ìëLaw not Vengeanceí: Human Rights, the Rule of the Law and the Claims of Memory in German Holocaust Trialsî

Devin O. Pendas

Prepared for the Conference

"Between the Global and the Local: Making Human Rights Claims in the 21st Century"

April 28-29, 2000

University of Wisconsin, Milwaukee

ÝÝÝÝÝÝÝÝÝÝÝ On August 19 and 20, 1965 the verdict in the so-called Frankfurt Auschwitz Trial was read in court.Ý Of the twenty defendants charged with murder or accessory to murder for crimes committed in Auschwitz, 6 received the maximum sentence of life in prison, 3 were acquitted and the remaining defendants received sentences ranging from 3 years, 3 months to 14 years.Ý In an editorial in the Manheimer Morgan newspaper, entitled ìLaw, not Vengeanceî (ìRecht, nicht Racheî), Hans-Martin Schubert sought to defend the appropriateness of these sentences against criticisms from abroad.[1]Ý Schubert admitted that ìIn fact, the judgments are not ësatisfactory.íÝ There could not possibly be any punishment that could correspond with the nameless horror of the concentration camps.Ý But without any doubt, law was enunciated here (ist hier Recht gesprochen worden).î[2]Ý Given the difficulties such a trial faced after 20 years, especially the evidentiary limitations, the potential for overly mild sentences was ìunavoidableî on Schubertís view. ìHowever,î he continued, ìthat has nothing to do with judicial leniency.Ý Under the rule of law, a verdict cannot be based on suspicions.îÝ Although domestic critics wanted to see such trials terminated completely and foreign critics often saw them as too mild and, consequently, as an insult to the victims, such trials constituted, according to Schubert, a profound but vitally necessary ìrisk of the Rechtsstaat (rule of law).î

ÝÝÝÝÝÝÝÝÝÝÝ Some twenty months earlier, at the trialís opening, the Frankfurter Neue Presse had articulated a very different justification for the trial: "The higher meaning of this trial will be to not identify the events of Auschwitz with the accused, to not make due with the legal verdict, as if, finally after months of trial (which does make certain amends), this chapter was closed because everything conceivable and possible had been done to satisfy the demands of justice."[3]Ý Above all, the trial would have to serve as a lesson in tolerance and the obligation to resist demagoguery.Ý In short, the value of the trial was seen as residing in moral pedagogy, in articulating the claims of memory in a particularly German idiom, to teach the Germans a moral and political lesson they could never be allowed to forget.

ÝÝÝÝÝÝÝÝÝÝÝ Across the board, German Nazi trials mobilized these two discourses--the rule of law and the claims of (German) memory--as their fundamental justificatory mechanisms.[4]Ý Germans thus justified such trials to themselves on two competing and largely contradictory bases.Ý This tension reflects, I would argue, the inherent difficulties in conducting ìliberal show trialsî under ordinary statutory laws designed to deal with vastly different criminal circumstances.[5]Ý The rule of law, as that phrase is ordinarily understood, only lends itself readily to the telling of a fairly narrow range of moral stories, ones which are not always particularly well suited to articulating a coherent and adequate vision of mass atrocity and genocide.

ÝÝÝÝÝÝÝÝÝÝÝ In particular, I would like to point to a further aspect of this dual justification of German Nazi trials; namely, the fundamental absence of any discourse of human rights.Ý Throughout what might be termed the ëclassic eraí of German Nazi trials, from the late 1950s through the early 1970s, one almost never finds any reference to human rights, Menschenrechte, in the discourse surrounding these trials.Ý Given the broad emergence of such ërights talkí on a global level during this period, in large part as a specific reaction to Nazi atrocities, this absence is perhaps somewhat surprising.[6]

It is also, however, quite typical of the context of German Nazi trials prior to at least the mid-1970s. Even in those rare instances where human rights are named directly in the German context, they are always immediately linked to the rule of law.[7]ÝÝ Above all, this absence of an autonomous discourse of human rights reflects a broad minimization of what might be termed a victim-oriented perspective in such trials.[8]Ý Despite the fact that these trials relied very heavily on eyewitnesses (as opposed to documentary) evidence, the account of the victimsí experience that emerged from them was by and large fragmentary, inchoate and in deep tension with the legal proceedings themselves.Ý German Holocaust trials were not in the first instance about the suffering of the victims but about the perfidy of the perpetrators.Ý The palpable tension among witnesses that runs through such trials between being a (juridical) witness and bearing witness, in a quai-religous sense, is one crucial manifestation of this.Ý The marked tendency to privilege atrocity over genocide, necessitated by the character of German criminal law, was another.[9]Ý Whether justified in terms of the rule of law or the demands of moral pedagogy, the victimsí narratives of suffering and death were seen largely in probative terms, for their evidentiary value in articulating a vision of the defendantsí guilt, not in terms of the witnessesí own psychological needs or the moral and political implications that might emerge from recognizing these.

