Art.22 UN Convention on the Rights of the Child: subjecting refugee children to teargas to drive them off is a clear violation of Art. 22 . And Europe stands by.

1.  

States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties.

Ice fishing on Lake Willoughby, Sunday’s draft  

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So grandfather went out again in the morning and – coming back in from the cold -declared grimly that they should try and get some sleep

 as the ice was sound enough now, and they would go ice-fishing at nightfall and stay out in the bitter cold until almost midnight. Burbot mainly feed at night and that is when they had to set their lines.
Grandfather in the meantime put on single hooks with a gap between point and shank larger than ¾ of an inch. He stored them carefully in two 5 gallon buckets, each large enough to carry many sets of lines made from dowels. For each line they had about 8-ounce sinkers. Because together these were too heavy for the buckets, they were packed separately in rough hemp sacks. He packed two sleds with supplies, one for himself and Joe and one for Will who was old enough now to do his own fishing at a hole about 70 ft, away from theirs. He packed rope, ice picks and augers, a spud bar, two horse blankets for each of them and extra mittens.

As fishing burbot is done with hooks flat on the ground so they did not walk too far from the shore because the reef at the shore of the lake, as you know, falls off steeply into the main lake basin, deeper than any line is long that has ever been cast down the lake. 300 ft. maybe more. Nobody knows what creatures might be living down there, in the abyss of darkness but I guess they would not be a welcome sight in our world.

Burbot spawn on the rocks and boulders in 2 to 20 feet of water, and that is fairly close to shore, on the reef and the first drop-off at the base of the reef. But staying close to the shore was dangerous, as the edges of the ice can be much thinner and shallow water in general changes temperature more readily and the ice is unstable. And even when the ice had formed to grandfather’s satisfaction, we were aware that sometimes, not too often, the ice somewhere out on the lake from the depth of the basin, could shatter with the sound of a whip or a scream and rip through the ice all the way to shore with deadly speed. If you heard the whip you were to make for shore, leave everything behind, not care for catch nor supplies, just run. That’s why you would never put a good knife down on the ice, while fishing, and why you kept the ice pick in your belt as well. These things were hard to come by – alas not as hard as two healthy sons. So even if, by any chance, you had left your tools where you were not to leave them, you were still expected to run.

It was dangerous to go out there, and both, grandfather and grandmother, were weary to let Joe and Will join in, but they needed the extra hands to make enough catch or else they would starve to death.

Will and Joe did not mind the danger, far from it, they could not wait to get out onto the ice. They were boys, locked in a cabin for many weeks, safe some small outings, and they were missing summer and their freedom. They even enjoyed the idea of danger as much as any boy would, and they trusted above all that grandfather, who could walk on ice as fine as a sheet of parchment, knew when the right time had come for them to go out.

And the adults in their own way also were impatient and found it hard to wait for the ice to get sound enough, for the best time to catch burbot is their spawning season, a time when there was not only burbot but also plenty of whitefish and pike to be caught, while after the season passed the lake could look like a desert and you wouldn’t spot another burbot until next winter for they lived in the depth.

The lake had glazed over and the ice had hardened and grown without any snow, making the safest ice you could hope for.

And the most beautiful, too, though it does get very dark at night at your fishing hole, the ice becomes like a window into the lake. And if you are patient , just before nightfall, and despite the cold hold your position on the ice without moving, you can watch the burbot trough the ice as about a dozen males and females form a writhing ball several feet in diameter and dance what looks like an agonizing devil’s dance under water, rolling over the bottom of the shallows and muddying the waters under the black ice. 

Don’t forget, they are creatures of the deep. They have sharp teeth and they are mighty strong predators, skimming the shallows for crayfish, perch, minnows and even creatures almost their own size when it’s time to feed. Fearless they are. And they will fight back when they have fallen prey to your bait and hooks.

