Posted: October 26, 2006
n the face of what is commonly described in the media as "increasing international pressure," the Bush Administration has recently shown a willingness to consider shutting down the American detention center in Guantanamo Bay, Cuba. On closer inspection, this international pressure turns out to come almost exclusively from Europe. Thus in June, in the most highly publicized "international" initiative to date, Austrian Chancellor and then E.U. Council President Wolfgang Schüssel used the occasion of the U.S.-E.U. summit in Vienna to appeal directly to President Bush to close the center. Only a week before, the European Parliament passed a motion likewise calling for the center's closure. These official gestures follow years of harshly negative coverage of Guantanamo in the European media—beginning almost with the first transfer of detainees in January 2002 and reaching a kind of crescendo this spring—that has featured the unquestioning repetition of unverified atrocity stories and blank incomprehension, or outright misrepresentation, of the status attributed to detainees by the U.S. government. The latter gets expressed, above all, in the continual assertion that the U.S. is treating detainees as "enemy combatants"—as if this would constitute a novelty in a situation of war—while omitting the crucial qualifier "unlawful": as in "unlawful enemy combatants."
Perhaps no one better exemplifies or has contributed more to this campaign against Guantanamo than the Austrian law professor, and U.N. Special Rapporteur on Torture, Manfred Nowak. When, on behalf of the E.U., Schüssel made his now famous appeal to President Bush to close the center, this was widely interpreted as a "spontaneous" reaction to the suicides at Guantanamo that had immediately preceded the summit. In fact, the Austrian Chancellor was following a script that Manfred Nowak had already publicly recommended to the E.U. over a month before.1 In the preceding months, Professor Nowak turned up regularly in the European media inveighing against the center, which he describes, in language that is neither academic nor diplomatic, as a "a disgrace" (Schandfleck).2
Interviewed on a German radio station in April, he vowed that "international pressure" would soon bring down Guantanamo. When the interviewer complained that the U.S. was wrongfully treating detainees as "enemy combatants"—a status that she scoldingly observed "in fact does not exist"—Nowak did nothing to correct her, much less to clarify the precedents cited by the American government in classifying some captured combatants as, by the standards of the Hague and Geneva Conventions, "unlawful."3 Since the U.S.-E.U. summit, Nowak has turned from proselytizing against the Guantanamo facility to laying out the "correct" modalities for closing it down. According to his latest proposal, the vast majority of current detainees (all but "5-10%") should either be repatriated to their countries of origin or—presumably in case they might face "persecution" in the latter—taken in as "refugees" by "European countries or others such as Chile and Argentina."4 Were this proposal implemented, it would transform captured combatants in what are by all accounts ongoing hostilities into political asylum-seekers—an act of benevolence toward the enemy that is surely unprecedented in the annals of warfare!
But Nowak's greatest contribution to the campaign against Guantanamo is undoubtedly the U.N. Guantanamo report.5When it was issued in February, critics pointed to the large number of undemocratic regimes with dubious human rights records on the now defunct U.N. Human Rights Commission, which had sponsored the report. It was, however, Nowak who was responsible for the report's most publicly damaging finding: namely, the conclusion that American treatment of detainees "amounts to torture." As American officials were quick to point out, he refused an American invitation to visit the Guantanamo facility. "What's the sense of going to a detention facility and doing fact-finding when you can't speak to the detainees?" Nowak said in his defense, alluding to a U.S. stipulation. "It is just nonsense!"6 But as noted in the report itself (§3), the U.S. had not in fact denied the U.N. investigators the possibility of speaking with detainees, merely of conducting "private interviews or visits" with them. Not surprisingly, in light of the refusal of Nowak and his colleagues to inspect the conditions obtaining at the facility first-hand, their report is based largely on the unverified accounts of freed former detainees and their lawyers.
