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Prosecuting genocide before the Genocide Convention: Raphael Lemkin and the Nuremberg Trials, 1945–1949

2013; Taylor & Francis; Volume: 15; Issue: 3 Linguagem: Inglês

10.1080/14623528.2013.821225

1469-9494

Hilary Earl,

Global Peace and Security Dynamics

Abstract Between 1945 and 1949, American, British, French and Soviet prosecutors, indicted and tried approximately 207 former Nazis for war crimes and crimes against humanity in what has come to be called collectively, ‘The Nuremberg Trials’. This article explores the place of genocide in these trials. It examines the extent to which Raphael Lemkin influenced the Nuremberg prosecutors to incorporate genocide into the indictments, how the crime was prosecuted in the courtroom and, ultimately, how it was understood by the court in their judgments. Although there were thirteen separate trials at Nuremberg, this article focuses mainly on one of these, the SS–Einsatzgruppen trial of 1947–48, in which twenty-two high-ranking SS officers were tried for crimes against humanity. The SS–Einsatzgruppen were the vanguard of the ‘Final Solution’. As ideological soldiers of the Third Reich they had killed one million civilians, mainly Jews, between June 1941 and July 1943, clear evidence of genocide according to Lemkin's definition of the crime that was circulating in Nuremberg at the time. Even though ‘genocide’ had been articulated when this trial began, the Nuremberg prosecutors did not fully employ it at trial. Ultimately, this article explores the tension between the meaning of genocide and its practical application in the post-war courtrooms of Nuremberg. Notes John Cooper, Raphael Lemkin and the struggle for the genocide convention (New York: Palgrave Macmillan, 2008), pp. 4–5; Robert Merrill Bartlett, ‘By the way: pioneer vs. an ancient crime’, Christian Century, 18 July 1956, Raphael Lemkin Papers, New York Public Library (NYPL). Cooper, Raphael Lemkin, pp. 1–2. Lemkin, Letter to Thelma Stevens, ‘General correspondence, 1947–1953’, undated, NYPL. For a discussion of the trial see Hilary Earl, The Nuremberg SS–Einsatzgruppen Trial, 1945–1958: atrocity, law, and history (New York: Cambridge University Press, 2009). The cases against members of the Race and Resettlement office or Rasse und Siedlungshauptamt (case 8 the RuSHA case) and Government Ministries (case 1) also charged the defendants with ‘a systematic program of genocide’. See Kevin Jon Heller, The Nuremberg Military Tribunals and the origins of international criminal law (Oxford: Oxford University Press, 2011), pp. 98, 99, 102–103. Raphael Lemkin, Axis rule in occupied Europe: laws of occupation, analysis of government, proposals for redress (New Jersey: Carnegie Endowment for International Peace, 2005), p. 79. For a full description of genocide, see pp. 79–95. Article 6 (a), War crimes, indictment, Nuremberg Trial proceedings Vol. 1, Avalon Project, available at: http://avalon.law.yale.edu/imt/count3.asp. Also see John Q. Barrett, ‘Raphael Lemkin and “genocide” at Nuremburg, 1945–1946’, in Christoph J. M. Safferling and Eckart-A. Conze (eds.), The genocide convention sixty years after its adoption (The Hague: Asser, 2010), pp. 41–42. Hilary Earl, interview with Benjamin Ferencz, 24 April 1997. Brief, Lemkin to Justice John Johnston Parker, ‘The significance of the concept of genocide in the trial of war criminals’, undated, Southern Historical Collection (SHC), John Johnston Parker Papers (JPP), Records of the Nuremberg Trial of Major German War Criminals, Manuscripts Department, Wilson Library, The University of North Carolina at Chapel Hill (UNC), reference number 3566. Here Lemkin writes about the necessity of developing the legal concept of genocide through its usage at war crimes trials. For examples see Heller, The Nuremberg Military Tribunals, p. 250. Telford Taylor, Final report to the secretary of the army on the Nuremberg War Crimes Trials under control council law No. 10 (Washington, DC: United States Government Printing Office, 1949), pp. 108–109; William A. Schabas, Genocide in international law: the crimes of crimes (Cambridge: Cambridge University Press, 2000), pp. 14–101; Pieter Nicolaas Drost, Genocide, United Nations legislation