‘Waldheim’ Verdict--Not Guilty

Austrian President Kurt Waldheim expressed pleasure Monday that HBO’s mock television trial--”Waldheim: A Commission of Inquiry”--found that, based on available evidence, he was probably not guilty of Nazi war crimes.

In the United States, it was not the verdict by five international jurists that drew criticism, or indeed surprise, but the fact that there any “trial” at all.

From Jeddah, Saudi Arabia, where he was on a state visit, Waldheim told Austrian Radio: “I’m happy that this investigatory commission, even though it is a purely private institution, unanimously recognized that there is . . . no case to answer. That corresponds with what I have been saying for almost three years: that we are dealing simply with a slander campaign.”

In Los Angeles, Rabbi Marvin Hier, dean of the Simon Wiesenthal Center, predicted Monday that the former United Nations secretary general would “use this situation.” As for the verdict itself, Hier said he was not surprised, noting that “the witnesses (to murder) have died.”

Hier, who watched the $2-million HBO special, said that the Center has maintained all along that “in an Austrian court, if Waldheim were brought to trial for murder, he would be acquitted--not because the U.N. War Crimes Commission (charges) are untrue” but because no one alive can corroborate them.

“On the basis of the evidence that is available today,” Hier continued, “he could not be charged with the crime of murder, and that, by the way, is the only war crimes charge” that could be brought against Waldheim, because the statute of limitations has run out on the rest.

Now Hier worries that other Western nations--but not the United States--might allow Waldheim to enter their countries, thereby enhancing his prestige, and that it “might have a spillover effect” on accused Nazi war criminals already on trial or awaiting deportation.

Waldheim “was in a no-lose situation,” Hier said. “If they would have found him guilty, he would have claimed, ‘It’s only on television; it wasn’t a fair trial.’ Now that they have found him not guilty of war crimes, he’s sure to tell the world that American, British and some German jurists acquitted him.”

In New York, Elan Steinberg, executive director of the World Jewish Congress, who not only did not watch the broadcast but also declined cooperation with the producers, called the verdict “consumer fraud. It’s deceptive packaging. They are presenting what purports to be a trial, when it is not a trial.

“A trial has safeguards and protection,” Steinberg added, protecting “not only the defendant but the complainant--in this case all of humanity.

“Here you have a situation,” Steinberg said, “where witnesses can lie without any sanction against perjury, where evidence cannot be subpoenaed. They did not even have Waldheim’s personal notes. Even Waldheim didn’t cooperate.”

Steinberg said that when an HBO official came to his office seeking the Jewish Congress’ documents, “I quickly showed him the door.”

Neal M. Sher, the Justice Department’s director of the Office of Special Investigations, who last year placed Waldheim on the “watch list” barring the Austrian official from entering the United States, called the HBO program’s trial format “dangerous.”

“This is a trivialization of the process,” said Sher, who also declined cooperation with the producers. “It’s dangerous because there are no safeguards. It was packaged as a trial and promoted as a trial. This was a TV show--entertainment pure and simple. Had this been a documentary where things were discussed, fine. But they are leaving the impression that somehow this has some official imprimatur.”

Elizabeth Holtzman, the Brooklyn district attorney who, as a member of Congress, wrote the amendment barring Nazi war criminals from the United States and provided for their deportation, said: “A TV performance, no matter how well intentioned and taken with a seriousness of purpose, is not the same as a real trial. A real trial is designed to find the truth and has procedures intended to achieve that (including testifying under oath). In a TV performance, (people) are accountable to no one but HBO.”

Elie Wiesel, the Nobel Prize Holocaust writer who is teaching at Boston University, declined comment.

Telford Taylor, chief U.S. prosecutor at the Nuremberg trials and a special consultant to HBO on “Waldheim,” emphasized Monday that the producers’ purpose was not to “try” Waldheim but to produce a judicial assesment concerning his military record.

At the end of the six-page verdict on Waldheim’s service in the German army in Greece and Yugoslavia during World War II, a panel of five international jurists stated:

“We conclude unanimously that the evidence which has been put before us is not enough to make it probable that Lieutenant Waldheim committed any of the war crimes alleged against him in this inquiry.”

In February, a six-member panel of international historians, including an Israeli professor, who were appointed by the Austrian government to examine Waldheim’s war record, concluded that he must have been aware of atrocities and did nothing about them. But it said it had no evidence that Waldheim himself was guilty of war crimes.

Participating judges were: From the United States, Judge Shirley Hofstedler, former Circuit Judge for the U.S. Court of Appeals, 9th Circuit; from Great Britain, Rt. Hon. Sir Frederick Lawton, former Judge of the Court of Appeal; from West Germany, Judge Walter Hubner, former judge in the Stuttgart Federal Court of Appellation and formerly with the Ministry of Justice in Bonn; from Sweden, Judge Gustav Petrin, former judge of the Supreme Administration Court, and from Canada, Mr. Justice Gordon Cooper, retired Appeal Court Judge.

“We have no doubt that between 1941 and 1945, members of the German army in Greece and Yugoslavia murdered thousands of civilians and partisans, deported to slave labor thousands of civilians and disarmed Italian soldiers, and wantonly destroyed towns and villages. They persecuted Jews and deported thousands of them to death camps.”

The judges noted that international lawyers differ about “whether individuals as well as government should be held respsonsible” and passed on that question.

“We have not been asked to decide whether Dr. Waldheim is or is not guilty of a crime, still less has it been our function to pass a moral judgment upon him,” the judges noted, and went on:

“A person does not commit a war crime merely because he knows others have committed such crimes, nor because he worked with or alongside those who committed them. Suspicion is not knowledge. Lapses and aberrations of memory such as Dr. Waldheim seems to have had about his service in Greece and the Balkans are not in themselves evidence of guilt. . . . We have no evidence that Lt. Waldheim authorized or directly influenced or participated in the violation of the Hague and Geneva Conventions. . . .”

Serving as prosecuting attorney in the HBO special was Allan A. Ryan Jr. former director of Special Investigations at the U.S. Justice Department and now a professor at Harvard Law School.

Ryan, through HBO on Monday, said he accepts the panel’s decision.

Although Ryan said the “evidence did not establish that (Waldheim) actively involved himself in the execution of the crimes,” it is now obvious “in light of the evidence presented and the Commission’s decision that Waldheim’s denial of knowledge can no longer be taken seriously.”

Steinberg, meanwhile, noted that at the end of June the World Jewish Congress will be releasing its own Waldheim dossier--including documents unavailable to HBO.