May 1, 2012
The New Solitudes, Erna’s article on a changing Canada, has been nominated for a Canadian National Magazine Award. The award winners will be announced in Toronto on June 7.
National Magazine Awards

The Mauthausen Trial: American Military Justice in Germany,
By Tomaz Jardim, Harvard University Press
Reviewed By Erna Paris
Literary Review of Canada, May 2012

“Shortly after 9:00 a.m. on May 27, 1947, the first of forty-nine men condemned to death for war crimes at Mauthausen concentration camp mounted the gallows in the courtyard of Landsberg Prison near Munich.”

So begins Tomaz Jardim’s fine book on the workings of U.S. military justice in a single Nazi concentration camp in the immediate aftermath of the Second World War. Jardim, an associate professor of history at Ryerson University in Toronto, has relied on newly declassified primary sources—trial transcripts, interviews with some of the surviving participants, investigators’ reports and at least one memoir—to tell a previously unknown story. He has intricately structured his book on two levels: the first, a powerful account of a problematic war crimes trial hastily put in place by the U.S. military; the second, a cautionary tale concerning the nature of justice itself.

Mauthausen, located just 20 kilometres from Hitler’s boyhood home in Linz, was the largest, most murderous Nazi penal institution in Austria. Following the Anschluss in March 1938, SS leader Heinrich Himmler chose the site as a practical (and profitable) location for a camp where the stone needed by Hitler to develop his grandiose architectural plans might be quarried by slave labour. The camp was also designated as an execution locale for enemies of the Reich.

For the next seven years, Soviet prisoners of war and political prisoners from Germany, Spain, Poland, Czechoslovakia, Belgium, Luxembourg, the Netherlands and France arrived at the site. Massive overcrowding spread disease, exacerbated by starvation and twelve-hour days in the quarries. The solution to a weakened work force was extermination. In May 1940, the first of three crematoria was installed in the camp. The following year, half of the 15,900 inmates died.

Most of the killings took place in a two-storey building that housed the execution chamber, the gallows and the crematoria. Always interested in manipulating compliance through the use of euphemism, the camp SS leaders murdered some of their victims in front of a “photo gallery,” where prisoners posed in front of a mock camera that fired bullets. In the “hanging room” next door, a collapsible stool could facilitate 30 executions an hour. In 1942, when these methods proved insufficient, a gas van and a gas chamber were added to the lethal mix.

Starting in 1944, tens of thousands of Jewish prisoners were transferred from Auschwitz to work in armaments production. The Jews were subjected to the worst conditions; the life expectancy of a new arrival was no more than a few weeks. Death rates peaked as the war drew to an end, and by the time 22 soldiers from the U.S. Eleventh Armored Division arrived in Mauthausen on May 6, 1945, at least 100,000 of the 197,464 people who had passed through the camp had died within its precincts.

The first liberation of a Nazi camp in Germany had taken place just weeks earlier, so the Americans who entered Mauthausen had little psychological preparation for what they were about to encounter. “Ghost-like” prisoners greeted them. Heaps of dead and dying people lay sprawled about the grounds. Most of the SS guards had escaped.

Surprisingly, given their condition, the survivors had already set up an improvised system of governance that helped bring order and security to a desperate situation; for example, they had forbidden revenge attacks on the inmate kapos who had assisted the SS in return for special privileges.

In a unique collaboration that would continue throughout the period of the investigation and the trial, the Americans and the camp survivors began the difficult task of organizing food and sanitary facilities, taking care of the sick and burying the dead. Former inmates worked as translators, clerks, personal assistants and interrogators. They wrote histories of the camp, identified perpetrators for arrest and helped choose defendants for the prosecution. Critically important evidence was uncovered in the SS “death books,” which had been hidden during the last chaotic days by a courageous inmate whose job it was to keep the records updated. The death books pointed directly to mass murder; for example, on March 19, 1945, 275 Jewish prisoners were listed to have died of “heart failure” between 1:15 a.m. and 4:30 p.m. Furthermore, they died one after the other in alphabetical order: from Ackerman to Zyskind.

