The Desk Perpetrator, the Expert Witness, and the Role of Law: The Trial of Arthur Greiser

ABSTRACTThe phenomenon of the desk perpetrator continues to pose a challenge for the law. During the sixty-odd years since the Eichmann trial, legal scholarship has mainly focused on the need to develop doctrines about participation/complicity in order to attribute responsibility to the perpetrator behind the desk. It has failed to address the more basic problem of the involvement of the law in the phenomenon of the desk perpetrator. We suggest that the difficulty stems from the dual role of law, both as an enabling platform for desk perpetration and as an institution whose design grants partial or full immunity to desk perpetrators. Based on the case of the 1946 trial of the Nazi Governor of Western Poland, Arthur Greiser, we argue that the desk perpetrator is a product of the law, and therefore the attempt to judge the individual perpetrator without simultaneously addressing the role of law is doomed to fail. We show that it was the new concept of cultural genocide, which was eventually excluded from the 1948 international convention against Genocide that allowed the Polish court to discuss directly the responsibility of the law itself for the new crimes. For this purpose, the tribunal invited a number of expert witnesses, historians, economists, and jurists. The article focuses on the testimony of the legal expert and explores how it enabled the tribunal to put the rule of law itself on trial in ascertaining the individual criminal responsibility of the defendant.KEYWORDS: International criminal lawcultural genocideRaphael LemkinArthur Greiserdesk perpetratorexpert witness AcknowledgmentsThe authors would like to thank Natalie Davidson, David Luban, Roy Kreitner, Patrycja Grzebyk and Olga Kartashova for their thoughtful comments, Uri Brun for his research assistance, and Philippa Shimrat for her help with editing.Disclosure StatementNo potential conflict of interest was reported by the author(s).Notes1 See Patrycja Grzebyk, “The Role of the Polish Supreme National Tribunal in the Development of Principles of International Criminal Law,” in Historical Origins of International Criminal Law: Volume 2, ed. Morten Bergsmo, CHEAH Wui Ling, and YI Ping (Brussels: Torkel Opsahl, 2014), 603–30; Alexander V. Prusin, “Poland’s Nuremberg: The Seven Court Cases of the Supreme National Tribunal, 1946–1948,” Holocaust and Genocide Studies 24, no. 1 (2010): 1–25; Michael Fleming, In the Shadow of the Holocaust: Poland, the United Nations War Crimes Commission, and the Search for Justice (Cambridge: Cambridge University Press, 2022); Andrew Kornbluth, The August Trials: The Holocaust and Postwar Justice in Poland (Cambridge, MA: Harvard University Press, 2021); Francine Hirsch, Soviet Judgment at Nuremberg (New York: Oxford University Press, 2020).2 The term “desk perpetrator” (In German, Schreibtischtäter) refers to an individual, characteristically a state official, who bears responsibility for mass crimes without directly carrying them out. The term originated around Hannah Arendt’s coverage of the trial of Adolf Eichmann, although she did not used the term explicitly in in her Eichmann in Jerusalem: A Report on the Banality of Evil, first published in English in 1963. Arendt did use the term later in her introduction to the English translation of a book by the German journalist Bernard Naumann on the Frankfurt Auschwitz trial, where she describes Eichmann as the “desk murderer par excellence.” See Hannah Arendt, “Introduction,” in Bernard Naumann, Auschwitz: A Report on the Proceeding Against Robert Karl Ludwig Mulka an Others Before the Court at Frankfurt (London: Pall Mall Press, 1966), XX.3 David Fraser, Law after Auschwitz: Towards a Jurisprudence of the Holocaust (Durham, NC: Carolina Academic Press, 2005), 216.4 Attributing personal liability to the “desk perpetrator” undermines the principle that criminal liability should only be attributed to the person who committed the actus reus of the crime. Since the World War II, international tribunals or courts have developed several doctrines for the attribution of individual criminal responsibility for crimes