Michael Bazyler, Holocaust, Genocide, and the Law: A Quest for Justice in a Post-Holocaust World. Oxford University Press, 2017

Michael Bazyler, Holocaust, Genocide, and the Law: A Quest for Justice in a Post-Holocaust World.... Holocaust, Genocide, and the Law: A Quest for Justice in a Post-Holocaust World proposes to fill what Bazyler observes as a gap in Holocaust scholarship: it is ‘rarely examined through the prism of the law’ (p xxiv). It does so from two perspectives. First, it ‘describe[s] and analyse[s] the legal aspects of the Holocaust and its aftermath’ (p xxiv). Secondly, it aims ‘to show how various areas of law have developed as a direct response to the Holocaust’. These developments, Bazyler claims, have engendered ‘a discrete body of law’ to which he refers as ‘post-Holocaust law’ (PHL) (p xix). The first part is an especially painful read for lawyers. It demonstrates how the institution of law was put to catastrophic use and that lawyers were unable (or unwilling) to prevent this from happening. Bazyler exhaustively maps out the intersections between law and the horrors of the Holocaust, showing clearly how the Holocaust may be understood as a ‘legal event’ (p xxiv). Chapter one’s stomach-turning list of legal measures taken by the German government to facilitate the Holocaust illustrates that ‘the groundwork for the murder of six million Jews and other persecuted minorities was established almost entirely within the legal framework of German law’ (p xxv). As a warning never to forget that dark realities may lurk behind the neutral language of the law, we are told how the Nazi government and its jurists corrupted existing legal terminology or couched their policies in euphemistic legal neologisms (p 21). This leads Bazyler to the sobering conclusion that ‘without law and lawyers, the Holocaust would not have occurred’ (p xxv). Law is somewhat redeemed in the second and third parts of the book. There, Bazyler is concerned with the notion of PHL. PHL encompasses ‘the legal means for redressing historical wrongs, obtaining justice for victims, and preventing future genocides, all under the long shadow of the Holocaust’ (p xxix). It captures national or international institutions, proceedings and norms that are direct responses to the Holocaust or whose origin can be traced back to the Holocaust. Bazyler writes about the Nuremberg trial, domestic criminal prosecutions, civil litigations for restitution, and legislation on the phenomenon of Holocaust denial. He then turns to the influence of the Holocaust on contemporary international criminal justice (ICJ), connecting the resurgence of ICJ after the end of the Cold War to the legacy of Nuremberg. The ICTY, ICTR and ICC, Bazyler states, are ‘Nuremberg’s progenies’ (p 237). To an extent, Bazyler’s meticulous overview of these institutions helps us ‘understand the consequences of the Holocaust for the law today and into the future’ (p xxiv). The breadth of his examples demonstrate the Holocaust’s pervasive impact on many aspects of law. But Bazyler’s reliance on the mere existence and pedigree of relevant institutions, norms and proceedings to explain the notion of PHL, sometimes leaves the reader desiring more depth. It seems tautologically true that proceedings explicitly addressing the Holocaust are PHL. And within the field of ICJ, the main contemporary institution of PHL, it is acknowledged that the enterprise is heavily based on the Nuremberg precedent.1 A thicker concept of PHL requires a deeper analysis of how the legacy of the Holocaust permeates law and legal discourse. One potential focal point for such an analysis is the notion of crimes against humanity (CAH). Bazyler’s emphasis on the crime of genocide, which features in the book’s title and has been dubbed ‘the crime of crimes’ (p xxiii), somewhat eclipses the category of CAH.2 This is unfortunate, as this category was created specifically to prosecute crimes committed by the Nazi government against their own citizens at the Nuremberg Trial.3 CAH—arguably its first concrete manifestation—therefore brings out many intricacies of the notion of PHL. Let me illustrate this. One serious concern around the Nuremberg Charter was that it breached the maxim nullum crimen sine lege. Bazyler explains the arguments used to justify the inclusion of war crimes and crimes against peace (p 84), but not CAH. This is surprising, given that nullum crimen concerns were most pressing for this novel legal category (p 238). The fact that nearly three decades after a rejected proposal to try those responsible for the Armenian Genocide based on laws of humanity4 CAH was included in the Nuremberg Charter is important. Why were things different now? Was it because after the Holocaust, unlike previous episodes of mass violence, humanity ‘emerged battered, hurt, vulnerable, and victimized’?5 Did this make us realise things about law we had not realised before? A discussion of such questions will contribute to a fuller understanding of the seismic shift the Holocaust caused for the legal landscape. The consequences of this shift are acutely felt within institutions of ICJ. Bazyler writes about proceedings in such institutions that they are ‘only taking place because of what took place seventy years ago’ (p xxvii). This is true, but to flesh out the notion of PHL we should not only recognise the fact that the Holocaust