ÝÝÝÝÝÝÝÝÝÝÝ Ironically, then, the rule of law and the claims of memory not only worked in opposition to one another in German Holocaust trials but also in opposition to the notion of human rights.Ý On the one hand, the rule of law claimed that such trials were necessary for the preservation of Rechtstaatlichkeit but at the same time, the preservation of the rule of law mandated that such trials take place in a narrowly delimited and strictly regulated manner.Ý On the other hand, in the context of German Holocaust trials, the claims of memory were reduced essentially to the claims of German memory, to a set of moral and political lessons about Germany, to be articulated and rearticulated lest they be forgotten or repressed, to the great damage of democracy in the Federal Republic.Ý For all their differences and antagonisms, what both visions shared was a fundamental preoccupation with contemporary German democracy and with the perpetrators of the Holocaust as a ëproblemí for that democracy.Ý The victims could only ever serve as the objects of such a discourse, never as its subjects.

ÝÝÝÝÝÝÝÝÝÝÝ The discourse of human rights, by contrast, is arguably fundamentally victim centered.Ý Whether articulated in ëthickí or ëthiní terms, that is as substantive or procedural, human rights remain largely latent so long as they are not infringed upon.Ý The discourse of human rights as articulated since 1945 has come to concern both negative and positive liberties, ëfreedoms fromí and ëfreedoms to,í and in this it is distinguished from the doctrine of natural right from which it derives, which concerned itself more narrowly with negative liberties.[10]Ý In both cases, however, Ronald Dworkinís famous image of rights as ìtrump cardsî that can be played to invalidate any infringement upon those rights points to the way in which human rights are generally viewed as something which is kept in reserve, held in oneís hand as it were, until such time as it is needed.[11]Ý On this view, human rights are fundamentally retroactive and restitutive.Ý Consequently, whenever the ërights cardí is played, it implies that some individual or group has been victimized (or at least perceives itself to have been victimized).Ý It is in this sense that human rights can be viewed as fundamentally victim centered.Ý It is impossible to tell a human rights story without thereby telling a victimís story.Ý Thus, the absence of a discourse of human rights from German Holocaust trials is part and parcel of the relative absence of a victimsí discourse as well.[12]

ÝÝÝÝÝÝÝÝÝÝÝ At this point, what I would like to do is to briefly sketch the contours of the two justificatory discourses for German Holocaust trials, before concluding with some more speculative remarks concerning the lessons that emerge from the failure to articulate a defense of such trials in terms of human rights.

1. The Rule of Law

ÝÝÝÝÝÝÝÝÝÝÝ The notion of the Rechtsstaat, which I am translating here somewhat loosely as the rule of law, has a long and sometimes venerable, sometimes notorious history in Germany.Ý Since at least the time of Kant and Hegel, it has formed one of the central tenants of German constitutionalism.Ý Above all, what has characterized the notion of the Rechtsstaat in German history has been, as the term implies, the identity of law and reason as embodied in the state.[13]Ý To quote Hegelís famous formulation, ìThe state is the actuality of the ethical IdeaÝ (sittlichen Idee).Ý It is ethical mind qua the substantial will manifest and revealed to itself, knowing and thinking itself, accomplishing what it knows and in so far as it knows it.î[14]Ý The state, on Hegelís account, finds its mediate existence in individuals, who in turn find their ìsubstantial freedomî in the state.[15]Ý But it is the state, as the ìin and for itself Rational,î which remains the world historical actor.[16]Ý The rule of law cannot be distinguished from the rule of the state, not merely for the practical reason that the law requires an enforcement mechanism, but for the theoretical reason that the state is the law and vice versa.Ý Hence, the term Rechtsstaat.

ÝÝÝÝÝÝÝÝÝÝÝ In the aftermath of WW II, one of the fundamental questions confronting German society was whether or not the Rechtsstaat itself could be salvaged from the wreckage and pressed into the service of the new democratic order.Ý This emerged most obviously in the form of an often acrimonious debate over legal positivism, the status of Nazi law and the role of the judiciary in the Third Reich.[17]Ý Although bitterly fought, the definitive answer that emerged in constitutional and judicial practice was that the Nazi regime represented merely the de facto suppression of the Rechtsstaat, not its world historical embodiment.[18]Ý If the Rechtsstaat was thus viewed as having only been set in temporary abeyance by the irrationality of Nazi power, then clearly one of the fundamental tasks of the New German democracy was to restore the rule of law as the enactment and embodiment of the legitimate state.