on international criminal law (Leyden: A.W. Sythoff, 1959); and Nehemiah Robinson, The Genocide Convention: a commentary (New York: Institute of Jewish Affairs, 1960). Alexa Stiller, ‘Semantics of extermination: the use of the new term of genocide in the Nuremberg Trials and the genesis of a master narrative’, in Kim Priemel and Alexa Stiller (eds.), The Nuremberg Trials revisited: new analyses and interpretations (New York and Oxford: Berghahn Books, 2012), pp. 165–214 offers the most in-depth and thorough analysis of the use(s) and interpretation(s) of genocide at Nuremberg and other post-war trials to date. Jean-Paul Akayesu Case, International Criminal Tribunal for Rwanda (ICTR), Case file, 96–4. Lawrence Douglas, CAHS symposium on Nuremberg in 2008. On this issue, see A. Dirk Moses, ‘The Holocaust and genocide’, in Dan Stone (ed.), The historiography of the Holocaust (New York: Palgrave MacMillan, 2004), pp. 535–540. Lemkin, ‘Summary of activities’ in ‘Summaries and outlines’, undated, NYPL; William Korey, An epitaph for Raphael Lemkin (New York: American Jewish Community, 2001), pp. 5–6; Cooper, Raphael Lemkin, p. 6. Cooper, Raphael Lemkin, pp. 16–17. Korey, An epitaph, pp. 6–7, 14; Cooper, Raphael Lemkin, p. 15. Cooper, Raphael Lemkin, pp. 38, 40–41. United Nations, ‘Convention on the prevention and punishment of the crime of genocide’, 9 December 1948, available at http://www.un.org/ga/search/view_doc.asp?symbol=a/res/260(III). Lemkin, Axis rule, p. 79. Lemkin, Axis rule, pp. 80, 82–87. Lemkin, Axis rule, pp. 94–95; Raphael Lemkin, ‘The significance of the concept of genocide’, SHC, JJPP, UNC. Earl, The Nuremberg SS–Einsatzgruppen Trial, pp. 19–45. Robert E. Conot, Justice at Nuremberg(New York: Carroll & Graf Publishers, 1983), pp. 10–11. Conot, Justice, pp. 10–12; Bradley F. Smith, Reaching judgment at Nuremberg: The untold story of how the Nazi war criminals were judged (New York: Basic Books, 1977), p. 27; Taylor, Anatomy, p. 4. Bernays' ideas were ultimately adopted and turned into the now famous memorandum ‘The Trial and Punishment of European War Criminals’ that Truman later accepted as a basis for the Nuremberg Trials. Taylor, Anatomy, p. 48. Bernays quoted in Conot, Justice, p. 12. Emphasis added. Bernays quoted in Conot, Justice, p. 12. Conot, Justice, pp. 11–12; Cooper, Raphael Lemkin, pp. 62–63. Korey, An epitaph, p. 19; Otto D. Tolischus, ‘Twentieth-century moloch’, New York Times Book Review, 21 January 1945, pp. 1, 24. Samantha Power, ‘A problem from hell’: America and the age of genocide (New York: Harper Perennial, 2002), p. 48. Raphael Lemkin, ch. 7 and ch. 3 in ‘Writings—autobiography’, undated ‘Summary of activities’, undated, NYPL. Raphael Lemkin to Robert Jackson, US Chief of Counsel miscellaneous folder and Jackson to Lemkin, 4 May 1945, Library of Congress, Robert H. Jackson Papers (RHJ), box 98, Office Files, 16 May 1945, in Truman, Executive Order No. 9547, box 640, Folder Ordinance No. 7. John Q. Barrett, Introduction to ‘Nuremberg and genocide: historical perspectives’, in Elizabeth Anderson and David M. Crane (eds.), Proceedings of the second international humanitarian law dialogs, 25–26 August 2008, p. 16; Cooper, Raphael Lemkin, pp. 63–64; Korey, An epitaph, p. 26; Taylor, Anatomy, p. 49. Arieh J. Kochavi, ‘The role of the genocide of European Jewry in the preparations for the Nuremberg Trials’, in David Bankier and Dan Michman (eds.), Holocaust and justice: representation and historiography of the Holocaust in post-war trials (New York and Oxford: Berghahn Books and Yad Vashem, 2010), pp. 59–80. Taylor, Anatomy, pp. 102–103; Korey, An epitaph, p. 26. Lemkin, untitled document in ‘Bio—and autobiographical sketches of Lemkin’, undated, NYPL; Cooper, Raphael Lemkin, p. 65. Taylor, Anatomy, pp. 102–103. Taylor, Anatomy, p. 48. ‘Indictment’, Nuremberg Trial proceedings Vol. 1, Avalon Project, available at: http://avalon.law.yale.edu/imt/count3.asp. Lemkin, ‘The significance of the concept of genocide’, SHC, JJPP, UNC. Cooper, Raphael Lemkin, pp. 17–18. Cooper, Raphael Lemkin, pp. 17–18, 69. Untitled document, ‘Bio—and autobiographical sketches of Lemkin’, undated, NYPL; Cooper, Raphael Lemkin, p. 69. Benjamin Ferencz, ‘Nuremberg and genocide: historical perspectives’, in