Careful consideration of the U.N. report reveals, however, that Nowak did not require hard evidence to arrive at his shock conclusion concerning torture at Guantanamo. He does so instead by, in effect, expanding the concept of "torture" beyond recognition. Thus, for example and most notoriously, the report cites methods used to feed inmates on hunger strike as "definitely" constituting torture.7 The punching or kicking of recalcitrant inmates by guards—"as it inflicts severe pain or suffering on the victims [sic]"—was also "considered" by Nowak to "amount to torture" (§54). This is hardly the stuff to send shivers down the spine. Both sorts of cases, moreover, clearly lack the instrumental element—deliberately inflicting pain as a means, for instance, to extract information—that is essential to the concept of torture in the customary sense of the term. Instead, the report stylizes into instances of "torture" the incidental use of force that is part and parcel of every coercive situation.
The consequence of such an inflationary usage is that actual instances of torture become more difficult to identify—and hence to prevent. Now, it might seem surprising that a U.N. official whose task it is to monitor the application of the U.N. Convention Against Torture should invite such consequences by playing fast and loose with terminology. But if one considers the identity of the authority whom Nowak has named—and four months before the rendering of the report no less!—as the "inspiration" for his Guantanamo judgment, this turns out to be not so surprising after all.
A Teacher's Influence
Last October 18, Nowak gave a speech in Vienna at the Ludwig Boltzmann Institute of Human Rights.8 The occasion was the awarding of the first ever "Felix Ermacora Human Rights Prize." In 1992, Nowak co-founded the Boltzmann Institute with Ermacora. He earlier studied with him at the law faculty of the University of Vienna, where from 1973 to 1978 he served as Ermacora's teaching and research assistant. In eulogizing his late colleague and former teacher, Nowak recalled how Ermacora had once investigated torture charges against British security forces in Northern Ireland as a member of the European Human Rights Commission. "[A]s is well known," Nowak observed,
the Commission had qualified the five "deep interrogation techniques" employed by the British security forces as torture. I can still well remember Ermacora's dismay when the [European] Court [of Human Rights], on the urging of the British judge, corrected the opinion of the Commission and found the British forces responsible for "merely" inhumane treatment. More than 30 years later, I am now, in my role as U.N. Special Rapporteur on Torture, charged with the qualification of similar interrogation methods employed by the USA in Guantanamo Bay, Abu Ghraib, and other camps. I think, in this difficult question, I will permit myself to be inspired by the legal opinion of my former teacher rather than by the jurisprudence of the European Court of Human Rights.
Note that the jurisprudence of the European Court of Human Rights—set up to monitor the application of a regional convention to which the U.S. is not a party—ought not to have had any particular relevance to Nowak's assessment. But note further that Nowak is here saying that he will ignore what he evidently regards as relevant legal precedent, in order to draw inspiration from an "opinion" of Felix Ermacora that the court in question rejected.
One month later, in an interview with Scotland's Sunday Herald,9 Nowak entered into a polemic with the U.S. government, insisting that the U.N. Rapporteurs would persevere with their investigations "whether we are allowed in [to Guantanamo] or not." He had received his invitation to visit Guantanamo three weeks before. He went on to claim that the U.S. conduct of its war with Islamist terror organizations was undermining the "framework of international human rights law which has been developed over the last 60 years by the U.N. as a reaction to national socialism." Now, it is hardly plausible to treat the U.N. Convention Against Torture, which was first adopted by the General Assembly in 1984, as a "reaction to national socialism." But in light of Nowak's invocation of National Socialism, it is of even greater interest to know something about the career of his "inspiration," Felix Ermacora, and about the curious company that Ermacora kept.
