The Punitive Approach

Recently a Ukrainian-American  man named John Demjanjuk was arraigned in Germany on 27,900 counts of being an acessory to murder, accused of serving as a camp guard at the Sobibor concentration camp during the Second World War. It may well be one of the last war-crimes trials for alleged perpetrators of the Holocaust (Demjanjuk is 89 and wheel-chair bound). As the victims and villians of that atrocity are fading into history, it is worth examining the merits of the approach that has been taken by Germany and the world community in dealing with the legacy of the crime against humanity par excellence (if such a term is appropriate), particularly as it contrasts with the route of the truth commisions in South Africa and elsewhere.

The reconciliatory approach of the South African TRC was justified in part by the claim (true enough) that traditional judicial procedures could never hope to properly identify and punish all those culpable for crimes commited under apartheid, and for this reason is sometimes directly compared to the Nurmemberg trials and other legal actions taken against German war criminals. Since far more individuals were involved in Nazi Germany's machinery of mass murder than have ever been prosecuted, the argument goes, Nuremberg and the other anti-Nazi tribunals are essenntially failures because they purported to satisfy the demands of justice for the Holocaust, something that they could not possibly accomplish. The amnesty-granting truth commision is converesely held to obtain a higher "restorative justice" by airing out all the details and constructing a new shared narrative for reconcilation which only it can provide.

Looking at Germany over six decades after the Holocaust, I am inclined to think that perhaps the traditonal judicial approach to atrocities has been given short shrift by the boosters of the TRC. The Nuremberg tribunals certainly did not mete out retribution to all those responsible for the Nazi regime's genocides, but it definitively established the unacceptability of the crimes of the accused and laid the groundwork for many more trials to come in the ensuing decades. Nobody would argue that all the responsible parties have been punished (just as nobody would pretend that every single crime of apartheid has properly come to light through the truth commision process), but many have. In terms of "restorative truth" it is hard to fault the shared social consensus that has developed in Germany (and the world) about the massacres: something that must be remembered and never repeated. Modern Germany is a land where such Jews as remain are accorded full rights (and no small degree of deference) and Holocaust denial is illegal. Germany has also taken a leading role in fighting against genocides beyond its borders (as in the Balkans).

 Of course, the South African truth commision may well have been more suited for the particular needs of that nation (as I think it indeed was), but reasoning from the particular to the general may be misguided on this subject. If the creation of a democratic society that has drawn the proper lessons from its past is the goal of any effort to deal with a legacy of crimes against humanity (as is often stated of truth commisions), it seems that the traditional methods of dealing with individual culprits need not stand in the way.