SHOULD WE TRY NAZIS?
The media: Paul Johnson
wants more debate on the legal issues
THE Budget and the Mid Staffs by- election meant that the War Crimes Bill passed its second reading, by 273 to 60 on a free vote, without much attention from the media. Up until now the issue involved in this piece of restrospective legislation has evoked surprisingly little comment. I have seen one or two articles on the subject, including a piece' in the Daily Telegraph arguing that the trials would serve to educate the public about the nature of the Holocaust, at a time when an insidious campaign seeks to convince the gullible that Hitler's crimes against the Jews have been grotesquely exaggerated. This week the Sunday Telegraph devoted an entire page to the issue, with three different articles, and perhaps that it is a sign that the debate will now get going. Certainly this is a case where the media has a duty to put the arguments on both sides to the public before an irrevocable decision is taken.
I find myself reluctantly drawn to the conclusion that to proceed with the Bill would be an error of judgment, possibly a serious one. I say reluctantly because no one who has studied the details of the Holocaust, as I did while writing my History of the Jews, can have any doubt about the overwhelming need to punish all those responsible. Anyone who goes into the matter will also be angered by the manner in which so many who took part in or benefited from the Holocaust got away with it. Two groups in particular stand out. One was the German industrialists who employed slave-labour (not just Jewish, of course). They resisted compensation to the victims and their families to the best of their bottomless legal resources. One of the worst, Friedrich Flick, never paid out a single deutschmark and was worth over $1,000 million when he died, aged 90, in 1972. The other group who got off virtual- ly, scot-free were the Austrian war crimin- als, chiefly owing to the Allied ruling in 1943, for purposes of Realpolitik, that Austria was not Hitler's ally but 'the first free nation to fall victim to Hitlerite aggression'. In fact the Austrians provided a disproportionate share of concentration camp personnel, including four out of six
commanders of the big death camps, and were responsible for the deaths of nearly half the six million Jewish victims. Hardly any of them were even tried, let alone convicted, and few Jewish sufferers or their families got anything from the Austrians. On the other hand, the historian has to admit that it is rare for war-crimes to be punished at all. In the case of the Jews, West Germany (not of course the Marxist East) did in the end make substantial financial atonement, in addition to the many successful prosecutions. By the end of this decade, over $30 billion will have been paid out in compensation.
There have been various attempts to supplement the efforts made by the Allies in the immediate post-war period, and the West Germans since, to make retribution. The Israelis rightly reserve the right to pursue certain major criminals wherever they may be found, and did so in the case of Eichmann. In France, where innumer- able crimes against Jews were committed, there have been one or two spectacular trials in recent decades. There is now an opportunity to look at the record in East Germany and possibly Rumania too. In- deed, throughout Eastern Europe, from the Oder-Neisse to the Urals, there are tens of millions of unpublished political crimes crying to heaven, for justice, and crimes not just against Jews but against scores of peoples.
By comparison, the exercise the Govern-
`Take a letter, Miss .1011e.1.. ment proposes Britain should now under- take seems small-scale. It was originally claimed 17 Nazi war criminals were living in Britain. It now seems unlikely that more than three would actually be prosecuted. It may be that the crimes allegedly commit- ted by one or more of these three are so horrific and extensive as to change the entire emotional basis of the argument. The Jewish community here are divided about the wisdom of prosecuting, though a majority feel they ought to support it. But it is by no means clear to me that the outcome will serve a benign purpose. Many members of the public will not be happy at the spectacle of three old men possibly only one — being brought out of obscurity, at enormous expense, to be tried for crimes committed against non-British subjects at the other end of Europe half a century ago. There will be all kinds of problems about proof of identity and admissable evidence. There is no guaran- tee that the proofs will be convincing or that juries will convict or that public sympathy will not swing towards the ac- cused, rather than their alleged victims. We have to assume that they will be well-defended. Then again, if convictions are indeed secured, there is the problem of punishment. To be severe will go against most people's ordinary instincts on the treatment of elderly criminals. To be le- nient or to impose a purely symbolic sentence will turn the whole thing into a mockery. And at the end of it all, whatever the outcome, many are sure to ask: cui Bono — whose purpose has this judicial exercise served? The answer ought to be: the purpose of justice. But of course insidious voices will insist that only the Jewish community has been served. That is the point of danger, in my judgment.
The argument that the trials will serve the cause of justice would be much stron- ger if the men would be brought to trial within the existing framework of the En- glish and Scottish law. Unfortunately, they cannot be tried at all without a special Act of Parliament which violates the principles of jurisprudence, as understood here, in several ways. First, it is retrospective, creating crimes which did not exist at the time of their supposed commission. Second, it is clearly aimed at specific, identified individuals. Third, for the grue- some purpose of making the trials possible before these individuals die, it will speed up the normal procedures and alter the rules of evidence and the presentation of witnesses. Such infringements, I fear, will be used as precedents. All this is a heavy price to pay for an operation which may well fail in its object and may even backfire at incalculable cost. It may be that the arguments in favour of the Bill are much stronger than I have so far understood, and I am keeping my mind open. But it is important that the media puts them all to the public now, rather than after the fateful decision becomes irrevocable.
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