Old Nazis and New Revisionists
Far from being a defender of the post-WWII European and international orders, Felix Ermacora played a prominent role in revisionist circles in Austria and Germany—"revisionist," among other things, in the sense that they regarded significant aspects of the postwar settlements as unjust to Germany and Germans and that they aimed to overturn them. The connections of these circles to the Third Reich, in both personal-biographical and ideological terms, have been extensively documented in German.10
Starting in 1965, Ermacora formed part of a "Working Group" of legal scholars and German state functionaries, whose stated aim was to lay out the principles of a "European law of ethnic groups." The promotion of such a "law of ethnic groups" (Volksgruppenrecht) was and remains the purpose of a little known, but influential, German-based non-governmental organization called the Federal Union of European Ethnic Groups (FUEV). The FUEV's leading "theoretician" at the time, Theodor Veiter, was the convener of the "Working Group." Several of the participants in the "Working Group," including Veiter, were former Nazis.11 The others included, for instance, former SS man Kurt Rabl and Hermann Raschhofer, who was appointed Professor of International Law in German-occupied Prague in 1941. The German political scientist Samuel Salzborn has described Raschhofer as "sort of the right-hand man" of Karl-Hermann Frank, the Reich Secretary for the "Protectorate of Bohemia and Moravia" that the German occupiers established following the invasion of Czechoslovakia in 1939.12 Frank would be convicted of war crimes and executed after the war.
Veiter and former party comrades like Rabl and Raschhofer had participated in the elaboration of National Socialist ideas on law and international law in the 1930s and early 1940s. The project of constructing a Europe-wide "law of ethnic groups" was already the centerpiece of their reflections under the Third Reich. In 1938, for instance, Veiter published a monograph on "national autonomy" (Nationale Autonomie). In the vocabulary of Veiter and his colleagues, this expression refers to "nations" understood in a pre-political, ethnic sense: thus "the Germans" and "the French," but also, say, "the Corsicans" or "the Basques"—or, for instance, "the Jews." Of the latter, Veiter wrote the following in his 1938 volume: "The destructive questioning of the highest human values . . . by Jewry shows that Jews are already excluded from the ethnic-national [völkischen] life of other nations by virtue of their mode of thought, which flows precisely from their race, and that they should therefore be excluded from the other nations."13
Ermacora can hardly be said to have shied away from such associations. In their 1996 exposé of the FUEV, Von Krieg zu Krieg [From One War to the Next], the German journalists Walter von Goldendach, Hans-Rudiger Minow, and Walter Rudig note:
His  work Die Selbstbestimmungsidee [The Idea of Self-Determination] was published in the Austrian "Eckart Series," an organ that aimed to provide "a worthy memorial to the achievements of the Waffen-SS" and to bring about a renaissance of the "biologically effective genetic heritage [Ahnenerbe]" of the "ethnic-national [völkisch] ancestry."14
In 1977, Ermacora was a founding member of a second German NGO that has agitated for "ethnic law" in Europe: the International Institute for the Law of Nationalities and Regionalism (INTEREG). His co-founders in INTEREG included Veiter and the convicted Nazi war criminal Franz Hieronymus Riedl. The later German representative to the E.U. "constitutional convention," the Social Democrat Peter Glotz, was also, incidentally, a founding member of INTEREG.
In 1984, Ermacora published a favorable review of the German edition of David Irving's Hitler's War in the Austrian magazine Neue Ordnung.15 Although Irving was not yet an outright Holocaust denier, Ermacora's own admiring account of the volume suggests that minimizing the significance of the Nazi genocide against European Jews—not to mention, exonerating Hitler of responsibility for it—was already a core theme of his writing. "Irving has placed the judgment of the role of the Germans in politics and war—above all, in the Second World War—in a significant new light," Ermacora enthuses in the opening sentence of his review. Nonetheless, he allows that: "The book will give offense, because the author treats the liquidation of the Jews as an accident that occurred in haste and tries to free our image of Adolf Hitler from the clichés that have attached to it in the course of the last 60 years."
The revisionist tendencies of Ermacora's own work are on display in a so-called Handbook on the German Nation that was published in 1986. His contribution, bearing the alarmist title "An Endangered Nationality" (Bedrohtes Volkstum), consists of a survey of the situation of "ethnic Germans" in Eastern Europe and South Tirol. In it, he writes:
After the Munich Accord of 1938 and the subjugation of Czechoslovakia as a protectorate of the German Reich, the Germans could say that the self-determination of peoples had been applied. . . . It was first at the end of the Second World War that a demographic transformation of the territories occurred, not as a result of a constructive policy of the German Reich, but rather of the policy of the victorious powers.
