The Logic of Nuremberg
In March, General Bosco Ntaganda, the ‘Terminator’, former chief of military operations for the Union of Congolese Patriots (UPC), wanted for war crimes and crimes against humanity, voluntarily surrendered himself at the US embassy in Kigali and was flown to the headquarters of the International Criminal Court at The Hague. The chargesheet included accusations of murder, rape, sexual slavery, persecution and pillage, offences documented in detail by Human Rights Watch over the last ten years. Ntaganda’s trial, scheduled for next year, will follow that of Thomas Lubanga, the UPC’s president, who was convicted in 2012. There seems to be no question about the justice of the proceedings. At the same time, however, the UN Security Council has been pursuing a strategy of armed intervention in eastern Congo, using troops from South Africa and Tanzania, against the rebel groups Ntaganda and others commanded. Both initiatives – the prosecution of rebel leaders for war crimes and military operations against their personnel – are taking place when peace talks between government and rebels are well underway. This, then, is a co-ordinated military and judicial solution for what is also, and fundamentally, a political problem. Inevitably with such solutions, the winners take all.
Where mass violence is involved, there is always a choice between the judicial approach, enforced by the victors or by external powers, which tends to exclude the losing parties from any political settlement, and negotiation, which necessarily involves all parties in discussions about the future, whatever the crimes they have committed. After the Cold War, our response to mass violence has largely been determined by the model of Nuremberg: in Rwanda or Sierra Leone, Congo or Sudan, international criminal trials are the preferred response. The problem here is that mass violence isn’t just a criminal matter, since the criminal acts it involves have political repercussions.
This is not to say that no one should be held responsible for violence, merely that it is sometimes preferable to suspend the question of criminal responsibility until the political problem that frames it has been addressed. The clearest alternative to the Nuremberg model that has emerged since the trials concluded in 1949 is the complex set of negotiations known as the Convention for a Democratic South Africa (Codesa), which brought an end to apartheid in the 1990s. (It’s worth bearing in mind that D.F. Malan’s National Party embarked on its 45-year racialist experiment in South Africa while the Nuremberg courts were still in session.)
Contemporary discourse on human rights is silent about the end of apartheid. The tendency is to reduce this remarkable development to the single, exceptional personality of Nelson Mandela. The Truth and Reconciliation Commission is lionised but Codesa is largely forgotten, and Africa’s abiding problem – violent civil war – is said to require a different solution: the atrocities committed are so extreme, the argument goes, that punishment must come before political reform. Nuremberg-style criminal justice is the only permissible approach. But there are lessons to be learned from Codesa, and its language of compromise and pragmatism, for present-day conflicts in Africa.
Nuremberg was the result of a debate among the victorious powers on how to deal with the vanquished. Churchill argued that the Nazis had forfeited any right to due process and should be summarily shot. Henry Morgenthau, the US Treasury secretary and a close friend of Roosevelt, agreed; he went further and said that Germany’s industries should be dismantled so that it would never rise again as a world power. Henry Stimson, Roosevelt’s war secretary, took a different view. So did Robert Jackson, a Supreme Court justice, though Jackson was clear that ‘you must put no man on trial under forms of a judicial proceeding if you are not willing to see him freed if not proven guilty … the world yields no respect for courts that are organised merely to convict.’ Truman was impressed by Jackson’s speech and three weeks later appointed him as Nuremberg’s chief prosecutor.
The credibility of Nuremberg was based on its claim to due process. For their part, the accused preferred to be tried by the US than by anyone else. They expected softer treatment from Americans partly because the Americans had for the most part enjoyed a grandstand view of the war, and partly because they were likely to be allies of Germany in the coming Cold War. The trials also need to be understood as a symbolic and performative spectacle. For Washington, Nuremberg was an opportunity to inaugurate the new world order by showcasing the way a civilised liberal state conducts its affairs. With the air full of cries for revenge, Jackson told his audience at Church House in London: ‘A fair trial for every defendant. A competent attorney for every defendant.’
