The cook

My post earlier today expressed my sentiment that German prosecutors are right to pursue accomplice to murder charges against 30 men who served as guards at Auschwitz. While a member of the SS, one of these men claims to have been only a cook. Let’s assume that is true.  Is justice served by an accomplice-to-murder prosecution, conviction and imprisonment of an SS cook , now a very old man, who fed the guards but did nothing more, if he also knew, or turned a blind eye to, what was going on in the camp?


12 responses

  1. Assume the US’ interrogation activities at Guantanamo constituted torture and violated international law. Is the Navy cook who fed the alleged torturers, knowing of their conduct, subject to prosecution?

  2. Dear Non-Career Law Clerk,

    If I find out your name and who you work for, you’re ass is gone! Kidding.

    I get to ask the questions. Law clerks must answer them.

    Seriously, I have an answer. But, first, I would like to hear from you and others as to the answer to my question. By the way, the question I posed is not an idle one.

    All the best.


    PS While you contemplate your answer, think about coconspirator liability in a regular old drug conspiracy.

  3. In this layman’s mind, there’s a clear distinction between mass murder pursuant to an attempt at genocide and mass murder, or mass torture, or any other mass crime. Similarly, there’s a clear distinction in my poor, dumb Texan’s mind between co-conspirator liability in connection with mass murder pursuant to an attempt at genocide and co-conspirator liability in connection with illegal drugs or any other regular old crime.

    In answer to the OP question, you bet put the SS cook on trial, and if he’s guilty, burn his ass. Or, since it’s the FRG, lock him up for the rest of his life. Put him in with the general population. Preferably in a jail with lots of Jewish criminals. Like Patton suggested to his soldiers, they’ll know what to do.

    He was afraid and couldn’t act? I look at Nathan Hale (not directly applicable, other than he operated alone), at any lone protester in a gang operation. There’s always a choice.

    He didn’t know what to do? He knew he could not do nothing or he could do nothing. At least he could have died with honor with the victims of his camp.

    The only thing working against this is my understanding of the principles held up at the Nuremberg Trials. It’s entirely possible he was too junior in the hierarchy to be held liable for obeying illegal orders. But he wasn’t ordered, I think, to kill the inmates. He was ordered to prepare the meals, whether for the inmates or for the SS.

    I got no sympathy here, and see no moral, much less legal, basis on which to call mercy here. God can have mercy. I’ll deal with my present failure of mercy in my time.

    Eric Hines

  4. Fair point; co-conspirator liability is vast, and probably it includes cooks. And I agree with Eric: co-conspirator liability for genocide feels different than such liability for regular old crimes.

    But I disagree with Eric’s conclusion. For whatever reason, I feel punishing the cook (whether Navy or SS) would be wrong (or at least less right), whereas punishing the cook in a drug conspiracy would not.

    I think I feel this way because the former’s activities were ordered by the government, whereas the latter’s were proscribed. I know following orders is not an excuse, and soldiers/sailors/marines/airmen/coasties must theoretically disobey illegal orders. But disobeying direct orders is hard, and it is even harder when that order is to cook food, rather than to torture or unjustifiably kill.

  5. …disobeying direct orders is hard….

    Hard means possible.

    If the cook had been a drug conspiracy participant 70 years ago, even given the way I feel about illegal drug pushing, I’d be inclined to let the guy walk under a couple of principles: at this late date, he’s not worth the trouble of prosecuting; and statute of limitations–one of the reasons for that is the idea that the man has been punished enough already by living a life on the lam all this time.

    But he was not; he was a participant in an overt attempt at genocide. He had a choice. He chose wrong.

    Eric Hines

  6. Pingback: My quick take on the German cook « Hercules and the umpire.

  7. If all it takes to prosecute him is his awareness of the atrocities, and his failure to act, then why stop with him? Why not round up everyone who lived in the towns of Auschwitz, or the numerous other towns where extermination camps were erected, and prosecute them as well? Unquestionably, they were aware of what was going on and did nothing.

    The fact of the matter is that a lot of people, and nations, turned a blind eye to what was taking place in these camps — just as we turn a blind eye to the current ‘political prison’ camps in North Korea (if you are not familiar with these, read You will see a stark, and sad, similarity.)

    The question of known atrocities, and turning a blind eye, is certainly an interesting one in light of current events in Syria.

  8. CT,

    On a number of levels, your reference to Syria and the gassing of over 400 children adds a wonderful level of complexity to vexing situations such as this.

    On one aspect of your post, let me offer something that may sound heretical.

    “War crimes,” no matter how you define them, ought never to be thought of in strict criminal law terms. When we prosecute a “war criminal” we are doing something that is outside the criminal law. We lawyers and judges tend to shoehorn “war crimes” into a context we are familiar with, but such an attempt is a fool’s errand.

    I offer this tentative alternative:

    War crimes trials are purely political (in the best sense of the word) as opposed to legal. We ought to embrace that reality instead of pretending that we are applying the “law.” It is “just” to charge someone with a war crime even though the substantive criminal law has no good analogue and even if the offender might legitimately be surprised that his actions are now considered “crimes,” so long as (1) the process of trying the accused is otherwise fair and transparent from a procedural perspective and (2) there is a rough international consensus that the prosecution and conviction of the “war criminal” is “just.” One might call this Realpolitik applied to war crimes.

    All the best.


  9. Judge:

    First, let me say that I enjoyed the interview with NPR yesterday.

    As to the cook, and your offering, I agree that the act of prosecuting someone as a war criminal is primarily political, in that it is the victors of a conflict who get to decide those dubbed ‘war criminals’ and prosecuted, versus those who might have committed similar acts but were ‘just following orders.’

    But I disagree about whether we are applying ‘law’ and prosecuting a ‘crime,’ as those words are traditionally understood. The notion of what is, or is not, a “war crime” is based on international treaties and an International Criminal Court has been erected to prosecute such crimes. Whether we have done it to help ourselves sleep better at night, or because we truly believe what we are doing is “justice” (both for the victims and the accused), the simple fact of the matter is that we have created the aura of a traditional criminal process. If it walks like a duck and quacks like a duck, we need to call it a duck and treat it accordingly. Certainly, the punishments we are meting out (including death) would be consistent with traditional criminal law punishments.

    Finally, who gets to decide what the ‘international concensus’ is? And when is that ‘consensus’ determined? After the war was over, we were more than happy to help prosecute Nazi war criminals. But where were we when we were being asked to open our borders and let would-be Holocaust victims relocate to the States?

  10. CT,

    All good points.

    Here is a short response to your main point that “law” is being applied in tribunals like the International Criminal Court. In short, the United States has not submitted it’s citizens to the jurisdiction of the International Criminal Court for, among other reasons, because of the Realpolitik about which I spoke. See, e.g., Stephen Eliot Smith, Definitely Maybe: The Outlook for U.S., Relations With the International Criminal Court During the Obama Administration, 22 Florida Journal of International Law 156, 160-166 (2010). All the best.


  11. As usual, Judge, you are correct. I should have clarified that my ‘we’ in that context was the international community. There is no doubt that the U.S.’s election not to submit to the jurisidction of the International Criminal Court is for the realpolitik reasons you cite, and so that we may not one day be subject to the same scrutiny to which we subject others.

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