The chiding allusion here is to the transfer of the bulk of the "ethnic German" population of Czechoslovakia, the so-called Sudeten-Germans, to Germany. The measure was agreed upon at the Potsdam Conference by the three major Allied powers: the U.S., Great Britain, and the Soviet Union. In light of the some 200,000 to 300,000 Czechoslovakian Jews, as well as tens of thousands of their non-Jewish compatriots, who died in German camps, Ermacora's seeming insistence that a "demographic transformation" of the Czech territories had not occurred as a result of what he mind-bogglingly calls a "constructive policy of the German Reich" is particularly notable.
Relativizing Nazi Crimes
Nonetheless, as a rule, the revisionism of Ermacora and his colleagues has not involved denying the crimes of Nazi Germany, but rather diminishing their significance by affirming the commission of commensurate crimes by the Allied powers. In this sense, they pioneered the practice of moral equivalence that is the hallmark of so much of the criticism leveled against the U.S. in its current war with Islamist terror groups. Thus, in 1991, in a commissioned "expert opinion" for the Bavarian government, Ermacora concluded that the expulsion of the Sudeten-Germans constituted a "genocide and crime against humanity." Thereby, the unquestionable suffering that Allied policies inflicted on Germans was upgraded to a "crime" on par with those committed by Germans against the populations that had been previously subjected to Nazi rule and, in particular, to the "signature" crime of Nazi Germany: the systematic extermination of European Jewry. Thereby too, the concept of genocide gets banalized, making the enormity of Nazi Germany's crimes more difficult to grasp and impossible to name.
Such revisionism has often been accompanied by unmistakable tones of resentment—and sometimes, indeed, outright revanchism—toward the United States and its WWII allies. The authority whom Ermacora cites for his "scientific" account of the Potsdam Agreement and its consequences, the American-born Alfred de Zayas, has, for instance, in a recent interview with the Germany weekly Junge Freiheit, denounced Roosevelt and Churchill as "war criminals."17 In a similar vein, yet another influential German NGO, the Society for Endangered Peoples (GfbV), published a memorandum in 1998 titled "For an Independent International Criminal Court! Remember [the] Crimes of the Permanent Members of the UN Security Council!"18
The GfbV has made a hyper-inflationary conception of genocide into its calling card. GfbV founder Tilman Zülch has declared the 20th century the "Century of Genocides" and in his seemingly endless enumeration of modern genocides the crimes of Nazi Germany—in his words, "the most terrible in German history" (my italics)—fade into relative insignificance. In keeping with Felix Ermacora's "expert opinion," Zülch includes the forced transfer of the Sudeten-Germans in his enumeration. Indeed, it turns out on closer inspection that the Allied powers that defeated Nazi Germany are made either directly or indirectly responsible for the bulk of the alleged crimes included in Zülch's account, with the United States, at least as measured in Zülch's expenditure of verbiage, seemingly topping the list.19 The GfbV suffered some embarrassment in 1995, when it became known that a long-time member of its advisory board, the journalist Peter Grubbe, was in fact Claus Volkmann, the former Nazi administrator of the Jewish ghetto of Kolomea in German-occupied Poland.
The Revisionists and International Law
Manfred Nowak undoubtedly boasts an impressive record of service to international institutions in the cause of enforcing human rights law. In addition to his appointment as U.N. Rapporteur on Torture, for instance, he has been named by the Council of Europe to serve on the Human Rights Chamber of Bosnia and Herzegovina. It should not be imagined, however, that such a record of service is somehow incompatible with having come under the influence of Felix Ermacora and his revisionist colleagues. The success of the revisionist scholars and kindred NGOs in gaining entry into international institutions and influencing the postwar development of international law is a remarkable story, which is, regrettably, little known even to specialists.
Felix Ermacora himself represents a particularly salient case in point. He was not only a member of the European Commission on Human Rights until his death, but also a long time member—and in 1974 the chair—of the equivalent U.N. Commission. De Zayas—author of the curiously titled volume Nemesis at Potsdam—was for over two decades a U.N. employee in Geneva, including a stint as secretary of the Human Rights Committee. The GfbV enjoys consultative status with both the Council of Europe and the U.N.
