Danes face dif­fi­cult de­ci­sion

Winnipeg Free Press - SundayXtra - - OPINION - By Noah Feld­man

SHOULD Den­mark pros­e­cute a 90-year-old Dane who vol­un­teered as a Nazi con­cen­tra­tioncamp guard more than 70 years ago?

The ques­tion isn’t hy­po­thet­i­cal. The Si­mon Wiesen­thal Cen­ter has pre­sented Dan­ish author­i­ties with a dossier urg­ing the pros­e­cu­tion of Hel­muth Leif Ras­mussen, who by his own ac­count was present at the Bo­bruisk camp in 1942-43, when 1,400 Jews were killed there.

And the an­swer isn’t ob­vi­ous. By con­tem­po­rary terms, Ras­mussen was at least com­plicit in war crimes. There’s merit to the idea war crim­i­nals should be hunted down no mat­ter what and no mat­ter how long ago they acted. But the post-Sec­ond World War con­sen­sus of the Al­lies was to pun­ish Nazi lead­ers at the Nurem­berg tri­als while giv­ing at most mi­nor pun­ish­ments to sub­or­di­nate ac­tors, in­clud­ing thou­sands of peo­ple with blood on their hands. Try­ing Ras­mussen now would sym­bol­i­cally hint at a ret­ro­spec­tive re­pu­di­a­tion of that pol­icy de­ci­sion.

The facts are not only painful, but also painfully in­ter­est­ing. Some 20,000 Danes par­tic­i­pated in the re­sis­tance against Ger­many and saved the over­whelm­ing ma­jor­ity of Dan­ish Jews, a heroic ef­fort re­cently re­vis­ited in Bo Lide­gaard’s Coun­try­men: the Un­told Story of How Den­mark’s Jews Es­caped the Nazis. Yet some 6,000 Danes, many from Den­mark’s Ger­man-speak­ing mi­nor­ity, vol­un­teered for ser­vice in the Waf­fen- SS and were sent by the Ger­man com­mand to the eastern front.

It’s al­ways been known some of the Dan­ish vol­un­teers were at the Bo­bruisk camp, in present­day Be­larus, when Jews were killed there. What gave rise to the re­quest for the pros­e­cu­tion of Ras­mussen was tes­ti­mony he pro­vided to the au­thors of A Book of Vi­o­lence, a his­tor­i­cal work pub­lished in Dan­ish in 2014. The au­thors ar­gue Danes were not merely present at the camp but ac­tively par­tic­i­pated in killings. Part of the ev­i­dence came from Ras­mussen him­self, who de­nied (and still de­nies) he per­son­ally took part.

To fur­ther com­pli­cate mat­ters, Ras­mussen, who is also known as Ras­boel, ap­par­ently re­ceived some sort of pun­ish­ment af­ter the war, although it isn’t clear whether it was for be­tray­ing Den­mark by volunteering to serve with Ger­man forces or for spe­cific crimes he may have com­mit­ted. The Dan­ish pros­e­cu­tor has said the state wants to avoid pros­e­cut­ing Ras­mussen twice for the same of­fence, which would be a kind of dou­ble-jeop­ardy vi­o­la­tion.

To sharpen the ques­tion of whether this is a wor­thy pros­e­cu­tion, let’s stip­u­late that, if Ras­mussen’s acts oc­curred now, whether in Rwanda or Iraq or any­where else, they would be pun­ish­able as war crimes. And let’s also as­sume there would be no dou­ble-jeop­ardy prob­lem in pros­e­cut­ing him now. Is it still the right thing to do?

From the per­spec­tive of the Nazi hun­ters at the Wiesen­thal Cen­ter, the an­swer is cer­tainly yes. Efraim Zuroff, the famed Nazi hunter who brought the dossier to the Danes, knows the pros­e­cu­tion of Nazis is com­ing to the end of the line as fewer and fewer war crim­i­nals re­main alive. In­sti­tu­tion­ally, the cen­tre is on the brink of mov­ing its jus­tice-seek­ing oper­a­tions into the realm of history rather than the ac­tive pur­suit of in­di­vid­ual crim­i­nals.

The cen­tre’s com­mit­ment to track­ing down ev­ery Nazi war crim­i­nal has be­come part of the con­tem­po­rary ide­ol­ogy of the pros­e­cu­tion of war crimes gen­er­ally. The Rome statute es­tab­lish­ing the In­ter­na­tional Crim­i­nal Court doesn’t re­strict pros­e­cu­tions to high-level com­man­ders who or­der crimes against hu­man­ity. The in­ter­na­tional pro­hi­bi­tion on geno­cide ex­tends to any in­di­vid­ual who par­tic­i­pates in a geno­cide — not just those who con­ceive and di­rect the crime. In prac­tice, pros­e­cu­tions in the spe­cial tri­bunals for the for­mer Yu­goslavia, Rwanda and Sierra Leone have fo­cused on crim­i­nals re­spon­si­ble for many deaths, but that’s a pol­icy judg­ment by pros­e­cu­tors, not a re­quire­ment of those tri­bunals or the laws they ap­ply.

What’s more, within in­di­vid­ual mil­i­taries, sol­diers sus­pected of war crimes are pros­e­cuted zeal­ously even for crimes that are iso­lated rather than sys­tem­atic. And that must be right: it would make lit­tle sense to ig­nore the wil­ful mur­der of an Iraqi or Afghan civil­ian just be­cause it was com­mit­ted in vi­o­la­tion of the rules of en­gage­ment.

Yet Ras­mussen’s crimes came in a con­flict to which dif­fer­ent rules were ap­plied. Faced with the scale of the Nazis’ atroc­i­ties, the Nurem­berg pros­e­cu­tors chose to fo­cus al­most ex­clu­sively on the big fish and to let the lit­tle fish go if they would re­nounce their com­mit­ment to Nazism. No other course of ac­tion would have been prac­ti­cal. And both the Amer­i­can and Soviet sides, an­tic­i­pat­ing fu­ture Cold War con­flict, hoped to win over the Ger­man pop­u­la­tion.

In the light of to­day’s moral ap­proach to war crim­i­nals, that de­ci­sion may seem shock­ing. And you can hardly fault the Wiesen­thal Cen­ter for do­ing its best to un­der­mine it and re­mind the world Hitler had many will­ing ex­e­cu­tion­ers, as Daniel Gold­ha­gen has put it. Yet there were also ex­tremely im­por­tant prac­ti­cal ben­e­fits to al­low­ing a so­ci­ety of per­pe­tra­tors to go free, pri­mar­ily the post­war rec­on­cil­i­a­tion that’s been so elu­sive in Iraq. And Ger­many was able to grow into an ef­fec­tive democ­racy in part be­cause it wasn’t riven by a lengthy truth and rec­on­cil­i­a­tion process.

Ras­mussen’s case re­minds us Den­mark has much to be proud of, but also a stain of its own to re­mem­ber. Pros­e­cut­ing a 90-year-old won’t make ei­ther of these his­tor­i­cal re­al­i­ties go away. We’ve al­ready en­tered the era of history. The way to pro­duce jus­tice now is by find­ing the truth — and telling it to the world. Noah Feld­man, a Bloomberg View colum­nist, is a pro­fes­sor of con­sti­tu­tional and in­ter­na­tional law at Har­vard Univer­sity and the au­thor of six books, most re­cently Cool War: the Fu­ture of Global

Com­pe­ti­tion.

ED­DIE WORTH / THE AS­SO­CI­ATED PRESS FILES

De­fen­dants at the Nurem­berg war-crimes tri­als in Septem­ber 1946.

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