Hitler DID win…That’s the sorrowful conclusion of UN war crimes judge Theodor Meron,
If Theodor Meron had arrived back at his cramped dwelling in the Jewish ghetto in southern Poland just a few minutes earlier in June 1943, he would have been executed along with his mother and maternal grandparents. The Nazis had raided the ghetto and found secret tunnels being dug outwards from the edge. Instant reprisals followed. All occupants of the ‘border houses’ were taken out of town and shot.
The next day, the entire Jewish population was gathered for selection. The majority were loaded onto trucks to be executed. It was a second piece of luck that Theodor was deemed old enough to work (he was 13). He was sent to a German labour camp for the rest of the war, forced to make ammunition for the German war effort.
Theodor Meron: President of the War Crimes tribunal
Little did the Nazis know that this boy whom they permitted to live to be a slave labourer would grow up to become an eminent international lawyer, driven by a lifelong desire to make it impossible for such atrocities to happen again, and for individuals who commit and oversee war crimes to be held to account, while being given the full fairness and protection of the law.
Meron lost his mother and all four grandparents in the Holocaust. His paternal grandparents were murdered at Treblinka. He opens his thought-provoking memoir by respectfully disagreeing with another Holocaust survivor, Irene Shashar, who said in a speech at the UN in 2020 that Hitler ‘did not win’, because despite his best efforts, she’d survived. ‘Did Hitler really not win – at least in part?’ Meron asks. ‘To kill one-third of a people and destroy for ever whole communities, traditions and cultures was, alas, not a failure.’ The fact that ‘hatred, bigotry and antisemitism could lead to an efficient technological, scientifically informed bureaucratically run death machine boggles the mind, somehow,’ he writes.
Determined to catch up on six wartime years of lost education, he went to high school in what was then Palestine, swotted hard, and got into Harvard Law School. His career took off: he went from legal adviser to the Israeli Foreign Ministry, to Israeli ambassador to Canada, to professor of international law at New York University School of Law, to Department of State counsellor on international law in Washington DC, to (in 2001) UN war crimes judge, to (twice) president of International Criminal Tribunal for the former Yugoslavia, and finally (aged 92 in 2022) to special adviser of the prosecutor of the International Criminal Court on international humanitarian law.
Clear-eyed and scrupulously legally minded, he honed his brain to define and judge international war crimes. Sadly for the Middle East, his first-ever legal opinion was not heeded. As a young legal adviser in 1967, he was asked to submit top-secret ‘Palestine opinions’ to the Israeli government, on the ethics of settling in occupied territory. His legal opinion was that the establishment of civilian settlements in occupied territory contravened the Geneva Convention, as well as the property rights of Arab inhabitants.
Treblinka where Meron’s paternal grandparents were murdered
That was a deeply unpopular opinion in Israel. Far from heeding his opinion, the Israeli government ‘chose to go another route, and a wave of settlements followed’. The rest is history.
Human rights became his professional remit at NYU. ‘What could be better?’ he asks. ‘Human rights concerns the protection of individuals by and from their own authorities or governments’ – exactly what had been lacking in Poland during the Second World War. For four decades, he didn’t want to hear of Poland or talk of his wartime experiences. But in 1986 he visited the country to give a lecture, and the ‘catharsis’ of returning began to ‘exorcise from me the ghosts and nightmares of the past’.
What’s it like to be a judge at the International Criminal Court? ‘You must be above the fray,’ Meron writes. ‘Judges cannot cave in to pressure, nor be swayed by public sentiment or criticism.’ He would receive opprobrium in the global press in 2012, when he led an appeals panel that acquitted the Croatian General Gotovina who’d been convicted of shelling Serb-inhabited towns.
The criticism really hurt, but he knew he must sit it out. ‘The judge must ensure that the protections offered by the law are respected, equally for the victims and the alleged perpetrators.’ International courts, he writes, avoid the two dangers of trying alleged war criminals in their own countries: excessive leniency on the one hand, and excessive vendetta-driven vengeance on the other.
The International Criminal Tribunal for the former Yugoslavia put pressure on Serbia to deliver up the Bosnian Serbs Ratko Mladic and Radovan Karadzic to be tried for war crimes. Both were convicted. But Meron stresses that the ICT deserves credit for prosecuting crimes committed on all sides. In the Russia-Ukraine conflict, too, he writes, most crimes appear to have been committed by the Russians, ‘but some may have been committed by Ukrainians as well. The ICT is compelled to investigate and prosecute crimes committed by all or any parties.’ The same in the Middle East: the ICC prosecutor issued arrest warrants against leaders of Hamas for crimes committed on October 7, 2023, and against two members of the Israeli cabinet for crimes committed in Gaza.
Meron and his tribunals established some important new legal principles. One is that ‘genocide’ can be committed even in a small area or region, so what happened in Srebrenica in 1995 (the massacre in a single town of 8,000 Bosnian Muslims) should be called genocide. Another is that public incitement to commit genocide is an offence, punishable even if no actual act of genocide has resulted. This new category of genocide was needed in the case of the Bosnian Serb military commander General Zdravko Tolomir: ‘the deliberate infliction on a protected group of measures calculated to bring about its physical destruction’, such as ‘threats of death and knowledge of impending death’.
Meron was reminded of the thousands who died of hunger and typhus in the Warsaw Ghetto. ‘Under the Tolomir ruling,’ he writes, ‘I would have been a victim of genocide even if no member of my family had been killed.’
Case by case, a structure of international justice is being built up. Former US secretary of state Anthony Blinken wrote Meron a grateful letter in 2021, thanking him for implementing tools to ensure that, as Auschwitz survivor Elie Wiesel wrote, ‘“Never again” becomes more than a slogan.’