Atrocities on Trial: Historical Perspectives on the Politics of Prosecuting War Crimes

MICHAEL R. MARRUS

Who could deny, as Hannah Arendt contended in the Postscript to her famous work on the Eichmann Trial, “the inadequacy of the prevailing legal system and of current juridical concepts to deal with the facts of administrative massacres organized by the state apparatus”?¹ Certainly not the authors presented in this collection, whose work is so diligently assembled by my colleagues Patricia Heberer and Jürgen Matthäus. I draw evidence from virtually all of our authors of how difficult it was to bring the Holocaust into the courtroom in a way that seems commensurate with that catastrophe—not only in the immediate aftermath of the Second World War, but extending forward, even to our own time.

Despite this inadequacy, Arendt insisted on the urgent need to bring legal judgment to bear, and to do so precisely because the crimes in question were beyond the reach of conventional legal thinking and processes. Her case depended partly on the gravity of the offenses that were at the limits of human experience. Arendt insisted on the unprecedented character of the crimes of Nazism, and in particular those against the Jewish people. She wrote of “unheard-of atrocities, the blotting out of whole peoples, the 'clearance' of whole regions of their native population, that is, not only crimes that 'no conception of military necessity could sustain' but crimes that were in fact independent of the war and that announced a policy of systematic murder be continued in time of peace.”²

Arendt's case for judicial proceedings also depended upon what she believed to be the continuing threat of totalitarian dictatorships. Awesome in scale and significance, the crimes of Nazism were in her view harbingers of a new dark age. It was “hardly deniable that similar crimes may be committed in the future,” she observed. And so however ill-prepared the machinery and however undeveloped the conceptual apparatus, trials had to go forward. “It is essentially for this reason: that the unprecedented, once it has appeared, may be

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