ÝÝÝÝÝÝÝÝÝÝÝ I would argue that Nazi trials served as the principle venue for such a restoration.Ý For the sake of brevity, let me just give two examples of this process at work.Ý Let me first take the example of the German reaction to the Nuremberg Trial.Ý The Allied Occupation Authorities, the Americans in particular, hoped that the Nuremberg Trial would function as an essential compliment to their broader efforts to ëreeducateí the Germans for democracy.Ý In 1950, General Lucius D. Clay, former head of the American Military Government in Germany, said of the Nuremberg Trials that:

The mass of evidence, which exposed not only the relentless cruelty of the Nazi regime but also the grasping rapacity of its leaders, was convincing to the German people.Ý They may have known something of the crimes committed by their own leaders, but they did not know the full extent of the mass extermination of helpless human lives, of the ruthless cruelty of the concentration camp.Ý The trials completed the destruction of Nazism in Germany.[19]

Unfortunately, whatever the successes and failures of the Nuremberg Trials may have been, Clayís optimistic assesment of their popular impact in Germany cannot be sustained.

In fact, the Nuremberg trials were not generally well received by the Germans, either among professional jurists or among the general populace.Ý Even among Germans who felt that Nazi crimes demanded some form of punishment, there was considerable trepidation at the form taken by the allied trials. As one German jurist put it:

That the defendants at Nuremberg were held responsible, condemned and punished, will seem to most of us initially as a kind of historical justice.Ý However, no one who takes the question of guilt seriously, above all no responsibly thoughtful jurist, will be content with this sensibility nor should they be allowed to be.Ý Justice is not served when the guilty parties are punished in any old way, even if this seems appropriate with regard to their measure of guilt.Ý Justice is only served when the guilty are punished in a way that carefully and conscientiously considers their criminal errors according to the provisions of valid law under the jurisdiction of a legally appointed judge.[20]

And it was precisely on these terms that a great many Germans felt that the Allied trials failed.Ý In a motion adopted by all the defense counsel in the Nuremberg Trial, G–ringís lawyer, Otto Strahmer, declared two central objections.Ý First, he argued that the ìprinciples of a penal character contained in the [London] Charter are in contradiction with the maxim, ëNullaÝ Poena Sine Lege (no punishment without prior law).íî[21]Ý And second, he noted that ì[t]he Judges have been appointed exclusively by states which were the one party in this war.î [22]Ý Strahmer felt that this meant that the prosecutors and judges were really one party, thus violating a further principle of legality, that of an impartial judiciary. The former objection to the trial, that it was based on ex post facto law, resonated quite strongly with German jurists in particular.Ý So, while German legal scholars (and the drafters of the German Basic Law) acknowledged the basic validity of the principles contained in the London Charter for future crimes, they generally rejected its applicability to Nazi crimes.[23]Ý But it was above all the second objection that found a popular resonance in Germany.Ý It was widely believed, as the title of one well-known German history of the trial put it, that Nuremberg was a ìtribunal of the victors.î[24]Ý ìTo a great many Germans, the results of the trials seemed to be a boundless over-stepping and whitewashing of an act of vengeance.î[25]

ÝÝÝÝÝÝÝÝÝÝÝ Thus, the German rejection of the Nuremberg Trial, however much it may also have been a matter of political and psychological expedience, was justified largely in terms of the rule of law.Ý The Germans argued that if they were to have any hope of overcoming the legacy of Nazism, they could only do so on the basis of the restoration of the Rechtsstaat, here conceptualized in rigidly proceduralist terms.

ÝÝÝÝÝÝÝÝÝÝÝ When between 1950 and 1955 German courts were restored to full legal autonomy, they immediately ceased prosecuting Nazi crimes under the categories of the London Charter as embodied in Allied Control Council Law No. 10, as they had previously been constrained to do under the occupation.Ý Instead, they prosecuted Nazi crimes under German statutory law per the 1871 penal code, despite the fact that this created substantial procedural and jurisprudential problems.Ý This decision was in accordance with the argument that the Nazi regime had been the antithesis of the rule of law, an Unrechtsstaat, and that consequently, the proper approach to dealing with Nazi crimes was to impose the rule of law upon them, to reaffirm that perduring legality which Nazi power had set in abeyance.

