In this article, I discuss how legal institutions can contribute to collective memory around the crime of genocide. The specificity of genocide is examined particularly in relation to the Shoah/Holocaust; the extermination of European Jewry by Nazi Germany during the Second World War. Reference is also made to the genocide of Rwanda’s Tutsi population in 1994 and to ethnic atrocities in Bosnia in the 1990s. I argue that due to its sheer totality and intrinsic evil, the crime of genocide can never be adequately punished. However, the creation of a permanent legal record, especially through witness testimony, of such events can act as a firewall against attempts in later generations to deny or to trivialise the events and so is essential to the prevention of future genocides. It is also argued that the dramaturgy of trials such as those at Nuremberg and of Adolf Eichmann represent catharsis for the peoples affected by catastrophes such as the Shoah and is vital to the creation of proper rule of law in transitional societies emerging from the shadow of such events.
The crime of genocide is unique and specific compared to all other international crimes such as war crimes, crimes against humanity and slavery. It is not more serious than these crimes; it is different (Fournet, 2007: p.1). The etymology of the word arises from the need to conceptualise the Nazi atrocities against the Jews of Europe which culminated in the Final Solution; a crime without a name; a crime for which ‘language failed us. Therefore, a word had to be found to qualify the Nazi crimes and to encompass all other similar atrocities even the retrospective case of Turkish slaughter of the Armenians in 1915. Consequently, Raphael Lemkin, a Polish lawyer, coined the word ‘genocide’ in 1944 by putting together the Greek term ‘genos’, meaning people sharing the same genetic features, with the term ‘cide’, which originates in the Latin ‘caedere’ meaning ‘to kill’. This term was then legally acknowledged with the adoption of the United Nations Genocide Convention in 1948 (Fournet, 2007: p.5).
This definition is problematic due to the very specificity of the Nazi genocide. This specificity lies in the racialisation of the group targeted for destruction by the perpetrators. The Nazis artificially defined the concept of the ‘Jew’ by collapsing the Jewish religion into a race and the Nuremberg laws of 1935 classified Jews on the basis of ascendance and obscure hereditary rules regardless of whether individuals saw themselves as Jewish or not. The Genocide Convention furthermore depends on the concept of ‘race’ to legally define the crimes. The crime of genocide is perpetrated against a group pre-defined by the genociders through a ‘hereditarisation’ of specific features – whether ethnic, national, religious, political, social etc. – of the group artificially created. This suggests that removal of the concept of ‘race’ from the definition of the crime would deprive this definition of the conceptual element that makes this crime so specific (Fournet, 2007: pp.6-8).
More recently Hutu extremists in Rwanda used artificial categories of ‘Hutu’ and ‘Tutsi’ created by the colonial power, Belgium, in the 19th century on the basis of the height measurements of the respective group as a logistic for the extermination of the Tutsis. Serb (and Croat) nationalist extremists created the concept of ‘Muslim’ prior to the ethnic cleansing campaigns in Bosnia-Herzegovina from 1992-95.
The Nazi genocide is unique in other aspects; the creation of an industrial infrastructure around the death camps, the destruction of the victims’ corpses by burning so as to negate both their lives and deaths; the process of humiliation and dehumanisation prior to entry into the death camps symbolised by the yellow star Jews were forced to wear. The ‘metaphysical crime’ ‘against the human of every human’ and ‘ontological wickedness’ of the Nazi genocide reside in the fact that the means and the end were the same.
Because it is beyond our capacity to comprehend such monstrosity, victims must be able to bear testimony in a suitable judicial arena to create a lasting memory of the crime. In the words of Elie Wiesel, “Memory is a blessing; it creates bonds rather than destroys them”. There is a duty of remembrance because past events like the Shoah do not belong in the past; the traumas of historical genocides are very mush present in the modern age. (Fournet, 2007: p.xxxii).
Collective memory consists of the stories a society tells itself about momentous events in its history (e.g. wars, revolutions, riots, atrocities) and a significant proportion of it is found in the legal proceedings which often arise from these upheavals. The Nuremberg War Crimes Trials indelibly influenced the collective memory of the events they judged. Such trials are moments of truth (Osiel, 2000: p.2).
Moments such as the “discovery” or rehabilitation of Australia’s aboriginal population suggest that acts asserting legal rights or officially condemning their violation often become focal points for the collective memory of whole nations (Osiel, 2000: p.6).
The judicial task at such moments is to employ the law of evidence procedure and professional responsibilities to recast the courtroom in terms of the theatre of ideas, where large questions of collective memory and even national identity are engaged (Osiel, 2000: p.6). The legal memory of genocide is understood as the impact of trials on global society. Legal memory is essential to the construction of social or collective memory of genocidal events (Fournet, 2007: p.xxxii). The memory of the Armenian Genocide of 1915 took such a long time to emerge precisely because of the lack of trials (Fournet, 2007: p.127).