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Vol. 35 No. 23 · 5 December 2013
The distinction Mahmood Mamdani draws between the Nazi war crimes trials and the Codesa agreement in South Africa may not be quite as clear-cut as he thinks (LRB, 7 November). As in South Africa after apartheid some laws which were an offence to human rights remained in force and were acted on long after the defeat of the Nazi regime. A case in point is the treatment of homosexuals following their ‘liberation’ from the camps. The Nazis had purposefully re-enacted paragraph 175 of the German Penal Code, which the Weimar government had repealed, thereby recriminalising homosexuality between consenting adults. Records indicate that some ten thousand gay men were sent to the camps under this law. Very few survived. But unlike the other liberated inmates, gay men were sent on to civilian prisons to complete their sentences. What’s more, the time they spent in the camps was not counted against their sentences, since the camps were designated ‘labour camps’, not prisons. The Nazi law remained in force in the GDR until repealed again in 1967; in the Federal Republic there was only a partial repeal in 1969 and full repeal in 1973. For them, unlike Jewish, political and other categories of inmate, there was no restitution or compensation even after the repeal.
Wellington, New Zealand
Vol. 35 No. 24 · 19 December 2013
‘In a short period of time,’ Mahmood Mamdani writes of Europe in the aftermath of the Second World War, ‘the Allies had carried out the most far-reaching ethnic cleansing in the history of Europe … the overriding principle here was that there must be a safe home for survivors’ (LRB, 7 November). This gives a wholly false impression. The major population flows the Allies countenanced were of people fleeing of their own accord from Eastern Europe to the West or, in the case which clearly irks him most, of Jews fleeing to Israel. None of these flows was the result of Allied policy. It is true that the Allies handed as many as fifty thousand Cossacks and other ethnic Russians over to Stalin to be butchered, but this was done because the Soviets demanded it at Yalta. With hindsight one is amazed at how liberal Western attitudes to this vast inward migration were. It is also misleading to suggest that the Israeli state ‘governs in the name of the [Holocaust] victims’. Up until the Eichmann trial Israel had almost nothing to say about Holocaust victims, as if embarrassed that they had not offered more resistance to the Nazis.
I share Mamdani’s disappointment with the Truth and Reconciliation Commission, but my reasons are very different. The TRC was a deeply flawed exercise, dominated by clerics, so there were many theatrical displays and much praying and weeping. It made highly selective choices as to what it would cover. Many friends of mine had been tortured by the apartheid security police but I never heard either their or their torturers’ names mentioned. The Commission revealed nothing. Helen Suzman, whom I saw about once a week during the process, said to me: ‘I have learned absolutely nothing new from the TRC. Anyone who says they have learned anything new was simply not paying attention under apartheid.’
Anthea Jeffery’s The Truth about the Truth Commission (1999) shows how the TRC evaded all legal norms, falsified accounts of many events that had been exhaustively covered by other, far more detailed judicial inquiries, and made countless mistakes, for example citing three or four different estimates of the number of victims in a given incident without ever reconciling the contradictions. It was quite apparent, when the five-volume report was finally presented, that the commissioners hadn’t read it. It was intended to be the TRC’s interim report but after its release the commissioners walked away and no final report was ever presented.
Mamdani says that Codesa II got underway in May 1992, ‘but was thrown into disarray by the Boipatong massacre the following month: Mandela accused the government of complicity’. In fact Codesa II had already broken up when Boipatong occurred but the ANC seized on it to justify its own stand. All accusations of government complicity were completely defused when Inkatha attackers admitted responsibility for the massacre and, despite virtual pleading by the state prosecutor, insisted that they had had no help from anyone else. This did not prevent the TRC from repeating the accusations as established fact.
