The Ethics of Defending Hitler

by Kevin Jon Heller

A few months ago, I mentioned in the comments to my now-infamous grape soda post that although I have no ethical qualms about advising Dr. Karadzic, I would not have defended Hitler if he had lived to see the inside of an Allied courtroom. That statement led to a number of pointed — and understandable — criticisms, such as this one:

Fair enough, but tell me where is the principle in admitting that as a Jew you wouldn’t represent Hitler, but you are happy to represent somebody else’s Hitler? (No I don’t think Karadzic was a Hitler, but nevertheless some see him that way). Again some pulling the wool over ones own eyes is necessary, its either that or to admit that it is rather unprincipled to be willing to represent one man accused of mass murder, but not another.

I tried to address the issue in more depth during my Bloggingheads.tv interview (the discussion is about 50 minutes in).  Most of the comments on the interview focused on the Hitler question — with sentiment divided regarding my position.  Indeed, Mark entitled his UN Dispatch post linking to the interview “Would You Defend Hitler?”

Few people, I imagine, will subject themselves to listening to me for an hour.  (My students, of course, have no choice.)  So I thought I would explain my position here.  In my view, the question “would you defend Hitler?” actually consists of two very different questions:

  • If Hitler had been prosecuted, would he have deserved a skilled and zealous defense?
  • If you think Hitler would have deserved a skilled and zealous defense, would you have volunteered to provide it?

I am very interested to hear how readers would answer those questions.  As I have implied, my answers differ: I would answer “yes, unequivocally” to the first question, and “no, definitely not” to the second one. The first question is easy for me: when an adversarial criminal-justice system chooses to prosecute someone, that person deserves a skilled and zealous defense no matter how serious his or her alleged crimes.  Indeed, I think the obligation to provide such defense inheres in the very form of the adversarial criminal trial.  (Hence the name of the system.)

To be sure, there are non-legal methods for dealing with heinous criminals — as most people know, Churchill initially favored summarily executing leading Nazis over providing them with fair trials.  I am glad the Allies decided to create the IMT instead, because I believe (as Justice Jackson eloquently insisted) that the Allies needed to show the Germans and the rest of the international community that they were better than the Nazis.  But, to be honest, I would not have been particularly troubled by Churchill’s solution: at least he would not have cloaked the summary executions in the mantle of legality.  The executions would have been political justice pure and simple, the rightness of which would have been for the world to judge.

The second question is where things become more complicated for me. Although I believe Hitler would have deserved a skilled and zealous defense had he lived to be prosecuted, I simply could not have defended him.  A defense attorney does not have to believe that his (or her) client is innocent to provide him with a zealous defense.  A defense attorney does not have to like his client to provide him with a zealous defense.  But a defense attorney cannot provide his client with a zealous defense unless he is is capable of reconciling himself to the possibility that his efforts might lead to his client being acquitted.  The ability to accept that possibility is, I believe, the sine qua non of effective representation.  It is not enough for a defense attorney to have an abstract commitment to the idea that every defendant deserves a skilled and zealous defense.  Nor is it enough for a defense attorney to represent a defendant because he believes that, no matter how skilled and zealous the defense, an acquittal is unimaginable. On the contrary, a defense attorney has to be able to say to himself “my commitment to the idea that every defendant deserves a skilled and zealous defense is so strong that I will be able to live with myself if, as a result of my representation, my client is acquitted.”  If he cannot say that — and mean it — he has no business representing that defendant.

And that is where I fail the test concerning Hitler.  I believe that I could zealously defended any of history’s other mass murderers — the Saddam Husseins, Pol Pots, and Pinochets of the world.  But for personal reasons, not legal or ethical ones — I’m Jewish, my family is originally from Poland and Russia, I had family (albeit distant) perish in the Holocaust — I simply could not have defended Hitler and lived with myself if, as a result of my representation, he had been acquitted.

Does that make me a hypocrite?  To be honest — yes, it does.  I completely agree with what one of the commenters at Bloggingheads.tv said (I am combining two of his or her comments):

The whole premise of an international court is that prosecutions transcend particular religious, political and ethnic identities. In other words, everyone (or no one) is a Jew in a Hitler prosecution and everyone (or no one) is a Tutsi in the Rwanda genocide… I don’t think “I am Jewish” justifies the recusal. If you really believe that genocide is genocide is genocide, i.e., a crime against humanity, you are participating in a trial for the sake of humanity, not for the sake of Jews or Rwandans or Bosnians.