Moreover, the Nazi "legal experts" Veiter, Rabl, and Raschhofer have become standard references in the contemporary academic literature on human rights law: not only in German, but also in English. For instance, Antonio Cassese's 1995 tome, Self-Determination of Peoples: A Legal Reappraisal (Cambridge University Press), contains no fewer than 16 references to the members of the trio. Cassese is one of Europe's leading experts on human rights law and has, among other things, served as chief justice of the International Criminal Tribunal for the Former Yugoslavia. Needless to say, whether out of ignorance or a sense of discretion, citations of the trio's work are typically limited to their postwar output.20 It is worth noting in this connection, however, that Felix Ermacora displayed no such compunction. The published version of his "expert opinion" on the Sudeten-German question includes Theodor Veiter's 1938 volume on "national autonomy" in the bibliography of works consulted.21 This is the same volume in which Veiter calls for the "exclusion" of the Jews from the life of "other nations."
In light of the foregoing, Manfred Nowak's charges of "torture" against the U.S. can be understood as just the latest instance of the debased usage of key categories in international humanitarian law that Ermacora and his revisionist colleagues pioneered. It was perhaps only to be expected that the challenges faced by America in its current war should provide renewed impetus for the old anti-American resentments that have animated this usage. To close Guantanamo in deference to such resentments would not serve the cause of justice. In light of the potential risk to American security, however, it could well end up serving the cause of a furtive and long-awaited revenge.
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Mr. Rosenthal would like to thank the Documentation Center of the Austrian Resistance (DÖW) for its kind assistance in obtaining archival materials.
1 "Guantanamo: UNO drängt Wien," Der Standard, May 5, 2006. ("In the opinion of the U.N. Special Rapporteur for Torture, the Austrian Manfred Nowak, the visit of American President George W. Bush to Vienna in June should also be used to communicate a common E.U. position concerning the detention facility in Guantanamo. I would be glad if the E.U. Council arrived at a common position during the Austrian presidency, according to which it would press the USA to close Guantanamo. . . .'")
2 "Folter: China ist reformwillig—im Gegensatz zu den USA" ("Torture: China is prepared to reform--in contrast to the USA"), Die Universität, April 19, 2006. (Consultable at https://www.dieuniversitaet-online.at/beitraege/news/folter-china-ist-reformwillig-im-gegensatz-zur-usa/65/neste/1.html).
3 Deutschlandradio Kultur, April 22, 2006 (audio file at https://www.dradio.de/dkultur/sendungen/interview /492461/). The most important domestic precedent for the administration's use of the designation "unlawful combatant" involves the trial by military tribunal of captured German saboteurs during WWII: a practice that was upheld, along with the validity of the designation, in the Supreme Court's 1942 ex parte Quirin decision. In light of this background, such unwillingness to recognize the "existence" of the category on a German radio program is particularly noteworthy. More generally, on the history of the designation "unlawful combatant," see Lee A. Casey and David B. Rivkin, "The Laws of War, They aren't POWs," The Washington Post, March 3, 2002.
4 "U.S. urged to close Guantanamo Bay Prison," The Financial Times, July 6, 2006. In remarks to Reuters cited in this article, Nowak hints knowingly that such a proposal is in fact under discussion between E.U. and U.S. negotiators.
5 U.N. Commission on Human Rights, Situation of Detainees at Guantanamo Bay, February 15, 2006. (Consultable athttps://www/ohcht.org/engligh/bodies/chr/docs/62chr/E.CN.4.2006.120_.pdf).
6 See, for instance, "U.N.: U.S. tortures Guantanamo detainees," MSNBC, February 13, 2006 (https://www.msnbc.msn.com/id/11333496/page/2/), though Nowak's remarks were widely reported in various media.