influences ICJ, but also consider how it does so. For its influence extends beyond the existence and pedigree of these institutions. The Holocaust also has an enduring hold on debates about the scope and substance of international criminal law. For instance, there is a significant body of literature,6 as well as judgments and dissenting opinions,7 that addresses the question of whether a state policy is required in the perpetration of CAH. These discussions almost always refer back to the salient features of the Holocaust or turn on different interpretations of the legal definitions created in its immediate aftermath—such as the Nuremberg Charter and Control Council Law No 10. This raises a normative issue. Measuring situations against the horrors of the Holocaust may exclude other instances of mass violence that could also merit international legal intervention. Indeed, some scholars have explicitly called for international criminal law to be emancipated from the legacy of the Holocaust, so that it may better capture the reality of contemporary conflicts.8 Such concerns lay bare a tension arising from the notion of PHL, which Bazyler does not engage with. The Holocaust justifies and explains institutions of ICJ, but the enormity of the Holocaust also acts as a limit to their scope. Identifying and understanding these two aspects of PHL, and finding an appropriate balance between them, is a key task for the field of ICJ. Holocaust, Genocide and the Law is an important book. It drives home the realisation that the institution of law was deeply complicit in the ascent of the Nazi regime and the perpetration of the Holocaust, and it gives an exhaustive overview of the institutions and legal proceedings for which the Holocaust was a conditio sine qua non. We have seen that profound questions emerge from this overview, which go to the core of law—especially the endeavour of ICJ. Bazyler’s book is an invitation to engage with these issues, and to explore in more detail the wide-ranging influence of the Holocaust’s legacy. Footnotes 1 See eg A Cassese and others, Cassese's International Criminal Law (OUP 2013) 3 and SR Ratner, JS Abrams and JL Bischoff, Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy (OUP 2009) xlv. 2 CAH and genocide proscribe similar behaviours. The fundamental difference is that genocide requires that the perpetrator have the specific intent to destroy, in whole or in part, a protected group. See p 48–52 of Bazyler’s book; see also W Schabas, Genocide in International Law: The Crime of Crimes (CUP 2009) 256–57. 3 Bazyler acknowledges this too (p 238). 4 MC Bassiouni, Crimes against Humanity: Historical Evolution and Contemporary Application (CUP 2011) 88–89. The proposal was made by the Commission on the Responsibilities of the Authors of War and on Enforcement of Penalties for Violations of the Laws and Customs of War. The American representatives at the time objected that ‘[a] judicial tribunal only deals with existing law and only administers existing law, leaving to another forum infractions of the moral law and actions contrary to the laws and principles of humanity.’ Cited in E Schwelb, ‘Crimes against Humanity’, 23 British Yearbook of International Law 178, 181–82. 5 J Yovel, ‘How Can a Crime Be against Humanity? Philosophical Doubts concerning a Useful Concept’ 11 UCLA Journal of International and Foreign Affairs 39, 47; and M Lippman, ‘Crimes Against Humanity’ 17 Boston College Third World Law Journal 171, 171. Interesting in this regard is also the language of the judgment in the Einsatzgruppen case. In that case, the court addressed the legal novelty of crimes against humanity, which it justified by reference to the extreme horrors that accompany mass atrocities in general, and the Holocaust in particular: United States v Ohlendorf, Judgment, printed in Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No 10, IV, p 496–501. 6 Bassiouni, 17–23; WA Schabas, ‘State Policy as an Element of International Crimes’ 98 Journal of Criminal Law and Criminology 953, 954–62; CC Jalloh, ‘What makes a Crime against Humanity a Crime against Humanity’ 28 American University International Law Review 381, 393; G Mettraux, ‘The Definition of Crimes Against Humanity and the Question of a "Policy" Element’ in LN Sadat (ed) Forging a Convention for Crimes Against Humanity (CUP 2011) 163–64. 7 See eg Prosecutor v Kunarac and others (Case No: IT-96-23 and IT-96-23/1-A), Judgment, 12 June 2002, ¶98, n 114; Situation in the Republic of Kenya (Case No: ICC-01/09), Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, 31 March 2010, ¶85–87 and Judge Kaul’s dissenting opinion to that decision. 8 See eg LN Sadat, ‘Crimes against Humanity in the Modern Age’ 107 American Journal of International Law 334, 336: ‘[h]owever heretical it may seem to question [the] invocation of the Nuremberg precedent, [this] historical approach does not accurately describe the modern law of crimes against humanity, which has developed since Nuremberg as a matter of customary international law through the work of national courts and the ad hoc international criminal tribunals.’ © Oxford University Press 2018; All rights reserved. For permissions, please e-mail: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices) http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Journal of Conflict and Security Law Oxford University Press

