality of evil’. Eichmann’s self image was of a faceless, efficient bureaucrat who exceeded the expectations of his seniors. The fact that his job entailed the destruction of European Jewry was neither here nor there to him. In his final day of submissions for acquittal he said, “that he was guilty of arranging the transports, but he did not feel guilty for the consequences.” When asked why he was so obedient he said, as did many others, that he had sworn an oath of loyalty to Hitler and therefore he was obliged to obey in the manner that all soldiers are expected to obey. The judges found him guilty as, “He was deemed responsible for the dreadful conditions on board the deportation trains and for obtaining Jews to fill those trains”.

The crimes against humanity laws were post-war and European. They underpinned the Nuremberg Trials and legitimatized the executions which followed. The Eichmann trial (1961) is curious in many ways. The prosecuting country hadn’t existed in the Nazi era and it was therefore impossible to plausibly claim that Eichmann had commited a crime under their sovereign jurisdiction. Eichmann’s crime was a crime against Israel in the sense that Israel took on the mantle of ‘protector’ of the Jewish people and also as an avenger for those who died in the Holocaust. This self – appointed role is entirely implausible, having no legal standing beyond force majeure. Eichmann had been kidnapped (1960) by the prosecuting nation-state and then put on trial at which he was found guilty and executed. Eichmann deserved it but really this is an example of summary justice.

The Israelis were very keen to demonstrate that Eichmann’s trial should be seen to be fair and he was actually found not guilty of some charges. But guilty he was and he was executed. Immediately prior to execution Eichmann reverted to the language of Christianity by saying:

“Long live Germany. Long live Argentina. Long live Austria. These are the three countries with which I have been most connected and which I will not forget. I greet my wife, my family and my friends. I am ready. We’ll meet again soon, as is the fate of all men. I die believing in God.”

Unlike the Roman Catholic Hoess, Eichmann came from a Calvinist Protestant background. It appears that when they invocated ‘God’ this was little more than a linguist tick meaning nothing. Invoking God is one thing, fleeing for your life or committing suicide is another. Hoess went on the run and evaded capture for a year. Eichmann was far more successful. Through his connexions and guile he escaped to Argentina and remained there until the Israeli secret service, Mossad, kidnapped him. Eichmann behaved as a guilty man. He felt guilty of what became known as crimes against humanity. And he was absolutely right: he was guilty

                                                         II

Insofar as the new law crime against humanity was concerned, it was a great success in plausibly punishing people who were inhuman monsters. But these people were a tiny group who, notwithstanding their elevated positions, needed willing accomplices. The law as written was quite clear that Nazi Germany was a criminal country and that many Germans were criminals. But how far does responsibility go? Most Holocaust deaths did not occur in the death camps. In order that this discussion doesn’t become too complex (the role of the Wehrmacht in the Holocaust is important and went far beyond ‘collateral’ deaths) let us remain with the actuality of Auschwitz, the iconic centre of the Holocaust. Let’s examine the context underpinning the final devastating criminality of Nazi actions in 1944 when the slaughter of the Hungarian Jewish community took place.

By March 1944, the tide had definitely turned against the Nazi armed forces on the eastern front. The Nazi armies were suffering from the inexorable logic of over-stretch. A year earlier the Battle of Stalingrad (August ’42 – February ’43) had ended in catastrophic defeat for the Nazis and their coalition partners. The defeat was catastrophic because it demonstrated that the Soviets, who had 50% more casualities than the Germans, could sustain losses of a magnitude far beyond that which was remotely bearable by the Germans. (The German Armies suffered three quarters of a million dead, wounded or captured whilst the Soviets had 1.1 million in these three categories.) The Germans were using up finite resources faster than the seemingly inexhustible Soviets.

The Summer of 1943 saw the final throw of the dice by the Wehrmacht. The Battle of Stalingrad had been attritional in every respect. Street by street, building by building and even room by room, Stalingrad was contested in a primeval battle. The Battle of Kurst (July – August 1943) saw two gigantic technological forces using, principally, tanks to batter each other into submission. Just as at Stalingrad, weight of numbers was decisive. The German armies increased in size to nearly a million men and the Soviets increased their forces to two and half million. The German armies were superior to the Soviets but this was irrelevant. As Voltaire quipped in 1770, “It is said that God is always on the side of the big battalions,” and the Germans discovered the wisdom of that quip in 1943.