The post-war Nuremberg trials, in which 22 of the top Nazis were judged by the victorious Allies, have been widely studied, and for good reason. Nuremberg created a new category of law called “crimes against humanity” in a bold attempt to codify language for crimes of unprecedented magnitude. But the trials almost did not happen. In 1942, when rumoured reports of Nazi atrocities first filtered into the West, the initial desire of both the British and the Americans was crass retribution—the summary execution of the leading Nazis—while the French and the Soviets preferred trials. (Stalin almost certainly hoped to continue his political show trials.)

Eventually, the four Great Powers agreed that revenge killings might not look well in the history books. Robert H. Jackson, the future chief prosecutor for the tribunal, put the legal claim best when he insisted that the Allies ought not to follow the example of Hitler in denying fair trials to their enemies. He prevailed and the Nazis in the dock were well protected.

From the day it opened its doors on November 20, 1945, the Nuremberg Tribunal was well attended by the world media, which should not surprise us given the notoriety of the defendants. By contrast, the Mauthausen trial, which opened on March 29, 1946, was largely ignored. The criminals being prosecuted by the U.S. military were unknown men whose deeds and fates were of less interest to the international community. Furthermore, unlike Nuremberg, the military prosecutors were in a hurry; William Denson, the chief prosecutor of the Mauthausen trial, was given only twelve weeks to build a case against 61 putative perpetrators. The group trial lasted only 36 days, and the judges spent an average of only four hours deciding upon the life or death of each individual. There was no appeal, although the army (not an outside body) did review sentences.

Under pressure to expedite proceedings, Denson came up with a template, starting with his first war crimes trial, which opened at Dachau in November 1945. This so-called “parent trial” became a blueprint for the Mauthausen trial that followed in its wake.

Jardim expresses concern about the inadequate procedures that characterized both trials. To start with, the only legal precedents and written law available to the military prosecutors were the 19th- and early 20th-century laws of war—in particular, the Geneva and Hague Conventions. (The new international humanitarian law being created at the Nuremberg Tribunal was not yet accessible.) While the laws of war did provide grounds with which to try war criminals, including explicit directives regarding the treatment of prisoners, they offered little direction with regard to due process.

Because military commission rules were historically slack compared to U.S. domestic law (and exceptionally lax compared to the procedures that governed the Nuremberg Tribunal), Denson was able to achieve a 100 percent rate of conviction in his first case at Dachau. As in the later Mauthausen trial, pragmatism and efficiency took precedence over fairness. There was certain evidence of criminality, but a large proportion was circumstantial and hearsay evidence was ruled to be admissible, especially when testified to by former camp inmates. Few among the trial personnel, including the judges, had previous courtroom experience of any significance, and their ignorance occasionally showed in the questions they asked. Worse still, interrogation strategies were left to the discretion of the interrogator, which led to post-trial complaints from defence counsel. Eventually, three U.S. investigative commissions were created; one of these concluded that hooded prisoners had been brought before fake judges in order to obtain confessions and that certain interrogators had threatened to harm the families of the accused. (This did not stop one former interrogator from bragging about his methods many decades later.)

The most egregious of Denson’s strategies was his invocation of guilt by association. Anyone who had worked in the Mauthausen camp, he asserted, had participated in a “common design” to commit war crimes, on the grounds that everyone there knew what was happening. This prosecutorial claim made the role of the defence counsel difficult, to say the least. It also tended to flatten the particularity of the charges against individual defendants.

Denson’s success rate at the end of the Mauthausen trial matched that of his earlier Dachau trial. Each and every defendant was found guilty as charged. Only twelve among the 61 escaped the death sentence.

The mass hangings of Mauthausen perpetrators at Landsberg prison in May 1947 were the largest in American history, but the zealous pursuit of Nazi war criminals did not last. The Cold War was emerging and the new state of West Germany was a needed ally against the Soviet Union. As American priorities shifted, politics corroded the military trials. Convicted criminals were released, including Mauthausen perpetrators who had evaded the first swing of the hangman’s noose. They were hailed as returning heroes by their communities. Scandals eroded the public perception of the courts, starting with the notorious case of Ilse Koch, who had been sentenced to life imprisonment in 1947 for grossly abusing inmates. When her sentence was reduced to only four years in 1948, even American government officials were shocked. In Germany, public opinion increasingly viewed the U.S. courts as victors’ justice, with no redeeming qualities. The trials had been intended to counter the moral collapse of Germany by demonstrating the fine workings of democracy—a goal that similarly fell into disrepute.