Michael Bazyler, Holocaust, Genocide, and the Law: A Quest for Justice in a Post-Holocaust World. Oxford University Press, 2017

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Oxford University Press
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© Oxford University Press 2018; All rights reserved. For permissions, please e-mail: journals.permissions@oup.com
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1467-7954
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Abstract

Holocaust, Genocide, and the Law: A Quest for Justice in a Post-Holocaust World proposes to fill what Bazyler observes as a gap in Holocaust scholarship: it is ‘rarely examined through the prism of the law’ (p xxiv). It does so from two perspectives. First, it ‘describe[s] and analyse[s] the legal aspects of the Holocaust and its aftermath’ (p xxiv). Secondly, it aims ‘to show how various areas of law have developed as a direct response to the Holocaust’. These developments, Bazyler claims, have engendered ‘a discrete body of law’ to which he refers as ‘post-Holocaust law’ (PHL) (p xix). The first part is an especially painful read for lawyers. It demonstrates how the institution of law was put to catastrophic use and that lawyers were unable (or unwilling) to prevent this from happening. Bazyler exhaustively maps out the intersections between law and the horrors of the Holocaust, showing clearly how the Holocaust may be understood as a ‘legal event’ (p xxiv). Chapter one’s stomach-turning list of legal measures taken by the German government to facilitate the Holocaust illustrates that ‘the groundwork for the murder of six million Jews and other persecuted minorities was established almost entirely within the legal framework of German law’ (p xxv). As a warning never to forget that dark realities may lurk behind the neutral language of the law, we are told how the Nazi government and its jurists corrupted existing legal terminology or couched their policies in euphemistic legal neologisms (p 21). This leads Bazyler to the sobering conclusion that ‘without law and lawyers, the Holocaust would not have occurred’ (p xxv). Law is somewhat redeemed in the second and third parts of the book. There, Bazyler is concerned with the notion of PHL. PHL encompasses ‘the legal means for redressing historical wrongs, obtaining justice for victims, and preventing future genocides, all under the long shadow of the Holocaust’ (p xxix). It captures national or international institutions, proceedings and norms that are direct responses to the Holocaust or whose origin can be traced back to the Holocaust. Bazyler writes about the Nuremberg trial, domestic criminal prosecutions, civil litigations for restitution, and legislation on the phenomenon of Holocaust denial. He then turns to the influence of the Holocaust on contemporary international criminal justice (ICJ), connecting the resurgence of ICJ after the end of the Cold War to the legacy of Nuremberg. The ICTY, ICTR and ICC, Bazyler states, are ‘Nuremberg’s progenies’ (p 237). To an extent, Bazyler’s meticulous overview of these institutions helps us ‘understand the consequences of the Holocaust for the law today and into the future’ (p xxiv). The breadth of his examples demonstrate the Holocaust’s pervasive impact on many aspects of law. But Bazyler’s reliance on the mere existence and pedigree of relevant institutions, norms and proceedings to explain the notion of PHL, sometimes leaves the reader desiring more depth. It seems tautologically true that proceedings explicitly addressing the Holocaust are PHL. And within the field of ICJ, the main contemporary institution of PHL, it is acknowledged that the enterprise is heavily based on the Nuremberg precedent.1 A thicker concept of PHL requires a deeper analysis of how the legacy of the Holocaust permeates law and legal discourse. One potential focal point for such an analysis is the notion of crimes against humanity (CAH). Bazyler’s emphasis on the crime of genocide, which features in the book’s title and has been dubbed ‘the crime of crimes’ (p xxiii), somewhat eclipses the category of CAH.2 This is unfortunate, as this category was created specifically to prosecute crimes committed by the Nazi government against their own citizens at the Nuremberg Trial.3 CAH—arguably its first concrete manifestation—therefore brings out many intricacies of the notion of PHL. Let me illustrate this. One serious concern around the Nuremberg Charter was that it breached the maxim nullum crimen sine lege. Bazyler explains the arguments used to justify the inclusion of war crimes and crimes against peace (p 84), but not CAH. This is surprising, given that nullum crimen concerns were most pressing for this novel legal category (p 238). The fact that nearly three decades after a rejected proposal to try those responsible for the Armenian Genocide based on laws of humanity4 CAH was included in the Nuremberg Charter is important. Why were things different now? Was it because after the Holocaust, unlike previous episodes of mass violence, humanity ‘emerged battered, hurt, vulnerable, and victimized’?5 Did this make us realise things about law we had not realised before? A discussion of such questions will contribute to a fuller understanding of the seismic shift the Holocaust caused for the legal landscape. The consequences of this shift are acutely felt within institutions of ICJ. Bazyler writes about proceedings in such institutions that they are ‘only taking place because of what took place seventy years ago’ (p xxvii). This is true, but