ÝÝÝÝÝÝÝÝÝÝÝ This can be seen particularly in the repeated insistence that Nazi trials were ëordinaryí trials, nothing more, nothing less. As the presiding judge in the Auschwitz Trial, Hans Hofmeyer, put it, every effort must be made to ìfit Nazi trials into the framework of [ordinary] criminal procedure--that is, so long as we do not view these trials as political trials but as murder trials in the sense of the criminal code, though admittedly ones in which the political situation which led the defendants to their actions cannot be lost from view but dare not become the centerpiece of the proceedings either.î[26]Ý Henry Ormond, a counsel for the civil plaintiffs in the trial, made the point somewhat more succinctly: ìWhat took place in Auschwitz were neither misdemeanors nor war or political crimes, but rather criminal offenses in the statutory sense, whereby the perpetrators exercised their functions according to a division of labor within a well-organized, factory-like apparatus of murder.î[27]

ÝÝÝÝÝÝÝÝÝÝÝ This awkward insistence that the systematicity of the Holocaust, its organized, bureaucratic, state-directed character, does nothing to alter the character of Nazi crimes makes no sense in historical terms.Ý Indeed, it should be viewed as a fundamental distortion of the historical reality of the Nazi genocide of the Jews.Ý From the perspective of the German legal system, however, with its peculiar insistence that homicide is defined by a defendantís subjective orientation towards his crimes, it not only makes sense but also becomes jurisprudentially unavoidable.[28]Ý More importantly in this context, the strict adherence to the German Penal Code can be viewed as a crucial component in the project to restore the Rechtsstaat in postwar Germany.Ý In particular, the fact that Nazi crimes had to be viewed strictly as individual crimes rather than as state crimes allowed for the reintegration of law and the state, without having to address the difficult issues raised by state criminality for such a project.[29]

2. Moral Pedagogy and the Claims of Memory

ÝÝÝÝÝÝÝÝÝÝÝ Not all Germans, however, were satisfied with the conservative project of renewing the Rechtsstaat in postwar Germany.Ý From their perspective, the restoration of the rule of law was, at best, a partial solution to the problem of stabilizing democracy in a Germany with little democratic tradition.Ý From the very beginning, there were those who argued not only for a more vigorous and effective prosecutorial effort to process Nazi crimes but also for a broader, more systemic understanding of the Third Reich as a whole.[30]Ý In the classic era of German Holocaust trials, this tradition found expression above all in a discourse of moral pedagogy that viewed the purpose of such trials as going well beyond the juridical punishment of the defendants.

ÝÝÝÝÝÝÝÝÝÝÝ Commenting on the irony that the first German ambassador to Israel presented his credentials on the very day that the Auschwitz court began to read its verdict, Reiner Dederichs wrote:

There will be more Auschwitz trials, and yet more trials for crimes in other concentration camps.Ý To be sure, these should serve in the first instance as a kind of penance, a penance that in most instances is not hard enough in comparison with the scope of the misdeeds [on trial].Ý But one which also cannot be hard enough, because no human being can atone for more than one lifetime on earth.Ý These trials should and must do more and be more.Ý They must keep the memory of the past alive, even when this is unpleasant for many.Ý They must serve as a warning for this and future generations, so that this nation need never again send an ambassador somewhere where he encounters a wave of hostility.[31]

In this quote, we see the three essential features of the discourse of moral pedagogy.Ý First, it acknowledges the importance of punishment, as well as the impossibility of an adequate punishment in the face of the Holocaust.Ý But it draws very different lessons from this inevitability than Hans-Martin Schubert did in articulating a defense of the Rechtsstaat.Ý Whereas Schubert saw the essential point of such trials in the act of speaking law, regardless of whether such law corresponded with, or could correspond with, the demands of justice.Ý The law is its own virtue.Ý For Dederichs and others like him, the mere enunciation of law was hardly sufficient.Ý Rather, Nazi trials had to ëbe moreí than simply legal proceedings. Ý

The second, more important function of such trials was to keep memory alive, a memory that many wanted to forget.Ý In the Christian tradition at least, the point of penance is to leave the past behind.Ý By demonstrably renouncing oneís sin, one reentered the kingdom of God.Ý The rule of law shares with this Christian tradition the notion that penance is the end of the story, even if it generally substitutes imposed punishment for voluntary penance.[32]Ý The prohibition on ëdouble-jeopardyí prosecutions under the rule of law is the formal embodiment of this principle.Ý