Ice fishing in Lake Willoughby, about 1790, new chapter, excerpt

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Aunt Melissy and Uncle Joe Hyde, Westmore, Lake Willoughby


“As you know the town was chartered by the authority of the State, Aug. 17th in the year of the Lord over 150 years ago.” I said, imitating Uncle Joe’s voice. Fiona smiled a bit. Encouraged, I continued:” It was then granted to Capt. Uriah Seymour, Abraham Sedgwick and their associates, being 65 persons in all, with the usual reservations and appropriations in the Charters or the grants by the Legislature. None of the original grantees or proprietors ever settled on their lands.”
All of Unce Joe’s stories started like a history lesson. Maybe to put Aunt Melissy’s suspicion over too wild a tale to rest only to sneak it in later. If Fiona was bored by the beginning, she did not let on. The patches on her dress now were of a saturated blue and orange, shining.
“There is no record of the exact time, nor by whom the first settlement was made.. But we do know that some six or seven families finally came to this town from Windsor and Orange Counties and made a settlement, among whom were Jabesh Hunter, Allen Wait, James Lyon, Jeremeel Cummings, Lot F. Woodruff, Dave Porter, Abel Bugbee and my grandfather, Joseph W. Hyde. The town had not been allotted at this time and they settled on such lands as best suited them, and others came too and made a beginning.”

Fiona listened contentedly. Stories were rare in our every day lives and even though I could by far not do it as well as Uncle Joe Hyde, who would pause artfully now and then, and whose blue eyes delighted in the fact that he had someone listening to his old stories gave it a special mellow flavor.

“But soon the cold season came and the Great War broke out between the Colonies and England. The settlers were surrounded by a howling wilderness a long distance from any other settlement, their numbers were few and not all were of kind disposition for you had to be rough at heart to survive on the land even though the soil is rich and productive and well suited to farming. The settlers were a hardy and industrious band of pioneers; like my grandfather they had come a long way into the wilderness, some single men on their own, some had made the way with young families. Each of them knew loss, especially loss of wee ones who passed on into the peace of the Lord before their first birthdays and left young wives sad and dreary. 
Their labors on the land were not ordered and peaceful like today, but it was onerous work, with no time for rest, not even on the day of the Lord, their privations were many, but the hope of better times coming and faith in their Lord cheered them on and enabled them to endure the hardships until the War came. Some had even build commodious barns and comfortable dwellings but though all of their hearts were fierce and brave, most were still forced to abandon their homes not yet into the second generation and retreat. Their numbers were scattering, the frost destroyed their crops and the fear of the British and of hostile Indian tribes filled their hearts with fear. So they held a council to see what it was best to do in their perilous situation, and most families decided to surrender at discretion and most left very soon for some of the lower and more thickly settled towns in the State.”

Fiona embraced her legs and listened to me intently. I had given up imitating Uncle Joe but was still using his words. My history teacher in Summerville would have been fascinated as I spoke like a gazette from the early 19th century.
“It took over 30 years until the town was settled again. But my grandfather was among the few and scattered who stayed on, all these years. So did my grandmother who was a small, fearless woman and could hold her own among the men, and she worked like one, too. So my father was born, and was the only surviving child among 12 children who all perished before their 15th birthday. The family lived in a wee wooden cottage for all of the married life of the parents, sometimes with up to four or five children, from cradle to grave, right here on the old clearing where my father later built the stone house. Maybe it was because the cabin was so tiny and surrounded by dense woods, maybe it was because they respected the land they lived, didon very little farming, really just working a small garden patch, and made their living mostly on hunting and fishing, that the enemy overlooked them, and also the tribes who roamed the hills let them be, maybe they were just too insignificant to be noticed, and so they did survive the wild days and years when they had no company but each other.

My grandfather taught my father all there was to know about the lake and he knew as much about fishing and hunting as any Indian. They lived well enough on trout, rainbow smelt, burbot, yellow perch, longnose sucker, lake chub, common shiner and whitefish.

My grandfather took my father and his older brother Will out ice-fishing in winter. They mainly fished for burbot, a fish rich in cod-liver oil which my grandmother extracted and made the children swallow measured out by the spoonfull each morning. It left an ill, fishy taste crawling up from the stomach all day long, but she would not let them leave the house without it. You know, the liver of the burbot is huge. I was told my grandfather would cut it out of the fresh kill and eat it raw, but my father and his brother refused.