I have no defense to that argument, other than to admit that I am not always capable of living up to my own ethical ideals. I wish my commitment to the idea that all defendants deserve a skilled and zealous defense allowed me, in good conscience, to provide such a defense to anyone, even — perhaps especially — to Hitler.  I wish my commitment to the idea that the lives of those who are close to me are no more valuable than the lives of others meant that I could view Hitler’s crimes as no different than the crimes of Saddam Hussein, Pol Pot, or Pinochet.  They simply don’t.

I don’t think I’m alone in my limitations.  In my experience, all defense attorneys have the one kind of case or the one kind of defendant they simply cannot bring themselves to defend.  (To offer a humorous example, I know a federal public defender in Arizona who can defend absolutely anyone — except people who blow up waterfalls in national parks.  It happens more than you might imagine.)  My exception is Hitler.  Fortunately, I am far from the only defense attorney in the world.  There are many others who are not Jewish and who probably could in good conscience provide Hitler with a skilled and zealous defense.  And for that I’m grateful, because it gets me off the hook.  The goal is to ensure that all defendants receive such a defense, no matter how heinous their alleged crimes — not to require individual defense attorneys to put themselves in situations where, justifiably or not, their representation would be less zealous than professional ethics require.  So as long as there are other skilled attorneys available to defend the Hitlers of the world, I see nothing wrong in recognizing that even the most zealous defense attorney has his or her limits.  Despite suggestions to the contrary, defense attorneys are humans, too.

As for what I would do if the Allies had prosecuted Hitler and no other defense attorney in the world would defend him — that I’d have to think about…

http://opiniojuris.org/2009/02/23/the-ethics-of-defending-hitler/

20 Responses

  1. Could you defend Eichman?

    Certainly we all have our limits, for example, it’s safe to say that neither of us could have joined the SS in good conscience. But I’m wondering how one goes about quantiying a limit here… If you’re willing to defend one heinous murderer, why not any other?

    The clearest fact about Adolf Hitler is that he was just a human being like everyone else. People seem to forget that, and we seem to be having a lot of problems these days wiht folks forgetting that about any number of folks, heinous and otherwise.

  2. I don’t see a problem with your answer; its extremely predictable. You can only play Verges-attention-whore, in relation to crimes such as genocide, when you couldn’t care less about victims, be it Bosnian Muslims or whatever. When you start to care then it ends.  

  3. In fact, Professor Heller would be ethically prohibited from defending Hitler.  The ABA’s Model Rules of Professional Conduct Rule 1.7 prohibits a lawyer’s taking a case where “a personal interest of the lawyer” would “materially limit” the “representation.”  “Personal interest” is not limited to pecuniary interest but includes a lawyer’s beliefs and values.

  4. What about the individual rights of the defense attorney?

    Don’t they come before those of the defendant in this case?

    If the defense attorney objects on personal grounds, then defending Hitler could cause irreperable pychological harm to the attorney.

  5. Advocatus,

    I see… so a person can only defend a criminal accused of heinous crimes if he or she isn’t capable of caring about the victims of those crimes.  What a sad — if completely predictable — view of criminal defense attorneys.

  6. I think it’d be quite unwise to represent any client where it’d require a superhuman amount of emotional control to deal with and properly advise them.

    While most would agree that murderers deserve a decent defense, few would argue you should present the murderer accused of killing your own family.

    While there’s no real logical reason as to why the lives of those you knew and loved should be more valuable than other people who were killed in an equally savage manner, it is human nature to be effected by what happens to you and what you know, and to be less effected by what is distant and foreign to you.

    Ergo, I agree with Mr. Heller and see nothing outrageous or exceptional about his explanation as to why he, personally, would not offer to be Hitler’s council.

  7. Very interesting interview, Kevin. You might want to know that I am coming from the human rights side of international criminal law and I also believe in a fair trial:-). So I have nothing against defending alleged war criminals. I must say, though, that I have been puzzled by one little thing when you talk about your involvement with the Karadzic case. You keep referring to the defendant as Dr. Karadzic. Why not simply Mr. Karadzic?