In 1949, Washington established a Senate investigative subcommittee. Ironically, one of the shrillest voices of reproof was that of Senator Joseph McCarthy, who proclaimed that the trial investigators had used “Gestapo techniques.”

The ideological shift away from trying war criminals and toward Cold War rivalries upturned Allied planning for post-war Europe in other ways; for example, as late as 1983 it was confirmed that the United States had employed Nazi war criminal Klaus Barbie as an anti-communist agent almost immediately after the war, protected him from the French (he had carried out his “duties” in France), then arranged for his escape via one of the notorious “rat lines” out of Europe. Naturally, his case was not unique.

If the loose standards of the U.S. military trials contributed to a perception of injustice, the Nuremberg trials fared better. They too were called victors’ justice, which they were, but the proven responsibility of the high-level Nazis, and the fact that their trials were seen to be conducted according to high standards of due process, created a positive legacy that most Germans eventually came to accept. It is no small thing that a reunited Germany was in the vanguard when “Nuremberg’s baby,” the International Criminal Court, was finally agreed to by the world community in the 1990s, a half-century after the Nazi era. As the late historian Tony Judt pointed out in his magisterial work, Postwar, contemporary Germany has grown not less, but more, conscious of its wartime past.

Tomaz Jardim questions the efficiency-driven procedures of the U.S military commissions because they led to abuses. On the other hand he notes that the Mauthausen trial left detailed records of what took place in that camp, knowledge that might never otherwise have come to light. He also argues that the “expedient justice” of the trial prevented perpetrators from slipping back into European society after the American occupation came to an end. Finally, he draws close attention to the unique involvement of the victims themselves in the trial process, beginning at the investigative stage. He tentatively wonders whether this close connection might have resulted in a “measure” of justice.

Some of these “on the other hand” arguments are unconvincing. As Jardim himself indicates, many perpetrators did indeed slip back into society as the U.S. emptied its prisons for strategic reasons. His victim-participation argument is more compelling, for it is true that throughout the history of international criminal justice, the victims of major international crimes have been allowed little engagement. On a personal note, I travelled to Bosnia some years ago to explore just this question: how did the victims of the Yugoslav wars of the 1990s respond to the trials of perpetrators that were taking place thousands of kilometres away at the International Criminal Tribunal for the former Yugoslavia in The Hague? Most, it turned out, felt distanced and removed from the process being carried out in their names. It was not until the emergence of the International Criminal Court that the victims of massive crimes against humanity and major war crimes were at last provided statutory rights.

As part of his critical subtext on the conflict between the need for efficiency and the nature of justice, Jardim seems to be asking whether a “measure” of justice can suffice. My own guess is that a measure can sometimes suffice, as in a well-run truth and reconciliation commission, which includes confession (and hopefully remorse) on the part of the perpetrators; or in the measure of justice embodied in a sincere government apology to the victims of a major international crime. France’s 1995 apology to its Jewish population for the Vichy regime’s wartime deportations is an example of the latter. And in the case of Mauthausen, one may assume that the victims’ active participation in the trial of their oppressors did offer them a high degree of satisfaction. But this measure of justice pales into insignificance when viewed alongside the fatal flaws of the trial itself. A prosecution premised upon guilt by association is simply and patently unjust. Nothing can erase that bottom line.

The author alludes briefly to the recent U.S. military commission courts at Guantanamo Bay as a contemporary example of compromising “legal ideals” in the pursuit of justice; and he is clearly right to bring the issue into the present. As in the immediate post-war period, the standards of military commission tribunals continue to be lower than those of the U.S. federal civilian courts and of the international criminal courts operating in the world (although the former were improved somewhat in 2009). I would, however, take respectful issue with Jardim’s wording. The laws that were, and are, compromised by military commissions are not “ideals,” as he puts it, but the standard operative rules of due process that guarantee the rights of the accused.