to flesh out the notion of PHL we should not only recognise the fact that the Holocaust influences ICJ, but also consider how it does so. For its influence extends beyond the existence and pedigree of these institutions. The Holocaust also has an enduring hold on debates about the scope and substance of international criminal law. For instance, there is a significant body of literature,6 as well as judgments and dissenting opinions,7 that addresses the question of whether a state policy is required in the perpetration of CAH. These discussions almost always refer back to the salient features of the Holocaust or turn on different interpretations of the legal definitions created in its immediate aftermath—such as the Nuremberg Charter and Control Council Law No 10. This raises a normative issue. Measuring situations against the horrors of the Holocaust may exclude other instances of mass violence that could also merit international legal intervention. Indeed, some scholars have explicitly called for international criminal law to be emancipated from the legacy of the Holocaust, so that it may better capture the reality of contemporary conflicts.8 Such concerns lay bare a tension arising from the notion of PHL, which Bazyler does not engage with. The Holocaust justifies and explains institutions of ICJ, but the enormity of the Holocaust also acts as a limit to their scope. Identifying and understanding these two aspects of PHL, and finding an appropriate balance between them, is a key task for the field of ICJ. Holocaust, Genocide and the Law is an important book. It drives home the realisation that the institution of law was deeply complicit in the ascent of the Nazi regime and the perpetration of the Holocaust, and it gives an exhaustive overview of the institutions and legal proceedings for which the Holocaust was a conditio sine qua non. We have seen that profound questions emerge from this overview, which go to the core of law—especially the endeavour of ICJ. Bazyler’s book is an invitation to engage with these issues, and to explore in more detail the wide-ranging influence of the Holocaust’s legacy. Footnotes 1 See eg A Cassese and others, Cassese's International Criminal Law (OUP 2013) 3 and SR Ratner, JS Abrams and JL Bischoff, Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy (OUP 2009) xlv. 2 CAH and genocide proscribe similar behaviours. The fundamental difference is that genocide requires that the perpetrator have the specific intent to destroy, in whole or in part, a protected group. See p 48–52 of Bazyler’s book; see also W Schabas, Genocide in International Law: The Crime of Crimes (CUP 2009) 256–57. 3 Bazyler acknowledges this too (p 238). 4 MC Bassiouni, Crimes against Humanity: Historical Evolution and Contemporary Application (CUP 2011) 88–89. The proposal was made by the Commission on the Responsibilities of the Authors of War and on Enforcement of Penalties for Violations of the Laws and Customs of War. The American representatives at the time objected that ‘[a] judicial tribunal only deals with existing law and only administers existing law, leaving to another forum infractions of the moral law and actions contrary to the laws and principles of humanity.’ Cited in E Schwelb, ‘Crimes against Humanity’, 23 British Yearbook of International Law 178, 181–82. 5 J Yovel, ‘How Can a Crime Be against Humanity? Philosophical Doubts concerning a Useful Concept’ 11 UCLA Journal of International and Foreign Affairs 39, 47; and M Lippman, ‘Crimes Against Humanity’ 17 Boston College Third World Law Journal 171, 171. Interesting in this regard is also the language of the judgment in the Einsatzgruppen case. In that case, the court addressed the legal novelty of crimes against humanity, which it justified by reference to the extreme horrors that accompany mass atrocities in general, and the Holocaust in particular: United States v Ohlendorf, Judgment, printed in Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No 10, IV, p 496–501. 6 Bassiouni, 17–23; WA Schabas, ‘State Policy as an Element of International Crimes’ 98 Journal of Criminal Law and Criminology 953, 954–62; CC Jalloh, ‘What makes a Crime against Humanity a Crime against Humanity’ 28 American University International Law Review 381, 393; G Mettraux, ‘The Definition of Crimes Against Humanity and the Question of a "Policy" Element’ in LN Sadat (ed) Forging a Convention for Crimes Against Humanity (CUP 2011) 163–64. 7 See eg Prosecutor v Kunarac and others (Case No: IT-96-23 and IT-96-23/1-A), Judgment, 12 June 2002, ¶98, n 114; Situation in the Republic of Kenya (Case No: ICC-01/09), Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, 31 March 2010, ¶85–87 and Judge Kaul’s dissenting opinion to that decision. 8 See eg LN Sadat, ‘Crimes against Humanity in the Modern Age’ 107 American Journal of International Law 334, 336: ‘[h]owever heretical it may seem to question [the] invocation of the Nuremberg precedent, [this] historical approach does not accurately describe the modern law of crimes against humanity, which has developed since Nuremberg as a matter of customary international law through the work of national courts and the ad hoc international criminal tribunals.’ © Oxford University Press 2018; All rights reserved. For permissions, please e-mail: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/about_us/legal/notices)

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Journal of Conflict and Security LawOxford University Press

Published: Apr 17, 2018

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