For Germanyís moral pedagogues, however, the notion that Nazi trials might be the end of the story was abhorrent; they should rather be merely its beginning.Ý Precisely because justice could not possibly be done in such trials, it was imperative that truth be spoken.Ý But what truth?Ý As the Hamburger Abendecho put it near the end of the trial, "Just as there can be no mitigating understanding for the guilty parties of Auschwitz, there can never be a definitive explanation for their former willingness to commit crimes of such magnitude.Ý Nothing more than an anonymous order converted the innocent into mass murderers. And nothing but a compliant obedience gave the impetus for their unparalleled crimes.î[33]Ý The truth to be spoken, then, was the truth about the perpetrators, about the forces that had driven them to commit such terrible and seemingly inexplicable crimes.Ý The Deutsche Tagespost made this point quite clearly.Ý ì[The defendants] willówhether they want to or notóbecome a crucial factor in mastering our past.Ý More than ever, it seems today to be important that we never be allowed to forget what a misunderstood nationalism, what an obedience-unto-death can make of men.î[34]

In this respect, Nazi trials were viewed far less as an act of penance than as an act of remembrance.Ý This remembrance, however, was neither global in scope nor neutral in purpose.Ý It was German remembrance and it was to serve as a warning, to Germans, not to repeat their previous sins. This is the third dimension of the discourse of moral pedagogy.Ý It was, in a loose sense, instrumental. Germans ought to remember the Holocaust, for their own sake, so that they never again fell prey to demagogues, never again had to send an ambassador where he was not welcome.Ý Thus, for example, Theo Weber, writing in the Rhein-Zeitung, noted that right-wing, racist propaganda continued to be disseminated and continued to have a deadly impact.Ý There was a clear line, on his account, from the Dreyfus affair through the murder of Walter Rathenau down to the assasination of President Kennedy.Ý It might be impossible to completely undo these ìfalse lessons.îÝ ìBut what one can do is to shake the public out of its lethargy, which threatens to become a deadly danger.î[35]Ý In this sense, the lessons of Auschwitz were, to borrow the title of Siegried Lenzí well-known novel, German Lessons.[36]

3. Human Rights

ÝÝÝÝÝÝÝÝÝÝÝ What is particularly striking about both of these discursive justifications for Nazi trials is that neither takes the victimsí experience into account in any strong sense.Ý For the Rechtsstaat, what matters is the legitimacy of the stateís right to punish, as evinced by the procedural rectitude of the proceedings.Ý For the discourse of moral pedagogy, what is important is that Germans remember their own sins and learn the appropriate lessons.Ý In both cases, the victims remain a kind of passive cipher.Ý Both the rule of law and moral pedagogy sincerely seek to make amends for German crimes but in ways which objectify the victims, rather than integrating them coherently into the process.Ý It is in this context that we can understand how the vast quantity of eyewitness testimony in German Nazi trials could fail to produce any deep or psychologically internalized understanding of what it meant to be a Jew in Nazi Europe.Ý The near hysteria of the German public reaction to the broadcast of the American television mini-series ìHolocaustî in the late 1970s indicates what happened when the Germans were finally confronted with a version of history told from the victimsí perspective.[37]

Let me conclude by reiterating that this absence of a victimís perspective from the two basic discourses surrounding German Holocaust trials is strongly linked to the absence of a discourse of human rights.Ý This is more than simply a question of vocabulary.Ý It is true that the notion of defendantsí rights, encapsulated in the presumption of innocence (in dubio pro reo), are a strong component of the rule of law.Ý However, defendantsí rights are not the same thing as human rights. For one thing, they are strictly procedural, a matter more of the fairness of the proceedings, than of the human dignityÝ of the persons protected.Ý Furthermore, as I have already indicated, human rights are fundamentally victim oriented.Ý However much the defendants in German Holocaust trials tried to portray themselves as victims, such a reading is highly implausible.Ý (This is not to say that such defendants ought not be accorded the full protection of the law, only that it is hard to read such protection as human rights in this context).Ý Nor did the discourse of moral pedagogy articulate a vision of Nazi crimes as human rights violations.Ý Rather, the moral core of these crimes was viewed as residing in a peculiarly German failure, the ìsecret union of the German spirit with the Demonicî in Thomas Mannís phrase.[38]Ý In such accounts, the crimes of Nazism are historicized without being historically specified.Ý The Holocaust is situated in the context of a one-dimensional view of German history which takes into account neither the role that general structures of modernity played in the Holocaust (its universal dimension), nor the role played by non-German actors, both among the perpetrators and the victims (its European dimension).