One of the many appealing aspects of this interesting book is Tomaz Jardim’s willingness to question the meaning and substance of justice under difficult circumstances. I suspect I will not be the only reader to admire his readiness to create a welcome “thinking space” for others to ponder the same question.

Thursday, Mar. 15, 2012, Globe and Mail

Guilty as charged. There was high drama in The Hague and in the Democratic Republic of the Congo on Wednesday as the judges of the International Criminal Court prepared to release the tribunal’s historic first judgment. The decision was unanimous. Between September, 2002, and August, 2003, Thomas Lubanga Dyilo, a Congolese warlord, had enlisted or kidnapped thousands of children under the age of 15 to fight in his militia. The conflict was over mineral resources in the northern district of Ituri. It is estimated that up to 60,000 civilians were killed in the violence.

Boys and girls, some as young as 7, were trained to use AK-47s and given uniforms that made them feel “proud,” as one escapee put it. They were drugged to suppress fear, then dispatched to the high-danger front lines, where they slaughtered people, mostly civilians, from the opposing ethnic group. They were personal bodyguards. Girls (who made up 40 per cent of the recruits) were gang-raped and then delegated as “wives.” Many were under 10 years of age.

The verdict marks a major milestone for the ICC, which opened its doors just nine years ago. Thomas Lubanga was the first suspect arrested under an ICC warrant, and his case was the first to be brought to trial. His conviction stems directly from the judgments at the postwar Nuremberg Trials, where the top Nazis were convicted of crimes against humanity – a law that was created by that tribunal to address the unprecedented crimes it was prosecuting.

Like Nuremberg, the ICC has now established an important legal precedent. By defining crimes against humanity, Nuremberg opened a new era in international law. With the Lubanga case, the ICC has determined that the use of child soldiers is a major war crime, a verdict that will inform the trials of future perpetrators.

The verdict is also a victory for Mr. Lubanga’s victims, who were included in the trial process, beyond being witnesses for the prosecution, for the first time in the history of international courts. I suspect this was a lesson learned from the outreach failure of the UN court for the former Yugoslavia, where Bosnian victims, watching from afar, felt ignored. Also, for the first time in history, the victims will receive reparations. Part of the court’s operational mandate was to set up a trust fund for just this purpose, although it is reportedly thin enough, given budget cuts, that some people may be disappointed.

The trial took a very long time – too long, according to its critics – and there were problems along the way. For example, in 2008, the proceedings were temporarily halted because the prosecution refused to disclose important evidence. Since this was a first case, unforeseen legal questions had to be dealt with, causing further delays. So yes, timing was an issue; on the other hand, conducting a fair trial according to international standards of due process can’t be rushed. It’s worth noting that expediency may create injustice, as in certain Allied war-crimes trials held in Germany immediately following the war. In one of these, the judges took just four hours to determine the guilt or innocence of individual perpetrators after a rapid group trial. Everyone was convicted.

The sensational Invisible Children video of recent days has highlighted the subject of child soldiers by focusing on the crimes of Ugandan war lord Joseph Kony, who also has been indicted by the ICC and is still at large. Some critics have created a false dichotomy between peacemaking at the end of a conflict versus criminal justice. Peace and justice do not need to be exclusive of one another; they may be sequential. The real problem is the cynical tradition of granting amnesty to people who have committed massive crimes, thus “forgiving” the perpetrators and condoning impunity. In my view, the strength of this video lies in its ability to instruct the young. Of the 70 million viewers, a majority were teenagers who were inspired to identify with the tragic situation of children like themselves. Perhaps the Lubanga case should be partnered with Invisible Children as evidence that justice for child victims is indeed possible.

Since the Congo was brutalized by King Leopold II of Belgium in the 19th century, the country has known no respite from violence. So it is not surprising that when asked about his profession, Mr. Lubanga replied: “I am a politician.” It’s impossible to know how widespread this skewed understanding of politics, governance and law is among individuals who have been indicted by the International Criminal Court. What we can infer is that the mix of politics and war crimes is one of the major challenges facing the international community. And that the ICC, now fully operational, is a major tool for confronting such views.

