Criminals as Manipulative Witnesses

摘要

Erich von dem Bach-Zelewski was one of the highest-ranking SS leaders during the Second World War. He was involved in some of the worst Nazi crimes, from Auschwitz to mass killings and anti-partisan warfare in Russia. From 1945 until 1949 he was in US custody in Nuremberg prison. Yet he was never indicted, instead appearing as a witness for the prosecution before the International Military Tribunal and three of the Nuremberg successor trials. In 1949, the US prosecutors handed him over to the German Denazification Boards, where provision had been made for shifting the burden of proof from the prosecution to the accused (who had to show that, although they were members of criminal organizations, they had not committed crimes). In 1951, he was sentenced as a major perpetrator to the highest available penalty of 10 years’ imprisonment. At this time, however, the denazification programme as a transitional measure was being dismantled, and Bach regained his liberty. The third and final way of dealing with Bach after the war was by means of the ordinary German legal system. Multiple investigations were commenced; one led to a trial and three life sentences for the murder of political adversaries — but not for the historically much more significant crimes in which Bach had been involved. Bach’s case illustrates the perversity of criminals offering testimony for the prosecution and the logic of criminal punishment. The failure to punish Nazi perpetrators is often linked to the lack of political will. Bach’s case shows that the outcome of a case can involve a combination of complex legal, strategic and practical choices which investigators, prosecutors and courts need to take into account.