While I think that any speculation about the causal relationship between the absence of a human rights discourse and the minimization of the victimsí perspective in German Holocaust trials would amount to little more than a ëchicken-or-the-eggí dilemma, I would like to conclude with three reflections on the place of human rights discourse in trials for mass atrocity more generally.Ý First, if I am correct in asserting a fundamental linkage between the discourse of human rights and an articulation of the victimsí experience, then obviously explicating the theory and practice of trials for mass atrocity in terms of human rights would help to integrate the victims into that process, rather than excluding or instrumentalizing them.Ý Second, to the extent that human rights have, in however qualified a form, an irreducible, universalist core, then enunciating trials for mass atrocity in terms of human rights points necessarily to the potential universalizability of the victim position.Ý To make a claim on the basis of human rights is to make a claim based on the fact that we are all potential victims and therefore all have an obligation to actively oppose victimization.Ý Finally, because human rights, as ëtrump cards,í can only every be fully mobilized after the fact, that is after the process of victimization is already underway, they cannot function autarkicly to prevent and punish mass atrocity, without the support of other conceptual frameworks, such as the rule of law and the claims of memory.Ý In the end then, what is needed is a comprehensive political, cultural and legal strategy for both preventing mass atrocity and for punishing it when it does occur.

---

[1] Hans-Martin Schubert, ìRecht, nicht Rache,î Mannheimer Morgen, 20 August 1965.

[2] Ibid.

[3] Friedrich Herzog, ìVor Gericht,î Frankfurter Neue Presse, 20 December 1963.

[4] After German courts regained full legal autonomy in 1950/55, this means essentially Holocaust trials,

[5] The phrase is Mark Osielís.Ý See Mark Osiel, Mass Atrocity, Collective Memory, and the Law (New Brunswick: Transaction Publishers, 1997), pp. 65-72.

[6] For broad comparative discussions of this emergence, see Henry J. Steiner and Philip Alson, International Human Rights in Context: Law, Politics, Morals (Oxford: Clarendon Press, 1996) and Charles R. Epp, The Rights Revolution: Lawyers, Activists and Supreme Courts in Comparative Perspective (Chicago: University of Chicago Press, 1998).

[7] For instance, Fritz Bauer, the Hessian Attorney General who initiated the Frankfurt Auschwitz Trial, wrote: ìÖif I were today in a position to change the titular designations of the legal profession of my own accord, I would certainly call stateís prosecutors (Staatsanw”lte) legal prosecutors (Rechtsanw”lte).Ý The designation stateís attorney, which stems from authoritarian times, is not appropriate; the state prosecutor does not represent the state, he is not the lawyer for some version of Raison díEtat, but rather for the rights of human beings and their social existence against private and state despotism.Ý He is bound to the laws (Gesetze), of which the most important are human rights.îÝ Fritz Bauder, ìKampf um des Menschen Rechte,î in Idem, Die Humanit”t der Rechtsordnung: Ausgew”hlte Schriften, ed. by Joachim Perels and Irmtrud Wojak (Frankfurt: Campus Verlag, 1998), p. 37.Ý Translation note: Rechtsanwalt literally means lawyer; however, to preserve the contrast Bauer is drawing between serving the state an dserving the law, I have altered the translation.

[8] This analysis runs somewhat counter to that presented in Robert Meister, ìForgiving and Forgetting: Lincoln and the Politics of National Recoveryî in Carla Hesse and Robert Post, eds. Human Rights in Political Transitions: Gttysburg to Bosnia (New York: Zone Books, 1999), pp. 135-176.Ý Meister argues that ì"Although liberal approaches to national reconciliation differ in the degree to which they are victim-centered in the beginning (and in their consequent willingness to punish some perpetrators), their common goal is to allow the beneficiaries of the old order eventually to sublimate their fantasies of genocidal punishment and identify to some degree with former victims" (p. 163).Ý In other words, Meister argues that any willingness to prosecute perpetrators of mass atrocity constitutes a fundamental orientation towards the needs of victims but that the ultimate purpose of such prosecutions is to allow an identification between perpetrators and victims and, thus, reconciliation.Ý By contrast, I argue that it is possible to justify such prosecutions in terms which in fact minimize the place accorded to victims and which consequently makes any eventual identification with the victims at best a highly abstract identification that belies any adequate reconciliatory function.

