Neha Sharma and Pranoy Goswami, 4th Year, National Law University and Judicial Academy, Assam
OVERVIEW
Children and family have often been gyrated as the focal point for systemic abuse and torture in concentration camps. The Holocaust was a churning blot in the history of human rights abuses- proliferated by statistics that are horrendous yet important for our study. As a grand design to end a “racial struggle for the Aryans”, or as a measure of preventive security, children (primarily Jewish children) were often murdered in the Nazi concentration camps, held as slaves in the gas chambers or subjected to partisan attacks in the areas surrounding these camps. Nazi Germany and its allies killed roughly 1.5 million Jewish children, 5000-7000 German children bogged by mental ailments who lived in mental institutions, in addition to the killing of thousands of Polish children in their ghettos. A lot of these children were also forced into becoming the subjects for boorish medical experiments. The role of the prison guards and requisite prison officials must have been significant towards maneuvering the sacrifice of child rights at the expense of hyper-national interests. The article seeks to draw a cause-and-effect relationship between the conditions in the Nazi concentration camps and the violation of children’s rights arising therein, along with a juxtaposition of the prison guard’s rights to understand the complexities of the human rights situation in the pre-UDHR (Universal Declaration of Human Rights) era.
EVOLUTIONARY CONCEPT OF CHILDREN’S RIGHTS IN THE CAMPS
The German authorities, frivolous under the commands of the Fuehrer, made children their soft target for torture, entrenchment, and abuse. Children were frequently picked up, incarcerated, and befriended at certain junctures by the prison guards to brainwash and deprive them for purposes in stock. In this context, it is imperative to understand the functioning of Article 25 (3) of the Rome Statute, while understanding the mental element of the commission of a crime, in this case, a dyad of war crime and crime against the body of a child.
The triumph of children’s rights finds itself mired in paradox and the brusque violations by the executive in Germany at that time. Children, on account of their physical and emotional immaturity, were subject to greater levels of manipulation and exploitation in the Holocaust. It must be recognized that children are rarely autonomous actors in the support of acts leading to genocide. Article 3 of the Geneva Convention must be used for dissection of such violations, which is also a curious principle of customary international law. This must be read in consonance with Principle 8 of the UN Declaration on the Rights of the Child. Using the well-etched tests of distinction and proportionality, the patterns of killing, torturing, and maiming large groups of Jewish and non-Jewish children begs an answer to the question as to whether the prison guards and those in charge of maintaining the concentration camps can be held absolutely liable for such crimes.
THE HUMAN RIGHTS DIMENSIONS OF PRISON GUARDS IN THE CAMPS
To understand the role of the prison guards, let us understand the ancillary of the principle discussed above: “It is believed that since the accessory has the knowledge, his will automatically flows from the act itself, and therefore, the Court will not be burdened to decide upon the added element”. The marrow with such an understanding lies in the fact that it would end up bringing a large number of people under the umbrella of commission of crimes, without them having the direct intent to cause harm or while they were carrying out their legitimate business interests.
Reference may now be made to a certain Oscar Groeing, who had been disheveled and outraged by the extermination of Jewish children and wanted to quit his job in the camp. His demands for a comprehensive framework to try Jewish subjects fell on his superior’s deaf ears. During the trial for such cases, the adducing of definite criminal liability on the prison guard for the “apparent” violation of the children’s rights is far-stretched and in contravention to the aforementioned statute. In addition, an exploration of Article 7 of the Rome Statute (which cuts to stone the definition of “crimes against humanity”) clearly highlights the words “knowledge” and “willful”. This gives rise to the limpid problem of “authenticity of source”.
Furthermore, prisoners were used as a staff, and quite often as prison guards in the various protection camps, in the form of Kapos. The division of Kapos was three-fold: a. work supervisors, who oversaw the other prisoners at work and reported possible delays; b. block elders, who had to ensure the cleanliness of the barracks, hand out food during the various times in the day, and keep a count of the casualties; and c. camp administrators, who tasked themselves with the kitchen jobs, or to upkeep the storage and occasionally worked as interpreters. The Kapos had some leverage in the fact that they were given extra rations and larger, more hygienic living spaces. To the naked eye, they might seem like perpetrators of human rights, but is that really the case?
RECOMMENDATIONS
Genocidal mens rea or the indictment of criminal intent as per the terms of the Geneva Convention has been subjected to a miasma of debates over decades. Article 2 of the Convention gained a foothold during the interpretations brought to the fore in the trials conducted by the international courts in former Yugoslavia and Rwanda. It is cumbersome to holistically prove the intent to “commit” acts of genocide when such a large number of victim members in a group, in this case, the children, as well as the victimizers are involved. Respected human rights scholars have vouched for the removal of the intentionality clause from Article 2, owing to the difficulty of identifying the victors of such violations promptly. One must not discount the importance of individuals in the commission of such crimes against children, albeit it is the pre-existing social structures and in particular, the executive in power at that time which forced a large section of the prison guards to be on the offensive.
In the modern-day, the very facet of wanting to prosecute someone as aged as 100 years for the acts he had to involuntarily commit to clamp down the rights of the children is strenuous. Prosecution of the prison guards who are still living, merely on the basis of pre-recorded testimonies and through survivor accounts is indirectly a breach of their defense. The human rights of the prison guards were violated in manifold ways every single day, let alone the rights of the deceased children. A balance must be struck by the courts to understand the role force, persuasion and tyranny had to play in the acts of the prison guards in the nefarious camps.
CONCLUSION
In Garaudy v. France, the European Court of Human Rights declared that the denial of crimes against humanity is one of the most serious forms of racial defamation of Jews and a probable attempt at inciting hatred against them. As an informed citizenry, it is imperative to be unbiased and to stare down the barrel: the ignored section of the prison guards tried and ostracized fait accompli needs an empathetic ear by the courts advocating the monument of human rights. Identifying the vulnerable groups on either side, be it the children of the guards forced into acts of gore during the Holocaust shall go a long way in making the curriculum and trials dealing with the abuses in the camps neutral and staunch in legality.
(Disclaimer- The views expressed in this article are those of the authors and do not necessarily reflect the views or policies of Child Rights Centre.)