Rafael Medoff, director of The David S. Wyman Institute for Holocaust Studies, speaks with Shimon Shetreet, law professor at Hebrew University and former cabinet minister.
Medoff: Shortly before Holocaust Remembrance Day in 1990, the ‘Lapid’ organization held a mock trial of the Allies for their failure to bomb Auschwitz. More than 300 Israeli academics, educators, and survivors attended. You served as the judge. How did it come about that you were asked to play this role?
Shetreet: The organizers of the trial realized that any serious discussion of the bombing issue would involve questions of international law and related legal fields. They knew I had done extensive research and teaching at the Hebrew University of Jerusalem in public law, constitutional law, and international law. At the time, I was also a Member of Knesset, serving on the Knesset’s Constitution, Law and Justice Committee of the Knesset.
Medoff: The defense, represented by Katriel Ben-Aryeh, argued that it was militarily too difficult for the Allies to reach Auschwitz. What did you think of that argument?
Shetreet: We carefully reviewed that claim. The evidence showed that the US had carried out a number of bombing attacks on the Monowitz industrial sites that were extremely close to Auschwitz. Therefore, I had no choice but to reject the argument that Auschwitz was out of the range of operation of the Allied forces. It was clear that the military technology available at the time did enable the Allies to bomb Auschwitz.
Medoff: In 1944, when Jewish organizations asked the Allies to bomb Auschwitz, officials of the Roosevelt administration said they could not do so because it would have required ‘diversion’ of military resources that were needed elsewhere.
Shetreet: I dismissed the diversion argument for several reasons. The Free World should have sent a clear message that it knew about the extermination machine, and that stopping the mass murder was one of the goals of the Allies, as one part of the overall strategy of defeating the Nazis. Stopping genocide is a legitimate goal.
The fact that Nazi Germany allocated vast resources to carry out the extermination of the Jews during the war, should have resulted in a similar willingness by the Allies to use their resources stop the horrible crime against humanity that Germany was committing.
Medoff: Ben-Aryeh also raised the issue that some of the Jews in Auschwitz would have been killed if the Allies had bombed the camp.
Shetreet: This claim was not a valid basis for justifying the failure to bomb. There was a real possibility that many thousands of Jewish lives could have been saved if the Allies disrupted the operation of the extermination machinery. Even if there might have been some casualties among the Jews from an Allied bombing, it would have been justified, especially since those Jews were all about to be killed anyway.
Nor was I convinced by the argument that the Nazi extermination system could have reorganized and gone back to the system of shooting as the method of extermination. At that late stage of the war, the Germans were in no position to do that.
The other point to remember is that when the US. War Department rejected the requests to bombing, it did not claim that the problem was the danger of Jewish casualties. It claimed that the US could not ‘divert’ its planes. But we know the planes were already there, striking Monowitz.
Medoff: In your ruling, you found that the Allies had a legal obligation, under International Law, to bomb the camps. Why?
Shetreet: The prosecution in our trial argued that a state not only has the right to intervene to defend the life of its citizens even outside its borders, but that a state also has a right to carry out humanitarian intervention to save the lives of people who are at risk of death.
I concluded that because of the severity of the situation, this right to intervene became an obligation to intervene. I was persuaded that genocide was so unique a crime, that the response to it had to be exceptional and unique as well.
When genocide is occurring, the usual rules of criminal law cannot apply, and the usual defenses or justifications that might be invoked in a criminal case are not applicable. Therefore international law must treat the prevention of genocide as creating a unique legal obligation.
It is true that there was no legal authority to impose this judgement, but that cannot be a reason to refuse to recognize the obligation. It is incumbent on the judge to fill the gap. By the way, in the years since the mock trial, there was a judicial ruling holding that there was a duty of Serbia to prevent mass killings by the militias in Kosovo.
Medoff: You also ruled that the Allies had a moral duty to bomb Auschwitz.
Shetreet: On the one hand, of course the main aim of the war had to be achieving military victory over the Nazi enemy. Operations against strategic and military targets were naturally higher priority than the destruction of the Auschwitz death camp. At the same time, however, the Allies had a basic moral duty to also take action against murder installations.
This does not mean that the Allies were obligated to take action that might have genuinely interfered with the main war effort. I left open the question of what the Allies’ legal or moral obligations would have been if it had been peace time. But in this specific wartime situation, when the Allies were both attacking military targets next to Auschwitz and could have attacked Auschwitz itself, they could have fulfilled their moral duty at the same time that they were pursuing their objective of defeating the Nazis.
Medoff: President George W. Bush said at Yad Vashem last week that the US ‘should have bombed’ Auschwitz. What was the significance of his statement?
Shetreet: President Bush recognized the duty of the superpowers to act militarily in times of war to prevent genocide, parallel with their main war campaign against the enemy at the same point that I made in the mock trial 18 years ago.
Such a statement coming from the president of the United States carries great weight. It helps establish a norm of conduct among the nations that there is a duty to act against crimes of genocide.
Medoff: Do you believe that the US or other countries have a moral obligation to use their military power to stop genocide? Should they intervene more actively in Sudan today?
Shetreet: As a matter of general principle, there is an obligation to act in order to prevent genocide. The practical question is when and how to exercise this obligation. Since we are not in the midst of a world war, the question of how to intervene is also affected by considerations such as the rule of proportionality and determining which responses are most effective. There certainly is a duty to intervene in Sudan, although nobody has proposed bombing there. What is needed is effective action by both the United States and other countries–a coalition of nations to stop the atrocities in Darfur. That is what should have happened during the Holocaust, and what must be done today.
(As published in the Jerusalem Post – January 16, 2008)