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Should 90-year-old Nazi death camp guards be punished?

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Should old former Auschwitz guards be jailed?
Yes. They all contributed to the deaths of innocents and all deserve punishment.
35%
 35%  [ 5 ]
Yes, but only the ones who are found guilty of specific crimes as individuals.
42%
 42%  [ 6 ]
No. They're old men now, what's the point?
7%
 7%  [ 1 ]
I honestly don't know how I feel about this stuff.
14%
 14%  [ 2 ]
Total Votes : 14

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PostPosted: Tue Jun 21, 2016 10:09 pm
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Is that a fact.
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watt price tully Scorpio



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PostPosted: Tue Jun 21, 2016 11:27 pm
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5150 wrote:
think positive wrote:
Pies4shaw wrote:
So, which is it, TP - (1) he didn't actually commit any crime (so that the convictions are wrong) or (2) he did but what he did wasn't bad enough to be sent to prison for?


By the evidenc in the article, which is all I have, I don't think he is guilty of anything.


I wonder if you could use double jeopardy - he was tried for his crimes in the camps but they burned all the records.


Charming. Then again I shouldn't be surprised.

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Pies4shaw Leo

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PostPosted: Wed Jun 22, 2016 8:25 am
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David wrote:
Pies4shaw wrote:
So, which is it, TP - (1) he didn't actually commit any crime (so that the convictions are wrong) or (2) he did but what he did wasn't bad enough to be sent to prison for?


The answer is that we don't know (I would define such a charge far more strictly than you have here there's a difference between merely being present in an official capacity during an atrocity and actually actively taking part in its commission). Therefore, the principle of presumption of innocence should apply.

I'm not defining anything strictly. He's plainly guilty on the ordinary principles of criminal liability.

He was (and although it doesn't actually make any difference to his liability, admitted that he knew he was) engaged as part of a massive criminal operation to kill people. Under ordinary rules of criminal liability, that would be enough for him to be found guilty of a count of accessory to murder in respect of each person murdered in the course of the operation while he was engaged. It is quite inconceivable that he could avoid liability because he worked in a Nazi extermination camp.

He's in the same position on liability as a person who drives a car used to pick up victims for a serial killer. In short, he's (possibly, depending upon the particular circumstances) not as responsible as the killer (or the persons who devised and administered the operation) but a long, long way from being "not guilty".
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think positive Libra

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PostPosted: Wed Jun 22, 2016 8:29 am
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David wrote:
Pies4shaw wrote:
So, which is it, TP - (1) he didn't actually commit any crime (so that the convictions are wrong) or (2) he did but what he did wasn't bad enough to be sent to prison for?


The answer is that we don't know (I would define such a charge far more strictly than you have here there's a difference between merely being present in an official capacity during an atrocity and actually actively taking part in its commission). Therefore, the principle of presumption of innocence should apply.


Yeah this. But also the fact he was a soldier. Do you then try every soldier who was within cooee of a friendly fire kill? (I'm not equating the deaths in the camp, this is about the role of a soldier).

Is their actual evidence he did something that is not in accordance with what would become the Geneva convention? (How else do you explain reasonable expectation of humane treatment, ie don't torture or kill them). Or is he guilty because he was there? So do you then jail all the support crew?

It seems they are locking up people to appease the remaining survivors, is that fair? Does anyone who was incarcerated at the camp remember this guy?

This subject, the concentration camps, always boils my blood, but at the same time, is jailing a 94 year old going to do anything? Is it punishment (for following orders, which he did try to get out of, he wanted to go back to the front line-you know killing actual soldiers!) or is it to protect society- from a 94 year old man?

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Pies4shaw Leo

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PostPosted: Wed Jun 22, 2016 9:18 am
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This isn't about humanitarian law or the law of war or anything else special. It's just about accessorial liability for 170,000 murders.

If someone in Victoria was kidnapped and murdered, our courts would likely give the person (or all of the people, if there were a bunch of them) who held them in captivity (and did absolutely nothing else) for the murderer about 5 to 7 years, however nicely they behaved towards the captive (assume, for example, that Bayley had had such an accomplice). In our society, under our law as it stands, there could be no special pleading for a fellow who got 5 years for doing the same thing 170,000 times.
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David Libra

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PostPosted: Wed Jun 22, 2016 9:42 am
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I think this is the danger of applying ordinary legal concepts to extraordinary situations. Times and places in which totalitarian regimes are in power and mass atrocities are committed are thoroughly alien to the mostly peaceful context within which our legal system operates. I'd argue that modern legal systems aren't built to handle such scenarios, because none of us are living in an authoritarian system of that nature. If there are to be prosecutions for roles in historic war crimes, then I think they very much need to be treated as special cases.