[9] I have made this argument elsewhere.Ý See Devin O. Pendas, ìThe ëBoger Syndromeí: Torture vs. Genocide in the Frankfurt Auschwitz Trial, 1963-1964î presented at the conference Investigating and Combating Torture: Explorations of a New Human Rights Paradigm, The University of Chicago, March 6, 1999.

[10] On negative and positive liberty in human rights discourse see e.g. the discussion of the rights of non-discrimination and self-determination in Francis Valat, ìIntroductionî in Idem ed., An Introduction to the Study of Human Rights (London: Europa Publications, 1970), pp. x-xv.Ý For the relationship between contemporary human rights discourse and the doctrine of natural right, see David Sidorsky, ìContemporary Reinterpretations of the Concept of Human Rightsî in Henry J. Steiner and Philip Alston, International Human Rights in Context: Law, Politics, Morals (Oxford: Clarendon Press, 1996), pp. 170-72.

[11] Ronald Dworkin, ìRights as Trumpsî in Jeremy Waldron ed., Theories of Rights (Oxford: Oxford University Press, 1984).Ý For a critique of Dworkinís ex post facto understanding of rights, see Ruti Teitel, ìMillennial Visions: Human Rights at Centuryís Endî in Carla Hesse and Robert Post eds., Human Rights in Political Transitions: Gettysburg to Bosnia (New York: Zone Books, 1999), p. 340.

[12] For a scathing critique of the discourse of rights (in the American context) that runs counter to my more positive assesment of the value of such discourse here, see Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse (New York: The Free Press, 1991).

[13] In this, Germany is quite distinct from the United States, with its dual constitutional emphasis on rights and democracy.

[14] G.W.F. Hegel, Hegelís Philosophy of Right, trans. By T.M. Knox (Oxford: Oxford University Press, 1952), ß 257, p. 155.Ý G.W.F. Hegel, Grundlinien der Philosophie des Rechts, (Hamburg: Felix Meiner Verlag, 1995 [1820]), pp. 207-08.Ý

[15] Ibid.Ý Cf. Also Leonard Krieger, The German Idea of Freedom: The History of a Political Tradition (Chicago: University of Chicago Press, 1972 [1957]).

[16] Hegel, Philosophy of Right, ß 258.Ý Translation modified. Marx of course famously criticized Hegelís philosophy of right as the ultimate expression of a metaphysical theory of the state which preserves in bourgeois, secular form, the religious illusion that hides the truth of unfreedom behind a veil of necessity.Ý See Karl Marx, ìContribution to the Critique of Hegelís Philosophy of Right: Introduction,î in Robert C. Tucker ed., The Marx-Engels Reader, 2^nd ed. (New York: W.W. Norton & Co., 1978), pp. 53-65.

[17] On the postwar debates over natural law, legal positivism and the character of Nazi law, see Arthur Kaufmann, ìDie Naturrechtsrenaissance der ersten Nachkriegsjahre--und was daraus geworden istî in Festschrift f¸r Sten GagnÈr zum 3. M”rz 1996 (Ebelsbach: Aktiv Druck & Verlag, 1996); Clea Laage, ìDie Auseinandersetzung um den Begriff des gesetzlichen Unrechts nach 1945î, Kritische Justiz, vol. 22 (1989), pp. 409-432; and G¸nter Ellscheid, ìDas Naturrechtsproblem: Eine systematische Orientierungî in Arthur Kaufmann and Winfried Hassemer eds., Einf¸hrung in Rechtsphilosophie und Rechtstheorie der Gegenwart, 6th ed. (Heidelberg: C.F. M¸ller Juristischer Verlag, 1994), pp.Ý 179-247.Ý See esp. pp. 183-88.Ý For specific interventions in the debate over the status of Nazi law, see Anton Rosen, ìRchtsfragen der Einsatzgruppen-Prozesse,î Neue Juristische Wochenscrift 4 (1964), pp. 133-136, Hans Welzel, ìGesetzm”þige Judent–tungen?î Neue Juristische Wochenschrift 12 (1964), pp. 521-523 and J¸rgen Baumann, ìRechtm”þigkeit von Mordgeboten?î Neue Juristische Wochenschrift 31 (1964), pp. 1398-1405.

[18] See Gerhard Werle and Thomas Wandres, Auschwitz vor Gericht: V–lkermord und bundesdeutsche Strafjustiz (Munich: C.H. Beck Verlag, 1995), pp. 33-40.

[19] Lucius D. Clay, Decision in Germany (New York: Doubleday, 1950), p. 250.

[20] Wilhelm Grewe, N¸rnberg als Rechtsfrage (Stuttgart: Ernst Klett, 1947), p. 10.

