Holocaust, Genocide, and the Law : A Quest for Justice in a Post-Holocaust World

A great deal of contemporary law has a direct connection to the Holocaust. That connection, however, is seldom acknowledged in legal texts and has never been the subject of a full-length scholarly work. This book examines the background of the Holocaust and genocide through the prism of the law; the criminal and civil prosecution of the Nazis and their collaborators for Holocaust-era crimes; and contemporary attempts to criminally prosecute perpetrators for the crime of genocide. It provides the history of the Holocaust as a legal event, and sets out how genocide has become known as the "crime of crimes" under both international law and in popular discourse. It goes on to discuss specific post-Holocaust legal topics, and examines the Holocaust as a catalyst for post-Holocaust international justice. Together, this collection of subjects establishes a new legal discipline, which the author Michael Bazyler labels "Post-Holocaust Law." Read more... Abstract: A great deal of contemporary law has a direct connection to the Holocaust. That connection, however, is seldom acknowledged in legal texts and has never been the subject of a full-length scholarly work. This book examines the background of the Holocaust and genocide through the prism of the law; the criminal and civil prosecution of the Nazis and their collaborators for Holocaust-era crimes; and contemporary attempts to criminally prosecute perpetrators for the crime of genocide. It provides the history of the Holocaust as a legal event, and sets out how genocide has become known as the "crime of crimes" under both international law and in popular discourse. It goes on to discuss specific post-Holocaust legal topics, and examines the Holocaust as a catalyst for post-Holocaust international justice. Together, this collection of subjects establishes a new legal discipline, which the author Michael Bazyler labels "Post-Holocaust Law." Cover 1 Holocaust, Genocide, and the Law 4 Copyright 5 Dedication 6 Contents 8 List of Illustrations 14 Acknowledgments 18 Introduction 20 Part one The Legal History of the Holocaust and Genocide 32 1. The Holocaust: A Legal History 34 A. Nazi Germany as a Law-Based State 34 B. The Nazis Come to Power Through Law 36 C. Legal Measures Against Jews in the Reich 38 D. War, Occupation Law, and Ghettoization in Occupied Europe 45 E. Extermination: The Legal Holocaust 52 F. Aftermath 63 2. Naming the Crime: Genocide 64 A. The Historical Background of the Term “Genocide” 64 1. Lemkin’s Word 64 2. Genocide at the Nuremberg Trials 66 3. Father of the Genocide Convention 66 B. The Genocide Convention 68 1. Legislative History 70 2. Definition of Genocide 71 3. Actus Reus of Genocide—The Prohibited Acts 72 Must There Be Actual Physical Destruction? 73 Must the Destruction Be Systematic? 74 Must Genocide Involve State Action? 75 Why Are Only Certain Groups Protected by the Genocide Convention? 76 Should “Cultural Genocide” Be Considered Genocide? 78 4. Mens Rea of Genocide: “With Intent to Destroy, in Whole or in Part” 79 The Dolus Specialis (Special Intent) of Genocide 80 The Meaning of “in Part” 81 5. Genocide-Related Crimes: Conspiracy, Incitement, Attempt, and Complicity 83 Conspiracy to Commit Genocide 83 Incitement to Commit Genocide 84 Attempted Genocide 85 Complicity in Genocide 85 6. Proving Genocide 87 7. Punishment 89 C. Use and Misuse of Genocide Terminology 90 1. Using and Misusing the G-Word: Why Words Matter 90 2. When Is It Proper to Characterize a Historical Event as a Genocide? 92 Part two Legal Reckoning with the Crimes of the Holocaust 98 3. Prosecution of Nazi War Criminals at Nuremberg 100 A. International Military Tribunal at Nuremberg 100 1. The Rocky Road to Nuremberg 100 The London Conference: Creating the IMT 103 2. The Trial 104 The Defendants 105 The Defense Attorneys 106 The Judges 106 The Trial Begins 108 The Prosecution Case 109 Live Witnesses 110 The Defense Case 111 The Verdicts 113 Post-Conviction 114 3. Major Criticisms of the IMT 114 Ex Post Facto, or the Principle Against Retroactivity (Nullum Crimen Sine Lege) 115 Victor’s Justice, or “The Vanquished Are at the Mercy of the Victor” 116 The “So You Too” Defense (Tu Quoque) 116 4. The Holocaust at Nuremberg 116 At Trial 116 Closing Statements 119 Judgment 120 B. The Later Nuremberg Trials 121 1. The Twelve NMT Trials 122 2. “Noel, Noel, What the Hell” 134 3. Legacy of the NMT 136 4. National Prosecutions of Nazi War Criminals 140 A. Prosecutions in Germany 140 1. The Ulm Einsatzgruppen Trial 144 The Defendants 146 The Trial 148 Closing Statements 150 The Verdicts 150 Legacy of the Trial 151 The Fall of Erwin Schüle 152 2. The Frankfurt Auschwitz Trial 152 The Defendants 153 The Trial 154 The Verdicts 155 Legacy of the Trial 156 B. The Trial of Adolf Eichmann in Israel 157 1. Eichmann Before Jerusalem—The Nazi Era 159 Eichmann’s Escape and Capture 161 2. Eichmann in Jerusalem—The Trial 162 The Strange Law Used to Prosecute Eichmann 163 Trial Preparation 164 The Trial Begins 165 The Prosecution Case 167 The Defense Strategy 170 The Verdict and Appeal 171 3. Legacies of the Trial 173 C. Hunting for Nazis in America 176 D. Retrospective 180 5. Civil Litigation for the Financial Crimes of the Holocaust 184 A. Stealing from the Jews 184 B. Returning What Was Stolen 186 1. Restitution by the Allies in Occupied Germany 186 2. German Reparations to Israel and Survivors 189 3. Holocaust Restitution in the 1990s—A Measure of Justice Fifty Years Later 192 Why the United States? 