To try to transpose our laws to a situation like Nazi Germany and punish "accessories to murder" in retrospect, then, seems to me rather like jamming a square peg into a round hole.

I would be similarly concerned if we started rounding up Rwandan immigrants and assessing the roles they may have played, however small, in the Hutu/Tutsi conflict. If you have a notorious mass murderer from that genocide on your hands, then charge him, by all means (even better, send him to the Hague). But if there's some guy out there who may have driven a getaway car or sold someone a machete at the peak of the atrocities, then I would seriously question the benefit of bringing him before a court now in Australia and treating him as if he was the accessory to a Melbourne hit job. The same applies to a soldier who was a member of a low-ranking firing squad in Pol Pot's Cambodia. Such acts may fit a literalist definition of being an "accessory to murder", but rounding up all the functionaries just doesn't seem like an effective or useful way of dealing with such horrors.

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David Libra

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PostPosted: Wed Jun 22, 2016 9:53 am
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Can I just post this here? It's about a different issue, the Essendon supplements saga, but I think perhaps crystallises the argument some of us are trying to make here. I've bolded the sections that are directly relevant to this discussion:

David wrote:
I expect a lot of you will only have taken (at most) a passing interest in the Essendon supplements scandal that's plagued the AFL for the last four years. If you're at all interested in philosophy, however, the recent judgement in Switzerland is worth taking a look at, as it has serious implications on how we think about criminal culpability, personal responsibility and power.

For those not in the loop at all, the story goes like this: in 2012, the Essendon football club commenced a supplements regime aimed at giving their players an edge over the rest of the competition. The staff at the club assured the players that the supplements were consistent with the code's anti-doping code. As it happened, one substance in the program, Thymosin Beta-4 wasn't, and the club was subsequently investigated and found guilty of drug cheating. Essendon has suffered significant penalties as a result of this, but a more difficult question has been whether the players themselves should be penalised. Last week, a Swiss court found that they should be, and suspended all 34 players from training and competing at any level for a period of 12 months.

This is a significant blow for those players' careers and livelihoods. In the context of the hyper-competitive and professional Australian Football League, a year out of the game is quite possibly career-ending. Certainly, on a psychological level, it will be very hard for many of the players (who have already had the spectre of this scandal hanging over their heads for three years) to rekindle their passion for the game.

As somebody who loves competitive sport and cares deeply about the health and welfare of players, I strongly oppose doping in sport and acknowledge the need for serious penalties in cases where it occurs. In the context of individual competition like Olympic events, that necessarily tends to entail individual sportspeople being levied with suspensions. Certainly, if a single AFL player sought out performance enhancing drugs off their own bat (as has happened in the past), I would support them being suspended.

But when an entire club imposes this decision on their players, is it fair to punish them? The conclusion of the Swiss court reflected the long-held view of anti-doping authorities that a player holds ultimate responsibility for what goes into their bodies. This is more or less the libertarian approach to criminal culpability: that, except perhaps in cases of extreme coercion, we always bear full responsibility for our actions. The opposing view, which is closer to my own, is that culpability is strongly mitigated by environment, structures and hierarchies, and that these factors always need to be taken into account in criminal justice and other contexts.

The most famous case in which these opposing principles came into dispute was the Nuremberg trials after World War 2, in which Nazi officials, soldiers and guards were brought to trial for their role in the killing of millions of civilians in concentration camps and elsewhere. In many cases, the defence they offered was that they were "just following orders" - that is, that their culpability was reduced or even voided by the hierarchical system in which they existed. For the lower ranking officers, this was more than just a lame excuse: dissent in Nazi Germany was, after all, often punishable by death. Just as importantly, they lived in a system in which their actions were both normalised and expected. It took exceptional people (or, alternatively, people with relatively exceptional beliefs in that cultural context and/or dispositions) to dissent, as it does in nearly any highly authoritarian society.


