By Lawrence Douglas
Reviewed by Craig Pepin (Department of History, University of Vermont)
Published on H-German (May, 2003)
How does international law, predicated on the notion of precedent, account for the unprecedented? Lawyers, judges, and the public in the first decades after World War II felt caught between the Scylla of prosecuting crimes that did not exist in formal legal codes at the time of they were committed, and the Charybdis of letting perpetrators of unspeakable outrages off the judicial hook. In this superb book, Lawrence Douglas finds middle ground between critics who argue for a strictly legal approach to bringing the perpetrators to justice, and those that argue that legal forums and procedures mangle and distort a sophisticated understanding of such events.
Taking Hannah Arendt’s Eichmann in Jerusalem as his “critical foil” (p. 2), Douglas argues that most trials had an additional purpose beyond determining guilt or innocence; to depict the crime itself accurately. Achieving this goal would render justice not just to the accused but also to the victims, and establish a baseline of historical memory by instructing others about the true extent of the crimes. Trials addressing the Holocaust should therefore be understood more as balancing acts, as the prosecution and judges attempt to submit the acts to existing legal norms and procedures, while at the same time stretching the body of extant law to prosecute and illustrate the radically new. This educational characteristic, which Douglas calls “didactic legality,” at times ran counter to the perceived need for impartiality in judgment, yet is inseparable from this impartiality: Education would not be effective if it seemed to emanate from a politicized procedure, and the lessons learned would include not merely “the facts of astonishing crimes,” but would also “demonstrate the power of law to reintroduce order into a space evacuated of legal and moral sense” (p. 3).
Douglas divides the book into three main parts, each dealing with a specific legal approach to representing the Holocaust. The first part, on the Nuremberg trials, offers little new information from this well-tilled field, but places what is known into a new conceptual framework that improves our understanding. Others have noted how the prosecution’s focus on documentary evidence mostly drained the proceedings of life, and how the Nuremberg charter focused on crimes with an international legal precedent (treatment of prisoners of war, waging aggressive war) to the detriment of a historical understanding of genocide. What Douglas adds to existing scholarship is a new explanation for why prosecutors chose such a strategy: He ascribes the unwillingness of prosecutors and judges to push the legal envelope with the novel concept of “crimes against humanity” not to a mere misunderstanding of the scope of Nazi eliminationist programs or to a narrow-minded attempt to fit such crimes within existing legal frameworks, but to a struggle to reassert and make visible the neutral rule of law for all nations. Douglas is most critical of the compromises that “marginalized the experiences of [Jewish] victims of traumatic history” (p. 79). Nevertheless, he balances this criticism against the achievement of Nuremberg, in reasserting the importance of international law and setting a precedent for the prosecution of future acts of genocide.
The second part of the book, dealing with the Eichmann trial, offers an example of the opposite tendency. If the Nuremberg trial failed to do justice to the memory of the victims by retreating to narrow legalism, the Eichmann trials have been most commonly understood, thanks primarily to Arendt, as an arena where legal neutrality was sacrificed to didactic aims. The Israeli prosecutor Gideon Hausner openly declared that the trial would “clarify the historical record–it should teach history lessons” (quoted on p. 106), by focusing attention on crimes against the Jewish people, crimes that were minimized at Nuremberg. To this end, he chose a “testimonial” form of representing the Holocaust in court, by encouraging witnesses to tell their stories without much regard for whether these accounts clarified Eichmann’s guilt. Hausner’s strategy has been roundly criticized by others, and although Douglas is more sympathetic, he still remains sensitive to the problems inherent in the trial and prosecutorial strategy.
The presiding Israeli judges sought to reign in Hausner and the witnesses, but at the same time were themselves constrained because the trial, already on shaky legal grounds, was given moral legitimacy by the survivors’ illustration of the special character of Jewish suffering. If the trial was less successful from a legal standpoint, Douglas affirms that it nonetheless was tremendously successful from a didactic standpoint, and in the way it allowed survivors (as most of the witnesses, and many in the audience were) to testify and to mourn. Such didacticism had its limits, however. Hausner sought to fashion a triumphalist narrative of redemption from the testimony, but at times witnesses focused on the tragic rather than redemptive nature of their survival, resisting Hausner’s efforts to place a relatively happy endpoint on their own stories.
The final part of the book examines legal attempts to preserve the historical memory of the Holocaust by prosecuting Holocaust deniers. Focusing primarily on the Canadian trials of Holocaust denier Ernst Zundel (a category in which the David Irving-Deborah Lipstadt trial, which took place after the book was in press, would presumably also fit quite well), Douglas shows how strict adherence to rules of evidence, although relaxed for the Nuremberg and Eichmann trials, can thwart the didactic aims of the prosecution. Zundel’s defense attorney, Douglas Christie, cross-examined eyewitnesses and historians Raul Hilberg and Christopher Browning to find inconsistencies, and by casting doubts on small details, thereby tried to call the entirety of the Holocaust into reasonable doubt. Although the defense strategy failed on a legal level, it had a devastating educational impact, resulting in, as Zundel gleefully put it, “millions of dollars of free publicity” for the negationists (quoted on p. 242).
Douglas is wary of attempts to fix historical memory through legal processes, but he generally remains optimistic that law, if used and stretched imaginatively to cover the unprecedented, can do justice not merely to the perpetrators, but also to the victims. His positive re-evaluation of the Eichmann trial serves as a valuable corrective and should influence all future scholars examining the public memory of the Holocaust. As historians begin to come to grips with a new round of genocide trials stemming from Rwanda and the former Yugoslavia, they too would be advised to include this book as a starting point for their explorations.