‘Justice and Accountability after the Holocaust’ was the New Zealand theme of this year’s United Nations International Holocaust Remembrance Day, marked every year on 27 January. For me personally, looking back on the occasion in Wellington last year that launched The Violinist and thinking about my present research into the life of civil rights activist Shirley Smith, the focus on justice and accountability was especially relevant.

In keeping with the international theme, ‘Keeping the Memory Alive’ with its focus on children in the Holocaust, was a moving display of posters by 16 young designers, winners of an international competition to express personal responses to the holocaust. Vera Egermayer, who was herslef a child survivor of the holocaust, brought this work from Yad Vashem to Wellington. To see these posters and their artists’ statements, go to the Yad Vashem International School for Holocaust Studies.

It was the keynote address by Peter McKenzie QC that most powerfully teased out the theme of justice and accountability. Identifying the beginning of the holocaust as being ‘when the majority within a society acquiesced in acts of discrimination against minorities that were unpopular and vulnerable’, he outlined the holocaust’s legacy and New Zealand’s part in the international arena regarding that legacy. Here below is his full text:

JUSTICE and ACCOUNTABILITY AFTER THE HOLOCAUST

In the final stages of the second world war the allied armies sweeping through eastern Germany and Europe came across sites of such horror and carnage  that they found it hard to believe that even the Nazi regime in its worst excesses could have been responsible.   Near the town of  Gotha they found a death camp where thousands of Jewish prisoners were starved to death and this was reported to General Eisenhower the Allied Supreme Commander.  The bodies of naked emaciated men were piled in the rooms and the stench was overpowering. General Patton  would not enter fearing he would be physically sick.  Eisenhower, however strode in and forced himself to inspect every nook and cranny. He called for photographers  and ordered that Germans from the neighbouring villages be  brought in and required to bury the dead.  In this way they would have to confront the reality of what the Nazi regime had been doing.  He stated:

I made the visit deliberately, in order to be in a position to give first-hand evidence of these things if ever, in the future, there develops a tendency to charge these allegations as merely “propaganda”.

Eisenhower grasped that it is important that our world should not be allowed to forget that however advanced we believe our civilisation to be there is in the heart of each one of us a capacity for evil that if it be left unchecked can lead to Auschwitz.  As one jurist has stated “ we remember things too terrible to be believed but not too terrible to have happened”.

That is why we remember that this month is the 70^th anniversary of   the meeting at which Hitler, Heydrich, Eichmann  and others conceived the final solution and carried their hatred of the Jewish people, and others they decreed unfit to live, to the point of  determining their extermination. As the generation of those that survived that experience moves on, it becomes even more important to keep their memory alive.

It was in the same spirit that as victory against the Nazis was assured the allied powers began the task of developing institutions and a legal structure that would hold responsible those who had committed the atrocities that the war had revealed.  One of the first actions taken after the war was the setting up at Nuremberg of  a Tribunal to deal with war crimes.  The reason for taking this step was aptly put by Justice Robert Jackson, the Chief American prosecutor  at the Nuremberg trials who stated:

Civilisation would not survive if the vicious crimes of the Nazis and their collaborators went unpunished.  We must make all men accountable by law.

Leading members of Hitler’s regime were indicted, several were sentenced to death eg Goring and Ribbentrop, some like Rudolph Hess to life imprisonment, or lesser terms such as Albert Speer. Some were acquitted.  The trials were not just a sham process.  There was a real attempt to get at the facts and hold people accountable.

Sobering to me as a lawyer is the fact that 16 senior legal figures in the regime were tried on charges directed to their having  committed war crimes through the abuse of the judicial and penal process, resulting in mass murder, torture, and plunder of private property. Ten were convicted.

In the final stages of the war the United Nations was established. Its Charter was born out of the events that the world had just experienced.  Under the charter every member state is required to affirm

“faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small…”

Every member state even countries with little respect for human rights, such as Sudan or Yemen, must subscribe to this statement in the charter.  Those who had gone through the second world war and its horrors wanted to make sure that the family of states collectively acknowledged the existence of  basic human rights.