It may seem absurd to compare a football club with a society like Nazi Germany, but we have to examine similar operating principles in order to assess player culpability in this case: what freedom, real or perceived, did the players have to question the instructions they were given? What consequences, real or perceived, were there for dissent or disobedience (including social ostracism or a diminished role in the team)? Given these and other factors, what proportion of individuals did end up dissenting?
To answer that last question first, only one of the players to have been offered injections, David Zaharakis, is known to have refused them. His ostensible reason for doing so was not out of an ethical belief in fair competition or fear of punishment, but out of a pathological fear of needles.

That this was the sole reason for dissent (or, alternatively, that this was the sole reason that any player felt they could offer as a justification for dissent) is perhaps the most illuminating information of all. Evidently, at that club at that time, no player felt in a position - or wished to be in a position - to defy his employer's orders. Another player, Kyle Reimers, ended up alerting the AFL to his club's activities, but only after having departed the club (to boot, on less than friendly terms that were apparently unrelated to the supplements program).

This wholesale compliance should not be particularly surprising to anyone. An AFL club is a highly authoritarian workplace in which players' lives are managed as thoroughly as possible, from their diets to all of their public communication, to where they spend their holidays, to even, in some cases, who they can associate with outside the club. For the period of their employment, they are effectively owned by their clubs. It is also a hyper-competitive environment in which any loss of form in comparison with their teammates at any stage could see their contracts terminated.

Some will point out that nobody is forced to be an AFL footballer and that they are paid very well for giving up their freedom. Whether or not that justifies their treatment (I don't believe it does), the point remains that, once they are within that environment, AFL players - young men, many of whom are barely past adulthood - exist at the bottom of a hierarchical system in which compliance is expected and non-compliance is punished.

There is no reason to think that this instance of near-full compliance wouldn't have occurred in any other football club. As in any authoritarian system, it would have required individuals of exceptional character or beliefs to defy their club's instructions and perhaps encourage other players to do the same.

Is it ever just or useful to punish people for not being exceptional, or not acting exceptionally? To properly answer that, we need to understand what the purpose of criminal justice is, or at least a strong argument for what its purpose should be. The general defence of punishment in our society incorporates deterrence, rehabilitation, public safety and public perception of justice being carried out, with all of these resting on establishment of culpability. This approach broadly accords with my understanding of how a justice system should operate. Let us apply it to this case.

Under this approach, the first question should be "are they culpable?". The second should be "if they are, is punishment justified?". Note here that, while I have argued that the players' culpability was substantially mitigated and rejected the libertarian "personal responsibility" approach, I have not so far argued that the players hold no culpability whatsoever. I would probably accept the argument that, except in cases of extreme and imminent coercion, all human actions entail some level of culpability. Nevertheless, I would argue that their culpability was mitigated to the extent that punishment was not justified. For that, I need to turn to the second question and consider each reason for punishment in turn.


The first, prevention of re-offence, is insufficient here. It is reasonable to conclude that, even without the loss of reputation and threat of personal sanctions hanging over their heads, the punishment and scandal inflicted upon the club (including fines, suspension of personnel and exclusion from the 2013 finals series) was sufficient that not one of these players would ever again consent to being subjected to such a system.

The second, rehabilitation, need not apply here as it seems fair to conclude that there was nothing wrong with the character of these particular players to begin with. If the evidence suggests that all but the most extraordinary individuals would have done the same in their situation, what 'rehabilitation' could possibly be required?

The third factor, deterrence, is the one that provides the strongest argument for punishment. There is no doubt that the suspension of the players sends a message to the rest of the competition that mere club sanctions could never have. It more or less ensures that no other AFL player will ever accept a supplements program that is not clearly within the rules, which in turn empowers players to stand up to their clubs and reduces the very power differential that played such a huge part in this scandal to begin with. These are all positive by-products of of these suspensions. But the question remains whether it is ever just to punish for the sake of deterrence alone. Should players be made scapegoats for the sole purpose of teaching others a lesson? I don't believe so. In the absence of sufficient culpability to bring into play other reasons for punishment, focusing solely on deterrence leads to a draconian system that undervalues individual welfare.