The only torturers and killers who testified before the Commission were men already facing long sentences, hoping to get them reduced. The other 99 per cent of the guilty men of the apartheid regime simply laid low and waited it out. South Africans look back on the TRC not as an opportunity for apartheid victims to tell their stories – a deeply therapeutic exercise – but mainly as a sort of ritual which had to be performed so that it could be publicly claimed that the crimes of apartheid had been dealt with and society could now move on.
All such exercises are partial and ineffectual. Nazi war criminals have been turning up ever since Nuremberg. In France, many of the worst collaborators – the Milice, for instance – got away scot-free while high-profile media types were prosecuted. Nowhere was a thorough job done and imprisoned collaborators were most often released after serving only a small fraction of their terms. Resistance groups all over Europe, infuriated by the failure of the state to deal with collaborators, carried out their own assassinations in secret.
Such attempts at social cleansing are rituals that societies feel they must go through at the end of horrible eras, but none of them does what they purport to do and none of them really works. Stuck in my mind is the attitude of Steve Biko’s family, who resolutely refused to collaborate with the TRC, saying that they did not wish to meet the men who had tortured Biko to death (who were anyway all dead or missing), and certainly didn’t wish to be reconciled with them. This should be considered a normal human response. It is the TRC, and any initiative that attempts to clean away what cannot be cleaned away, that is abnormal.
R.W. Johnson seeks to naturalise forced movements – specifically, ethnic cleansing in Europe, and later in Israel – as if they were in the main a result of spontaneous flight, obscuring the role of conscious decisions by those in power. I will focus on postwar Europe. First, the figure of those forcibly moved was in the millions – they were mainly Germans. Only the opening phase, triggered by the advance of the Red Army, from mid-1944 to early 1945, involved spontaneous flight as well as evacuation. There were periodic expulsions as the Wehrmacht was progressively defeated, and organised expulsions after the German surrender. Expulsions were part of a larger geopolitical reconfiguration of Europe along ethnic lines: the Allies, not just the Soviets, wanted to create ethnically homogeneous states in East-Central Europe. As Central European borders were redrawn at Potsdam, both prewar German provinces and areas annexed by Nazi Germany during the war were transferred to Poland and the Soviet Union. The Allies decided to deport German minorities from East-Central Europe. Organised expulsions followed, mainly from Poland, Czechoslovakia and Hungary, but generally from all over Central and Eastern Europe. By 1950, between 12 and 14 million Germans had fled or were expelled from East-Central Europe. Historians consider this the largest forcible movement of any population in modern European history.
All this was part of a larger forced transfer of populations from Central and Eastern Europe, estimated at more than 20 million people. German federal agencies and the German Red Cross estimate that more than two million civilians died in the process. Some writers have described this forced movement of populations as ‘population transfer’, others as ‘ethnic cleansing’, and others as ‘genocide’. Johnson’s contribution is to suggest that these movements were mainly voluntary.
It is true that the Israeli state ignored Holocaust victims until the Eichmann trial. That, however, does not refute my point that the Israeli state now ‘governs in the name of the victims’ and not of all its citizens.
Johnson is right that we have very different reasons for being disappointed with the TRC. But I am not sure he understands the reasons. He is upset that the TRC was selective in the choice of perpetrators it hauled into the limelight and that as a result the public learned nothing new. The basis of my critique is different. Because the TRC focused on perpetrators and overlooked the beneficiaries of mass violations of rights abuses – such as the pass laws and forced expulsions – it allowed the vast majority of white South Africans to go away thinking that they had little to do with these atrocities. Indeed, most did learn nothing new. The alternative would have been for the TRC to show white South Africans that no matter what their political views – whether they were for, against or indifferent to apartheid – they were all its beneficiaries, whether it was a matter of the residential areas where they lived, the jobs they held, the schools they went to, the taxes they did or did not pay, or the cheap labour they employed. Because the TRC was not a legislative organ, because its decisions – except on amnesty – did not have the force of law, it did not face the same political restrictions as the negotiators at Kempton Park. At the same time, the TRC had access to state resources and was beamed into South African living rooms in prime time. It should have educated ordinary citizens, black and white, about everyday apartheid and its impact on the life chances and circumstances of generations of South Africans. This would have brought home to one and all the rightness and necessity of social justice.
