Justice overwhelmed is justice denied

Does it make sense to haul every last participant in genocide before a court, no matter how unimportant he was?
Carolyn Moynihan | May 17 2011 | comment  

What is the truth about John Demjanjuk, convicted by a German court this week of helping to murder more than 28,000 Jews at the Sobibor Nazi death camp? A Ukrainian Orthodox bishop in a guest article on the website of the World Jewish Congress suggests that whether justice has been done in convicting him of thousands of war crimes “may at this point only be known to God.” Surely, though, the 91-year-old Ukrainian-born former American, who has always maintained his innocence, also knows whether that is the truth and whether he deserves his conviction. Others who might know something include former KGB officers who provided the testimony of another Sobibor guard and an ID card for Demjanjuk from the Trawniki camp that trained the guards -- many of them Nazi prisoners of war like himself.

Yet, even if only God and Demjanjuk know what he really did, we all know what he is assumed to have done -- to have forced Jewish prisoners into gas chambers and then helped to dispose of (ultimately burn) the corpses. If he was indeed a camp guard it is difficult to see how he would not have done these things, although no evidence was produced at his 18-month trial that he actually did them. A key witness -- another former SS guard -- died last year. Nevertheless, those mass murders and the inhuman, genocidal context in which they took place were crimes in a category of their own, and anyone who assisted in them shares in their guilt. As the plaintiffs and the Jewish community at large insist, acting under orders does not absolve a person (even though the price of resistance would most likely be your own life).

But the court has gone further. It has decided that, even without evidence of specific crimes, just being a guard in a camp where many people were killed is enough to make Demjanjuk an accessory to the murder of every one of those people, the perpetrator of war crimes. Legal experts are saying that the verdict -- which is to be appealed -- could create a precedent for a new, but final wave of Holocaust prosecutions.

However, if the principle is true for one type of war crime it must be true for others, and therefore could open a new era globally in the prosecution of crimes against humanity. One Holocaust expert writes: “Those who participate in genocide, in whatever capacity, should never rest easy. Nor should they assume that if they delay justice enough, their case will be abandoned. This lesson may matter more today than ever: after all, the hunt for Holocaust killers may be over, but the hunt for those who practiced genocide in the former Yugoslavia, Rwanda and far too many other places must continue.”

Yes, in far too many places lives have been wiped out en masse and not always for reasons of genocide as it is generally understood, but for any reason that a power-crazed ideologue might conceive. To cite the more infamous examples since the Holocaust:

  • To the tens of millions of people within Soviet borders that he sacrificed before the Second World War (including between 5 and 9 million Ukrainians), between 1946 and his death in 1953 Joseph Stalin added around 16 million deaths in the pursuit of his communist empire.
  • Between 1949 and 1975 Mao Zedong forged communist China at the expense of an estimated 40 million Chinese lives.
  • Pol Pot’s efforts to “cleanse” Cambodia of its non-Marxist past between 1976 and 1979 resulted in the deaths of an estimated 1.7–2.5 million people, or around 21 percent of the population.

Political purges and famines and their wider effects in these countries have been called “democide” because they concerned the population at large. In the ongoing warfare in the Congo, genocide or ethnic cleansing by militias on both sides has played a large part in the loss of an estimated 5 million lives over the last 15 years, and the killing, raping and displacing of thousands of people continues.

If, however, in addition to the leaders, their generals and other officers, all the foot soldiers of today’s wars were to be hunted down and prosecuted, along with all the surviving secret police, prison guards and apparatchiks of every rank from every murderous regime of the past 60 to 70 years, the justice systems of the world would be overwhelmed. Yet that is what, in a morally consistent world, the conviction of John Demjanjuk points to. Is that what we want?

The International Criminal Court prosecutor wants Libyan leader Moammar Gaddafi brought to trial for crimes against humanity, because his forces have attacked and killed civilians, raped, imprisoned and tortured others or made them disappear. If this trial ever happens, should the soldiers concerned be prosecuted for war crimes as well? And what about those who were at the crime scenes but for whom no direct evidence of a crime can be found? According to the Demjanjuk conviction they could be guilty of crimes against humanity too.

People who murder, torture, rape, starve and terrorise others should be prosecuted and punished. The trouble is that, in the context of war or some brutal dictatorship, so many people are implicated in such crimes, and often -- as seems likely in the case of John Demjanjuk -- with execution or imprisonment as the only alternatives, that it is impossible to do more than token justice. The court decision this week seems to have taken that token justice to a level that has the feel of injustice about it.

Carolyn Moynihan is Deputy Editor of MercatorNet.

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