Genocide and the German Case

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This article was written by Shubham Patel a student of Dr. Ram Manohar Lohiya National Law University, Lucknow

Life is not found in atoms or molecules or genes as such, but in organization; not in symbiosis but in synthesis.

~ Edwin Grant Conklin

Genocide is the intentional action to systemically eliminate an ethnic, national, racial or religious group, but the same was not the terms used from earlier times as earlier such crimes were simply known as “crimes against humanity”, “a crime without a name”[i] or even more simply as “massacre”. Genocide literally translates to killing of a race or a tribe, did not existed, as a term, before 1944, was coined by a Polish-Jewish lawyer Raphael Lemkin, the term ‘genos’ originated from Greek and means a race or a tribe and ‘caedere’ originates from Latin and means killing[ii].

Lemkin sought by introduction of this term to describe Nazi policies of systematic murder, including destruction of European Jews[iii] what more popularly is known as Holocaust, while proposing this new term Lemkin had in mind the ideas of “a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the group themselves”, the term ‘genocide’ though was included in Nuremberg Trials[iv], the same was not done in legal sense,[v] but was subsequently applied in almost all the cases of such nature taking place throughout the world including 1971 Bangladesh Genocide, the Greek Genocide and many more as the list goes exhaustive.

Laws on Genocide came to be finally defined as well as forbade by the United Nations in International Law when the Convention on the Prevention and Punishment of the Crime of Genocide was passed in 1948 – though its Preamble recognizes that the crimes of genocide have taken place throughout History[vi] – it says “any of the following act committed with intent to destroy, in whole or in part, a national, ethical, racial or religious group, such as killing of the members of the group; causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; [and] forcibly transferring children of the group to another group.”[vii] Till now 146 countries have became a party to the convention,[viii] and about 87 have introduced municipal laws too.[ix]

The Holocaust or German Genocide is one of the history’s most infamous example of killings of people belonging to a certain religion – during and before the World War II – Jews in this case, in order to seek a racial and ethnical purity, the hate for the Jews, due to the conditions prevailing at that time in Germany, but this does not take away the inhuman nature the act carried with itself as about 6 million Jewish people were killed[x], and after the Allied forces lost the war; some high-ranking Nazis were tried to be held accountable for the inhuman atrocities committed by them, the trail was name Nuremberg Trials[xi], but the courts in Germany and Austrian at that time were reluctant in punishing everyone who was by any means related to the Holocaust, this chiefly was because of the sheer number of people involved made it logistically impossible and also the authorities were unwilling to first investigate and then punish a large number of their own citizens.[xii]

A latest and somewhat astonishing development is taking place in German jurisdiction where the people who served during the Hitler and Holocaust regime in concentration camps and such other facilities are identified and ‘brought to justice’, what is peculiar is that this is taking place after almost   years of the events and in a time when it can be said that both victims and perpetrators have gone to peace, in a recent judgment of a German Court held Reinhold Hanning guilty for being accessory of murder of at least  170,000 people when he served as a guard in Auschwitz Death Camp[xiii], and several other examples of such are present.

John Demjanjuk was convicted by a German Court in 2011 as it found him guilty of being accessory to the murder of 27,900[xiv] while he served in a Poland based death camp, incidentally he was earlier convicted on the basis of wrong identity by the Israeli courts but was released in 1993 by the order of Israel’s Supreme Court when it found the mistake[xv], this was also the case where the German courts lessened the burden of proof from direct involvements in killing to a lesser level.[xvi] Oskar Groening (94 years old), who served as a book keeper and helped in counting the money confiscated by the prisoners in Auschwitz camp was convicted and charged as accessory of murder of 300,000 people – though is admitted the ‘moral guilt’,[xvii] as well as the recent case of Reinhold Hanning.

These judgments raise certain question as to the required level of attachment which holds the person who served in these camps guilty, and whether the moral guilt can be equated with the actual guilt in the cases of genocide?

