Über die Autorin bzw. den Autor

Adam M. Smith (Bethesda, MD) is an associate at a Washington, DC-based international law firm who has advised presidential candidates, held staff positions with the United Nations and the World Bank, and worked at US embassies in three countries, for the United States Court of Appeals for the Armed Forces, and for the legal adviser to the State Department. He has published in magazines such as Forbes, American Prospect, and New Republic, and such prestigious journals as Harvard International Law Journal, Fletcher Forum, and Commonwealth Journal of International Affairs. He has been interviewed by NPR, Reuters, AP, CNN, and others and has a coauthored academic text forthcoming by Routledge.

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AFTER GENOCIDE

Prometheus Books

Contents

Acknowledgments............................................................................................9List of Abbreviations......................................................................................11International Courts Timeline..............................................................................13CHAPTER 1 From Budapest to Bondi to Bosnia: An Unlikely War Crimes Journey................................15CHAPTER 2 An Odd, Misguided Debate: Is it Really International Justice or No Justice?.....................31CHAPTER 3 Left Behind.....................................................................................49CHAPTER 4 The Politics of Hell: What Happened?............................................................83CHAPTER 5 Falling on Deaf Ears (Part I): International Justice from the Ground Up.........................97CHAPTER 6 Falling on Deaf Ears (Part II): "Unfair and Unhelpful"..........................................145CHAPTER 7 The International Criminal Court and the Limits of International Justice........................195CHAPTER 8 They Say It Can't Be Done.......................................................................223CHAPTER 9 Croatia: Justice in the Shadow of The Hague.....................................................283CHAPTER 10 Conclusion: Is it Too Late to Listen to the Canary in the Mine?................................323Notes......................................................................................................347Index......................................................................................................409

Chapter One

An Unlikely War Crimes Journey

On the evening of March 18, 1944, German commanders in Austria received the word to implement Operation Margarethe-the invasion of Hungary was on. Hours later, eleven German divisions, including armored trains, motorized guns, and Tiger tanks, crossed Austria into Hungary reaching Budapest at four o'clock in the morning. The Germans would occupy Hungary until near the end of the war in 1945.

For the Feher family-Otto, Rose, and nine-year-old Paul-the next year would be agonizing. The anti-Semitism of the Nazi occupiers was not a surprise to the Fehers, but that the family was specifically targeted was shocking and disorienting. Even before the Nazi arrival, the Fehers had done all that they could to be Hungarians first, and Jews second: Otto changed his name from the Semitic Finkelstern to the Magyar Feher (Hungarian for "White"); Paul was baptized and sent to a Christian school; the family never visited the grand Budapest synagogue on Dohny Utca; and they never hung a mezuzah on their door. Though Friday nights were often spent eating dinner with extended family, as per the Jewish tradition, no religion was ever discussed or performed.

Shortly after the invasion, Paul knew, even at his young age, that something extraordinary was happening. "I saw bodies floating down the Danube near our apartment," he told me years later. Family friends disappeared, and Otto, an executive at the state coal company, was removed from his job. Not before, however, the Gestapo took him out for an evening of beatings that left him with a permanent limp and no hearing in his left ear. The Gestapo put Otto into a work camp outside Budapest, while Rose and Paul, wearing yellow stars, waited for the nightmare to end. "You see up there?" Paul said, fifty years later, pointing to a second-story window in a fashionable part of Budapest near their former apartment. "Do you remember the Germans spitting on us, anyu?" he said, choking up and grabbing onto Rose's hand as though they were still in 1944 and on the run.

Otto was released from the work camp in the summer of 1944, as a part of a general "amnesty." It was clear that the amnesty would not last, and that the German and Hungarian Nazis were accelerating the deportation of the remaining Hungarian Jews, in a desire to forever "solve" the Jewish question. The Jews were soon ordered into a newly created ghetto-most of Otto's extended family complied, but Rose refused. It would be a fateful choice. The Nazis culled the ghetto shortly thereafter. Twenty thousand residents were brought to the banks of the Danube and shot; a large proportion of the remainder were shipped to Auschwitz. It is unknown into which group Otto's missing sisters and brothers fell.