that have been physically committed by others. For example, the International Criminal Tribunal for the former Yugoslavia (ICTY) has developed the doctrine of Joint Criminal Enterprise (JCE), which enables to attribute to each member of a group the responsibility for crimes committed by the group within a common plan or purpose. The International Criminal Court (ICC) has adopted the Control Theory of Perpetration, which recognizes that crimes can be committed indirectly through the exertion of control over others who have carried out the acts. For elaboration see Neha Jain, Perpetrators and Accessories in International Criminal Law (Oxford: Hart Publishing, 2016). See also the chapter “Individual and Collective Responsibility” in Carsten Stahn, A Critical Introduction to International Criminal Law (Cambridge: Cambridge University Press, 2019), 117–58. For a comprehensive study see Jérôme de Hemptinne, Robert Roth, and Elies van Sliedregt (eds.), Modes of Liability in International Criminal Law (Cambridge: Cambridge University Press, 2019).5 The discussion in this article is based on the following historical sources. The first is the original transcript of the trial, which was published as a book: Proces Artura Greisera przed Najwyższym Trybunałem Narodowym (Warsaw: Polski Instytut Wydawniczy, 1946). In addition, we rely on the “Trial of Gauleiter Artur Greiser,” in The United Nations War Crimes Commission, Law Reports of Trials of War Criminals, vol. XIII (London: His Majesty’s Stationery Office, 1949), 70–117 (hereafter: Law Reports), and on the book by historian Catherine Epstein, Model Nazi: Arthur Greiser and the Occupation of Western Poland (New York: Oxford University Press, 2010).6 See Epstein, Model Nazi; Gabriel N. Finder and Alexander V. Prusin, Justice behind the Iron Curtain: Nazis on Trial in Communist Poland (Toronto: University of Toronto Press, 2018); Mark A. Drumbl, “‘Germans are the Lords and Poles are the Servants’: The Trial of Arthur Greiser in Poland, 1946,” in The Hidden Histories of War Crimes Trials, eds. Kevin Jon Heller and Gerry Simpson (Oxford: Oxford University Press, 2013).7 The Polish tribunal used the term “Cultural Genocide” in the Greiser trial to address the attempt to destroy the Polish nation via attacks on its culture, religion etc. Although the tribunal recognized the genocide perpetrated against the Jews, it regarded it as a facet of the general genocide against the Polish people. The annihilation and mass murder of the Jews received a separate discussion in the Amon Göth Trial. See “Trial of Hauptsturmführer Amon Goeth”, in Law Reports of Trials of War Criminals, vol. VII (London: His Majesty’s Stationery Office, 1948), 1–9 (hereafter: Law Reports, Vol. VII).8 Law Reports, 104.9 Raphael Lemkin, Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress (Washington, DC: Carnegie Endowment for International Peace, 1944), 79. For elaboration see Leora Bilsky and Rachel Klagsbrun, “The Return of Cultural Genocide?,” European Journal of International Law 29 (2018): 373.10 Lemkin, Axis Rule in Occupied Europe, 79.11 Law Reports, 113.[emphasis added]12 Grzebyk, “The Role of the Polish Supreme National Tribunal,” 604. Although the trials of the SNT were long considered to be “political trials,” in recent years historians have begun to distinguish between the trials of the major Nazi perpetrators and the numerous political trials carried out in the county during the same period. Alexander Prusin argues that unlike these trials, the tribunal’s proceedings “applied conventional legal and moral standards comparable to those used in Western courts and investigated each case comprehensively on its own merits.” and “did not become a blind instrument of postwar retributive justice in a country torn apart by political turmoil.” Prusin, “Poland’s Nuremberg,” 1, 19.13 Grzebyk, “The Role of the Polish Supreme National Tribunal,” 609.14 See Thomas Mertens, “Radbruch and Hart on the Grudge Informer: A Reconsideration,” Ratio Juris 15, no. 2 (2002): 189.15 Judith N. Shklar, Legalism (Cambridge, MA: Harvard University Press, 1964), 155.16 See, Grzebyk, “The Role of the Polish Supreme National Tribunal.” For the decree that