and legally difficult set of trials arising out of the Second World War in general and the Holocaust in particular: those in which the defendants were Jewish kapos charged with committing crimes against other Jews. The primary focus here is on the various trials of such former kapos held between 1951 and 1964 in the new State of Israel. These individuals were tried under the same Israeli law as applied to Eichmann in 1961. However, the first Israeli Knesset (parliament) enacted the so-called Nazi and Nazi Collaborators Law not to bring to account Germans who might find themselves within the borders of Israel after the war—seen as a ridiculous impossibility at the time of the law’s enactment in 1950—but Jews who became part of the machinery of death in the camps (Lagers), and then survived the Lagers and became citizens of the new State of Israel. This chapter explores the legal and moral issues unique to this hybrid class of prisoner-functionary who occupied the “gray zone” between master and slave in the camps.
Chapter 8: The Frankfurt Auschwitz Trial: The Germans Trying Germans under German Law. The next trial deals with how Germans themselves prosecuted their own nationals for German criminality, specifically those Germans who were part of the most profound symbol of the Holocaust: Auschwitz. The Frankfurt Auschwitz trial, which took place over twenty months between December 1963 and August 1965, was a highly dedicated effort by West German prosecutors to charge Germans operating the Auschwitz death camp under German criminal law. Defendants at Nuremberg, Eichmann in Jerusalem, and others often raised arguments that they were being tried under ex post facto laws. This claim could not be raised here. Nevertheless, the use of the German Penal Code of 1871 to deal with Nazi criminality, before a postwar German judiciary, whose origins were largely in the Nazi era, had its own set of problems.
Chapter 9: The Trial of Feodor Fedorenko: Treblinka Relived in a Florida Courtroom. None of the trials discussed up to this point was brought in the United States. Any U.S. prosecution of Holocaust-era crimes would run afoul of the ex post facto clause of the U.S. Constitution, which precludes any such proceeding. However, criminal trials are not the only vehicle by which persons in the U.S. can be charged for their participation in the Holocaust. After the war, the United States, as well as other countries, became a haven not only for Holocaust victims, but also for perpetrators who became citizens. In such a case, the legal route taken with such persons is first to denaturalize and then to expel them from the U.S. The usual basis for denaturalization is that the person made a false statement in an entry application to the United States. Concealing one’s role as a guard at a concentration camp by misstating one’s activities during the war is such a false statement. Since the mid-1970s over one hundred naturalized Americans have been stripped of their citizenship for participating in the murder of Jews in German-occupied Europe and then hiding their role when immigrating to the United States.
A Ukrainian in the Red Army captured by the Germans in 1941, Feodor Fedorenko was trained as a concentration camp guard and then posted as a guard to the Treblinka extermination camp in 1942. Between July 1942 and October 1943, approximately 900,000 men, women, and children were murdered there—almost all Jews. In United States v. Feodor Fedorenko, brought in 1978 in Fort Lauderdale, the U.S. Justice Department sought to denaturalize Fedorenko on the basis of his role at Treblinka. Ultimately, the case was heard by the U.S. Supreme Court. In 1984, Fedorenko became the first and only war criminal to be deported from the United States to the Soviet Union, where he stood trial for his crimes.
Chapter 10: The Trial of Anthony Sawoniuk at the Old Bailey: The Holocaust in the British Courtroom. The trial of Anthony Sawoniuk took place in the Central Criminal Court (the “Old Bailey”) in London between February and April 1999. Like Fedorenko, Sawoniuk was a collaborator from Eastern Europe who began a new life after the war in a new country, in this case England. In the 1980s, the British rejected the Americans’ choice to simply denaturalize and then deport Nazi-era perpetrators and instead decided to prosecute them for their crimes directly. To do so, Parliament enacted the War Crimes Act 1991, a novel law that established criminal jurisdiction in England for conduct committed by a naturalized British citizen who committed crimes in German-occupied Europe. Sawoniuk’s hidden past was exposed after the passage of the law, and he was arrested and subsequently tried at the Old Bailey for multiple murders of Jews he allegedly committed in 1942 while a policeman in German-occupied Belarussia. As a result, Sawoniuk attained the dubious distinction of being the only person to be tried for Nazi-era crimes on English soil.
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As this overview makes clear, the trials discussed in this book are each distinctive—in the issues with which they contended, in the legal contexts in which they were prosecuted, and in the way in which the genocide was presented. Yet taken together we can see the progressive formation of public memory of the Holocaust in courtrooms throughout the world. In the 1943 Kharkov trial, Jews were not an explicit focal point, though almost all of the victims were Jewish. By the 1999 Sawoniuk trial in London, the entire focus was on the murder of Jews. Each trial explored here presents a landmark in apprehending the dimensions of the Jewish genocide. Indeed, these trials reveal the significant role the legal process has played in the formation of an understanding of the Holocaust even as they illuminate how understanding of the Holocaust shifted over time.
It is difficult to contemplate the murder of six million people. Thus it should not be surprising that efforts to prosecute the perpetrators of so many murders are also far from perfect. Nevertheless, each such effort represents part of the human endeavor to reach for justice. This book is dedicated to the many who labored at not forgetting and attempted to bring some measure of justice to those bearing responsibility for genocide and other mass atrocities.
The four defendants at the Kharkov Trial: (l to r) Wilhelm Langheld, Reinhard Retzlaff, Hanz Ritz, and Mikhail Bulanov. Photo Archive, Yad Vashem.
1
The Kharkov Trial of 1943
The First Trial of the Holocaust?
In the brutal history of humanity, no other tragedy compares to the scale of death and destruction brought by Germany in the years between 1941 and 1945 to the territories of present-day Russia, Belarus and the Ukraine. During the forty-seven months of what is known in the region as the Great Patriotic War, approximately 30 million Soviet civilians and soldiers lost their lives. Twenty million of these were civilians. Over sixty years later, more than 2.4 million are still officially considered missing in action, while 6 million of the 9.5 million buried in mass graves remain unidentified.
When describing what befell them, the people of the region often reference the brutal hordes of Mongol invaders in Europe during the twelfth and thirteenth centuries. Such an analogy is a fair one. In a throwback to the Mongol style of warfare, and on direct orders from Hitler, the German military on its Eastern Front did not follow the rules of warfare that had been developed by Europeans over the centuries to minimize civilian casualties as well as special status recognition of captured enemy soldiers.
Prior to the start of military operations in June 1941, Hitler announced to his generals: “The war against Russia will be such that it cannot be conducted in a knightly fashion. This struggle is one of ideologies and racial differences and will have to be conducted with unprecedented, unmerciful and unrelenting harshness.”1 Pursuant to Hitler’s instructions, the German generals issued specific orders to their regiments regarding how the upcoming invasion of the Soviet Union was to be conducted. This included the so-called “commissar order,” instructing the troops to take severe and decisive measures against “Bolshevik agitators” (the Soviet political commissars), partisans, saboteurs, and Jews. These orders provided the purported legal basis under German law for the mass executions of suspected political opponents and, eventually, Soviet Jews. It also permitted the German military to conduct a policy whereby approximately three million Soviet soldiers would die of starvation or cold in German POW camps.
In Ukraine, some of the fiercest battles between the German forces and the Red Army took place around Kharkov, Ukraine’s second-largest city. As a result of these battles, Kharkov became the only Soviet territory that changed hands four times during the war. The Germans captured Kharkov and the rest of eastern Ukraine in October 1941. In May 1942, the Red Army led a disastrous counterattack