‘While
there can be no justice for a crime of the magnitude of genocide, we can use
collective memory to warn of the dangers we face.’ Discuss using examples of
the prevention and prosecution of genocide both today and in history.
© Barry Gilheany
This
essay analyses how courts can contribute to collective memory around the crime
of genocide. The specificity of genocide
is examined particularly in relation to the Shoah/Holocaust[1];
the extermination of European Jewry by Nazi Germany during the Second World
War. Reference is also made to the genocide of Rwanda’s Tutsi population in
1994 and to ethnic atrocities in Bosnia in the 1990s. It is argued that due to its sheer totality
and intrinsic evil, the crime of genocide can never be adequately punished.
However, the creation of a permanent legal record, especially through witness
testimony, of such events can act as a firewall against attempts in later
generations to deny or to trivialise the events and so is essential to the
prevention of future genocides. It is
also argued that the dramaturgy of trials such as those at Nuremberg and of
Adolf Eichmann represent catharsis for the peoples affected by catastrophes
such as the Shoah and is vital to the creation of proper rule of law in transitional
societies emerging from the shadow of such events.
The
crime of genocide is unique and specific compared to all other international
crimes such as war crimes, crimes against humanity and slavery. It is not more serious than these crimes; it
is different (Fournet, 2007:
p.1). The etymology of the word arises
from the need to conceptualise the Nazi atrocities against the Jews of Europe
which culminated in the Final Solution; a crime
without a name[2];
a crime for which ‘language failed us[3]. Thus a word had to be found to qualify the
Nazi crimes and to encompass all other similar atrocities even the
retrospective case of Turkish slaughter of the Armenians in 1915. Consequently, Raphael Lemkin, a Polish lawyer,
coined the word ‘genocide’ in 1944 by putting together the Greek term ‘genos’,
meaning people sharing the same genetic features, with the term ‘cide’, which
originates in the Latin ‘caedere’ meaning ‘to kill’. This term was then legally acknowledged with
the adoption of the United Nations Genocide Convention in 1948 (Fournet,
2007:p.5).
This
definition is problematic due to the very specificity of the Nazi
genocide. This specificity lies in the
racialisation of the group targeted for destruction by the perpetrators. The Nazis artificially defined the concept of
the ‘Jew’ by collapsing the Jewish religion into a race and the Nuremberg laws
of 1935 classified Jews on the basis of ascendance and obscure hereditary rules
regardless of whether individuals saw themselves as Jewish or not. The Genocide Convention furthermore depends
on the concept of ‘race’ to legally define the crimes. The crime of genocide is perpetrated against
a group pre-defined by the genociders through a ‘hereditarisation’ of specific
features – whether ethnic, national, religious, political, social etc. – of the
group artificially created. This
suggests that removal of the concept of ‘race’ from the definition of the crime
would deprive this definition of the conceptual element that makes this crime
so specific (Fournet, 2007: pp.6-8).
More
recently Hutu extremists in Rwanda used artificial categories of ‘Hutu’ and
‘Tutsi’ created by the colonial power, Belgium, in the 19th century
on the basis of the height measurements of the respective group as a logistic
for the extermination of the Tutsis. Serb (and Croat) nationalist extremists
created the concept of ‘Muslim’ prior to the ethnic cleansing campaigns in
Bosnia-Herzegovina from 1992-95.
The
Nazi genocide is unique in other aspects; the creation of an industrial
infrastructure around the death camps, the destruction of the victims’ corpses
by burning so as to negate both their lives and deaths; the process of
humiliation and dehumanisation prior to entry into the death camps symbolised
by the yellow star Jews were forced to wear.
The ‘metaphysical crime’[4]
‘against the human of every human’[5]
and ‘ontological wickedness’[6]
of the Nazi genocide reside in the fact that the means and the end were the
same.
Because
it is beyond our capacity to comprehend such monstrosity, victims must be able
to bear testimony in a suitable judicial arena to create a lasting memory of
the crime. In the words of Elie Wiesel,
“Memory is a blessing; it creates bonds rather than destroys them”.[7] There is a duty of remembrance because past
events like the Shoah do not belong in the past; the traumas of historical
genocides are very mush present in the modern age. (Fournet, 2007: p.xxx).
Collective memory
consists of the stories a society tells itself about momentous events in its
history (e.g. wars, revolutions, riots, atrocities) and a significant
proportion of it is found in the legal proceedings which often arise from these
upheavals. The Nuremberg War Crimes
Trials indelibly influenced the collective memory of the events they
judged. Such trials are moments of truth
(Osiel, 2000: p.2).
Moments
such as the “discovery” or rehabilitation of Australia’s aboriginal population
suggest that acts asserting legal rights or officially condemning their violation often become focal
points for the collective memory of whole nations(Osiel, 2000: p.6).
