Britain was worse. It had pledged Palestine as the Jewish national home and accepted the Palestine Mandate assigned to them by the League of Nations. The Mandate not only gave international approval to the Balfour declaration, but instructed Britain to “facilitate Jewish immigration under suitable conditions” and “to encourage . . . close settlement by Jews on the land.”
Half the point of Zionism was to give the Jews a haven. Before the war, Zionist leaders like Ze’ev Jabotinsky urged Jews to flee Europe. Jabotinsky also demanded that Britain allow one million European Jews into Palestine.
But as European Jewry faced extinction, Britain issued the 1939 White Paper repudiating the Mandate and limiting Jewish immigration to Palestine to a mere 75,000 over the next five years. Anything after that would require Arab approval. In the end, the British did not allow even that many Jews into Palestine.
When Joel Brandt, a member of the Hungarian Jewish Rescue Committee, returned from Europe with an offer from Eichmann to exchange the almost one million Jews of Hungary for 10,000 trucks and other supplies, the British detained Brandt for days in Allepo, Syria, until the deal was off the table.
Ira Hirschman, a representative of the American War Refugee Board, was able to interview Brandt, and pleaded with the United States to at least enter into negotiations with Eichmann. But before the U.S. could even consider the proposal, “The British released word of Eichmann’s offer to the press and simultaneously repudiated the ‘brazen attempt to blackmail His Majesty’s government.’ “ (Howard Sachar, A History of Israel). Britain also denied permission to two members of the Jewish Agency who sought to further negotiate the deal. During that time, 434,000 Hungarian Jews were deported and killed at Auschwitz.
And then there was France. Despite the popular Gaullist conception of France during the war as “always resistant, always republican,” under the popular Vichy leadership France deported 75,000 Jews to their deaths — with an attention to detail that frustrated even the Nazis.
The Nuremberg trials attempted to respond to the diffusion of individual responsibility during the Holocaust. For instance, the German newspaper mogul Julius Streicher never personally killed anyone. But his newspaper chain was one of the Nazis’ main propaganda tools. According to Fordham Law professor Thane Rosenbaum, Striecher “was deemed just as complicit, murderous and culpable in the crimes of the Nazis as anyone who carried a gun.”
Striecher was convicted in the first round of the trials along with the highest Nazi officials still living at the time. For many of the defendants, the Allied prosecutors used theories of conspiracy and facilitation (which were alien to the German civil code) to convict defendants.
But the Nuremberg prosecutors never extended these legal theories to indict the German nation as a whole or other nations or governments for their near-conspiratorial complicity in the Holocaust.
Looking at the development of international law since World War II, this was quite a missed opportunity. The Allied victory and the unanimously recognized horror of the Holocaust created a unique moment in time in which new standards of international law could be set. Nuremberg played a role in setting those standards.
Following the war, various treaties protecting human rights were spawned. The United Nations Charter, the Genocide Convention, the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights became almost unanimously accepted.
But because of the failure of the Allies to deal with questions of the duty of bystanders, no international legal standards or obligations have been adopted in that area. Therefore, even though the UN Charter and international law allow for nations to use force for a variety of reasons, there is no solid legal basis for humanitarian intervention.
And so after the NATO bombing campaign in Kosovo (an action atypical of the world’s behavior in the decades since the Holocaust), the Serbian-led Federal Republic of Yugoslavia sued Belgium, a NATO member, at the International Court of Justice. Belgium’s arguments lacked a legal basis, but the court luckily dismissed Yugoslavia’s claim on jurisdictional grounds.
The Torah, however, does not allow the individual to disclaim responsibility by being part of a group. Though the duty of a bystander to act is absent from both international and domestic law, the Torah commands “Neither shall you stand idly by the blood of you neighbor” (Vayikra 19:16).
