Lyndhen, my question was; how do you defend locking 300 people in a barn, setting fire to it, and not opening the doors but allow them to burn to death, on a legal basis ? How can there be NO intent ?
airborne60 has said, it may have been that Hannah said an air raid started the fire.
Unfortunately,I either didn't hear that part, or it was an error. That still does not relieve, on a legal basis, the charge of murder: the 300 were left to burn while either the doors could have been opened, or the fire extinguished. They owed a duty of car to the prisoners, and the harm outweighed the penalties applicable to the 300. That is why they had a positive duty to do something to assist the prisoners, unlike the "Unknown Good Samaritan", which does not have a positive duty to perform a saving act.
In other words, a passerby could have continued to pass, but the guards had a legal duty to protect the prisoners from harm. Letting the barn burn with 300 inside is specific intent, in my book, to kill the occupants.
We don't know if they (KZ guards) were armed, presumably so, therefore the doors could have been opened and any attempt to escape dealt with up to and including shooting. We also don't know (in the film) exactly where the incident took place, whether escape was physically possible, and what the prisoners were charged or convicted of.
The dilemma for most serving Germans from that time, is if they disobeyed an order, they in turn would be shot, &/or their family imprisoned or interned in a concentration camp.
German law was, long before WW2, a written and very rigid set of rules, what tyou can do and also what you can't do is both written down, whereas British, Australian and founding American law is all based on English common law, which is inferred rather than specified like German law.
Of course, US law has gone a step further with a Bill of Rights, whereas most English common law countries still rely on inferred and not specific written Rights.
As Hanna was a perpetrator at the time, I see no relevance in the German term for difficulty with past generations - she was an older woman teaching him about sex.
As a law student Michael would have no capacity to speak to the court, he could perhaps urge her to speak out, or informed her defence of his knowledge, but then the story would have been spoiled.
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Lyndhen
11 years ago
Absolutely, it makes no difference that an RAF bomb started the fire - the guards had legal obligation to ensure the prisoners well being. (no orders to the contrary).
Incidentally, it's generally a (popular) misconception that guards or other perpetrators acted under threat of death or imprisonment (for them or their families).
As to German law. I think Schlinke (the writer and a German lawyer) has constructed the fictional case thus - the order giver (report writer) had intent to murder - she was faced with a problem and decided to solve that problem by killing the prisoners. Those who followed the order did not have intent to murder - they only had intent to follow the order given and thus are guilty of aiding and abetting murder. (that's a rough explanation).
Likewise, those making selections had the intent of meeting ordered quotas - they were merely tools of a higher (deciding) authority and it cannot be proved that they intended to murder through their actions. Interestingly, Hanna damns herself with her own candid explanations. She is seen by the court not as a tool (or thoughtless automaton) but as someone who sees the bigger picture and therefore as someone who is capable of giving orders. This is why the other defendants (the five wise monkeys) jump to accuse her.
The above is more or less in line with the issues discussed in German law at the time of the trials.
I agree that Michael would have no capacity to speak to the court (and this is possibly why he is shown 'almost-but-not-meeting' Hanna during the trial.) But Hanna was much more to Michael than an older woman teaching him about sex. We might need to suspend disbelief but the story does try very (very) hard to show that he loved her - It is a story which reflects the post war generation's difficulty with dealing with their criminal parents, who, as parents they also had to love. Schlinke just adds spice by turning it into a love story.
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