The starting point in the emergence of the collective memory regarding the Nazi Judeocide was the trial of Adolf Eichmann in Israel in 1961, the first acknowledged aim of which was to serve as an educational tool for succeeding generations. In the course of it 111 witnesses were called to testify. Unlike the Nuremberg trials, the Eichmann trial did not rely predominantly on documents but placed emphasis on victims and witnesses. It was the first ever instance of an indictment based on documents and testimonies. The witnesses testified ‘in order to illuminate the destruction in all its detail … they served as faithful proxies of the Holocaust. They were the facts’.
They ‘told their own stories and that is what gave weight to their words… The state, represented by the prosecutor, underwrote their testimony and lent it all the weight of the state’s legitimacy and institutional and symbolic power…. For the first time since the end of the war, the witnesses had the feeling they were being heard.’
By focusing on the unexpurgated personal stories of the victims’, the prosecutor sought to design a foundational narrative of the Jewish people that would resound down the generations (Osiel, 2000: p.10).
At the Eichmann trial the survivors gained their social identity as survivors ‘because society now recognised them as such’. Furthermore, the testimony enabled the relatives and descendants of those who died without graves to begin the work of mourning ‘by allowing them to imagine the circumstances of their relatives’ deaths’.
I argue here that only trials and their testimonies can actually integrate the victims into society and collective memory. Without the moral authority of condemnation from a judicial body representing society as a political entity, be it at the national or supra-national level, the social recognition of victims as victims will, at the very least, be greatly impaired. Furthermore, without an appropriate determination of the crimes as those of genocide, they will fail to remain in collective memory as genocide and the trials will leave space for denial (Fournet, 2007: p.134). It is noteworthy, in this regard, that the crimes against humanity for which Nazi leaders were convicted at Nuremberg were subsumed into the supra-crime of “waging aggressive war” (Hirsch, 2003: p.42) less consonant with the crimes committed at Auschwitz, Treblinka, Sobibor and elsewhere. There is no immediate connection in collective memory between Hermann Goering and the Shoah/Holocaust; there is between Adolf Eichmann due to his conviction in Jerusalem as its architect.
It is also noteworthy that, within the contexts of the International Criminal Tribunals for the Former Yugoslavia and Rwanda respectively, victims were not strictly speaking parties to the trials but merely potential witnesses. This may explain why these trials failed to attract general global interest and why the perpetrators of the Rwandan genocide remain unknown to the general public (Fournet, 2007: p.126).
Trials dealing with genocidal events in Rwanda and the Balkans in the 1990s have heard direct witness testimony from survivors of genocidal sexual violence against women. In both Rwanda and the Former Yugoslavia sexual violence was used not merely as an ancillary weapon in these conflicts but as a fundamental one – a means of committing genocide. Women who suffer genocidal sexual violence suffer not only as women, but as biological and cultural bearers of their community group. Their experiences are distinct; the use of the womb and the vagina as grenades; the objectification of the woman not only as an object of sexual plunder, but also as marker of kin, race and ethnicity and religious icon (de Londras, 2007: pp.113-15).
Just as in the trials relating to the Shoah, truth telling in cases of genocidal sexual violence must provide a supportive theatre in which the narrative or the ‘violence story’. is heard. The performative nature of telling the violence story, through reliving the experience of the violations of the body and the stigmatisation and ostracisation of such ‘sullied’ women after the fact of the exposition, must be considered. Equally, the refiguring of the self as victim by virtue of telling the story must be accommodated since the reconstitution of the law depends on the willingness of survivors/victims to share that story. For acts of genocide are usually carried out in ways to maximise humiliation, degradation and trauma (de Londras, 2007: pp.118-19).
The genocidal character of sexual crimes carried out in Bosnia is illustrated by the case of Kunarac, Kovac and Vukovic which dealt with acts committed by Serb forces on Muslim women and girls at the Foca rape camp to the south-east of Sarajevo. The repeated rape of women and girls ‘were one of the many ways in which the Serbs could assert their victory over the Muslims’ and in her statement at the end of the case stated that ‘Muslim women and girls, mothers and daughters together, robbed of their last vestiges of human dignity … treated like chattels, pieces of property at the arbitrary disposal of the Serb occupation forces. (de Londras, 2007: pp. 122-23).
Justice is fundamentally about the establishment of the Rule of Law to show that nobody is above the law. Justice is therefore served in this case and at the trials of other genocidaires by relying on the testimony of the victims to use the law to re-establish the Rule of Law.