Two theories – which are of different nature – can be seen related to this, first one, which holds only the officers who ordered the killings and absolve the subordinates of the liability, the second one holds everyone attached to such organizations liable for the crimes perpetrated; the second notion based on the naturalist theory of law and modern International Law on genocide invokes natural law principles to hold subordinate liable. But, this still not settles the issue, as there are still different kinds of subordinate working under the superior officer, example of which can be a guard as well the person who executed people in death camp both were subordinate but whereas the latter can be considered as a part of the inhuman ordeal the former one cannot likely be said to be culprit of the same level. What is also pertinent to keep note of that in most of the modern jurisdictions only the legal wrongs are to be punished by the authorities and not the moral wrongs.

Conclusion

Indian Supreme Court very wisely took note that “the quality of a nation’s civilization, it is said can largely measured by the methods it uses in the enforcement of criminal law”,[xviii] and the same shall hold true for all the modern jurisdictions throughout the world, but what the German Courts are up to at this point of time does not seems to be reformative, as the punishment should be, but, rather retributive which connotes the same primitivism as shown in the time when the Holocaust was perpetrated.

The modern laws on Genocide work somewhat on the basis of theory propounded by Fuller that the laws that do not conform with natural law are not laws at all and ought not to be followed, but the things taken into consideration while applying this theory is that, it shall not be just to judge a person on basis of the understanding of law on basis of the present times, when the act committed by him were decades ago, and the legal and societal setup were of completely different nature, one cannot implement what he thinks moral at the present times as the implementation of such morality would have not been feasible and even if done may have resulted in the “accused’s ” own peril.

European Court on Human Rights, in case of appeal of Nikola Jorgic, noted that wider interpretation of German Courts has been rejected by International Courts considering similar cases,[xix] in the light of the this and the recent trends in cases of genocide specially in Germany, it is high time for German Courts to reconsider their jurisprudence for the same, as though some parties say that justice is served, but the question that needs to be asked is that the justice served is real justice, is punishing a guard, a book keeper or any other person who did not ordered or participated in killing, justice in real sense?

[i] Churchill, Winston (August 24, 1941), Prime Minister Winston Churchill’s Broadcast to the World About the Meeting With President Roosevelt (Speech).

[ii] Genocide in the Oxford English Dictionary, 2nd ed.

[iii] “What Is Genocide?” United States Holocaust Memorial Museum. United States Holocaust Memorial Council, https://www.ushmm.org/wlc/en/article.php?ModuleId=10007043.

[iv] Nuremberg Trials stands for trial of Nazi War Criminals.

[v] https://www.ushmm.org/wlc/en/article.php?ModuleId=10007043.

[vi] https://en.wikipedia.org/wiki/Genocide

[vii] Article 2, The Convention on the Prevention and Punishment of the Crime of Genocide, http://www.un.org/ar/preventgenocide/adviser/pdf/osapg_analysis_framework.pdf, as accessed on 20/06/2016.

[viii] http://preventgenocide.org/law/convention/newparties.htm

[ix] http://www.preventgenocide.org/law/domestic/

[x] http://www.bbc.co.uk/guides/zsshhyc.

[xi] https://en.wikipedia.org/wiki/Nuremberg_Trials.

[xii] http://www.bbc.co.uk/guides/zsshhyc.

[xiii] http://www.bbc.com/news/world-europe-36560416.

[xiv] http://www.bbc.com/news/world-europe-13345166

[xv] http://news.bbc.co.uk/onthisday/hi/dates/stories/july/29/newsid_4561000/4561917.stm

[xvi] ibid.

[xvii] http://www.bbc.com/news/world-europe-33533264.

[xviii] Rampal Pitwa Rahidas v State of Maharashtra, [1994 Supp 2 SCC 73, 93].

[xix] ECHR Jorgic v. Germany Judgment, 12 July 2007. § 44 citing Prosecutor v. Kupreskic and Others (IT-95-16-T, judgment of 14 January 2000), § 751.