Thursday March 15, 2012, CBC Radio, The Current

Well it did take a decade and piles of money for the International Criminal Court to get a conviction. And now the Congolese warlord who destroyed the lives of so many children forcing them to be child soldiers or sex slaves will be locked away. But of course others like him still operate. So is this a blow to impunity? Or just an anomaly that underlines … most of them get-away? Today, we’re asking just how much justice we get with the ICC.

Listen to The Current

Wednesday, April 18, 2012.

Please join the Human Rights Watch Canada Committee and Authors at Harbourfront Centre for the inaugural Human Rights Watch Book Series celebrating the launch of the new book: The Unfinished Revolution: Voices From the Global Fight for Women’s Rights featuring a conversation about women’s rights in the world today with Minky Worden, Editor and Director of Global Initiatives, Human Rights Watch and Erna Paris, author of the acclaimed Long Shadows: Truth, Lies, and History.

6:15 PM: Cocktail Reception & Celebration of the Canada Committee’s 10th Anniversary

7:30 PM: Human Rights Watch Book Series
Harbourfront Centre, 235 Queens Quay West, Toronto

To purchase tickets, please call the Harbourfront Centre Box Office at 416.973.4000

Special: $50 (Book Series, Reception, and a signed copy of the book)
$40 patrons, authors, members, students, youth 25 & under
Regular: $10 (Book Series Only)
Free for authors, members, students, youth 25 & under

The Unfiinshed Revolution tells the story of the ongoing global struggle to secure basic rights for women and girls, including in the Middle East where the Arab Spring has raised high hopes. More than 30 writers, Nobel Prize laureates, leading activists, top policymakers, and former victims have contributed to this anthology. Drawing from their personal experiences, they tackle some of the toughest questions involving the rights of women and girls, and suggest fresh solutions to complete this still unfinished revolution.
Learn more

Thursday, April 26, 7 pm

Toronto book lovers. Please come and meet Erna when she interviews author Dr. Gary Geddes at the Toronto Reference Library, Beeton Auditorium

Drink the Bitter Root: A Writer’s Search for Justice and Redemption in Africa, by Gary Geddes

Drink the Bitter Root is a provocative, emotionally charged account of one writer’s travels in sub-Saharan Africa. Haunted by the 1993 murder of a Somali teenager by Canadian soldiers in what became known as the Somalia affair, and long fascinated by the “dark continent,” Geddes decides at age 68 to make the trip.

February, 2012

Erna is pleased to announce that the Persian-language edition of The Sun Climbs Slow: The International Criminal Court and the Struggle for Justice has been published by Enteshar Publication Co.,Tehran. In addition to being made available to the general public, the book will be studied by Iranian law students. In a separate edition, students will have access to the Rome Statute, the legal treaty that underlies the workings of the ICC.

That a book about the rise of international law, human rights, and the emergence of the International Criminal Court has been published in Iran, with the permission of the Ministry of Culture and Islamic Guidance, is a matter of interest, especially in the current environment of international sanctions against Iran and the threat of attack on nuclear facilities.

The translator is Sayyed Khalil Khalilian, an Iranian lawyer and a former judge of the Iran-United States Claims Tribunal in The Hague. Erna would like to thank Mr. Khalilian, whose commitment to global justice and the values of international humanitarian law led him to undertake this translation project on his own account.

Canada Committee News
This month, the Canada Committe welcomes Erna Paris.

Erna has accepted an invitation from Human Rights Watch to join the organization’s Canada Committee. Human Rights Watch is one of the world’s leading independent organizations dedicated to defending and protecting human rights.

2012 HRW Toronto Film Festival
The 9th Annual Human Rights Watch Toronto Film Festival runs from Wednesday, February 29 until Friday, March 9, 2011 at the TIFF Bell Lightbox.