When Will died, last of all the brothers and sisters, just shy of his fifteenth birthday, my father became fearless. He said, Will had been his only friend, all others had died too young or had been too sick or had been girls and not fit for the rough hunting and fishing trips my grandfather took my father and Will along on. There had been babies who died before they ever learned to walk and talk, a sister – Abbe – who was funny and quick-witted and who had lived almost nine years and was still missed, but it had always been Joe and Will and they had taken each other’s company for granted even when all the others left them, some not leaving behind more than a shadow. Even when Abbe had taken sick with a high fever and passed on after having been delirious for two days and nights and then unconscious for another day before she faded at nightfall of the third night it had still been the two of them who brought Abbe flowers in summer and put them on her grave as they remembered that she had loved them, still the two of them who did not contract the fever and had lived once again.

Will had been his best and only friend, they had been thick as thieves and one knew what the other was thinking without ever saying it out loud. They shared a bed all their lives and woke up the same minute every morning, Over time they had grown sure that it was this bond that protected both of them from harm – and they had been their parents’ pride because bringing up two healthy, strong boys out 12 children was still an accomplishment in the wilderness by the lake.

Both loved fishing with their father, but ice-fishing they loved best of all. It took a while until the lake froze over in winter because it is so deep, and my grandfather went out every day to test if it was safe to walk on the ice after the frost had come to stay and the ice slowly glazed over. They knew that fresh burbot with its brown and green mottled skin was waiting for them under the ice, deep down, and as they were subsiding on dried fish and meats they could not wait for the fresh catch even if it meant fresh cod liver oil. They say, said Uncle Joe Hyde, that burbot tastes a lot like lobster and they call it the “poor man’s lobster” and, by the good Lord, (here Aunt Melissy would cast him a stern glance) I have never tasted lobster in my live but there is no fish as delicious as freshly fried burbot.

Note: This chapter is based on a historical article in the Vermont Historical Gazetteer, edited by Abby Maria Hennenway. Orleans County – Westmore Chapter: By Calvin Gibson and Alpha Allyn. Published by Claremont Manufacturing Co., 1877, pgs. 365 -373.

Die Radbruchsche Formel und Restitutionsansprüche

Notiz: Radbruch zum gesetzlichen Unrecht und der Natur übergesetzlichen Rechts. Nach der sogenannten Radbruch’schen Formel entschied das BVerfG 1968,  dass die Akte der Vermögenseinziehung unter den Nationalsozialisten nicht isoliert, sondern nur in ihrem Kontext der Vernichtung von Menschen zu bewerten seien und der BGH, dass diese Akte “niemals Recht, sondern von Anfang an das Gegenteil, nämlich krasses Unrecht waren.” Allerdings legte der BGH zugleich dar, dass die alliierten Rückerstattungsgesetze – auch wenn sie faktisch einen weiten Ausschluss konkreter Rückgabebegehren bewirkten, rechtmäßig waren – da sie die wieder  herzustellende Rechtssicherheit als eines hohen Gutes des Rechtsstaates zu schaffen geeignet gewesen seien. Die Frage bleibt bis heute: wenn das Unrecht so krass (Wortlaut der Entscheidung) war, dass die Unerträglichkeitsklausel Radbruchs zur Anwendung kommen konnte (und daran besteht kein Zweifel), wie anders als durch vollständige Wiedergutmachung konnte ihm auch in rechtlich hinreichender Weise geantwortet werden?

Und weiter: der Rechtsfrieden, der derart wieder hergestellt wurde, war nicht der Rechtsfrieden derjenigen, die ihres Lebens, ihrer Lebenswerke und ihres Vermögens beraubt wurden. Wie die Erben Max Sterns es formulieren: Rechtsfrieden auf Seiten der Opfer des nationalsozialistischen Regimes kann erst mit Befriedung der Ansprüche durch Restitution geschehen.