The Fehers decided to run-they ripped off their yellow stars, left their comfortable apartment on the Danube, their live-in maid, concerts, and weekend chauffeured Mercedes rides in the country. Initially they fled to the countryside outside the city, to the farm of a non-Jewish couple who let them sleep in the barn for a few weeks. When the farmers became concerned about the potential repercussions for being caught hiding Jews, the Fehers fled again, this time back to Budapest where, thanks to renegade Swedish diplomat Raoul Wallenberg, they became "Swedes." The Fehers were given a place to stay in a Swedish safe house, and received legal reprieve from German threats of deportation.

The Wallenberg papers were a temporary lifesaver, but soon the Germans refused to respect the sanctity of either being Swedish or living in a diplomatic safe house-Jews were still Jews. The Fehers discarded the incriminating Swedish papers. Rose managed to conjure up German identification documents for the family. It was never clear how the seemingly frail woman I knew had managed to do this, and she took the secret to her grave. The anger and sadness in her eyes when asked to speak of the experience were enough to give me pause and to question whether I really wanted to know what she had to do in order to save her family.

The Fehers were bilingual in Hungarian and German, a product of the Austro-Hungarian aspects of Budapest and Otto's Viennese birthplace. Consequently, being taken for a German on the Budapest streets was not particularly difficult for either Paul or his mother; Rose's blond hair greatly aided the charade. Paul and Rose tried to use the new documents to establish a "normal" life amidst the chaos. It would not be so straightforward for Otto; according to the documents, he was a German soldier fighting on the Russian front. He had to go into hiding. German squatters had taken over their Danube home so the Fehers found another apartment, this one on the eastern side of Budapest; its coal cellar was its most important feature. It was in this cellar, out of sight behind a pile of wood and charcoal, that Otto hid until the end of the war. There were many close calls, and as the end of the war came into view, the Germans became even more insistent on searching for Jews-on many occasions coming into the apartment and then venturing into the Feher cellar, only to leave without uncovering Otto.

Even the end of the war would prove perilous for the Fehers. Their apartment abutted a railroad line that served as the front for much of the last weeks of the war. German troops had commandeered the balcony of the Feher apartment and erected a machine gun emplacement on it. Romanian soldiers working with the Soviet Army liberated the apartment in February 1945. The machine gun on the Feher balcony led the new occupiers to believe that German sympathizers, if not collaborators, lived in the building. The conquering soldiers rounded up all the men-including Otto who had left his hiding place as soon as the Germans departed-and marched them to a nearby field to be shot. Otto, who spoke French and some English, in addition to his two mother tongues, pleaded with the Romanians, trying to find a common language with one of his would-be executioners in order to explain the situation. His French finally worked. The soldiers believed the true yet almost unbelievable story, and he was released.

The war and occupation were over, and the Fehers were left to pick up the pieces. Despite their ordeal, they were lucky; of the two hundred and fifty thousand prewar Jews in Hungary, more than eighty thousand perished. The Fehers, like thousands of others, tried to recreate their former lives, even moving back into their old apartment. They had another child, Kati-baptizing her as well, "just to be safe." Kati would not even know that she was Jewish until her curiosity was piqued by a friend a decade later. Yet, in the end, it proved too hard to stay in Hungary; the memories were too raw, the future too uncertain, and so, in 1950, the Fehers left with a wave of immigrants bound for Australia. Otto and Rose were my grandparents, Paul my beloved uncle, and Kati (Katharine in English), is my mother.

