How Not to Defend Transitional Justice Mechanisms

by Kevin Jon Heller

The blog Making Sense of Darfur has been hosting a symposium on Adam M. Smith’s book After Genocide: Bringing the Devil to Justice, in which the author argues — oversimplifying only slightly — that international criminal trials are always inferior to domestic trials and non-punitive accountability mechanisms.  I have neither the time nor the inclination to address the book’s claims at length; interested readers should take a look at the critiques offered by Sarah Nouwen, Sadia al Imam, and Bridget Conley-Zilkic.  I just want to highlight a claim that the author made about the IMT in his response to those critiques — a response that is illustrative of what happens when someone is so reflexively hostile to international criminal justice that he or she loses all perspective on complicated historical events:

I imagine that for many survivors and descendants of survivors, the “idea of Nuremberg” still provides this comfort, which is certainly a worthwhile outcome.  The question (again) is what could have been the outcome had a different process been chosen?  Perhaps domestic trials?  Perhaps a truth commission?  The same comfort may have been achieved, but at a lower cost and with a greater impact on the German people, and perhaps also on survivors and descendants of victims.

Domestic trials?  Presided over by whom?  By the one — yes, one — judge that refused to go along with the Nazis’ systematic persecution of Jews, Gypsies, Poles, etc?  Prosecuted by whom?  By the prosecutors of the Special and People’s Courts, the defendants in the Justice Case?  Perhaps the author should read Ingo Muller’s seminal book Hitler’s Justice before suggesting that domestic trials would have been better than the IMT and the subsequent trials. And then he should take a look at what happened when the Allies allowed Germany to hold domestic trials of war criminals after World War I, which was an unmitigated disaster.

As for a TRC — really?  It would have been much better if, instead of prosecuting and convicting Goering, Seyss-Inquart, Streicher, Frank, etc., the Allies had simply asked them to admit their sins in exchange for amnesty?  The Nazis relentlessly documented their atrocities, and they were not exactly shy when it came to discussing those atrocities under oath.  (Recall Eichmann boasting about sending 2,000,000 Jews to their deaths.)  So a TRC would have accomplished precisely nothing — other than to ensure that the architects of the Holocaust escaped accountability entirely.

This is the cult of transitional justice on full display.  One of the critics mentioned above claims that the author “romanticizes” domestic solutions.  That’s something of an understatement — “uncritically valorizes” them is more accurate.

http://opiniojuris.org/2009/09/01/how-not-to-defend-transitional-justice-mechanisms/

8 Responses

  1. I largely agree with your critique, but wanted clarification on one point. Hasn’t the South African Truth and Reconcilliation Commission been the only TRC to date to offer amnesty for confession? If so, it seems a bit brash, to use amnesty as a critique against the mere suggestion of a of truth commission. Moreover, a truth commission could have helped against rampant Holocaust denial that has followed the Holocaust.

    Again, I think you are right in your view that Nuremberg was essential to justice, because of the need for accountability. But on top of that, Nuremberg, however flawed it may have been, came up with important precedents in international criminal law (such as command responsibility) that may or may not have developed had other routes been taken.

  2. Ricky,

    I suppose it’s possible that Smith’s idea for a Nuremberg TRC would only have involved the testimony of victims, but then the suggestion that such a TRC would have been better than the IMT is even more perverse. And insofar as the TRC would have been directed at perpetrators, what alternative to offering amnesty would there have been?  The SATRC offered amnesty and perpetrators still didn’t testify (less than 20, if I recall correctly) — largely because they didn’t fear prosecution if they refused.

    I’m also not certain why a TRC would have helped avoid Holocaust denial.  The war-crimes trials produced literally thousands of pages of testimony by Nazi officials and soldiers confirming the Holocaust, as well as thousands of documents to the same effect, yet denial lives on.

    Finally, at least one other TRC — in East Timor — offered amnesty for confession.

  3. It would have been much better if, instead of prosecuting and convicting Goering, Seyss-Inquart, Streicher, Frank, etc., the Allies had simply asked them to admit their sins in exchange for amnesty?

    You mean, like Emperor Hirohito?

    I agree with KJH regarding Holocaust denial, though.  There’s already mounds of evidence.  If evidence actually had any impact, it wouldn’t even be an issue.

  4. MG,

    Hirohito didn’t even have to admit his sins…

  5. Mr. Smith’s post fails to place Nuremberg in its complete context, choosing instead to view the Nuremberg legacy as confined to the IMT trials. It was hardly a “one off” process, but set the stage for a large number of precisely the kind of domestic trials Mr. Smith mentions. These trials took place in the former occupied states of western and eastern Europe and in West and East Germany (and now in reunified Germany) and there was, of course, the Eichmann trial in Israel and many, many others in non-occupied states over the course of the past 60 years.  Each of those domestic processes has to be judged through the dual lens of international and domestic justice.  Each played some role in writing the history of the Nazi era, reestablishing the rule of law in a particular place and/or establishing the post-war political order, whether constitutional democracy or Soviet-style communism.  Some trials operated as successful contributions to de-nazification, while others were abject failures.  But all of these had a significant and ongoing impact on the German people and the victims in ways has been playing out slowly over many decades and against a backdrop of massive social and political change.

    It strikes me that in discussing current challenges in post-conflict justice we often lose sense of the long duration of the post-WW II accountability processes — both political and judicial.  Today is the 70th anniversary of the invasion of Poland and we are still trying Nazi war criminals. 

  6. My thinking of why a TRC may have been effective for Holocaust denial largely has to do with the public relations. Trials may provide large amount of evidence about what happened, but how much of this evidence reached the public is something I don’t know. My general impression of Nuremberg is that the Allied Powers (AP) were primarily interested in documenting Nazi abuses insofar as it provided a way for the AP to promote its victor’s justice. As such, documentation took a backseat to celebrating victory. This resulted in an unorganized collection (i.e. the trials) of facts surrounding the Holocaust. I’ll admit, I don’t know much about the media coverage of Nuremberg so correct me if I’m wrong.

    There are several potential problems with relying on testimony as your sources of fact. How accessible is this testimony to laypeople? Is it easy to find the documents with relevant testimony? Is documentation of abuses provided in an organized manner or in bits and pieces within all the cases?

    A timely, effectively promoted, and comprehensive TRC report could have been a better way to promote the facts of the Holocaust. Think of it this way, what texts would you refer to someone who asked “why do people think the Holocaust happened?” Would every person recommend the same texts? There are probably many people who wouldn’t even know of book to refer to this hypo-person to. A TRC report could have been the Holocaust reference for laypeople, while academia could have gone further with a more technical and nuanced analysis of the Holocaust.

    To get back to the main point of the post, I don’t think a TRC could have operated in replace of trials as Smith suggests (as I stated earlier). But a TRC working alongside a tribunal that utilized plea deals (e.g. sentence reductions) in exchange for testimony may have contributed done “more good” than trials alone.

  7. I would be very surprised if a single Holocaust Denier was simply uninformed.  Don’t forget, the soldiers who liberated those camps returned with stories, as did the victims who survived.

    They have the conclusion they wanted to reach, and damn the facts.

  8. I completely agree with KJH — there is a “cult of transitional justice” and its followers have lost sight of some very important realities.   I worry that today’s trendy conventional wisdom about post-atrocity justice will blithely lead us back to the post-WWI Leipzig scenario.  This is a particularly troubling prospect for atrocity architects and leaders.  We have to be concerned that, in the interests of cultural authenticity, popular participation, and indigenous reconciliation, the pendulum is swinging too far back in the direction of impunity . . . 

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