    I have heard something similar before. When I talked to Czech communists and try to convince them to support the ratification of the Rome statute (naive exercise altogether), they always started to talk about the “terrible” ICTY and how it is biased against Serbs etc. Particularly they were mentioning what the ICTY does to “poor” professor Seselj. Seselj for them was always a professor unfairly treated by “some” international court.

    I do not think there is anything bad in reffering to a man as Mr. But calling him Dr. or prof., at least to me, tries to convey something more. For me this “more” somehow does not fit well with both Mr. Seselj or Mr. Karadzic.  

  8. I am glad I subjected myself to listening to you for an hour. Even though you talk about “the Hitler question” for about 5 minutes, the rest provides some interesting insights. What I found most interesting was not what you’ve said but what you haven’t said. Your web cam interview could be compared with painting an abstract landscape. I’ll try and be more tranquil since you thought my original Hitler parable was hostile.

    In a similar fashion of your previous and “now-infamous grape soda post” you exalt your “client” with a flurry of generic epithets. As you flirted with your web cam, profusely referring to your “client” as Dr. Karadzic, you quickly explained to the audience that Karadzic has a PhD in Psychology, is a therapist, naturalist, was working and complying with his trade while hiding from ICC. To round off your whirlwind of euphemisms you suggested that there is nothing similar between Karadzic, Seselj and Milosevic — which would be like looking at King Ghidorah and assessing that there’s nothing similar between the three heads — and that you enjoy a “supportive and amicable” relationship with your “client”.

    You painted a nice portrait but there’s something problematic with this reductionism. By problematic I mean that you are trying super hard to make Karadzic seem ordinary while you are very well aware of the charges that he faces. Besides the obvious reasons of making a war criminal look ordinary, while being aware of the charges, something else made this even more problematic.

    For your next show piece you started painting a somewhat nightmarish picture but interestingly it didn’t involve your “client”. These war criminals seemed a little more realistic. You referred to Uganda’s LRA as blood thirsty. You had no problem in waltzing with (Al) Bashir asserting that him “and his cronies are engaging in wholesale criminality”. You had no problem using words such as kill, rape, burn and bomb when talking about Bashir’s atrocities.

    What’s the difference between Uganda’s LRA commanders, Bashir and Karadzic?

    According to the charges their being charged with, very little. Karadzic was indicted at least 10 years before any of the LRA commanders and 13 years before Bashir was indicted but I’m sure you wouldn’t remember just like you didn’t remember the date your “client” was arrested. Yet, portraying Bashir and Uganda’s LRA like war criminals just rolled off your tongue while Karadzic’s crimes remained generic. You referred to genocide in Srebrenica (note: on 11 July 2009, the commemorative ceremony of the Srebrenica Genocide, as ruled by ICJ and ICTY, will be officially celebrated for the first time not only in Bosnia but in all European Union countries) and a three year siege of Sarajevo as “events” — a liberal use of a euphemism for genocide and mass murder.

    Yet, while fully cognizant of the above, you chose to present your client as the most ordinary person — even a doctor — and not a war criminal. I hope that when Bosnia’s history is relitigated, as you say, that you will learn that your client acted in a similar fashion to Omar Al-Bashir, Uganda’s LRA commanders,Théoneste Bagosora and all other architects of murder in the history of mankind, and yes, including Hitler. I’m surprised, however, that it needs to be relitigated for you to be familiar with widely available facts.

    I understand that you don’t want to lose this opportunity of a lifetime — real case desire — so you are doing everything in your power to remove your “client” from the monster label — you actually put this label under quotes in your video as if though someone else is to blame for the label and not your client — and generalize him into something relevant to your self-interest.

    I find all this very dangerous because you are a professor. A self-proclaimed hypocrite who is not always capable of living up to his own ethical ideals is teaching the future legal minds of the world. This has the potential to produce the very violence you are defending.

    I guess by the same ethical ideals that wouldn’t allow you to defend Hitler, you probably wouldn’t defend the state of Israel should they ever go to trial for their carnage in Gaza. Would this be then a case of overcapacity since you would not be in full capacity to defend Hitler?

