Josef Mengele/Debate Guide

Was Josef Mengele a War Criminal?

Robert Jay Lifton, a psychiatrist and historian, wrote "Certainly no Nazi war criminal has evoked so much fantasy and fiction." Examples include the novel and book The Boys from Brazil by Ira Levin, the drama The Deputy by Rolf Hochhuth. Isser Harrel, head of the Israeli Mossad, said "the moment the name of Mengele was mentioned, Adolf Eichmann went into a panic.

Since Mengele was never tried, can he be called a war criminal?

Yes

Under the doctrine of hostis humani generis, the acts of some criminals against humanity were so great that the perpetrators put themselves outside human society. Piracy, for example, was recognized, from classical times, as a threat to mankind, and naval vessels often summarily executed pirates captured at sea, in their vessel.

The unprecedented Nazi crimes of genocide and associated offenses against humanity were of unprecedented scope, and the world community responded with the unprecedented Nuremberg Trial, which accepted the need to operate with reasonable procedure but not strict rules of evidence, and not a presumption of innocence for its main proceedings. In its Charter, charter, Article 14 of which stated that its mission included (emphasis added) “settle the final designation of major war criminals to be tried by the Tribunal”, Also in the Charter were articles indicating that it might not follow strict international law:

• Article 19: The Tribunal shall not be bound by technical rules of evidence. It shall adopt and apply to the greatest possible extent expeditious and nontechnical procedure, and shall admit any evidence which it deems to be of probative value.
• Article 21: The Tribunal shall not require proof of facts of common knowledge but shall take judicial notice thereof. It shall also take judicial notice of official governmental documents and reports of the United Nations, including the acts and documents of the committees set up in the various allied countries for the investigation of war crimes, and of records and findings of military or other Tribunals of any of the United Nations.

No code of individual responsibility had existed in international law, until partially addressed by the Geneva Conventions. The Trial, therefore, created one under its own authority. It was accepted by the United Nations General Assembly when it passed Resolution 95(1) “Affirmation of the Principles of International Law Recognized by the Charter of the Nuremberg Tribunal.”

No

The concept of war crime has its substantive origins (notwithstanding some earlier minor issues) in the immediate aftermath of WW II and specifically within the Nuremberg Trials. The victorious Allied powers resolved to establish within the international legal framework the personal culpability of those involved in atrocities -- including war crimes, crimes against humanity and genocide. The 1945 Nuremberg Charter established duties and liabilities upon individuals as well as states, the principles of which were affirmed by the UN General Assembly in 1946. This was followed by the Genocide Convention of 1948, the four Geneva Conventions of 1949 and their 1977 Additional Protocols I and II. Recent times have seen the creation in 1992 and 1994 of specific War Crimes Tribunals for Yugoslavia and Rwanda, under the aegis of the UN Security Council, and the establishment by the Rome Statute of 1998 of the International Criminal Court in The Hague, effective from 2002.

Thus, war crime is a legal term, as is war criminal -- meaning someone who has been convicted of such crimes in accordance with the international legal procedures prevailing at the time of trial. There are implications -- of a very serious nature -- in descrbing as "criminals" those who have never been tried, let alone convicted of crimes. Such is the case with comtemporary trials which are proceeding as we speak: it is contrary to CZ neutrality policy to determine the guilt of such persons without trial. Equally, although less obviously, it is contrary to our policy to describe as "criminals" historical persons who were not tried.

Notwithstanding the tremendous political backing provided to the Nuremberg Trials, and their wide-reaching powers, many historians have blithely described some of those who committed Nazi atrocities but were not convicted of anything as "war criminals". Regardless of our personal moral positions on this, it is careless and sloppy terminology, which is unnecessary (it is obvious what these people did) and definitely problematic in influencing public attitudes to more recent atrocities. Nevertheless, it is evident that many historians are quite happy to use this terminology without reference to legal processes.

In this specific article Josef Mengele, the actual quotation in the introduction describes Mengele as a war criminal (as if this were a clear fact). (That quotation has been redacted, using an ellipsis.) It is perfectly reasonable to note somewhere in the article (but not in the first one or two sentences) that Mengele is considered by many to be a war criminal, despite not having stood trial. It is not acceptable -- and contrary to CZ policy -- to put the description "war criminal" in the lead and give an impression to the reader that all is "cut and dried". Mengele was neither tried in absentia nor summarily sentenced, as the Nuremberg Trials frequently did: therefore describing him as a "war criminal" is a personal opinion that is not vindicated by the historical or legal facts.

Maybe

While current usage in international law reserves "war criminal" only for those convicted by a competent court, the problem of presentism -- using present terminology for past events -- is a risk when examining the war crime investigation and adjudication process of the past, certainly 1945-1950. The four-power Nuremberg Trial, for example, was entitled "Trial of the Major War Criminals". The best can be said is that the usage depends on time and context. Western international law can be traced back to 1474, and major conventions in the 19th and early 20th century, so it cannot reasonably be argued that everything began after WWII. In particular, the doctrine of individual responsibility has been evolving.

The IMT operated under a charter, Article 14 of which stated that its mission included (emphasis added) “settle the final designation of major war criminals to be tried by the Tribunal”, Also in the Charter were articles indicating that it might not follow strict international law. This needs to be in the context that much international law for such offenses was not codified until 1949, with the subsequent Geneva Conventions. Even though the Tribunals used loose definitions, the United Nations General Assembly recognized them with Resolution 95(1) “Affirmation of the Principles of International Law Recognized by the Charter of the Nuremberg Tribunal.”

• Article 19: The Tribunal shall not be bound by technical rules of evidence. It shall adopt and apply to the greatest possible extent expeditious and nontechnical procedure, and shall admit any evidence which it deems to be of probative value.
• Article 21: The Tribunal shall not require proof of facts of common knowledge but shall take judicial notice thereof. It shall also take judicial notice of official governmental documents and reports of the United Nations, including the acts and documents of the committees set up in the various allied countries for the investigation of war crimes, and of records and findings of military or other Tribunals of any of the United Nations.

That trial designated a number of organizations, among them the Schutzstaffel (SS) to be criminal organizations. Not every member of such organizations went through formal trials, but were considered criminal in the denazification process. Subsequently, the four powers and the Germans used very different approaches to denazification, with, in the American zone, trial not required for lesser offenders. The U.S. tried 169,000 accused, but gave sentences without trial to an additional 761,000; 141,000 were stripped of jobs by 1945. Mengele was eventually listed as an SS officer, there has been sworn testimony and photographs of him at Auschwitz, and a general body of evidence that likely accepted, at the least, his membership in a criminal organization.

No single set of universal international law is accepted, and all the conventions listed under "no" took place after the IMT and denazification. Neither the 1977 Geneva Additional Protocols nor the Rome Statute of the International Criminal Court has been accepted by several major nations concerned with lawfare. Whether they are right or wrong, universality cannot thus be claimed on the basis of these documents.

The term is also used informally. Robert Jay Lifton appears personally to consider him a war criminal, but in the quote "Certainly no Nazi war criminal has evoked so much fantasy and fiction", but in a general discussion of his role in literature, myth, and emotion, including the novel and book The Boys from Brazil by Ira Levin, the drama The Deputy by Rolf Hochhuth. Isser Harrel, head of the Israeli Mossad, said "the moment the name of Mengele was mentioned, Adolf Eichmann went into a panic. The containing book, The Nazi Doctors, is considered authoritative in psychology and history, but does not purport to be a legal reference.