Didactic and Dissident Histories in War Crimes Trials
Simpson, Gerry J., Albany Law Review
"All sorrows can be borne if you put them into a story or tell a story
about them." The story reveals the meaning of what otherwise would
remain an unbearable sequence of sheer happenings .... All her
stories are actually "Anecdotes of Destiny," they tell again and again
how at the end we shall be privileged to judge . . . .(1)
I had dreamed, we had always dreamed, of something like this, in the
nights at Auschwitz: of speaking and not being listened to, of finding
liberty and remaining alone. After a while I remained alone with the
lawyer; a few minutes later he also left me, urbanely excusing
During the trial of Adolf Eichmann in Jerusalem in 1960, Hannah Arendt's moral certainty about both the defendant's unsurpassable evil and the rectitude of the trial itself gave way to a debilitating array of jurisprudential doubts, ethical quandaries and emotional ambivalence.(3) For Arendt, what began with some excitement as "'an obligation I owe my past'"(4) was transformed into a feeling that "'[t]he whole thing is stinknormal, indescribably inferior, worthless.'"(5) Fourteen years earlier, in 1946, when a team of six army lawyers was appointed defense counsel for the Japanese General Yamashita prior to his trial for war crimes in the Philippines, these lawyers were indignant.(6) For them, Yamashita was the ultimate war criminal, a man responsible for the dreadful and literally indefensible atrocities that had taken place in Manila at the end of the war. Slowly, however, Yamashita was transformed in their eyes from the "Beast of Bataan" to an innocent victim of American injustice. This perception of injustice took them, at some risk to their careers, to the Supreme Court.(7) There, Supreme Court Justice Murphy, in a moving dissent, described Yamashita's trial as the "uncurbed spirit of revenge and retribution, masked in formal legal procedure for purposes of dealing with a fallen enemy commander."(8) Yamashita was hanged, but thirty years later defense counsel and legal experts continue to assert his innocence.(9)
Similar ambiguities have attended more recent war crimes prosecutions. The trial and subsequent acquittal of John Demjanjuk in Israel(10) forced a review of U.S. Department of Justice extradition procedures. In Australia, the acquittal of Ivan Polyukhovich led to the disbanding of the Special Investigations Unit and its successor, the War Crimes Prosecutions Support Unit.(11) Even successful prosecutions cause cultural upheaval and unease. For example, Klaus Barbie was put on trial and eventually convicted of having committed crimes against humanity in 1944 in occupied France.(12) His trial, however, became an ordeal for the French nation. At times, France itself appeared to stand beside Barbie as a codefendant accused of having collaborated with the Nazis during the occupation, or of having carried out crimes against humanity in Algeria during the colonial struggle there.(13) Finally, even Nuremberg, the war crimes trial par excellence, is shadowed by its morally and legally defective twin at Tokyo by the continuing sense that here, again, was victor's justice, and by the spectral presence of those crimes against humanity left unpunished since.
This journey from certainty to doubt may be the price paid by all those who examine individual war crimes trials critically and closely. The accused is often monstrous, sometimes banal, but always human.(14) The trials are most often well-intentioned, occasionally transformative, but always fraught with the gravest moral implications for the accusers. Meanwhile, the law usually is an accomplice to ideology, sometimes an enemy of justice, and always the narrator of a series of complex and deeply ambiguous stories.
In this Article, some of the philosophical, cultural and jurisprudential dimensions of war crimes trials and international criminal law generally will be explored. …