7 The only evidence that Nowak cites in support of this contention is the assertions of detainee lawyer Julia Tarver, who accuses American medical personnel of having force-fed detainees through the nose using tubes "thicker than a finger" that caused them to bleed and gag (Situation of Detainees at Guantanamo Bay, note 73). On a recent visit to Guantanamo, a journalist from the German daily Der Tagesspiegel interviewed the head physician responsible for feeding hunger-striking inmates. Displaying "thin plastic tubes" used for this purpose, the physician described charges that hunger-striking detainees were "punished, or even tortured" through the use of thick tubes as "defamatory" (infam) ("Das Lager,"Der Tagespiegel, July 23, 2006). By refusing the American government's—in his estimation, "nonsensical"—invitation to visit Guantanamo, Manfred Nowak assured that such charges would be left uncontradicted in the U.N. report.
8 The text of the speech is available on the site of the Boltzmann Institute: (https://www.univie.ac.at/bim/php/bim/get.php?id=127).
9 "Torture by UK and US 'biggest human rights threat since Nazis,'" The Sunday Herald, November 20, 2005.
10 See especially W. von Goldendach, H-R. Minow and M. Rudig, Von Krieg zu Krieg (Berlin: Verlag 8. Mai, 1996) and the elaborately detailed new academic study by Samuel Salzborn, Ethnisierung der Politik (Frankfurt: Campus Verlag, 2005).
11 See Salzborn, p. 204, for the details of Veiter's party membership.
12 "Geplante Aufarbeitung ist nur ein Alibi-Akt," interview with Dr. Samuel Salzborn, ARD Tagesschau, September 1, 2006 (https://www.tagesschau.de/aktuell/meldungen/0,1185,OID5852372_TYP6_THE_NAV_REF1_BAB,00.html).
13 Cited from Goldendach, et al, p. 38.
14 Goldendach, et al, p. 48.
15 Neue Ordnung, no. 8-9/1984, p. 22.
16 Felix Ermacora, "Bedrohtes Volkstum," in Bernard Willms, ed., Handbuch zur Deutschen Nation, vol. 2 (Tübingen: Hohenrain Verlag, 1987), p. 509. Other contributors to the Handbook include Alain de Benoist, the leading intellectual of France's so-called "New Right," whose Fascist (Julius Evola) and Nazi (Carl Schmitt) influences are well known, and the theologian/ecologist Werner Georg Haverbeck. The entry on Haverbeck in the on-line German-language Encyclopedia of Right-Wing Extremism (https://lexikon.idgr.de/h/h_a/haverbeck-werner-georg/haverbeck- werner- georg.php) features an impressive record of service to the Nazi party and state between 1928 and 1945, including membership in both the SA and the SS. On Haverbeck's postwar "scholarly output," it cites the assessment of Thomas Jahn and Peter Wehling in their 1991 book Ökologie von Rechts (Right-Wing Ecology): "Haverbeck combines a 'Nordic' understanding of Christianity, with barely-hidden anti-Semitic traits, and an ethnically-based nationalism." It should be noted in this connection that Fascist and neo-Nazi currents are conventionally classified in both Germany and France as being of the "(extreme) Right." In light of the pronounced "anti-capitalist" elements in both Fascist and Nazi ideology, this classification is highly problematic.
17 "Verbrechen gegen die Menschheit," Junge Freiheit, October 14, 2005.
18 For more on the GfbV in this connection, see "A Curious Proponent of the ICC: the 'Society for Endangered Peoples,'"Transatlantic Intelligencer, April 15, 2005 (https://www.trans-int.com/news/archives/151-a-curious-proponent-of-the-icc-the-society.html).
19 See Tilman Zülch, "Völkermord im 20. Jahrhundert," Pogrom, no. 200, Fall 1998. Zülch devotes particular attention to former American Secretary of State, Henry Kissinger, whom he accuses of complicity in multiple "genocidal crimes."
20 A contribution from Veiter on "Ethnic Group Rights" is, for instance, included in a 1988 Festschrift for Felix Ermacora (Kehl/Strasbourg/Arlingon: Engel Verlag) that was co-edited by Manfred Nowak.
21 Felix Ermacora, Die Sudetendeutschen Frage (Munich: Langen Müller Verlag, 1992), p. 244.