The Desk Perpetrator, the Expert Witness, and the Role of Law: The Trial of Arthur Greiser

Abstract

ABSTRACT The phenomenon of the desk perpetrator continues to pose a challenge for the law. During the sixty-odd years since the Eichmann trial, legal scholarship has mainly focused on the need to develop doctrines about participation/complicity in order to attribute responsibility to the perpetrator behind the desk. It has failed to address the more basic problem of the involvement of the law in the phenomenon of the desk perpetrator. We suggest that the difficulty stems from the dual role of law, both as an enabling platform for desk perpetration and as an institution whose design grants partial or full immunity to desk perpetrators. Based on the case of the 1946 trial of the Nazi Governor of Western Poland, Arthur Greiser, we argue that the desk perpetrator is a product of the law, and therefore the attempt to judge the individual perpetrator without simultaneously addressing the role of law is doomed to fail. We show that it was the new concept of cultural genocide, which was eventually excluded from the 1948 international convention against Genocide that allowed the Polish court to discuss directly the responsibility of the law itself for the new crimes. For this purpose, the tribunal invited a number of expert witnesses, historians, economists, and jurists. The article focuses on the testimony of the legal expert and explores how it enabled the tribunal to put the rule of law itself on trial in ascertaining the individual criminal responsibility of the defendant.