This year’s festival will feature 9 oustanding feature and documentary films addressing a range of human rights issues including legal & illegal migration, political freedoms and modern slavery:

Feb. 29 – Special Flight (Dir. Fernand Melgar| Switzerland 2011)
Mar. 1 – Habibi (Dir. Susan Youssef| USA/Netherlands/
United Arab Emirates/Palestine 2011)
Mar. 2 – The Bully Project (Dir. Lee Hirsch | USA 2011)
Mar. 3 – Color of the Ocean (Dir. Maggie Peren | Germany 2011)
Mar. 4 – Burma Soldier (Dirs. Nic Dunlop, Annie Sundberg & Ricki Stern | Ireland/USA 2010)
Mar. 5 – This Is My Land…Hebron (Dirs. Giulia Amati & Stephen Natanson| Israel/Italy 2010)
Mar. 6 – The Price of Sex (Dir. Mimi Chakarova| USA 2011)
Mar. 8 – Granito: How to Nail a Dictator (Dir. Pamela Yates | US 2011)
Mar. 9 – The Island President (Dir. Jon Shenk | USA 2011)

All films will screen at 8pm at the TIFF Bell Lightbox.
Visit www.hrw.org/en/iff for more information on Human Rights Watch’s worldwide film festivals

HUMAN RIGHTS WATCH CANADA
161 Eglinton Ave. E, Suite 702 Toronto ON M4P 1J5 (416)322-8448

January 2012
The venerable Canadian International Council (CIC) recently arrived on the web as www.opencanada.org, an exciting new hub for discussion on Canada’s foreign policy and International Affairs. Erna has joined as a “Rapid Responder.” Responders are academics, journalists, and other foreign affairs buffs who have been invited to fire off their opinions (in 150 words or less) on weekly questions. Check out the website to experience high-level unmediated writing and conversation about Canada’s role in the world.

By Natalie Samson, March 15, 2012, Quill and Quire

It’s been a significant week for the International Criminal Court in The Hague: on Wednesday, a decade after its founding, the court passed down its first verdict.

To Erna Paris, author of The Sun Climbs Slow: The International Criminal Court and the Struggle for Justice (Knopf Canada, 2008), it’s a moment that signifies the growing influence of the ICC. As she awaited this week’s milestone, Paris received another sign of its global reach: her book was published in the Islamic Republic of Iran.

“It’s very surprising, to my mind, that this book would be published [in Iran],” Paris says. “Iran is not exactly a friend, one would think, of international criminal justice. It’s certainly not a state party to the Rome Statute, which is the international treaty that underlies the International Criminal Court and determines how it works.”

The Persian-language translation of The Sun Climbs Slow, published by Enteshar Publication Company, appeared in Iran in February, the culmination of a long and uncertain journey to publication.

The author was first contacted about the translation in 2009 by Sayyed Khalil Khalilian, an Iranian lawyer and former judge at the Iran-United States Claims Tribunal in The Hague who now lives in Vancouver. Though Khalil Khalilian was not available for interview, Paris suggests he took on the project out of a commitment “to the values of global justice” and to promoting those values in hostile climates.

It was a risky proposition, Paris adds. Though Khalil Khalilian, who eventually translated the book, had a previous relationship with Enteshar, there was no guarantee the Tehran-based company would sign on to the project, or, more to the point, that the Iranian government would approve the book’s publication.

“Everybody was taking a risk here. The translator was risking spending a lot of time on a project that might actually never come to fruition, and the publisher was doing the same: agreeing to publish a book that might not make it through the censors. I have tremendous admiration for these people,” Paris says.

She adds that the project was “touch and go for quite a while” once the manuscript was submitted to the Ministry of Culture and Islamic Guidance, which can restrict the release of books, films, musical recordings, and other cultural objects based on their perceived misalignment with the values of the Islamic Revolution – “basically a censor board,” Paris explains. After many months, the department approved the book without any restrictions, to the author’s amazement.

The Persian-language volume is intended for the trade market, though it will be followed later in the year by an academic edition containing an appendix of legal documents.

“Given the fact that international justice has become so important in the global system over the past number of years, particularly since the ICC was created in 2002, it’s definitely a trend. It’s very important in global matters, and I think the government of Iran wants its law students to know what’s going on in the world,” Paris says. “They’d want their law students in particular to know what’s happening in the world – even if only from the point of view of ‘know thy enemy.’”