We can think of other crimes that at first glance seem to be punished solely for reasons of deterrence, like drink-driving. But there are few power dynamics to be considered in that particular crime. While the disposition to drive while drunk might not seem malicious, it is a disposition that people need to be educated out of. In that instance, both reasons 1 and 2 are present: convicts need to be rehabilitated into a state where they are unlikely to drive while drunk again, and other punishments (such as a loss of license) need to be levied to keep them off the road for the near future. Therefore, in that instance, it is not unjust to factor deterrence into the sentencing of drink-drivers.

On the other hand, merely following orders of legitimate authorities cannot be considered a rehabilatatable offence in a system that not only allows such dynamics to exist, but arguably encourages them. And this is where, I think, both Essendon footballers and some Nazi war criminals have a valid defence. The essence of criminal punishment lies in addressing contravention of the social contract. If the fault is in the structure, then it is the structure and its architects, not the subordinates, who must take the lion's share of the culpability.

Finally, to the last justification for punishment: the need to see justice done. The libertarian approach to this matter, enshrined in the WADA code and backed by the Swiss court, states that an athlete is primarily responsible for what goes into their bodies. As I hope I've shown, this approach completely fails to address the power dynamics in our society and the nature of hierarchical systems. It is a work of wishful fiction, not a rational representation of how things actually work in the real world. The just thing, and I hope I've adequately shown this, is to place the culpability primarily with those who held the power and authority in this system, namely the Essendon Football Club and its high-ranking staff. In punishing the players, an injustice has been done. And we ought to keep this principle in mind in all cases of this kind, whether in sport or wider society. An analysis of culpability that does not account for power is and always will be insufficient.

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Last edited by David on Wed Jun 22, 2016 11:59 am; edited 3 times in total
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think positive Libra

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PostPosted: Wed Jun 22, 2016 10:43 am
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The bold ain't working and that's a loooonnnggg post!
Razz

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David Libra

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PostPosted: Wed Jun 22, 2016 11:49 am
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Oops. Should probably avoid saying I've done things before I actually do them. Embarassed
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Pies4shaw Leo

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PostPosted: Wed Jun 22, 2016 12:15 pm
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David wrote:
I think this is the danger of applying ordinary legal concepts to extraordinary situations. Times and places in which totalitarian regimes are in power and mass atrocities are committed are thoroughly alien to the mostly peaceful context within which our legal system operates. I'd argue that modern legal systems aren't built to handle such scenarios, because none of us are living in an authoritarian system of that nature. If there are to be prosecutions for roles in historic war crimes, then I think they very much need to be treated as special cases.

To try to transpose our laws to a situation like Nazi Germany and punish "accessories to murder" in retrospect, then, seems to me rather like jamming a square peg into a round hole.

I would be similarly concerned if we started rounding up Rwandan immigrants and assessing the roles they may have played, however small, in the Hutu/Tutsi conflict. If you have a notorious mass murderer from that genocide on your hands, then charge him, by all means (even better, send him to the Hague). But if there's some guy out there who may have driven a getaway car or sold someone a machete at the peak of the atrocities, then I would seriously question the benefit of bringing him before a court now in Australia and treating him as if he was the accessory to a Melbourne hit job. The same applies to a soldier who was a member of a low-ranking firing squad in Pol Pot's Cambodia. Such acts may fit a literalist definition of being an "accessory to murder", but rounding up all the functionaries just doesn't seem like an effective or useful way of dealing with such horrors.

I argued by reference to our domestic law only because some posters (including you) seemed to be suggesting that what this man did was somehow being judged under special rules that broadened accessorial liability in these circumstances. Nothing could be further from being accurate.

You can say what you like about the process and its utility but there is absolutely no basis for doubting that this man was guilty of 170,000 counts of accessory to murder. At about that point, reasonable people ask themselves, in substance, "Why, given what this fellow did was so unimaginably awful, do I not want him brought to justice and tried, convicted and punished (however slightly) for his crimes?"