Much less is known about the story of my father's family, the Polish side. Solomon Fox's mother died shortly after his birth in 1917, and his father, a deaf-mute porter, was unable to care for him. Solomon was adopted by his mother's brother-in-law, uncle Isaac Shmykowski. In the early 1920s, Isaac's prescience saw that his family would be better off away from the Pale. He moved his clan from their Warsaw home in 1924, when Solomon was seven. They were bound for South Africa; one wrong boat and two months later, the Shmykowskis found themselves in Brisbane, Australia, a world away from their initial target of Johannesburg, but fortunately even farther away from the terrors that would soon befall their native Poland. Isaac would become the "Most Reverend Isaac" and would help found Brisbane's Deshon Street Synagogue. In an assimilationist move, and to aid the spelling woes of any Australians who they encountered, Isaac soon changed the family name to "Smith." Solomon would go to school through age twelve before apprenticing himself to a local tailor, migrating south to Sydney with all of the newly renamed Smiths in 1939.

Tzippora Cajg, the daughter of a glazier, was the youngest of three and grew up in eastern Poland in the typical early twentieth-century shtetl of Zaklikw. Already in the mid-1930s, with continuing anti-Semitism, the threat of impending war after Hitler's election next door, and with rumors of a Berlin-Moscow agreement to split Poland, the Cajgs thought it was time to leave. Though America was preferable, the family knew of people who had settled in Australia. The Cajgs sent Tzippora ahead to stay with an uncle who had recently arrived in Sydney. The other family members would continue working, raising funds for the voyage, and set sail as soon as Tzippora sent word. Eighteen-year-old Tzippora boarded a boat in Gdansk in late August 1939, bound for England and then onto Australia. It would be one of the last boats out of Poland before the German Blitzkrieg began on September 1.

Tzippora arrived in Sydney, and eagerly sent her family word to join her. They never did. And as rumors of the ruthless German occupation and the Polish work of Einsatzgruppen (Nazi death squads) slowly emerged from wartime Europe, Tzippora lost hope. With 90 percent of Poland's Jewish population decimated, and the Cajgs living so close to many of the concentration camps, the only conclusion that she was able to draw was the most obvious one. It would be twenty years before some of the truth emerged and Tzippora's fears were validated. Following a chance encounter with a fellow former Zaklikw resident, she learned that the Jewish population of her native village had been exterminated. It would be another thirty years, sadly after her passing, that I would find out exactly what had happened. In early 2006, happenstance and the Internet put me in touch with a Zaklikw survivor in Israel who knew Tzippora in Poland. He told me that on November 3, 1942, German troops rounded up Zaklikw's Jews and locked them in the town's synagogue without any provisions. Days later, what was left of the group was deported en masse to the gas chambers at Belzec, east of nearby Lublin near the Ukrainian border. The Cajgs were among the deportees.

After arriving in Australia at the age of nineteen, Tzippora lapsed into a depressive state. Though depression did not prevent her from marrying Solomon in 1945, nor raising two children-my aunt Helen and my father Coleman-it remained with her for the rest of her life.

I grew up immersed in this history of loss. The Holocaust was all around me. My Hungarian grandfather passed away when I was very young, though his Gestapo limp remains etched in my memory. My uncle, especially as I grew older, did speak painfully of the experience, and even traveled to Budapest with me in the early 1990s. Yet, he divorced himself from other parts of his past-he changed his name to the decidedly Anglican "Farrer," and the only time he ever ventured into a synagogue was for my bar mitzvah and my sisters' bat mitzvahs. He never looked so awkward as when he was wearing a kippah (a skullcap). While my mother has long seemed ambivalent about her Judaism, she has remained deathly fearful of anti-Semitismin any of its guises and an avid, possibly addicted, reader of all things Holocaust and anti-Semitism-I Was Mengele's Assistant, Hitler's Willing Executioners, IBM and the Holocaust, the list goes on. I have always found her fascination with the topic odd and at times uncomfortable, yet strangely appropriate. My Hungarian grandmother refused to speak of the experience, and tried as hard as she could to avoid and even to erase her Judaism. I was never sure if she actually liked eating ham or was using it to buttress her gentile credentials. She was shocked when my mother decided to marry my father, a Polish, orthodox Jew-a mixed marriage if there ever was one.

