How Not to Defend Transitional Justice Mechanisms
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.