Document Type

Article

Disciplines

International Law

Abstract

January 27, 1995, marked the fiftieth anniversary of the liberation of Auschwitz-Birkenau.' The death and destruction in the Nazi death camps propelled the global community to alter the architecture of international law and to adopt a series of human rights instruments intended to safeguard the rights of individuals.2 The Allied Powers also initiated a series of international and national prosecutions against the staff and administrators of the concentration camps.' The decisions documented the inmates' dystopian existence and developed and discussed various core components of contemporary international criminal law. These precedents have taken on renewed relevance as the global community confronts the challenge of prosecuting those charged with international crimes in Eastern Europe and Africa.

The extermination enterprise required the cooperation of an enormous number of Germans, ranging from train crews to camp guards and officials. Yet, few of those who designed, directed, staffed, or supplied the death machine expressed opposition to or questioned the extermination program. One exception was Kurt Gerstein. Gerstein was the scion of a nationalistic Prussian family devoted to public service.' He embraced the anti-Semitism and anti-democratic animus of Nationalist Socialism and enrolled in the Nazi Party three months following Hitler's rise to power.6 However, Gerstein also was an adherent of the conservative Protestant Church and resented and resisted the National Socialist's persecution of Christian denominations. Gerstein's public opposition to this persecution led to beatings, internment, and expulsion from the Nazi Party.

Following the murder of his sister-in-law in the Reich's euthanasia program, Gerstein sought reinstatement in the Nazi Party and enlisted in Waffen-SS (the military wing of the Security Police), with the hope of exposing the Nazi extermination program. Gerstein was assigned to the Hygiene Service and in 1942 was appointed Head of the Reich Technical Disinfection Services.' His responsibilities included obtaining Zyklon B Gas for killing inmates and disinfecting their clothing.

Gerstein witnessed the processing and extermination of a transport of 6,000 Jews on his first visit to the Polish concentration camps."0 WaffenSS Group Leader Odilo Globcnik boasted that bronze tablets should be buried along with the Jews applauding "'we who had the courage to carry out this gigantic task!""'1 Gerstein secretly distributed information concerning the Nazis' genocidal policies to Swedish and Swiss diplomats, domestic religious leaders, and various anti-Nazi Germans. His accounts gradually reached the Allied Powers and confirmed other reports.2 There is some indication that Gerstein also sabotaged the dispatch and deployment of Zyklon B Gas. However, the scope and success of these efforts remains uncertain.

The seeming indifference and inaction of the global community sent Gerstein into a state of depression and near-suicide. 4 He was reinvigorated as the Allied armies swept into Germany, and he turned himself over to the French command. Gerstein proceeded to describe and document the Nazi Holocaust. However, there remained little interest in his account and he was confined in an austere, dank, and dark prison cell. Gerstein was found dead on July 25, 1945, the victim of an apparent suicide.

The Tubingen Denazification Court posthumously condemned Gerstein for cooperating with the Nazi regime. 6 The Premier of the Province of Baden-Wurttemburg rehabilitated Gerstein in 1965 and praised him for having resisted National Socialism "'with all his strength.""..7 Gerstein's anguish contrasts with the stoicism of Auschwitz Commandant Rudolf Hoess who directed the daily death of thousands. Hoess describes distantly observing the "dragging and burning of the bodies... teeth being ripped out, the cutting of the hair... bodies... dragged out and burned .... [O]nly iron determination could carry out Hitler's orders and this could only be achieved by stifling all human emotion ... ."" According to Hoess, these killings were required to "destroy all the Jews in order to forever free Germany and the future generations from our toughest enemy."

This essay chronicles the little-noted prosecutions of those like Hoess who supplied, staffed, administered, and assisted the German death camps. An overview of the trials of those who deported Jews, provided poison gas, administered and guarded the gulags, conducted medical experiments, enslaved inmates, confiscated valuables, and supervised the camps is provided. This overview is followed by an analysis of the contributions of these cases to the development of an international criminal code, and reflections on the causes and consequences of Nazi criminality.

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