Elizabeth Anderson and David M. Crane (eds.), Proceedings of the second international humanitarian law dialogs, 25–26 August 2008 (Washington, DC: American Society of International Law, 2009), pp. 48–49. Ferencz, ‘Nuremberg and genocide’, pp. 48–49; Power, ‘A problem from hell’, p. 49. Earl, interview with Benjamin Ferencz, 24 April 1997. Henry King Jr., ‘Genocide and Nuremberg’, in Ralph Henham and Paul Behrens (eds.), The criminal law of genocide: international, comparative and contextual aspects (Farnham and Burlington: Ashgate, 2007), p. 29. King Jr., ‘Genocide and Nuremberg’, pp. 29, 34. King Jr., ‘Genocide and Nuremberg’, p. 34. ‘Trial of major war criminals before the International Military Tribunal (IMT), 14 November 1945—1 October 1946’, Vol. 17, (Nuremberg, 1948), pp. 61–63, available at: http://www.loc.gov/rr/frd/Military_Law/NT_major-war-criminals.html. ‘Raphael Lemkin to Maxwell Fyfe’, 26 August 1946, Raphael Lemkin Collection, American Jewish Historical Society (AJHS), Box 1, Folder 18. IMT, Vol. 22, 29 August 1946, 226, available at: http://www.loc.gov/rr/frd/Military_Law/pdf/NT_Vol-XXII.pdf. IMT, Vol. 22, 30 August 1946, 300, available at: http://www.loc.gov/rr/frd/Military_Law/pdf/NT_Vol-XXII.pdf. Korey, An epitaph, p. 26. Lemkin quoted in Korey, An epitaph, pp. 26–27; Lemkin, ch. 7 in ‘Writings—autobiography’, undated, NYPL. Raphael Lemkin, ‘The evolution of the genocide convention I and II’ in ‘Genocide convention’, 1958, NYPL. Raphael Lemkin, ‘The legal nature of crimes against humanity’ in ‘Genocide convention’, undated NYPL. In this document Lemkin notes that ‘genocide is not a crime against humanity… because genocide can be committed both in time of war and peace’. Kaltenbrunner judgment, IMT, Vol. 22, 1 October 1946, pp. 536–538, available at: http://www.loc.gov/rr/frd/Military_Law/pdf/NT_Vol-XXII.pdf. Power, ‘A problem from hell’, p. 54. Press release L/23, 10 June 1947, Center for Jewish History, Letters of conscience: Raphael Lemkin and the quest to end genocide, exhibition. Stiller, ‘Semantics of extermination’, makes the case that it was the RuSHA case that was the iconic ‘genocide trial’. Cooper, Raphael Lemkin, pp. 53–54. William Schabas, in his presentation at the international conference ‘Genocide and human experience: Raphael Lemkin's thought and vision’, held at the Center for Jewish History, New York, 15 November 2009, argued that ‘crimes against humanity is a cognate concept and that the prosecutors meant it to mean genocide’. The evidence seems to suggest this was not the case. Stiller, ‘Semantics of extermination’, p. 176. Resolution relating to crimes against humanity from the 8th international conference for the unification of penal law, Brussels, 22 July 1947, Telford Taylor Papers (TTP), 5-1-6-102, NMT-OMGUS, Correspondence and Reports, Columbia Law School, Columbia University, New York. 8th international conference for the unification of penal law, Brussels, 22 July 1947, TPP, 5-1-6-102: NMT-OMGUS; Correspondence and Reports, Columbia Law School, Columbia University, New York. Heller, The Nuremberg Military Tribunals, pp. 3, 249–250. Jackson, Trial brief, Persecution of the Jews, undated, in SHC, JJPP, UNC. Here, Jackson clearly articulates a case of genocide against Jews without explicitly using the term ‘genocide’. Emphasis added. Charter of the International Military Tribunal, in TWC, Vol. 4, p. xiv; M. Cherif Bassiouni, Crimes against humanity in international criminal law, 2nd rev. ed. (The Hague and London: Kluwer Law International, 1999), pp. 1–18; Donald Bloxham, Genocide on trial: war crimes trials and the formation of Holocaust history and memory (Oxford: Oxford University Press, 2003), p. 18. Bassiouni, Crimes against humanity, pp. 1–18; Bloxham, Genocide on trial, p. 18; Telford Taylor, ‘The meaning of the Nuremberg Trials’, 25 April 1947, RHJ, Nuremberg War Crimes Trials, Office file, USCC, Box 110, Subsequent trials folder. Control Council Law No. 10: Punishment of persons guilty of war crimes, crimes against peace, and against humanity, in TWC, Vol. 4, pp. xviii–xxi. Emphasis added. Heller, The Nuremberg Military Tribunals, pp. 231, 232–242. Bassiouni, Crimes against humanity, pp. 1–2, 24–25. Paul Weindling, ‘Victims and witnesses of medical war crimes: