Memories of the Holocaust * and the Law

Joachim Savelsberg
University of Minnesota
Department of Sociology
Sources assigned and referred to in
• Stiftung Topographie des Terrors. 2010. Topography of Terror. Berlin (catalogue).
• Devin O. Pendas. 2006 The Frankfurt Auschwitz Trial, 1963-1965: Genocide,
History and the Limits of the Law. Cambridge: Cambridge University Press.
Tomaz Jardim. 2012. The Mauthausen Trial: American Military Justice in
Germany. Cambridge: Harvard University Press.
Joachim Savelsberg and Ryan King. 2011. American Memories: Atrocities and the
Law. New York: Russell Sage Foundation (incl. chapter on My Lai in law and
history textbooks).
Joachim Savelsberg. 2010. Crime and Human Rights: Criminology of Genocide
and Atrocities. London: Sage.
Patricia Heberer and Juergen Matthaeus (eds.). 2008. Atrocities on Trial:
Historical Perspectives on the Politics of Prosecuting War Crimes. Lincoln:
University of Nebraska Press.
Jeffrey Alexander et al. 2004. Cultural Trauma and Collective Identity. Berkeley:
University of California Press.
Judgment in Nuremberg (movie -- 1961)
Verdict on Auschwitz: The Frankfurt Auschwitz Trial 1963-1965 (documentary film
-- 1993)
1. Central terms and ideas
• Collective Memory
• Cultural Trauma
2. Collective memory – what’s law got to do with it?
• Mnemonic potential of law
• Institutional logic (limits) of law
3. Legal responses to the Holocaust
• Overview
• The Nuremberg tribunals (catalogue & “Judgment at Nuremberg”)
• The Frankfurt Auschwitz trial (Pendas & “Judgment on Auschwitz”)
4. Beyond the Holocaust: ICC and debates
1. Collective memory
• Collective memory (Maurice Halbwachs):
• Definition:
• knowledge about the past that is shared, mutually
acknowledged and reinforced by a collectivity
• Mechanisms:
• through rituals and symbols (Emile Durkheim),
• biography and historiography (Karl Mannheim)
• [examples today?]
• Features:
• constructed,
• presentist (Halbwachs, Fine, bridging/mobilization);
• path dependent (Olick/Levy),
• group specific (generations/cohorts; “Opa was no Nazi” -but great grandpa may have been),
• result of mnemonic struggles (Historikerstreit),
• in flux (Schwartz/Schuman)
Cultural Trauma
• Source: Jeffrey Alexander et al.
• Definition (Neil Smelser): “a memory accepted and
publicly given credence by a relevant membership
group and evoking an event or situation that is laden
with negative affect, represented as indelible, and
regarded as threatening a society’s existence or
violating one or more of its cultural presuppositions.”
• Application: Holocaust (broad public, perpetrator
people), Communist rule, Slavery, 9/11
• Conditions (Alexander): Agents, making claims,
representing carrier groups, through speech acts,
using cultural classifications of suffering, victimhood
and responsibility to reach a wider audience
2. Collective memory and law … hopes
• Nuremberg hope
• “Roosevelt felt that he had to contend with [WW I revisionists and
protagonists of isolationism] as he guided the United States in the
war against Hitler and strove to establish the country’s leadership
of the entire noncommunist world. Judge Samuel Rosenman,
Roosevelt’s confidante… said of his leader: ‘He was determined
that the question of Hitler’s guilt—and the guilt of his gangsters—
must not be left open to future debate. The whole nauseating
matter should be spread out on a permanent record under oath by
witnesses and with all the written documents.’”
• Robert Jackson: “We must establish incredible events by credible
• Alternatives: summary executions or show trials
• Parallel to common justifications of criminal law
• Later hopes: Debates on transitional justice
Skepticism: institutional logics
• e.g., effects of criminal law interactive with above conditions
(conditions of CT à la Alexander applied to law)
• Claims making agents,
• representing carrier groups
• through speech acts,
• using cultural classifications of suffering, victimhood and responsibility
• e.g., different frames of law than:
• Sociology (social structures, cultures)
• History (not same evidentiary restrictions)
• Psychology (not same binary [guilty- not guilty] classification – also:
Primo Levi’s “shades of grey”)
• Art, literature, politics, religion, … [focus, criteria?]
• example: My Lai study
3. Legal responses to the Holocaust
• Trials versus other responses
• Trials (4 types)
• International trials
• International Military Tribunal at Nuremberg (1945-6)
• Occupation force trials
• Subsequent Nuremberg Trials (1946ff)
• Dachau [Mauthausen] trials (Jardim)
• Foreign trials
• Eichmann trial in Jerusalem (1961) (“banality” – Milgram experiments)
• Domestic trials
• Police battalion trial (1958)
• Frankfurt Auschwitz trial (1963-65)
• [Still today: Demjanjuk; Karcok (Minneapolis)]
• [Where today/in recent past?]