established the tribunal, see Journal of Law of the Republic of Poland, 1946, no. 5, item 45, cited in Patrycja Grzebyk, “Emil Stanisław Rappaport: His Road from Abolition to Prosecution of Nations,” in The Dawn of a Discipline: International Criminal Justice and Its Early Exponents, eds. Frédéric Mégret and Immi Tallgren (Cambridge: Cambridge University Press, 2020), 111 n96.17 Journal of Law of the Republic of Poland, 1944, no. 7, item 29. The August decree was amended in October 1946 in order to include the crime of participation in a criminal organization in accordance with the IMT indictment. See Grzebyk, “The Role of the Polish Supreme National Tribunal,” 609; Kornbluth, The August Trials, 105–31.18 Only four of these seven trials were discussed in the series Law Reports of Trials of War Criminals, selected and prepared by the United Nations War Crimes Commission. Alongside Greiser trial we find the “Trial of Hauptsturmführer Amon Goeth”, in Law Reports of Trials of War Criminals, vol. VII 1–9 See also “The Trial of Obersturmbannführer Rudolf Franz Hoess,” Law Reports, Vol. VII, 11–24; “The Trial of Dr. Joseph Buehler”, Law Reports of Trials of War Criminals, vol. XIV (London: His Majesty’s Stationery Office, 1949), 23–49.19 Proces Artura Greisera, 334 (here and elsewhere, quotations from the original transcript are translated from Polish).20 Ibid.21 Cited in Epstein, Model Nazi, 322.22 For the need to address the duality or “dark” side of modernity, see Zygmunt Bauman, Modernity and the Holocaust (Cambridge: Polity Press, 1989). Bauman shows how the principles of instrumental rationality that guide modern bureaucracy, principles that were supposed to guarantee progress and overcome arbitrariness and violence, were essential components in facilitating the Holocaust.23 In this respect, Michael Fleming points to an earlier legal formulation in Charge File 34 submitted by the Polish delegation the United Nation War Crimes Committee UNWC, which relied on Roman law to explain the role of law in outlawing part of the population: “The persons accused are responsible for having signed, and issued, during the years 1939–1943 numerous laws, decrees and regulations which were designed to outlaw persons defined as Jews, and eventually became an instrument which, through a complete ‘capitis deminutio’ of such persons, facilitated the achievement of the German Reich’s final aim: the biological extermination of Jews in Poland.” Fleming, In the Shadow of the Holocaust, 188.24 Ibid., 274.25 Epstein, Model Nazi, 316. The four main charges in the IMT were the common plan for conspiracy, crimes against peace, war crimes, and crimes against humanity.26 Ibid., 316–7. Although the indictment referred to international law, the Polish prosecution also classified the crimes under domestic law and the Polish prewar criminal code of 1932. See Grzebyk, “The Role of the Polish Supreme National Tribunal,” 629.27 Epstein, Model Nazi, 316.28 Finder and Prusin, Justice behind the Iron Curtain, 121.29 Hugo Service, “The ‘Cleansing of Culture’ in Germany’s Lost East after the Second World War,” in Rewriting German History: New Perspectives on Modern Germany, eds. Jan Rüger and NikolausWachsmann (London: Palgrave Macmillan, 2015), 82–3.30 Law Reports, 71.31 Ibid., 74.32 See Law Reports, 72. Diemut Majer, “Non-Germans” under the Third Reich: The Nazi Judicial and Administrative System in Germany and Occupied Eastern Europe, with Special Regard to Occupied Poland, 1939–1945, trans. Peter Thomas Hill (Baltimore, MD: Johns Hopkins University Press, 2003), 196.33 Law Reports, 114.34 Epstein, Model Nazi, 195. Other Gauleiters did use methods of assimilation, since they did not have enough Germans to populate their Gaus, employ, or draft into the army. Greiser perceived his task in terms of his understanding of Hitler’s policy: “using all means necessary, he was to turn an overwhelmingly Polish area into pure German territory.” He also made public these notions. Ibid., 213, 129–30.35 Ibid., 193–4.36 The distinction was based on culture and personal behavior in the interwar period as opposed to physical appearance or use of language (some Poles knew German better than ethnic Germans). Ibid., 