In the end, the TRC addressed itself to a tiny minority of South Africans, perpetrators and their victims, the former state operatives and the latter political activists. It ignored the experience of the vast majority of South Africans. R.W. Johnson voices elite disaffection with the TRC. Like the TRC, however, he too has little to say of reconciliation as it would affect the vast majority of South Africans.
Tony Simpson is right in the general point he makes about the German Penal Code and its attitude to homosexuals, but wrong in some of the details (Letters, 5 December). The Weimar Republic did not repeal Paragraph 175, which continued to outlaw homosexual acts between men involving penetration. The Nazis amended it in 1935 to cover any kind of ‘lewd’ homosexual act. Under this law, offenders were not sent to the camps but to state prisons. The number of offenders sent to prison was not ten thousand but well over thirty thousand. A minority (between five thousand and 15,000) were rearrested by the SS at the prison gates on completing their sentence, and sent to a concentration camp. It is not the case that ‘very few survived’; their survival rate, though far lower than for most other categories of inmate, except of course the Jews, was about 50 per cent. The Nazi amendment to the law did not remain in force, but was repealed along with all other Nazi laws by the Allied occupation authorities. Paragraph 175 was amended in 1959 and 1965 but not fully repealed until 1994, not 1973 as Simpson claims. He does not mention the two thousand or so castrations of homosexuals that took place in the camps, another gross violation of human rights. The fundamental obstacle to surviving gay men victimised by the Nazi regime obtaining compensation after the war was the fact that they had been condemned under the Reich Criminal Code and were thus deemed to have been properly sentenced; the fact that many were sentenced under the Nazi amendment or incarcerated or castrated in the camps was not taken into account, reflecting prejudices in German politics and society widely shared in other countries until recently, including the UK.
Richard J. Evans
Wolfson College, Cambridge
Vol. 36 No. 2 · 23 January 2014
Richard J. Evans is right to point out that the Nazis’ toughening of the law against homosexual offences (Paragraph 175) on 28 June 1935 removed the burden on state prosecutors of having to prove penetrative sex, requiring mere ‘indecency’ for a conviction (Letters, 19 December 2013). A 1942 legal commentary on Paragraph 175 noted: ‘Indecency with another man is committed by someone who uses the body of the other man as a means for the arousal or satisfaction of sexual desire.’ So now simply arousal, not the completion of a sexual act, was all the police were required to claim. And beyond that: ‘It is not necessary for a physical touch to have occurred, or even to have been intended.’ I know of one case in which a German soldier was cruising in the street, and made promising eye contact with another man. As they walked past each other, he brushed against the stranger, who turned out to be a plain-clothes SS man. The soldier was immediately arrested, convicted and sent to prison for a year. In cases where the prosecutor could link the accused’s sexual history to at least three partners, he was deemed to be a habitual criminal and, when he had served his prison sentence, transferred to a concentration camp indefinitely.
It has often been claimed by historians that the Allies (especially the Americans), when they liberated the concentration camps, insisted on transferring the pink-triangle inmates to German prisons as sex criminals. That isn’t true. But the Allies in 1945 did not, as Evans suggests, annul the tougher Nazi version of Paragraph 175. Allied Control Council Law No. 1, signed on 20 September 1945 and headed ‘Repealing of Nazi Laws’, was not a blanket provision. It withdrew certain specified laws, plus a number of ordinances (mainly dealing with the Jews). The only section of the criminal code it dealt with was the amendment of April 1934 concerning treason and the notorious People’s Court. The Control Council Law No. 11 of 30 January 1946 (‘Repealing of Certain Provisions of the German Criminal Law’), and Control Council Law No. 55 of 20 June 1947 (‘Repeal of Certain Provisions of Criminal Legislation’), scrapped several dozen unsavoury provisions. But there was no mention of Paragraph 175, even though Law No. 11 revoked nine other sections of the criminal code that had been amended by the Nazis as part of the same bundle in September 1935. Law No. 55 revoked the death sentence for (heterosexual) sex offenders but remained silent about homosexuals.