In July 1943 the second front began in Sicily and the city of Hamburg was obliterated in a firestorm deliberately created by the RAF and their American allies. There was no attempt to target military objectives. The tactic was simply to pour as many bombs as possible into a predetermined map reference zone. There might be military objectives within that zone but that wasn’t the point. Saturation bombing targeted the German population to destroy their morale and make victory quicker. Nearly 43,000 civilians died in the attack on Hamburg. There was no pretence that those civilian deaths were a surprise: those deaths were the point of the raid. The Hamburg attacks using saturation (or carpet bombing as it is sometimes known) bombing was a prelude to many attacks on German cities, all of which resulted in tens of thousands of civilian casualities. The attacks culminated in the February 1945 bombing of Dresden, a wooden medieval city, which was the grand finale of the allied bombing raids. The bombing raids beginning with Hamburg sometimes used as many as a 1,000 bombers at a time. The Germans had no defences against the raids and the outcome can only be described as slaughter and they should, probably, be described as war crimes, but definitely not crimes against humanity.

Everywhere the German armies were retreating: gallent retreat, but unmistakably retreat from the high water mark of 1942. Additionally, to the rapidly increasing collapse of the Wehrmacht in the east, there was also a land invasion in the south and the destruction of Germany itself from the air. The response from the SS and the Nazi leadership was a ludicrous act of depravity. This proves that Nazi Germany was a vile, depraved and criminal state. The leaders of Nazi Germany chose, in the face of the triple blows from Sicily, the air and the Soviets, to deploy huge resources to slaughter the Hungarian Jewish population.

                                                           III

Hitler’s Germany was beginning to resemble the Wagnerian opera Gotterdammerung (the Twilight of the Gods) with everything being consumed in flames prior to rebirth. Everyone could see the impending doom but would the flames purify Germany with a revitalised Nazi Party remaining in control? Only the utterly delusional thought so. Many SS officers concocted elaborate ‘Plan Bs’ to escape the inevitable outcome of their hideous crimes. Eichmann was one such SS officer. Nonetheless he embarked on the Hungarian project with enthusiasm. Eichmann was wedded to Nazi ideology concerning the necessity of eliminating European Jewry. The Hungarian Jewish community was the final community of any size remaining after having been defended by Admiral Horthy, the Hungarian Prime Minister. Once Horthy was replaced the slaughter began. Eichmann and the Nazi Final Solution programme reached its zenith in Hungary, only ending when Soviet armies were at the frontiers of Hungary.

The enslavement of the Hungarian Jewish population in spring 1944 could only have been accomplished with the whole-hearted support of the workers on the transport system, a system that was operating in the most trying circumstances. The Nazi armies were in retreat and were constantly replenished from the west. Food, munitions and men were being ferried across Europe and this vital mission was competing for resources with the SS’s desire to slaughter the Hungarian Jews. And at the forefront of this herculean task were train drivers, signalmen, railway repair men, track maintenance crews, train servicing and a whole army of catering and support services. Eichmann was a driven ideological SS psychopath but the people who made his plans come to fruition were people doing their job. How do they fit into the various categories embedded in crimes against humanity?

From the moment that the cattle trucks were loaded no-one could have been in any doubt that this was an “inhuman act committed against a civilian population…”. So who was committing this inhuman act? Eichmann carefully pointed out that all he was responsible for was the organisation and management of the transportation system, “he was guilty of arranging the transports, but he did not feel guilty for the consequences.” A very Pontius Pilate response in the circumstances, which received short-shrift from the prosecuting judges who responded, “He was deemed responsible for the dreadful conditions on board the deportation trains and for obtaining Jews to fill those trains”. Eichmann therefore was found guilty of obtaining the Jews and having responsibility for the ‘deplorable conditions’ on those trains.