The
judicial task at such moments is to employ the law of evidence procedure and
professional responsibilities to recast the courtroom in terms of the theatre
of ideas, where large questions of collective memory and even national identity
are engaged (Osiel, 2000: p.6). The
legal memory of genocide is understood as the impact of trials on global
society. Legal memory is essential to
the construction of social or collective memory of genocidal events (Fournet,
2007: p.xxxii). The memory of the Armenian Genocide of 1915 took such a long
time to emerge precisely because of the lack of trials (Fournet, 2007: p.127).
The
starting point in the emergence of the collective memory regarding the Nazi
Judeocide was the trial of Adolf Eichmann in Israel in 1961, the first
acknowledged aim of which was to serve as an educational tool for succeeding
generations. In the course of it 111
witnesses were called to testify. Unlike
the Nuremberg trials, the Eichmann trial
did not rely predominantly on documents but placed emphasis on victims and
witnesses. It was the first ever instance of an indictment based on documents and
testimonies. The witnesses testified ‘in
order to illuminate the destruction in all its detail … they served as faithful
proxies of the Holocaust. They were the facts’[8]
.
They
‘told their own stories and that is what gave weight to their words… The state,
represented by the prosecutor, underwrote their testimony and lent it all the
weight of the state’s legitimacy and institutional and symbolic power…. For the
first time since the end of the war, the witnesses had the feeling they were
being heard.’[9] By focusing on the unexpurgated personal
stories of the victims’, the prosecutor sought to design a foundational
narrative of the Jewish people that would resound down the generations (Osiel,
2000: p.10).
At
the Eichmann trial the survivors
gained their social identity as survivors ‘because society now recognised them
as such’.[10] Furthermore, the testimony enabled the
relatives and descendants of those who died without graves to begin the work of
mourning ‘by allowing them to imagine the circumstances of their relatives’
deaths’.[11]
It is argued here that only trials and their testimonies can actually integrate
the victims into society and collective memory.
Without the moral authority of condemnation from a judicial body
representing society as a political entity, be it at the national or
supra-national level, the social recognition of victims as victims will, at the
very least, be greatly impaired.
Furthermore, without an appropriate determination of the crimes as those
of genocide, they will fail to remain in collective memory as genocide and the
trials will leave space for denial (Fournet, 2007: p.134). It is noteworthy, in this regard, that the
crimes against humanity for which Nazi leaders were convicted at Nuremberg were
subsumed into the supra-crime of “waging aggressive war”[12]
(Hirsch, 2003: p.42) less consonant with the crimes committed at Auschwitz,
Treblinka, Sobibor and elsewhere. There
is no immediate connection in collective memory between Hermann Goering and the
Shoah/Holocaust; there is between Adolf Eichmann due to his conviction in
Jerusalem as its architect.
It
is also noteworthy that, within the contexts of the International Criminal
Tribunals for the Former Yugoslavia and Rwanda respectively, victims were not
strictly speaking parties to the trials but merely potential witnesses. This may explain why these trials failed to
attract general global interest and why the perpetrators of the Rwandan
genocide remain unknown to the general public (Fournet, 2007: p.126).
Trials
dealing with genocidal events in Rwanda and the Balkans in the 1990s have heard
direct witness testimony from survivors of genocidal sexual violence against
women. In both Rwanda and the Former Yugoslavia sexual violence was used not
merely as an ancillary weapon in these conflicts but as a fundamental one – a
means of committing genocide. Women who
suffer genocidal sexual violence suffer not only as women, but as biological
and cultural bearers of their community group. Their experiences are distinct; the use of
the womb and the vagina as grenades; the objectification of the woman not only
as an object of sexual plunder, but also as marker of kin, race and ethnicity
and religious icon (de Londras, 2007: pp.113-15).
Just
as in the trials relating to the Shoah, truth telling in cases of genocidal
sexual violence must provide a supportive theatre in which the narrative or the
‘violence story’.[13]
is heard. The performative nature of telling the violence story, through
reliving the experience of the violations of the body and the stigmatisation
and ostracisation of such ‘sullied’ women after the fact of the exposition,
must be taken into account. Equally, the
refiguring of the self as victim by virtue of telling the story must be
accommodated since the reconstitution of the law depends on the willingness of
survivors/victims to share that story.
For acts of genocide are usually carried out in ways to maximise
humiliation, degradation and trauma (de Londras, 2007: pp.118-19).
The
genocidal character of sexual crimes carried out in Bosnia is illustrated by
the case of Kunarac, Kovac and Vukovic[14]
which dealt with acts committed by Serb forces on Muslim women and girls at the
Foca rape camp to the south-east of Sarajevo.
The repeated rape of women and girls ‘were one of the many ways in which
the Serbs could assert their victory over the Muslims’ and in her statement at
the end of the case stated that ‘Muslim women and girls, mothers and daughters
together, robbed of their last vestiges of human dignity … treated like
chattels, pieces of property at the arbitrary disposal of the Serb occupation
forces. (de Londras, 2007: pp. 122-23).