My Polish family was far more outwardly Jewish than my Hungarian relatives, their own response to Holocaust losses. My father immersed himself in Judaism, involving himself in Jewish youth groups and Bible contests. According to my grandmother, he even contemplated becoming a rabbi-opting for medical school instead so that he wouldn't have to "sing for a living." Though my grandmother Tzippora was quiet and introspective for the entirety of the twenty-five years I knew her, my grandfather Sol filled in the silences and unknowns about what had happened in Europe with regular invective about the German "bastards" and the "bloody" Poles.

Even outside the family, I still could not get away from the Holocaust. Thousands of Jews had descended on Sydney after World War II, many straight from concentration camps or displaced person camps. They recreated a ghetto of their own, centered about Bondi Beach in Sydney's east, a place where I spent much of my childhood. As I look back, the combination of Holocaust survivors and Australian surf culture was bizarre, in part because the hot weather compelled short sleeves, forcing many to display their concentration camp tattoos as they drank coffee on the beach. It was hard not to stare at the numbers and letters and imagine what must have happened to them and their families.

Even after some of the immigrants became assimilated and successful, Germans remained persona non grata and the simple mention of Germany could spur outrage and denigration. One of the hardest tasks that my grandmother Rose was forced to endure was a demeaning, annual trip to the German consulate in the Woollhara neighborhood of Sydney (ironically in the heart of the Jewish zone). Every year she was forced to prove to the consul that she was still alive so that Germany would continue providing the nauseatingly small "survivor's check" that Berlin had authorized to atone for her wartime hardships. My uncle Paul refused to participate in any restitution scheme or accept any German apology. I remember as a young boy accompanying my grandmother on many of her annual visits. I am not sure if I ever saw such a chart, but I imagined the table the Germans used, listing the wartime "harms" endured (hiding, physical injury, concentration camp inmate, and so forth) with a corresponding neat arrow pointing to how much compensation each "wrong" merited. As a posthumous insult to my grandmother-and a fitting postscript to the indignity of the annual visits-the German government demanded refund of a small overpayment made to my grandmother in the months after her death.

* * *

It went without saying that, when mentioned, survivors spoke of Nuremberg in reverential tones, complaining only that the Germans did not deserve the quality of justice provided. I adopted this view of Nuremberg as my own. It solidified as I grew older, as I visited concentration camps, the Yad Vashem Holocaust memorial in Jerusalem, and studied Jewish communities lost throughout Europe. Nuremberg was the gold standard of how one deals with such crimes. The legacy of Nuremberg, in a very real, visceral way, alleviated some of the discomfort I felt toward the Holocaust.

* * *

The Yugoslav wars of 1991-2001 forced me to question the relationship I had with the Holocaust, as well as how I believed the world needed (or at least I needed) to address unconscionable pasts so as to face the future. The only memory I had of Yugoslavia before the war was the 1984 Sarajevo Olympics. I vividly remember watching Jayne Torvill and Christopher Dean's amazing ice dancing performance to Maurice Ravel's Bolro, and my grandmother Rose sitting behind me intoning in her distinct Budapest/Australian patois how "-lay-gaant" she thought the skaters were.

My happy association of Bolro and ice skates to the Balkans was dashed in the summer of 1991, as stories of slaughter began to emerge. If the reports I read were only partly accurate, the brutality between Serbs, Croats, Bosniaks (Muslims), and others was terrifying. I was angered by what I saw and read and jarred by pictures that emerged of emaciated prisoners in what looked too much like concentration camps. At first, I was not sure what the correct response was, other than an urgent need to intervene to stop the war. But even on that topic, I was a little unsure. After all, my uncle was quick to tell me how nasty the Croatians had been to the Jews during World War II, doing the Nazi's "cleansing" work with relish and creativity. The Serbs, and in particular the various leaders of the Serbian Orthodox Church, also had a long history of callousness toward Jews. What I had read of the Bosnian Muslims ("Bosniaks") suggested that their leaders' relationships with the Nazis had been warmand that many had supported the Nazi goal for a Judenfrei Balkans.

(Continues...)

Excerpted from AFTER GENOCIDEby Adam M. SMITH Copyright © 2009 by Adam M. Smith. Excerpted by permission.
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