  9. Jan,

    The explanation is very simple: Karadzic has a PhD, so I call him Dr., just as I call anyone with a PhD.  I don’t think it is appropriate to call him anything else.  And the same is true of Seselj, who has a PhD in law and taught at both Michigan and Sarajevo.  Some people refer to him as Professor Dr. Seselj, following the German tradition, but I don’t use both titles for my German colleagues, so I don’t for Prof. Seselj either.

    Amel,

    You make some very good points, but again the answer is simple: I am not about to assume the guilt of someone I am advising, which means that I am not going to accept others’ descriptions of Dr. Karadzic nor will I describe events at issue in his trial in the nightmarish terms that you prefer.  My views of those events are irrelevant.  (Though I will say I do not believe that Srebrenica was legally genocide, regardless of the poorly reasoned decisions of the ICTY and ICJ, and held that belief long before I began working with Dr. Karadzic.)  If you cannot understand that, you have a very shallow understanding of the criminal-justice system.

    As for your assumption about Israel, you couldn’t be more wrong.  If an Israeli soldier or political leader ever stood trial before an international tribunal, I would defend them with no hesitation whatsoever. 

    Finally, I have to say that I find this comment profoundly offensive: “I find all this very dangerous because you are a professor. A self-proclaimed hypocrite who is not always capable of living up to his own ethical ideals is teaching the future legal minds of the world. This has the potential to produce the very violence you are defending.”  I won’t dignify the violence accusation with a response. But I will say that if only morally perfect people could be professors, faculties would be very lonely places indeed. 

  10. I wish that things are as simple as you evasively make them out to be.

    Simply attributing the prefix to his quasi elitist past falls into the same “blindness” label that you ascribe to others in your video interview. Like the previous commentator said Dr. tries to convey something more than Mr. I don’t see how calling a person by their name is an assumption of them being guilty of something. It’ll be interesting to experience the same prefix after he’s convicted. I guess I’ll have to wait to prove your fuzzy logic.

    I still think your views are relevant. If you didn’t think they were you wouldn’t feel a need to publicly deny Srebrenica Genocide just like your “client” did. The nightmarish terms I used pale in comparison to experiencing those types of “events” in person.

    Your views are also relevant since they profoundly offend quite more than just one person. In this context I am glad I was able to burst the ego bubble of a genocide denier.

  11. Calling someone a “genocide denier” — truly the last refuge of someone with nothing to say and no argument to make.

  12. The same could be said for your comment.

    Let me guess, you prefer “ethnic cleansing”. It’s not as nightmarish as genocide which is why the euphemism has been used to minimize (read: confuse) the crimes. Again, I’m guessing what your view is since you haven’t made any arguments yourself aside from ascribing poor reasoning to ICTY and ICJ.

    Why don’t you enlighten us with your opinion so we can categorize your denial.

  13. From the European Court of Human Rights’ decision in Jorgic v. Germany:

    General Assembly resolution 47/121 referred in its Preamble to ‘the abhorrent policy of ‘ethnic cleansing’, which is a form of genocide’, as being carried on in Bosnia and Herzegovina. … It can only be a form of genocide within the meaning of the Genocide Convention, if it corresponds to or falls within one of the categories of acts prohibited by Article II of the Convention. Neither the intent, as a matter of policy, to render an area “ethnically homogeneous”, nor the operations that may be carried out to implement such policy, can as such be designated as genocide: the intent that characterizes genocide is “to destroy, in whole or in part” a particular group, and deportation or displacement of the members of a group, even if effected by force, is not necessarily equivalent to destruction of that group, nor is such destruction an automatic consequence of the displacement. This is not to say that acts described as ‘ethnic cleansing’ may never constitute genocide, if they are such as to be characterized as, for example, ‘deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part’, contrary to Article II, paragraph (c), of the Convention, provided such action is carried out with the necessary specific intent (
    dolus specialis), that is to say with a view to the destruction of the group, as distinct from its removal from the region. As the ICTY has observed, while ‘there are obvious similarities between a genocidal policy and the policy commonly known as ‘ethnic cleansing’ ‘ (Krstić, IT-98-33-T, Trial Chamber Judgment, 2 August 2001, para. 562), yet ‘[a] clear distinction must be drawn between physical destruction and mere dissolution of a group. The expulsion of a group or part of a group does not in itself suffice for genocide.