Problems can arise from efforts to employ criminal prosecution to create a collective national story around events like the Shoah or the Rwandan genocide. There are risks to the rights of defendants; trials can unwittingly distort historical understanding of a nation’s recent past; they may foster delusions of a nation’s purity and grandeur and they may fail by requiring greater reflection on revered aspects of a nation’s past than many are willing to make (Osiel, 2000: p.12). State criminality on the scale of Nazi Germany, Cambodia under the Khmer Rouge and Ba’athist Iraq, among others, does pose problems for new democratic states seeking to reconstruct trust, social solidarity and collective memory. However open and transparent administration of justice (not really evident at the trial of Saddam Hussein) at such trials will overcome such obstacles.
I hope I have how witness testimony is central to the judgment of the ultimate crime against humanity, genocide and specifically the premeditated and logistically planned mass murder of Europe’s Jews in the Shoah. The Shoah was the ‘perfect crime’ in that rather than killing the victim or witnesses it sought to obtain ‘the silence of the witnesses, the deafness of the judges and inconstancy (insanity) of the testimony’.. Survivor testimonies, full of traumatic truth and factual errors, trump the usual judicial metrics as the magnitude of the Shoah/Holocaust, a sublime event which must be ‘felt’ rather than ‘known’, renders these measurements ‘obsolete’.. More than any other film, documentary, archive or play these testimonies provide the true “warning from history”. Witness testimony was crucial to the functioning of the South African Truth and Reconciliation.
I would also argue that though none of the crimes committed by the parties to the Northern Ireland conflict in any way approximate to the acts of genocide discussed in that any properly constituted judicial and/or historical enquiry into the tragedy of Northern Ireland’s recent past must have witness testimony of the bereaved at its core. Such an historical record would provide a “warning from history” to future generations in the North.
De Londras, F. “Telling Stories and Hearing Truths: Providing an Effective Remedy to Genocidal Sexual Violence against Women” pp.113-24 in Henham, R. & Behrens, P., 2007. The Criminal Law of Genocide. International, Comparative and Contextual Aspects, Aldershot: Ashgate.
Fournet, C., 2007. The Crime of Destruction and the Law of Genocide. Their Impact on Collective Memory, Aldershot: Ashgate.
Hirsch, D. 2003. Law against Genocide: Cosmopolitan Trials, London: Glasshouse Press.
Osiel, M. 2000. Mass Atrocity. Collective Memory and the Law, New Brunswick, New Jersey: Transaction Publishers
The word ‘Holocaust’ is defined in the Concise Oxford Dictionary as ‘a Jewish sacrificial offering burnt on the altar’. The Hebrew word ‘Shoah’ signifies ‘catastrophe’ as well as ‘destruction and is thus a more appropriate term than Holocaust as it implies Jewish self-sacrifice. Another appropriate term is ‘Hurbr’, the Yiddish term for destruction; Yiddish was the language of most of the victims of the Nazi genocide. (Fournet, 2007: pp.9-11)
Churchill, Winston, on the mass executions of Jews and Jewish ‘Bolsheviks’ killed in mass throughout the occupied territory of the Soviet Union, August 1941. See Fussell, J.T., 2006. A Crime Without a Name. Prevent Genocide International (updated 15 June 2006) http: //www.preventgenocide.org/genocide/crimewithoutaname.htm
Wiesel, E., 1990 From the Kingdom of Memory – Reminiscences, New York: Schocken Books p.245
Jankelevitch, V (1996, original version 1971) Should We Pardon Them? pp.555-6) Translated by Ann Hobart, Critical Inquiry 22 (3): 552-72.
Wiesel, E (1990) p.10
Wiewiorka, A (2006, original version 1998), The Era of the Witness, translated from the French by Jared Stark, Ithica: Cornell University Press p.85
Wiewiorka, A (2006) p.88.
The Kellogg-Briand Pact (1933) reaffirmed propositions adopted by the Assembly of the League of Nations in 1927and incorporated in 1928 into the Paris Pact for the Renunciation of War as an Instrument of National Policy. The League of Nations’ Declaration of Aggressive War had declared aggressive war to be an international crime.
Describes a victim’s retold experience of violence in which, through this retelling, victims ‘must mark themselves as victims, which in turn excludes them from the very communities that are brought forth through their own sacrifice’. Cobb, S (1997), ‘The Domestication of Violence in Mediation, 31:3 Law and Society Review 397, p.406
Prosecutor v Kunarac and Vukovic (IT-96-23-T & IT-96-23/1-T) Judgment, 22 February 2001
Stone, D, ‘Holocaust testimony and the challenge to the philosophy of history’ in Fine, R. and Turner, C., Eds (2000) Social Theory after the Holocaust. Liverpool: Liverpool University Press p.220
➽ Barry Gilheany is the author of a PhD thesis Post-Eighth Abortion Politics in the Republic of Ireland from Essex University, Department of Government. He is also the author of The Discursive Construction of Abortion in Georgina Waylen & Vicky Randall (Eds) Gender, The State and Politics Routledge, 1998.