At the same time as the United Nations was formed states established the International Court of Justice as a permanent tribunal for determining disputes between states. This court, however, deals only with disputes between states and does not deal with individuals.  One distinguished New Zealander sits as a judge on this court, Sir Kenneth Keith.

Another outcome of the justice concerns arising from the Holocaust was that an international conference of jurists and others was convened to work on a Universal Declaration of Human Rights and this was adopted in 1948 to serve as a statement of  the minimum internationally accepted  standards in relation to human rights.  The Universal Declaration springs from the Judaeo-Christian affirmation that every human being bears the image of God, no matter of what race, creed, age or physical or mental capacity.  Although the human rights movement pre-dates the second world war, it was the holocaust that gave impetus to the Universal Declaration. It was born out of the deep sense of shock which the holocaust gave to the international community.  The Declaration has influenced all statements of human rights since that time, including the New Zealand Bill of Rights.

It is a sad commentary on human affairs that it took 50 years before the lessons that should have been learned  at Nuremberg were finally given permanent effect in the establishment of an International Criminal Court. It was not until the world was shaken by the appalling events in Rwanda in 1994 that the international conscience was belatedly stirred to take steps to establish a court to carry on the work that had begun at Nuremberg.  The International Criminal Court  was set up in 1998 to prosecute  and adjudicate on genocide and international crimes against humanity The Court began sitting in 2002.  New Zealand took an active part in the creation of the court and enacted legislation, the International Crimes and Criminal Court Act 2000 in order that New Zealand  recognize international crimes against humanity and empower our Attorney General to authorize the bringing of cases before the court.

While 119 countries have accepted the jurisdiction of this court 75 countries have not including a number of significant states.  There is still work to be done.

The ICC can only deal with cases that concern events after 2002.  It has therefore been necessary for the Security Council to establish special International Criminal Tribunals to prosecute crimes arising from the Rwanda genocide and from the events in the former Yugoslavia in 1991, and also the killing in 2005 of the then Prime Minister of Lebanon  and 22 others.  Sir David Baragwanath, a distinguished New Zealand Judge is a member of the latter tribunal.   Special Tribunals have also been set up by the Cambodian and Sierra Leone governments under international auspices to try those involved in the atrocities in those countries.  Dame Sylvia  Cartwright, a former Governor- General of New Zealand  is a member of the Cambodian Tribunal.  New Zealand has again enacted legislation, the International War Crimes Tribunal Act 1995  to  provide support to these tribunals.

New Zealand has, therefore, fully played its part in the international arena in following through on this legacy from the Holocaust.   But the lessons the Holocaust teaches us amount to more than being a good international citizen. The Holocaust tells us that the events that took place in Germany, one of Europe’s most advanced and sophisticated countries, put every society on guard.   As we remember the holocaust there are some powerful pointers for our own society from that awful experience.

1. a) The holocaust did not begin with the gas chambers. It began when the majority within a society acquiesced in acts of discrimination against minorities that were unpopular and vulnerable.

1. b) The poison so released continued when that discrimination was institutionalized, and the state began to sanction hate against that minority and suppressed opposing views.

1. c) The poison spread when those with responsibility in society closed their eyes to what was happening. This is particularly the case with professionals to whom society looks for truth and integrity. As Nuremberg shows us judges, lawyers, doctors and scientists became to a greater or lesser degree accomplices in a regime that treated minority groups as objects and was prepared to use brutality and torture and, in the end, extermination to achieve its aims.

However, as the experience in Germany and, more recently South Africa, shows us, there is healing for a society that has failed, where it acknowledges the truth and frankly faces the past with all its horror, and seeks to come to terms with it. This involves holding accountable those who were responsible. In that way the poison of the past is drawn from the system and the society can move forward.

An example in the news today was the frank confession by Ireland’s Justice Minister that Ireland’s Government at the time of the second world war had lost its moral compass in the way it treated the Jewish people and supported Hitler.  It is significant that it was in remembering the Holocaust that this confession was made.

That is why the holocaust  must not be allowed to fade from

our collective memory. It serves as a moral compass to every generation so that never again may any state or people be sucked into a quicksand of evil.

Peter McKenzie QC