uncovering Nazi medicine at the Nuremberg Trials’, paper presented to CAHS/USHMM workshop, From prosecution to historiography, 24 July 2008. Paul Weindling, ‘Victims, witnesses, and the ethical legacy of the Nuremberg Medical Trial’, in Priemel Stiller, Reassessing the Nuremberg Military Tribunals, pp. 74–75. Taylor, Final report, p. 77. See also Michael R. Marrus, ‘The Nuremberg doctors’ trial and the limitations of context', in Patricia Heberer and Jürgen Matthäus (eds.), Atrocities on trial: historical perspectives on the politics of prosecuting war crimes (Lincoln, NE, and London: University of Nebraska Press in association with the United States Holocaust Memorial Museum, 2008), pp. 103–122, who argues that the focus of the Doctor's trial has distorted our historical understanding of the crimes of the Third Reich. The prosecution introduced Lemkin's definition of genocide to the official record as well as in an excerpt from a newspaper article discussing the first draft of the Genocide Convention. ‘Selection from the arguments and evidence of the defense in the RuSHA Case’, in TWC, Vol. 5, pp. 3–5. Alexa Stiller, ‘The first genocide trial and why it failed: perspectives, strategies, and dynamics of prosecution and defense in the RuSHA case’, paper presented to CAHS/USHMM workshop, From prosecution to historiography, 24 July 2008. The RuSHA case, TWC, Vol. 4, pp. 599–1076; Stiller, ‘Semantics of extermination’, p. 165. Opening statement of the prosecution (RuSHA case), TWC, Vol. 4, p. 622 quoted in Stiller, ‘Semantics of extermination’, pp. 176–182. Opening statement of the Prosecution (RuSHA case), TWC, Vol. 4, p. 622 quoted in Stiller, ‘Semantics of extermination’, p. 178. Memorandum, Frederic S. Burin to Ferencz, 19 April 1947, in NARA RG 238, OCCWC, Berlin Branch, General records, Correspondence 1946–1948, box 3, Correspondence 20 January 1947—end folder. Indictment, TWC, Vol. 4, pp. 15–21. Amended indictment, 3 July 1947, Einsatzgruppen case, in TWC, Vol. 4, pp. 15–21. Emphasis added. Opening statement of the prosecution, 29 September 1947, in Einsatzgruppen Trial Transcript, roll 1, p. 51. Heller, The Nuremberg Military Tribunals, p. 249. Heller, The Nuremberg Military Tribunals, pp. 249–250. Stiller, ‘Semantics of extermination’, p. 15 attributes this to Lemkin, who she asserts ‘remained an active force behind the scenes, writing scores of memoranda to Taylor's staff advising the use of the term genocide in various planned trials and suggesting taking up other, specific trials’. Otto Ohlendorf, Testimony, 3 January 1946 in IMT, Vol. 4, pp. 309–355. Gustav M. Gilbert, Nuremberg diary (New York: Da Capo Press, 1995), p. 101. For example, see ‘Closing brief, United States of America’, United States of America v. Otto Ohlendorf et al. (Case 9), NARA, M-895. Taylor, Final report, p. 73. Taylor, ‘The meaning of the Nuremberg Trials’, 25 April 1947, RHJ Papers. Summary of evidence against Martin Sandberger, exhibit 36, PS2273, prosecution document book II-A, p. 35 and exhibit 185, NO5187, 5 June 1942, in Richard Dillard Dixon records of Nuremberg War Crimes Trials, in Southern Historical Collection, Manuscripts department, Wilson Library, The University of North Carolina at Chapel Hill, reference number 3567. Crimes against humanity, 6(a)–(t), 7(a)–(x), 8(a)–(z), 9(a)–(p), amended indictment, 3 July 1947, in TWC, Vol. 4, pp. 16–21. Theory of individual responsibility, in ‘The nature of the charges: count one’, in Trials of war criminals before the Nurenberg Military Tribunals under Control Council Law No. 10(TWC) (Washington, DC: US Government Printing Office, 1949), Vol. 4, p. 51. Theory of individual responsibility, Vol. 4, p. 52. Earl, interview with Ferencz, 24 April 1997. Opening statement of the prosecution, Einsatzgruppen case, 29 September 1947, in NARA, M-895, Einsatzgruppen trial transcript, Roll 2, p. 31. Lemkin, ‘The significance of the concept of genocide’, undated, p. 3, in SHC, JJPP, UNC. Michael Musmanno, ‘Concurring opinion, in the Pohl case’, TWC, Vol. 5, pp. 1078–1139. Musmanno, ‘Concurring opinion, in the Pohl case’, TWC, Vol. 5, pp. 1078, 1139, 1137. Lemkin, ‘The significance of the concept of genocide’, undated, p. 4, in SHC, JJPP. Stiller, ‘Semantics of extermination’, pp. 104–106.