After Auschwitz: Contemplations on Transitional Justice

Given the prominence the death factory close to the Polish town of Oświęcim occupies in our present remembrance of the Nazi past, it might come to a surprise that it played de facto no role in the first attempts to deal with the German atrocities. As is widely known, the Allies started prosecuting Nazi war criminals already in 1945. But neither did the proceedings before the International Military Tribunal (IMT) nor the subsequent trials in Nuremberg cover the particular events in Auschwitz. Back then, the Holocaust generally was a non-issue. It was only fifteen years later when the infamous Adolf Eichmann was tried in Jerusalem, and even two years later when the Frankfurt trials started, that the general public had to deal more directly with the events.

 

The reason for this astonishing omission and discrepancy is at first a legal one: The state of international law in the 1940s allowed only for the prosecution of war crimes and waging an aggressive war (which much later had a certain influence on the inclusion of the “Crime of Aggression” in the Rome Statute of the International Criminal Court, ICC). Crimes against humanity, then a rather new criminal offence, were only chargeable in connection to these offenses. Genocide as a concept was developed ex post in light of the Nazi atrocities. International lawyers and lawmakers drafted the “Genocide Convention” only in 1948. After the war, the Allies were afraid that a breach with the principle of retroactive legislation (nullum crimen sine lege) would make their legal advances appear as victors’ justice. Thus, they concentrated on aspects of mass violence perpetrated by the “Third Reich” that were prosecutable within the framework of due process.

 

Another aspect to be considered here lies in what might be called an intersection of information and memory. The heinous crimes that took place in Auschwitz and other death camps were already rumoured by reports of refugees and intelligence operations during the war. But even those on the highest level of Allied command learned about the sheer enormity and the full magnitude of the Holocaust little by little. It took a long time and much effort to gather the facts and to connect the dots. This was aggravated by the fact that many survivors found it difficult, if not impossible, to speak of the inhumane acts they had been exposed to. The perpetrators on the other hand would not talk because they were afraid of revenge and prosecution. In Germany, the crimes against the Jews and other minorities did of course not go unnoticed. But the people were not ready to acknowledge and talk about the past atrocities that were committed in their name for a long time and remained in ‘state of denial’ (and it remains an uneasy issue even today).

 

In the long history of remembrance and dealing with the Nazi past, the Holocaust in general and Auschwitz in particular appeared late in public and legal discourse. This delay appears to be a mixed result of legal issues and questions of truth finding and memory. These two aspects of dealing with the Nazi crimes and the role of Auschwitz now may lead us to some general contemplations on transitional justice. First, there are clear limits to what (international) criminal law is able to achieve. How criminological and judicial inventive we might be, it is the very core principles of law and the content of legal norms that will continue to restrain our possibilities. Even decades after the Nuremberg trials, legal professionals face difficulties in the administration of justice in the context of new forms of mass violence (e.g. the ICTY had to deal with war crimes in connection with internal civil war in the Tadic Case). While legal responses remain an important aspect in transitional justice, we should be hesitant to not overload our expectations. Second, dealing with the past should be considered a process with no foreseeable end at all and a lot of twists and turns. That is not to say, it is to be understood as a natural force. Quite on the contrary, it is a highly political development. Efforts have to be made and policies weighted. But we need to consider that the facts do not always expose themselves easily, that aspects of memory and remembrance might need time and that there will always be social, political and psychological forces at work that limit our options, our ways of knowing and in turn the responses to mass violence and genocide.

 

When we remember the 70th anniversary of the liberation of the concentration camp, Auschwitz, it might be worthwhile to stress some general, nevertheless crucial, aspects of transitional justice: “It happened, therefore it can happen again: this is the core of what we have to say” – those are the famous words of Auschwitz survivor Primo Levi. It is not only a call to relentlessly work on the prevention of genocide. It is also a reminder that we, as human rights activists and scholars, as human beings, have a duty to continue to face the grim task of reflecting on our responses to mass violence and atrocities.