Why reopen Nuremberg?

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Denmark Can Let a Nazi Criminal Go

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Should Denmark prosecute a 90-year-old Dane who volunteered as a Nazi concentration-camp 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 that war criminals should be hunted down no matter what and no matter how long ago they acted. But the post-World-War-II Allied consensus 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.” 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 that some of the Danish volunteers were at the Bobruisk camp, in present-day 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 that 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) that 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 that the state wants to avoid prosecuting Rasmussen twice for the same offense, 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 that 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 that the prosecution of Nazis is coming to the end of the line as fewer and fewer war criminals remain alive. Institutionally, the center is on the brink of moving its justice-seeking operations into the realm of history rather than the active pursuit of individual criminals.

The center’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 an American’s willful 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’ve 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 that 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 that 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.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author on this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor on this story:
Stacey Shick at sshick@bloomberg.net