IMT Nuremberg: 21 Nazi defendants
• August 1945: London Agreement on IMT
• 11/22/1945: Opening of trial (defendants informally representing Nazi
organizations) [also: Tokyo trial]; not: Hitler, Goebbels, Himmler (suicides)
• Charges
1. Crimes against peace: “planning, preparation, initiation, and
waging of a war of aggression, which were also wars in violation of
international treatises, agreements, and assurances”
2. Crimes of war: Violations of the laws or customs of war which
include, but are not limited to, murder, ill-treatment or deportation of
slave labor or for any other purpose of the civilian population of or
in occupied territory; murder or ill-treatment of prisoners of war or
persons on the Seas, killing of hostages, plunder of public or
private property, wanton destruction of cities, towns, or villages, or
devastation not justified by military necessity.
3. Crimes against humanity: host of activities (murder, enslavement,
deportation) committed against civilian populations “before and
during the war… Whether or not in violation of the domestic law of
the country where perpetrated”
• Particularities
• No tu quoque defense (against international
• Admission of hearsay evidence
• Application of US procedure (adversarial
• Decisions/outcome:
• 12 executions
• 7 prison terms
• 3 acquittals
Reporting the Outcome
Subsequent Nuremberg trials
• Control Council Law No. 10
• Passed by Allied Control Council
• Authorizing allies to prosecute within their
respective zones
• Crimes against peace, war crimes, crimes against
humanity, membership in organizations declared
criminal by the IMT
• Subsequent Nuremberg Trials: 185 persons indicted
in 12 proceedings (physicians, industrialists, SS,
military leaders, cabinet/ government officials, …)
• Movie: Judgment at Nuremberg [Questions: Potency of legal
trials versus their limits?]
• Outcome of trials
• 147 convictions (25 death; 20 life sentences)
• German public opinion: skeptical to negative
• US public opinion: positive to skeptical
(sharpening Cold War, anti-Communism, antiSemitism, pro-Germanism, German critiques of
‘victors’ justice,” isolationism)
• Clemencies after 1951
• Weight of political rationales over judicial ones
Michael Marrus on missed opportunities
of the “doctors’ trial”
• Grave critique: Missed opportunity to
• define the principle crimes of German
physicians (excessive cruelty, but not
400,000 sterilizations)
• identify major perpetrators (some camp
perpetrators, but not wider profession)
• see them in wider context (ideology of public
versus private interest)
• sketch an explanation.
• Sharp contrast with hopes a la Roosevelt and
Jackson: “write the history with clarity”
• Reasons for discrepancy
• Push to punish important Nazi criminals, to
stigmatize the regime (thus attempts to link
defendants to Nazi leaders and SS) (political)
• Focus on the war period alone (legal)
• A criminal conspiracy (a la group of gangsters)
rather than as individuals with a shared
• Small staff lacking medical expertise (practical)
• Establishment of euthanasia culture worldwide
Frankfurt -- background
• Fritz Bauer (Hesse’s Attorney General) – desire for visible
• 5/30/1956 – aversion to ex post facto law of London
Charter and Control Council Law #10  abolishment and
replacement by common German criminal code (despite
acknowledgment of international law, no “crimes against
humanity”, no “genocide” ex post)
• Particular of German criminal code: focus on subjectivities
(intent) of perpetrator, ill suited for massive,
bureaucratically organized mass killings
• 10/31958: Central Office of the State Justice Ministries for
the Investigation of National Socialist Crimes of Violence,
Film segments: The Frankfurt Auschwitz
trial and the Pendas account
• Historiographical potential?
• Symbolic and ritual potential?
• Constraints
• Legal
• contextual
4. Beyond Holocaust trials
• Universal Declaration of Human Rights
• Convention for the Prevention and Punishment of
• 1915 murder of one million Armenians in Turkey
• Hesitant, weak international reaction (during & post WWI)
• Soghomon Thelirian murdering Mehmed Tallat (Berlin 1921)
• Raphael Lemkin’s question to his law professor—and the
answer about the “owner of a flock of chickens”
1933: Lemkin’s proposal at an international law conference
1940/41 escape via Sweden to US
War time failure to convince US authorities of genocide
1946-48 toward Genocide Convention
From Cold War Silence to the ICC
• Cold War silence
• But domestic: Latin America (Argentina), Greece, Portugal
• After 1989
• Cambodia
• Sierra Leone
• Iraq
• Rome Statute (1998) and ICC (2002): Sudan/Darfur,
DRC, …
• Debates: Hopes/potentials/limits of domestic, foreign, and
international criminal law (memory as mediating force?)

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