Let us return to the case of the myriad of railwaymen operating the trains and fulfilling the logistics of the deportation of 437,000 Hungarian men, women and children who became the ‘smoking gun’ from which Eichmann could not escape. The railwaymen were responsible for the trains on the sidings being loaded, the train drivers getting their route timetable, the signalmen managing the immensely intricate business of keeping the Nazi war machine going east, smoothly coupled with the death trains going north. They were responsible for fuelling of those trains, the supplies for the railway crews, the SS or Wehrmacht soldiers and the thousands of ‘spectators’ as they made their seemingly eternal three day (250 mile/400km!) progress to Auschwitz. The ‘deplorable’ conditions were deplorable because the people were loaded into wagons with catastrophically inadequate food, water, or sanitation facilities. Many didn’t survive. The sheer terror and the shouting and pleading must have been clear to all those working on this ‘job’. They knew but they did nothing about it bar complaining about the emotional challenges of their job.

Eichmann was rightly executed for crimes against humanity but he wasn’t alone. The train drivers had absolutely no excuses related to ignorance because Eichmann, the ever efficient Eichmann, ensured that the slaughter of 437,000 Hungarian Jews was accomplished in six weeks. Importantly the railway system inside Auschwitz was reconfigured to facitilitate the abbattoir like processing of the Hungarian Jewish community.

 “… in May 1944, a railroad spur line was built right into the camp to accelerate and simplify the handling of the tens of thousands of Hungarian and other Jews deported in the spring and summer of 1944.” (Jewish Virtual Library)

Trains delivering Hungarian Jews to Auschwitz went through the camp directly to within metres of the execution points. Train drivers saw people off-loaded; saw the selection processes; saw the dead taken from the cattle wagons; saw the hideous actuality of the interior of Auschwitz. None of them were even prosecuted never mind found guilty of anything. They were all guilty of crimes against humanity.

IV

Being guilty of crimes against humanity therefore is not one of personal responsibility: it is one of being an organiser of those crimes. Himmler, Hoess and Eichmann were guilty and knew it but there was no appetite for prosecution of those who actually did the deeds, unless they literally had ‘blood on their hands’ with SS camp guards being the prime example. Train drivers could have sabotaged the entire process if they had chosen. But is choice a viable option in a dictatorship? Complicity is where an act is knowingly done with some sort of cognitive dissonance making for internal denial of the actuality, which to everyone else is blatantly obvious. It sounds and feels like weasel words, clouding rank cowardice, until you consider their situation. The train drivers knew what was going on and carried on facilitating the slaughter. In a criminal country everyone commits the sin of omission unless they actively resist. Some did resist, some died resisting and others survived. Just how high is the moral bar?

Eichmann went beyond acceptability. He made exactly the same claim to innocence as the train drivers would have done if they had been challenged. And he said as much. The concept crimes against humanity was a catch-all for Nazis of the first rank, those who belonged to what was later described as a criminal organisations such as the SS, the Gestapo and sundry linked organisations. Those who were in the Wehrmacht and commited identical acts were not prosecuted because they were bone fide soldiers. The Nuremberg Trials was Allied justice and inhuman criminals were tried and had justice handed out to them. But it wasn’t even handed. And once the Trials were over the Allies moved on. If it hadn’t been for the heroic efforts of Simon Wiesenthal and the Israeli government, a ghostly silence would have descended on the entire period. Once ex-Nazis are identified, the Allies make the necessary steps to prosecute. However, collectively, they have no interest in hunting down these people.

Crimes against humanity was a new retrospective international law devised in order that there could be trials of the principal Nazis at Nuremberg. There are worrying aspects to any such law but the Allies really were facing unprecdented horrors. The new law could have produced a series of sophisticated ‘summary’ trials but that was far from the case. As was demonstrated by the attempted elimination of the Hungarian Jewish Community conducted in the death throes of Hitler’s Germany, the Nazi era was a criminal regime. It was evil personified and carried on doing evil right to the final moments as the Soviets and the Western Allies mopped them up.

Institutional evil of this kind was unprecedented as it premeated every aspect of German life. Every German was implicated to a greater or lesser degree, apart from a vanishingly small number of resistance heroes. The Nuremberg Trials confronted every German with the actuality of the Nazi regime and was an essential part of the healing process, which began in 1945. There was no ambiguity in those trials, which were widely publicised and filmed. Train drivers escaped justice, as part of that healing process, but they were guilty and knew it.

(Chris)