Of course, if you want to say that what he did wasn't unimaginably awful, we can't even have a genuine conversation. The fact that there may have been (if there were) a whole lot of more culpable people in the running of Auschwitz doesn't excuse what this man did. What's the principle of liability you want to apply here? Is it that, of those who worked at the camp, only people who pulled the lever, knowingly administering poison gas, are criminally liable (ask yourself, eg, how that evidence would ever be available to a court unless the defendant directly confessed to it: "Yes, your Honour, that's the man - he's the one that gassed me") - or, perhaps, does one say that they were just following orders, too (surely, on your view, it's a mere matter of happenstance that one guard was ordered to execute people and another was ordered to clean the toilets)? One has to be very, very cautious about such sophistry: on that sort of view, everyone gets off except the bloke in charge of the totalitarian regime because they were all "following orders" (indeed, Eichmann's main arguments at his trial were (1) that he wasn't responsible because he was following orders from, for the most part, Heydrich, Himmler, and Hitler; and (2) that what he was engaged in was an "act of State", so that his conduct wasn't amenable to domestic criminal prosecution). That's of course, why the "Nuremberg defence" is only available if (1) you didn't know you were doing the wrong thing (at the time you were doing it); and (2) the thing you were doing wasn't also obviously wrong (at the time you were doing it). On this man's own evidence at trial, neither of these necessary elements of that defence could get to first base. He actually knew what he was doing was wrong - and, presumably, he also understood that what he was doing was wrong on a previously-uncharted scale of wrongdoing. The reason that there are two such necessary elements (that is a subjective element and an objective element) to the Nuremberg defence is because the world was, at the relevant time, full of people (like, eg, Eichmann) who didn't think that exterminating Jews in death camps was the "wrong thing" to do and, rather, positively embraced it as genuinely good and important work.

In any event, to pick up on your Rwandan reference, this man didn't have a "small" role - he was an accessory to 170,000 counts of murder because he helped run Auschwitz as a guard for a few years. His criminal culpability for the deaths of innocent people is probably so far worse than any criminal culpability that has ever existed for any person who has ever been sentenced to gaol for murder (however awful) in our country that it may not even be possible to draw reasonable parallels.

In previous trials concerning Auschwitz, many people were convicted - and quite a few sentenced to hang (and the sentences carried out) - with about the same level (possibly less) of responsibility as this man had. Lorenz, eg, was also injured in battle and sent to Auschwitz because he was unfit for service on the front - he was given 15 years for "abusing prisoners". Another guard who worked at Auschwitz for about 2 months was given 3 years. In fact, even the camp accountant (a man who had no direct contact with prisoners) was sentenced to 10 years, the camp cook was given 15 years (I want to make a joke about his turnip soup - but I probably shouldn't) and a man who worked as a chauffeur there was sentenced to 5 years. One person who worked at Auschwitz who was acquitted of any crime was Hans Munch - he was acquitted because he did not participate in - and actively subverted - the extermination process. Those people were among about 40 all tried by the Polish authorities in 1947 (more than 20 of whom were hanged). All up, about 800 of the people who "served" at Auschwitz were tried over a period of many years after the war, either for crimes against international law or under German domestic law and the vast majority were convicted and sentenced.

I should, perhaps, add that none of you should kid yourselves that anything that happened in the course of any bombing raids by Allied forces (or, for that matter, by the Axis forces) was comparable to what happened in the extermination camps. Unimaginably awful things happen during wars - many of them contrary to the laws of war - but nothing about running an extermination camp was about a military objective or directed, even vaguely, at a hostile enemy - the function of those camps was to slaughter innocent people for no better reason than that some Germans thought those innocent people should be slaughtered.

Just to remind you, my original response to your topic was:

Pies4shaw wrote:
It's a reasonably hilarious view of criminal justice that some of you seem to have adopted here. This fellow was guilty of 170,000 counts of accessory to murder but you think punishing him now is a little bit harsh! What he was involved in was, as Bruce would say, "just a little bit special".

Of course there is a political aspect to who gets tried and who doesn't and for what crimes against international law. That doesn't make this man "not guilty". A dozen or so of his victims were still alive to testify against him, so it's not yet a mere historical footnote. In any event, it has long been established as a matter of international law that there is no "limitations period" applicable to crimes against humanity.

Here, the punishment for the perpetrator will likely be trivial, in the scheme of things - it is the finding of guilt (and its applicability to future international criminal cases) and the expression of continuing disapproval of such conduct that matters. There are continuing conflicts, official and unofficial, all over the world to which these principles will matter. The "I didn't really kill anyone because I didn't actually pull the trigger myself" defence was always morally bankrupt - but good in law until the last decade, so people who were complicit in the way this man obviously was (and acknowledged at his trial that he was) can only be effectively tried since Demanjuk was dealt with a few years back.