Justice
is fundamentally about the establishment of the Rule of Law to show that nobody
is above the law. Justice is therefore served in this case and at the trials of
other genocidaires by relying on the testimony of the victims to use the law to
re-establish the Rule of Law.
Problems
can arise from efforts to employ criminal prosecution to create a collective
national story around events like the Shoah or the Rwandan genocide. There are risks to the rights of defendants;
trials can unwittingly distort historical understanding of a nation’s recent
past; they may foster delusions of a nation’s purity and grandeur and they may fail
by requiring greater reflection on
revered aspects of a nation’s
past than many are willing to make (Osiel, 2000: p.12). State criminality on the scale of Nazi
Germany, Cambodia under the Khmer Rouge and Ba’athist Iraq, among others, does
pose problems for new democratic states seeking to reconstruct trust, social
solidarity and collective memory.
However open and transparent administration of justice (not really
evident at the trial of Saddam Hussein) at such trials will overcome such obstacles.
This
essay has shown how witness testimony is central to the judgment of the
ultimate crime against humanity, genocide and specifically the premeditated and
logistically planned mass murder of Europe’s Jews in the Shoah. The Shoah was the ‘perfect crime’ in that
rather than killing the victim or witnesses it sought to obtain ‘the silence of
the witnesses, the deafness of the judges and inconstancy (insanity) of the
testimony’.[15].
Survivor testimonies, full of traumatic truth and factual errors, trump the
usual judicial metrics as the magnitude of the Shoah/Holocaust, a sublime event
which must be ‘felt’ rather than ‘known’, renders these measurements
‘obsolete’.[16]. More than any other film, documentary,
archive or play these testimonies provide the true “warning from history”.
©
Barry Gilheany
Bibliography
De
Londras, F. “Telling Stories and Hearing Truths: Providing an Effective Remedy
to Genocidal Sexual Violence against Women” pp.113-24 in Henham, R. &
Behrens, P., 2007. The Criminal Law of
Genocide. International, Comparative and
Contextual Aspects, Aldershot: Ashgate
Fournet,
C., 2007. The Crime of Destruction and
the Law of Genocide. Their Impact on Collective Memory, Aldershot: Ashgate
Hirsch,
D. 2003. Law against Genocide:
Cosmopolitan Trials, London: Glasshouse Press
Osiel,
M. 2000. Mass Atrocity. Collective Memory
and the Law, New Brunswick, New Jersey: Transaction Publishers
[1] The word ‘Holocaust’ is defined in the Concise Oxford Dictionary as
‘a Jewish sacrificial offering burnt on the altar’. The Hebrew word ‘Shoah’ signifies
‘catastrophe’ as well as ‘destruction and is thus a more appropriate term than
Holocaust as it implies Jewish self-sacrifice.
Another appropriate term is ‘Hurbr’, the Yiddish term for destruction;
Yiddish was the language of most of the victims of the Nazi genocide. (Fournet,
2007: pp.9-11)
[2] Churchill, Winston, on the
mass executions of Jews and Jewish ‘Bolsheviks’ killed in mass throughout the
occupied territory of the Soviet Union, August 1941. See Fussell, J.T., 2006. A Crime Without a Name. Prevent Genocide International (updated 15
June 2006) http: //www.preventgenocide.org/genocide/crimewithoutaname.htm
[3] Wiesel, E., 1990 From the
Kingdom of Memory – Reminiscences, New York: Schocken Books p.245
[4] Jankelevitch, V (1996, original version 1971) Should We Pardon
Them? pp.555-6) Translated by Ann Hobart, Critical
Inquiry 22 (3): 552-72.
[5] Ibid.
[6] Ibid.
[7] Wiesel, E (1990) p.10
[8] Wiewiorka, A (2006, original version 1998), The Era of the Witness, translated from the French by Jared Stark,
Ithica: Cornell University Press p.85
[9] Ibid, p.84
[10] Wiewiorka, A (2006) p.88.
[11] Ibid, p.128.
[12] The Kellogg-Briand Pact (1933) reaffirmed propositions adopted by
the Assembly of the League of Nations in 1927and incorporated in 1928 into the
Paris Pact for the Renunciation of War as an Instrument of National
Policy. The League of Nations’
Declaration of Aggressive War had declared aggressive war to be an
international crime.
[13] Describes a victim’s retold experience of violence in which, through this retelling, victims
‘must mark themselves as victims, which in turn excludes them from the very
communities that are brought forth through their own sacrifice’. Cobb, S
(1997), ‘The Domestication of Violence in Mediation, 31:3 Law
and Society Review 397, p.406
[14] Prosecutor v Kunarac and
Vukovic (IT-96-23-T & IT-96-23/1-T) Judgment, 22 February 2001
[15] Stone, D, ‘Holocaust testimony and the challenge to the philosophy
of history’ in Fine, R. and Turner, C., Eds (2000) Social Theory after the Holocaust. Liverpool: Liverpool University
Press p.220
[16] Ibid
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