    My position is simple: Srebrenica was ethnic cleansing but not genocide, because the necessary specific intent was not present. Disagree if you will; the opposite position is certainly defensible. But there are many mainstream ICL scholars, not just hideous genocide deniers like me, who do not believe Srebrenica was genocide. I’ll be happy to send you the citations.

  14. So, I guess ICTY TC and AC in Krstic were wrong; so was ICJ in Bosnia v. Srbia; so was Court of B&H in Stupar, Trifunovic, Dzinic, Jakovljevic, Medan, Mitrovic, Radovanovic…
    Jorgic was not convicted for Srebrenica, but for crimes committed in Doboj, but that does not matter since you obviously have no idea what you are talking about.
    Kevin Jon Heller, you are disgusting and a disgrace to all Jews.

  15. Advocatus,

    You might want to choose a new anonymous (what a surprise, there!) nickname.  To “advocate” means to “speak, plead, argue in favor of” —  something of which you are completely incapable.  They always say that those who can’t do, teach.  You prove the corollary: those who can’t argue, insult.  How pathetic.

  16. No Heller, your attempts at avoiding the simple truth that you are an arrogant genocide denier and an attention whore are pathetic. Cases like Karadzic will come and go, but your “simple positions” (which are not aspects of legal tactic or argumentation, but rather deep rooted convictions) will never, no matter how hard you try to hide it. You’re not worth any further correspondence.

  17. As always these issues are that hot button that people can’t refrain from ad hominems…

    I remember this great post at talkleft.com about famous lawyers not willing to defend certain people. It makes for a great read.

  18. I find it funny that the same institutions you criticize, and ascribe poor reasoning to, you use to prop up your arguments.

    I think it’s worth looking into the usage of the term “ethnic cleansing” to realize how derogatory this euphemism actually is.

    On the same Wikipedia page where you got your selective quote you will also find that it was invented by the same group committing the same crimes in the same place in order to create ethnically pure state some time ago. It was invented by people who planned and/or committed genocidal massacres as a way to deny or minimize their own crimes to themselves and the rest of us. It’s interesting that the euphemism used by legal institutions and legal professionals was invented by the same criminals they are trying to put away all the while their project is still thriving.

    To say it’s “ethnic cleansing” and not genocide is treating the two as separate entities. In order for a state to be “ethnically pure” genocidal methods need to take place in order for it to work. For one to clean something, something other(unclean) needs to exist. If you want a group off the specific area genocidal massacres have to take place which have the intent to destroy, in part or in whole. Even they knew this (especially Mladic) before the Srebrenica Genocide and it’s well documented. The destruction of cultural and religious objects belonging to the “unclean” are still happening today and right of return is non-existent — contrary to the Dayton Accords. Republika Srpska has only 8% of “unclean” population today. Karadzic was hoping to get to 10% prior to the war when the “unclean” population numbered to more than half of the country. He publicly stated his intentions — he used the term “extinction of Muslim people” (the unclean) at the time — and they are well documented also.

    All we have to do is put the words “to clean” or “to cleanse” in another context to realize this.

    The opposite position certainly is defensible but that means that everything is permissible. Your client’s “poetry” provides some insight:

    Convert to my new faith crowd
    I offer you what no one has had before
    I offer you inclemency and wine
    The one who won’t have bread will be fed by the light of my sun
    People nothing is forbidden in my faith
    There is loving and drinking
    And looking at the Sun for as long as you want
    And this godhead forbids you nothing
    Oh obey my call brethren people crowd
    What to call you how to call you
    You deaf amorphous dough
    Oh I free my foolish people in vain
    From you harvest bitter harvest
    Oh obey my call brethren people crowd

    I’d love some citations because I’m still not convinced.

  19. Sorry, amel, but if you think that there is no difference, legal or otherwise, between ethnic cleansing and genocide, there isn’t much I can say to you.  I don’t know any serious ICL scholar who doesn’t believe there is a basic difference, even if we may disagree about into which category a particular situation falls.  You might want to read Schabas’ book on genocide; it contains a long explanation of how the two differ.  He’s not German, so you can’t simply disregard everything he has to say.  (And your disparaging comment about Germans is both stupid and offensive; no country, I dare say, has been more committed to developing ICL than Germany over the past couple of decades.)

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