Sehen wir in die Passage des BGH, mit welcher im Jahr 1953 der Rechtsfrieden der jungen Bundesrepublik mit den Folgen einer umfassenden Aufarbeitung und Restitution aufgewogen wird, so bleibt der Eindruck einer gewissen Hast. Hier heißt es in einer für eine BHG Entscheidung recht nachlässigen Sprache (siehe: “Rechtswirrwarr”): “Dadurch, dass der nationalsozialistische Staat in der Lage gewesen war, seine Akte des Unrechts viele Jahre mit allen ihm zur Verfügung stehenden Machtmitteln durchzusetzen, waren deren Auswirkungen auf allen Lebensgebieten so weittragend und tiefgreifend, dass nur ein neuer Rechtswirrwarr entstanden wäre, wenn die Rechtsordnung über die nun einmal entstandene Tatsachen einfach durch Nichtbeachtung hinweggegangen wäre. Die Entwirrung des durch jene Unrechtsakte geschaffenen Chaos konnte vielmehr nur durch eine besondere gesetzliche Regelung vorgenommen werden.”  BGHZ 9,34 (44 f.) = NJW 1953, 542

“Weittragend und tiefgreifend” war in der Tat die Aufgabe, die sich der jungen Bundesrepublik in der Aufarbeitung seiner jüngsten Vergangenheit stellte und welcher sie jedenfalls in den fünfziger Jahren nach wohl inzwischen einhelliger Auffassung nicht nachkam. Zu stark war der Wiedereinzug von unter dem Nationalsozialisten tätigen Funktionären in die Ämter der jungen Bundesrepublik. Bequemlichkeit, Wiederaufbaueuphorie, eine fehlende Auswahl alternativer, fachlich kompetenter Anwärter (weil diese ermordet oder vertrieben worden waren) – dies sind die nachsichtigsten Erklärungen der Dynamik jener Zeit. “Weittragend und tiefgreifend” – wie im Grundsatz vom BGH erkannt – wäre das Maß für ein hinreichendes Gesetz gewesen, die aus dem Unrecht resultierenden Vermögensverluste zu restituieren. Wenn das Unrecht derart krass ist, dass die Radbruchsche Formel der Unerträglichkeit zum Tragen kommt, so bleibt das erlittene Unrecht als unerträglich im Sinne Radbruchs bestehen, wenn ihm keine ausgleichendes oder doch wenigstens ausgleichende Gerechtigkeit anstrebendes Recht zur Seite gestellt wird.

Ein Gesetz, dass dies nicht bewirken kann, so bleibt zu argumentieren, hat auch nicht die Kraft das “krasse Unrecht” zu befrieden.

Der Fall Eichmann: Strafrechtliche Verantwortlichkeit für staatlich legitimiertes Handeln

Der Fall Eichmann: Strafrechtliche Verantwortlichkeit für staatlich legitimiertes Handeln.

In der letzten Wochenende-Ausgabe der “taz” (vom 15.03.14) erschien ein Interview zum Thema Restitution von beschlagnahmter Kunst während des Terrorregimes der Nationalsozialisten in Deutschland, das auf zwei langen, anregenden Gesprächen mit der taz-Redakteurin Petra Schellen beruhte, die mir Gelegenheit gab, zu diesem Themenkreis umfassend Stellung zu nehmen. In diesem Interview ist unter anderem in den biografischen Hinweisen von diesem Buch “Nachtwachen” die Sprache, auf das ich seither mehrmals angesprochen wurde. Auf der hier verlinkten Webseite “nachtwachenroman.com” finden sich für den Interessierten Ausschnitte aus dem Roman. Vielen Dank für das Interesse!

Die Strafprozessordnung als Mittel zur Restitution von NS-Raubkunst?

Jenen, die mir im Zusammenhang mit meinem kurzen dpa-Interview zu der von den von Herrn Cornelius Gurlitt beauftragten Rechtsanwälte eingelegten Beschwerde gegen die Beschlagnahme der Bilder aus der Schwabinger Wohnung, geschrieben haben:

Vielen Dank, dass Sie sich die Zeit genommen haben, Ihre Meinung zu dem Vorgehen der Ermittlungsbehörden im Fall Gurlitt zu artikulieren. In der Tat halte ich die Strafprozessordnung nicht für das geeignete Mittel, eine Restitution von NS-Raubkunst auf rechtsstaatlichem Wege zu erreichen. Wie Sie dem Artikel auch entnehmen konnten, plädiere ich hingegen dafür, dass wir den Erben der rechtmäßigen Eigentümer endlich durch entsprechende Gesetzgebung die rechtlichen Instrumentarien zur Restitution bereit stellen, um erlittenes Unrecht jedenfalls so weit wieder auszugleichen, wie das durch die Rückgabe der Bilder an die Erben geschehen kann.