197.37 Ibid., 319.38 Ibid.39 See Robert Gordon, “Undoing Historical Injustice,” in Taming the Past: Essays on Law in History and History in Law, ed. Robert Gordon (Cambridge: Cambridge University Press, 2017), 382, 409.40 Proces Artura Greisera, 322 (emphasis added).41 Ibid., 342.42 Ibid., 341–2.43 Epstein, Model Nazi, 323.44 Proces Artura Greisera, 329–30.45 Ibid.46 Law Reports, 114–5.47 Artur Appazov, Expert Evidence and International Criminal Justice (Cham: Springer, 2016), 23.48 Law Reports, 96.49 For the innovation of introducing simultaneous interpretation/translation into the IMT, see Lindsay Freeman, “Digital Evidence and War Crimes Prosecutions: The Impact of Digital Technologies on International Criminal Investigations and Trial,” Fordham International Law Journal 41, no. 2 (2018): 300.50 Epstein, Model Nazi, 319.51 Law Reports, 95–102.52 Only in the 1960s do we find two more attempts in the West to use expert witnesses in Holocaust trials. At the Eichmann trial in 1961, the historian Salo Barron was invited. Whereas the Frankfurt-Auschwitz trial in 1963, five historians were summoned to write reports and testify at the trial as expert witnesses. Prosecutor Fritz Bauer saw in these testimonies an important correction to the historical biases created by ordinary criminal law, which focuses on personal and not structural responsibility. See Devin O. Pendas, The Frankfurt Auschwitz Trial, 1963–1965: Genocide, History, and the Limits of the Law (Cambridge: Cambridge University Press, 2006), 142–56; Mathew Turner, Historians at the Frankfurt Auschwitz Trial: Their Role as Expert Witnesses (London: I.B. Tauris, 2018).53 Majer, “Non-Germans” under the Third Reich, 10.54 Jennifer Balint, Genocide, State Crime and the Law: In the Name of the State (London: Routledge, 2012), 35.55 Majer, “Non-Germans” under the Third Reich, 19.56 Proces Artura Greisera, 177.57 Law Reports, 99.58 Proces Artura Greisera, 177.59 Ibid., 179.60 Law Reports, 102.61 For instance, when asked about the decree of September 1939 on the legal situation of the Church, the expert stated that “that decree should have been authorized by the Ministry for Church affairs – für kirchliche Angelegenheiten. Here there is no mention of authorization, even though there should have been.” Proces Artura Greisera, 178.62 Epstein, Model Nazi, 202–3.63 Law Reports, 99–100.64 Ibid., 100.65 For the Gauleiters’ powers to issue decrees and policy guidelines, which allowed them to bypass Reich authorities and to enjoy secrecy as well as the flexibility to change them at any time, see Majer, “Non-Germans” under the Third Reich, 201, 203–4.66 Epstein, Model Nazi, 203.67 Law Reports, 100.68 Ibid.69 Proces Artura Greisera, 181.70 Ibid.71 Majer, “Non-Germans” under the Third Reich, 194–5.72 Proces Artura Greisera, 183.73 Majer, “Non-Germans” under the Third Reich, 197.74 Eventually, the institute included ten study groups and institutions, all covering practical matters regarding the settlement and exploitation of the German East. Epstein, Model Nazi, 246.75 Proces Artura Greisera, 327.76 Ibid., 184.77 Epstein, Model Nazi, 324–5.78 This line of defence was not unique to Greiser. Isabel Heinemann explains how race experts in the Germanization programme in Poland successfully avoided criminal trials and convictions in Nuremberg after the war by stressing the “positive side” of Germanization: “Even when incontrovertible proof of their own actions was presented to the accused, they tried to shift responsibility for the ‘negative side’ of the racial policy – expulsions, deportations, and extermination – to Himmler, Heydrich, and the RSHA. At the same time, they stubbornly insisted on the ‘positive side’ of their activity – the resettlement of ethnic Germans and their local ‘employment in strengthening the German peoples.’” Isabel Heinemann, “‘Ethnic Resettlement’ and Inter-Agency Cooperation in the Occupied Eastern Territories,” in Networks of Nazi Persecution: Bureaucracy, Business, and the Organization of the Holocaust, eds. Gerald D. Feldman and Wolfgang Seibel (New York: Berghahn Books, 2005), 213–-35, at 228.79 Cited in Finder and Prusin, Justice behind the Iron Curtain, 120.80 Ibid., 119. See