In mid-1946 the Allies issued a draft of a new German criminal code, based on the version that had been in effect before the Nazi seizure of power, but it was never adopted. The two German states were founded in 1949. In the interim the practice of the courts in the different occupation zones varied considerably. Some districts like Düsseldorf insisted that the 1935 amendment did no more than promote the original purpose of the law, ‘to protect the health and purity of the life of the people from endangerment by indecency between men’. The West German government adopted the Nazi version of Paragraph 175 into its criminal code in 1949.
There was no amendment of Paragraph 175 in 1959 or 1965, as Evans claims. Various official committees of inquiry composed of lawyers had called for its repeal in 1950, 1951 and 1955. Yet in 1957 the Federal Constitutional Court turned down an appeal for its annulment, citing the moral benefits of the paragraph. The court admitted that medical science might be about to prove that homosexuality was an ‘inescapable physical-psychological deformity’, in which case it would be inappropriate to pass moral judgment on its victims, but matters had not yet gone that far. One of the problems was that there were no ‘definitive external characteristics’ of homosexuality that made it possible to distinguish easily between serious and minor cases. Homosexual acts took many different, often overlapping forms, but the ‘moral sensibility’ rejecting them was a constant. Already in the 19th century the intent of the law had been to curb these practices, and the Nazi amendment simply helped in this regard by tightening the law. Decriminalising homosexual relations between adult men over the age of 21 would probably lead to a ‘heavy proliferation of homosexuality’ that would represent a danger for Germany’s youth. In the three years from 1957 to 1959 more than ten thousand convictions for homosexual offences were handed down, a thousand more than in the entire 14 years of the Weimar Republic.
The Ministry of Justice ignored all calls for repeal, and included the 1935 version of the law in its drafts for a revised criminal code in 1959. Changes of government meant that neither this nor subsequent drafts in 1960 and 1962 ever became law. The gloss to the 1962 draft reaffirmed that Paragraph 175 was a useful deterrent, adding that those committing homosexual acts were ‘overwhelmingly persons who were not acting from an innate disposition’ but had been seduced or were sexually jaded. Calling on history to support its case, the ministry used familiar Nazi racial terminology, insisting that when homosexuality had grown unchecked in a country, it had led to the ‘degeneration of the race [Entartung des Volkes] and the collapse of its moral strength’. Using an example cited by Adolf Hitler and subsequently by Himmler, the ministry painted an alarming picture of homosexuals’ ‘methodical recruitment of homosexually predisposed fellow workers’ which would have the effect of corroding public institutions like the police and army. Perhaps to forestall this nightmare, in 1965 all civil servants and government employees found guilty of homosexual offences were to be dismissed.
Reforms did come at the end of the decade. The communist German Democratic Republic, pretending to be more liberal than the West, decriminalised homosexual relations between consenting adults over the age of 18 in 1968. The following year the Federal Republic amended Paragraph 175 to permit consensual relations between those over 21. In 1973 the age of consent for homosexual relations was lowered to 18 (though it was 14 for heterosexual acts). Yet still the paragraph remained on the books.
Shortly before the regime collapsed in 1989, East Germany decriminalised homosexual relations altogether. Following unification in 1990, Germany had to reconcile the two former countries’ criminal codes. In 1994 Paragraph 175 was rescinded, and in May 2002 the German parliament voted to overturn all convictions for homosexual offences handed down during the Third Reich. Few men on whom such sentences had been imposed were still alive.
University of Florida, Gainesville