Dass ich fordere, dass dies mit rechtsstaatlichen Mitteln zu geschehen habe, ist in meinen Augen eine demokratische Grundforderung, die ich gerade in Hinsicht auf die Erfahrungen unseres Landes während des NS-Regimes für unerlässlich halte.

Vielleicht können Sie selbst durch engagierte Meinungsbildung bei Ihren Vertretern im Bundestag dazu beitragen, dass ein Gesetz zur Restitution von NS-Raubkunst verabschiedet wird. Ich weiß aus meiner Arbeit mit Jugendlichen, dass auch unter jungen Menschen der Wunsch zu einem Ausgleich des maßlosen Unrechts, das jüdischen Mitbürgern während des NS- Regimes zugefügt wurde, weit verbreitet ist und nach wie vor viele Menschen eben gerade nicht der Meinung sind, dass “dies alles lang zurückliegt”.

snake woman

Small viperine snake

Small viperine snake (Photo credit: Wikipedia)

taking a walk in a field i found a snake about to molt, wedged between two rocks. carefully i crouched down next to her and watched her efforts to escape her old skin. the wind was gently breathing over the field, above us some birds chattering idly, then they withdrew. in the ensuing silence i heard a gentle whisper.

“i am liquifying the space between my new skin and my old, waiting for the right moment to leave behind one skin and assume the next. i feel new scales glittering under the brittle parchment i am about to leave. i have always enjoyed the moment when it was time to withdraw from the old serpent‘s confinement and greet the light again.

how many times i have done this? i do not remember. i do remember, however, my previous incarnations quite clearly still but there is no sentimentality towards them. i do not dislike them but they are alien to me even though the pattern my scales imprinted on the left behind skins is unmistakably mine. if necessary, i address my past manifestations respectfully and formally the way i would greet a stranger – but i prefer to acknowledge them with a glance and a nod only whenever i chance to happen upon an old skin adopted by some harmless creature as a clever disguise, and I silently slide by.

i don’t remember sliding out of my first skin and i am sure i will not keep a memory of my last one either. someone has told me they are the same, first and last. i listened with polite interest as snakes do. that means i did not listen, you know that.

i am liquefying the space between my old skin and my new one. my new scales glitter under the brittle parchment of my old skin as i am about to give birth to myself once again.”

and with these words she freed herself. for a moment i could admire her jewel-like new incarnation and she held still as if to allow it. She lifted her head ever so slightly and for a moment met my eyes.  Then, with a glance and a nod, she disappeared – fast as lightning into a hidden crevice between the two rocks and left me shuddering and brittle.

Thibeas’ final days

wearily, the king inspected his ragged group of counselors, the budget long since exhausted, the tin soldiers melted, the castle but a shack with weeds growing through the cracks, human miscellaneous mistakes, crooked timber all of his entourage, and yet there was a light in their eyes that the glorious days had not known, and he was glad he had taken their erroneous advice.he pointed out the fine detail of the scratched figures in the rock, the fish, the symbol of the ancient ones, which so far seemed to have gone unnoticed by his advisers whereas thibeas concluded that their travels had lead them along the old path which they had wandered unwittingly, their tired feet drudging over the worn out stones like so many tired feet before them. wonderingly now they looked back and saw indeed that the smooth surface over which they had come bore the polished colors of legend: crimson red, trout blue, slate and deep emerald.the king looked at thibeas and considered his state of mind. for days had the old man not spoken and on two occasions had he stumbled as if he was about to give up but then had gripped his staff and – without complaint – had started walking again. the king nodded and finally gave the signal which set the whole rag tag army in motion almost at once as if their feet had been craving movement, anything but to stay in this place, but alas, they walked with more care now as their feet, wrapped in woolen and leather rags, touched the mellow colored rock, polished it of the chalky dust and left deep glowing imprints on the old path. crows perching in the bare november trees cawed condescendingly as the people passed underneath. from time to time the northeastern wind soared through the high branches like an echo of the past. the recently devastated fields ahead of them smelled not like death but like freshly tilled, fecund soil only, like a promise.