Wachtler: Give Hamas leaders the Nuremberg treatment

The Einsatzgruppen were Nazi mobile killing units whose sole mission was to carry out the murder and rape of more than a million unarmed civilians, mostly Jews. One of the Einsatzgruppen killing fields was in Babi Yar — a ravine near Kyiv, Ukraine, where my mother was born and where more than 30,000 Jewish women and children were shot to death in a ditch.

After Benjamin Ferencz, an American investigator of war crimes, uncovered the atrocities committed by the Einsatzgruppen, he convinced Telford Taylor, then the Nuremberg chief prosecutor, to bring the leaders of those death squads to trial. The Einsatzgruppen Trial became the largest murder trial in history. Of the 24 people indicted, all were convicted, and 13 received death sentences.

In his opening statement at Nuremberg, Ferencz noted that the victims of the Einsatzgruppen were “innocent and defenseless men, women, and children. This was the tragic fulfillment of a program of intolerance and arrogance.”

On Oct. 7, we witnessed Hamas terrorists perpetrating inhumane acts of antisemitism reminiscent of the Einsatzgruppen.

An MSNBC news anchor said there should be more "nuance" around the issue of the Hamas massacre. A CNN guest said the Hamas massacre should be “given context," saying that even though the Palestinian Authority had finally recognized Israel’s right to exist, Israel unlawfully extended its borders by creating illegal settlements, imposed cruel restrictions on Palestinians, and has been responsible for the disruption and eradication of Palestinian families inside Israel.

Although this history is relevant in assessing the future of Israelis and Palestinians, it is irrelevant when considering the “context” of the Hamas attack. That attack had nothing to do with the plight of Palestinians. To say that the Hamas butchery is part of the Palestinian struggle is an affront to the Palestinian cause. Another affront to the Palestinian cause was the declaration by Florida Gov. Ron DeSantis that “all Palestinians are antisemitic.”

Hamas' electoral success in Gaza was not because it pledged “to kill Jews.” It prevailed over the Palestine liberation party Fatah in a 2006 election because it promised a “transparent government” where funds from American charities, the United Nations, Israel, and other Arab countries would be used to build schools, hospitals, sewage systems, water delivery systems, and power plants for Gaza's burgeoning population. Instead, Hamas spent much of the funds on purchasing arms and rockets, and building 300 miles of concrete tunnels.

A recent poll showed that 70% of Gazans supported the Palestinian Authority taking over control of Gaza and Hamas disarming, but Hamas has not permitted an election in Gaza since 2006. Palestinians living in Gaza believe they are imprisoned, but they — unlike those demonstrating on behalf of Hamas — realize that Hamas is their jailer.

The Hamas Covenant still holds to its premise, as did Hitler in "Mein Kampf," that the elimination of Jews "must necessarily be a bloody process.” It was not the Palestinian quest for justice that was behind the Oct. 7 attack by Hamas — it was acts of unalloyed hatred of Jews.

Hamas must be punished as we punished the Einsatzgruppen, but as Ben Ferencz told the Court at Nuremberg: “Vengeance is not our goal, nor do we seek merely a just retribution.” Nothing would serve Hamas’ purpose more than to have a brutal retaliation by Israel which goes beyond the rescue of hostages and rooting out Hamas and its leaders. 

The civilized world cannot tolerate barbarism against the innocent without arresting and punishing those responsible before the International Criminal Court in The Hague. Let the world witness now, as it did during the Nuremberg trials, the genocidal product of antisemitism. Ignoring the criminality of Hamas' atrocities would be as indefensible as ignoring the Holocaust — or the crimes of the Einsatzgruppen. 

This guest essay reflects the views of Sol Wachtler, former chief judge of the New York State Court of Appeals and distinguished adjunct professor at Touro Law School.