also Epstein, Model Nazi, 321.81 Proces Artura Greisera, 348.82 For similar interpretations of the non-positivist theory of law, elaborated by Lon Fuller, as offering an alternative to full-fledged natural law theories, see Kristen Rundle, Forms Liberate: Reclaiming the Jurisprudence of Lon L Fuller (Oxford: Hart Publishing, 2012); Jeremy Waldron, “Why Law – Efficacy, Freedom, or Fidelity?,” Law and Philosophy 13, no. 3 (1994): 259–84; Natalie R. Davidson and Leora Bilsky, “The Judicial Review of Legality,” University of Toronto Law Journal 72, no. 4 (2022): 403–35.83 Grzebyk, “Emil Stanisław Rappaport.”84 Ibid., 108. While in Nuremberg considerations about the potential bias of Jewish victims led the American prosecution not to summon them as witnesses, in the Polish Tribunal, Jewish victims appeared as expert witnesses in the trials of high-ranking Nazi war criminals, and Rappaport even served as the presiding judge in the tribunal. For elaboration on the constitution of the Special Tribunal’s judges, see Kornbluth, The August Trials, 105–18.85 Epstein, Model Nazi, 327.86 Law Reports, 114. Emphasis added.87 Ibid., 116.88 Cited in Epstein, Model Nazi, 327.89 Grzebyk, “Emil Stanisław Rappaport,” 109.90 Ibid., 111.91 Epstein, Model Nazi, 327.92 Ibid.93 Ibid., 332, citing from Greiser’s letter to his wife Maria Greiser, 20–21 July 1946.94 Law Reports, 113. It seems that the Polish tribunal blurred the distinction between the illegality of war and the illegality of occupation, thus neglecting to identify the specific violations.95 This formulation had been suggested earlier by the Polish delegation to the UNWCC in its Charge File no. 36, which was presented before it became acquainted with Lemkin’s concept of cultural genocide. See Fleming, In the Shadow of the Holocaust, 195.96 See Aziz Huq and Tom Ginsburg, “How to Lose a Constitutional Democracy,” UCLA Law Review 65 (2018): 78. See also Davidson and Bilsky, “The Judicial Review of Legality,” 403–4.97 Kim Lane Scheppele, “Autocratic Legalism,” University of Chicago Law Review 85, no. 2 (2018): 545, 547–8; David Landau, “Abusive Constitutionalism,” UC Davis Law Review 47 (2013): 189.98 Natalie R. Davidson, “Toward a Self-Reflexive Law? Narrating Torture’s Legality in Human Rights Litigation,” Law Text Culture 21 (2017): 100.99 Wojciech Sadurski, “How Democracy Dies (in Poland): A Case Study of Anti-Constitutional Populist Backsliding,” Sydney Law School Research Paper No. 18/01, January 18, 2018, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3103491.100 For a discussion of the role of Polish judges in resisting democratic backsliding in Poland, see Marcin Mrowicki, “‘There Is No Freedom without the Rule of Law’: Resistance of the Polish Judges in Defense of Poland’s Democracy” (forthcoming, book draft on file with author).Additional informationFundingThis work was supported by Israel Science Foundation [grant number 1163/19].Notes on contributorsLeora BilskyLeora Bilsky is the Benno Gitter Chair in Human Rights and Holocaust Research at the Faculty of Law, Tel Aviv University, and the Director of the Minerva Center for Human Rights. She earned her LLB from Hebrew University and an LLM. and a JSD. from Yale Law School (where she held a Fulbright award). She is the author of Transformative Justice: Israeli Identity on Trial (Michigan University Press, 2004), and The Holocaust, Corporations and the Law (Michigan University Press, 2017).Rachel KlagsbrunRachel Klagsbrun has earned her LLB at Tel Aviv University and her LLM in International and European Law at Utrecht University (graduated Summa cum Laude). After working for several years as a commercial lawyer, Rachel returned to academic life. Following her interest in international law and law and history, she has been working closely with Prof. Leora Bilsky, with whom she co-authored the articles “The Return of Cultural Genocide?” (EJIL 2018) and “Cultural Genocide – Between Law and History” (Oxford Handbook of Legal History, 2018) and has assisted in the research of several other articles. Between 2018 and 2022 Rachel served as the Administrative Director of the Minerva Center for Human Rights at the Faculty of Law, Tel Aviv University.