Ultimately, my view about this is that I couldn't care less about the sentence meted out, at this late date, but that the trial and verdict (and some punishment for complicity in the deaths of 170,000 people) are every bit as necessary and important as they were in 1946.
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PostPosted: Wed Jun 22, 2016 12:21 pm
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That's one way to put it.
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luvdids Sagittarius



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PostPosted: Wed Jun 22, 2016 12:54 pm
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To begin with I wasn't sure where I stood, now after reading the posts by P4S, I don't know people can defend anyone that had anything to do with these camps. If you're an accessory to a crime, you deserve to be punished. Seems pretty clear to me.

Not sure how you can even compare this with the Essendon saga, but it's the same thing. They didn't have to take the supplements (in fact, not all of them did). If my boss "ordered" me to stand guard while he killed one or many people - I know what my response would be.

Good posts P4S, thanks.
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David Libra

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PostPosted: Wed Jun 22, 2016 1:03 pm
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OK, well basically my objections remain as follows (to P4S):

1) I don't necessarily agree with the precedents either. I was similarly dismayed by the accountant's imprisonment some months back, and 15 years for being a cook unless he was somehow directly involved in other atrocities seems absurd. Eichmann, due to his rank, clearly has a much greater degree of culpability than the above, though that's not to say that I take a black and white approach to him being clearly guilty and this guy being clearly innocent. Indeed, if you're not able to acknowledge the considerable grey areas in such cases, I'd argue you're taking the wrong approach. A blunt application of principle is precisely the last thing we need here.

2) I think you too glibly dismiss the actions of people who bombed civilian centres. Yes, perhaps their victims suffered considerably less than the victims of Auschwitz, but we are still talking about mass murder here. And in the case of Dresden, at least, I think it's generally held that there were little to no military objectives in those raids.

3) What this man "did" is still a little unclear to me. If you mean merely that he worked for the killers of Auschwitz and contributed in some part to the operation, then that is a charge you could arguably levy at Germans and Eastern European collaborators who never set foot in Auschwitz but contributed in other ways say, by manufacturing machinery, or funding the state's activities, or informing on Jews hiding next door. Culpability extends ever outward in atrocities like this, and I again question the worth of exacting retribution against as many minor players as possible.

4) The last issue, and one barely dealt with so far, is the matter of time and whether it's ever really worthwhile to lock frail old men up. Clearly, there is no sense that rehabilitation is possible or necessary here; he, we presume, is as rehabilitated as any individual could be. Furthermore, he poses no danger to society. The only conceivable benefit is deterrence, a concept that is surely quite far from being relevant here given the fact that we do not live in a fascist dictatorship. On those grounds, there appears to be little to no community benefit in imprisoning this man.

Our legal system may not be so pragmatic, but perhaps it ought to be.

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Pies4shaw Leo

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PostPosted: Wed Jun 22, 2016 2:38 pm
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I reject any suggestion that I "too glibly dismiss the actions of people who bombed civilian centres". Lest there be any doubt, I have no interest in defending people who bombed Dresden (or London or Hiroshima or Nagasaki, for that matter). One obvious point of difference, however, (and, as it happens, the one I already made) is that those bombings were undertaken with the intention of achieving some result in a war. Whether there were "legitimate military objectives" or not, in the strict sense, they were plainly directed to bringing about some sort of result in a conflict with a hostile enemy, even if they were war crimes. Far be it from me to suggest that those responsible not be tried for war crimes, if war crimes they were.

The Nazi extermination camps, though, had nothing at all to do with bringing about any result in any war against any hostile force - they were only about killing people.

I'm not much excited by emotive arguments concerning "mass murder" - deliberate killing is what happens in wars. I abhor all of it and don't pretend to be able to make fine distinctions about which mass murders are "OK" (in the sense that they were directed toward some allegedly "legitimate military objective") and which aren't. Sometimes the laws of war make lawful those acts in wars that would otherwise be mass murder and sometimes they don't. Really, though, in the context of Nazi extermination camps, that's all just a school of very smelly red herrings.
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PostPosted: Sat Jun 25, 2016 7:55 pm
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https://youtu.be/xREH8hYAip4

Justice comes sooner - or later.

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