Auschwitz to Srebenice: War Crimes, Crimes against Humanity, and the Possibility of Justice

On Tuesday, March 21, 2006, the Center for German and European Studies hosted a panel discussion featuring Devin Pendas, Assistant Professor of History at Boston College, Paul Jankowski, the Raymond Ginger Professor of History at Brandeis, and Daniel Terris, Director of the International Center for Ethics, Justice and Public Life at Brandeis. Each panelist addressed one aspect of the overaching topic, leading into a larger discussion touching on all questions raised.

Pendas began his talk by posing the question, "Is it possible to render justice on Auschwitz?" He prefaced the discussion by admitting that he did not have an answer to the question, only that he hoped to gain insight by examining the issues involved. He went on to explain that the only kind of justice one could hope for after an atrocity of such magnitude is what philosopher Karl Jaspers called "political justice," based on the notion that all people in a given state bear some responsibility for the way they are governed. In that respect, the Auschwitz trials held in Frankfurt, Germany, after World War II made an attempt at achieving justice, but even they fell short. For example, former Nazi officer Wilhelm Boger received 114 life sentences for the murders he committed, but a total of five years for his role as an accomplice in selecting others to be killed. In a sense, Boger was convicted of murders but barely punished for participating in the genocidal master plan.

"German political law was particularly ill-equipped to render justice in this case," said Pendas. "But it is possible, theoretically."

Jankowski discussed the ways in which France contributed to the larger body of international war crimes jurisprudence by trying Nazi collaborators after WWII. Former Gestapo officer Klaus Barbie - "the Butcher of Lyon" - was tried for war crimes in 1987; although his guilt was clearly established, a problem arose when the court found that the statute of limitations on war crimes had expired. For the sake of that one trial, French law was redefined to lump war crimes together with crimes against humanity -- a move that outraged some genocide survivors who had been detained not because they were at war, but simply because they were Jewish.

In another trial, Paul Touvier was convicted in 1994 of complicity in the Nazi crimes against humanity. While Touveir had indeed killed seven unarmed Jewish civilians and committed other crimes against humanity, he was in all likelihood not associated with the Nazi regime. "It's more accurate to say he was acting in the context of a Franco-French civil war," said Jankowski. "But the definition of a crime against humanity said you had to be working on behalf of a state practicing a policy of ideological hegemony." So a conviction was achieved, but it took a distortion of history to get it.

Terris discussed the current state of international justice, especially in the context of the trial of Slobodan Milosevic in the International Criminal Tribunal for the former Yugoslavia. Because Milosevic died recently in prison, his trial will never conclude; but given that it began in 1999, one could reasonably ask whether it was an efficient or even effective process. Terris believes that the act of indicting and trying a former head of state in an international court does approach some version of justice as a blow against impunity, regardless of the lack of resolution in this particular case.

Questions do remain, however, about the efficacy of international justice. Does it interfere at times with peace and reconciliation efforts on the ground? Can larger, more powerful countries be held accountable too? Those questions will no doubt be played out in the years to come, but Terris remains hopeful.

"The achievements of the tribunals suggest that, while the road will be rocky, there's a lot of room for them to address these questions," he said.