192 What Did the Lawsuits Accomplish? 194 4. Holocaust Restitution in the Twenty-First Century: The French Railroad Settlement 196 C. Why Didn’t the Holocaust Restitution Model Work for Other Historical Atrocities? 200 1. Herero Genocide Litigation 200 2. Litigation Against Japanese Industry Arising Out of the Second World War 201 3. South African Apartheid Litigation 205 4. African-.American Reparations Litigation 206 5. Armenian Genocide–Era Litigation 208 6. Shutting the Door on Universal Jurisdiction: The 2013 Kiobel Supreme Court Decision 210 6. Holocaust Denial and the Law 214 A. What Is Holocaust Denial? 214 B. Criminalizing Speech: Holocaust and Genocide Denial Laws in Europe 218 1. Germany 219 2. Austria 224 3. France 225 4. European Union–wide Law 226 C. Should Holocaust Denial Be a Crime? 228 1. The “Yes” Arguments 228 2. The “No” Arguments 231 3. Which Way Is Best? 235 D. The Future of Denial Laws 237 7. The Impact of the Holocaust on Post-Holocaust Legal Philosophy 242 A. Carl Schmitt and the State of Exception 243 B. Karl Loewenstein and Postwar Germany’s Militant Democracy 248 C. Gustav Radbruch and the Hart-Fuller Debate: What Is Law? 251 D. The State of Exception After 9/11 256 Part three The Holocaust as a Catalyst for Modern International Criminal Justice 264 8. Nuremberg’s Legacy: The UN Tribunals for Yugoslavia and Rwanda and the International Criminal Court 266 A. Building a Better Nuremberg 268 B. Creating the Case Law of Genocide 274 1. Joint Criminal Enterprise and Genocide 275 2. Public Incitement to Commit Genocide 277 3. Command Responsibility and Genocide 278 C. Criticisms of the ICTs 282 1. Slow Start 282 2. Inconsistent Jurisprudence 283 3. Inconsistent Quality of Jurists 283 4. Punitive Tendency 283 5. Cost and Pace of Trials 284 6. The Ivory Tower Syndrome 285 7. Failure to Prevent 286 D. Nuremberg and the International Criminal Court 287 9. Prosecuting Genocide 296 A. International Prosecutions 296 1. ICTR Prosecutions 296 2. ICTY Prosecutions 298 3. ICC Prosecutions 300 B. Domestic Prosecutions 302 1. Nikola Jorgic: The First Person Convicted of Genocide? 304 2. Rwandan Genocidaires 308 Conclusion: Can Genocide Be Prevented? 312 Notes 326 Index 386 This Work Examines The Background Of The Holocaust And Genocide Through The Prism Of The Law; The Criminal And Civil Prosecution Of The Nazis And Their Collaborators For Holocaust-era Crimes; And Contemporary Attempts To Criminally Prosecute Perpetrators For The Crime Of Genocide. It Provides The History Of The Holocaust As A Legal Event, And Sets Out How Genocide Has Become Known As The 'crime Of Crimes' Under Both International Law And In Popular Discourse. A Legal History Of The Holocaust -- Naming The Crime : Genocide -- Prosecution Of Nazi War Criminals At Nuremberg -- National Prosecutions Of Nazi Criminals -- Civil Litigation For The Financial Crimes Of The Holocaust -- Holocaust Denial And The Law -- The Impact Of The Holocaust On Post-holocaust Legal Philosophy -- Nuremberg's Legacy : The Un Tribunals For Yugoslavia And Rwanda And The International Criminal Court -- Prosecuting Genocide -- Conclusion : Can Genocide Be Prevented? Michael Bazyler. Includes Bibliographical References And Index. Présentation de l'éditeur : "A great deal of contemporary law has a direct connection to the Holocaust. That connection, however, is seldom acknowledged in legal texts and has never been the subject of a full-length scholarly work. This book examines the background of the Holocaust and genocide through the prism of the law; the criminal and civil prosecution of the Nazis and their collaborators for Holocaust-era crimes; and contemporary attempts to criminally prosecute perpetrators for the crime of genocide. It provides the history of the Holocaust as a legal event, and sets out how genocide has become known as the "crime of crimes" under both international law and in popular discourse. It goes on to discuss specific post-Holocaust legal topics, and examines the Holocaust as a catalyst for post-Holocaust international justice. Together, this collection of subjects establishes a new legal discipline, which the author Michael Bazyler labels "Post-Holocaust Law." "