[21] Otto Strahmer, ìMotion Adopted by All Defense Counsel, 19 November 1945î in Wilbourn E. Benton and Georg Grimm eds., Nuremberg: German Views of the War Trials (Dallas: Southern Methodist University Press, 1955), p. 29. In addition, it should be noted that most of the other German reactions to the trial collected in this volume are quite critical of the proceedings on similar grounds.

[22] Ibid., pp. 29-30.

[23] Bernd Hey, ìDie NS-Prozesse--Probleme einer juristischen Vergangenheitsbew”ltigungî in J¸rgen Weber and Peter Steinbach eds., Vergangenheitsbew”ltigung durch Strafverfahren? NS-Prozesse in der Bundesrepublik Deutschland (Munich: G¸nter Olzog Verlag, 1984), p. 54.

[24] Werner Maser, N¸rnberg: Tribunal der Sieger (D¸sseldorf: Econ Verlag, 1977).

[25] Ibid., p. 577.

[26] Hans Hofmeyer, ìProzessrechtliche Probleme und praktische Schwierigkeiten bei der Durchf¸hrung der Prozesseî in St”ndigen Deputation des deutschen Juristentages ed., Probleme der Verfolgung und Ahndung von nationalsozialistischen Gewaltverbrechen: Sonderveranstaltung des 46. Deutschen Juristentages in Essen vol. 2 (Munich: C.H. Beckísche Verlagsbuchhandlung, 1967), 44.

[27] Henry Ormond, ìZwischenbilanz im Auschwitz-Prozeþ,î Trib¸ne 3 (1964), p. 1188.Ý Translation note: Ormond here contrasts Verbrechen with Delikte, where Verbrechen means crimes in the broadest sense and Delikte are confined to more specific, statutory offenses.

[28] For a brief account of the subjective character of German criminal law and its distorting impact on the historical image of the Holocaust that emerges from Nazi trials, see Devin O. Pendas, ìíI didnít know what Auschwitz wasí: The Frankfurt Auschwitz Trial and the German Press, 1963-65,î The Yale Journal of Law and the Humanities 12 (June 2000).

[29] It should be noted that I am not arguing here that the project to restore the Rechtsstaat was causal for the decision to try Nazi crimes as ordinary crimes. Rather, what I am saying is that both grew out of the same political context, one characterized by conservative renewal, not radical transformation.

[30] It is one of the great contributions of Jeffry Herfís recent work that he reminds us of this other tradition within the early history of the Federal Republic.Ý See Jeffry Herf, Divided Memory: The Nazi Past in the Two Germanys (Cambridge: Harvard University Press, 1997), pp. 267-333.

[31] Reiner Dederichs, ìIn unserem Namen,î K–lner Stadt-Anzeiger, 21 August 1965.

[32] This is less true for therapeutic theories of punishment, which seek fundamentally to rehabilitate the convicted criminal.Ý According to such theories, for punishment to be effective, its lessons must be internalized, embraced by the person being punished, just as a penitent sincerely renounces his sin.Ý Under such theories, punishment must become penance, or at least have the potential to do so, otherwise it is merely cruelty.

[33] Erwin Fischer, ìAuschwitz,î Hamburger Abendecho, 22 May 1965.

[34] Ferdinand R–mer, ìDer Auschwitz-Prozeþ,î Deutsche Tagespost, 24 December 1963.

[35] Theo Weber, ìAuschwitz,î Rhein-Zeitung, 28 December 1963.

[36] Siegfried Lenz, Deutschstunde: Roman, 4^th ed. (Hamburg: Hoffmann und Campe, 1969).

[37] This is essentially the argument made in Andreas Huyssen, ìThe Politics of Identification: ëHolocaustí and West German Drama,î in idem., After the Great Divide: Modernism, Mass Culture, Postmodernism (Bloomington: Indiana University Press, 1986), pp. 94-114.Ý For the public reaction to ìHolocaustî more generally, see Peter M”rthesheimer and Ivo Frenzel eds., Im Kreuzfeuer: Der Fernsehfilm Holocaust.Ý Eine Nation ist betroffen (Frankfurt: Fischer, 1979).Ý It should be noted that it would be overly simplistic to account for the highly charged reaction to ìHolocaustî simply on the basis of its internal narrative strategies.Ý The changed political and cultural, not to mention generational, circumstances in Germany in the late 1970s would have to be taken into account in any fully adequate explanation.

[38] Thomas Mann, Germany and the Germans (Washington, D.C.: Library of Congress, 1945), p. 5.