A. Weinke: Law, History and Justice

Law, History and Justice. Debating German State Crimes in the Long Twentieth Century

Weinke, Anette
New York 2019: Berghahn Books
340 S.
€ 140,00
Reviewed for Connections. A Journal for Historians and Area Specialists by
Kerstin von Lingen, Institut für Zeitgeschichte, Universität Wien

Law, History and Justice, to cite the title, have surely a tide not only since the Yugoslavia wars and Rwanda brought genocide back to the table. Martti Koskenniemi’s seminal work The Gentle Civilizer of Nations1 was published in 2001and and the later anniversaries of the Nuremberg Trials, United Nations Genocide Convention, and Universal Declaration of Human Rights created an awareness for the entanglement of law and history. Since Samuel Moyn’s study on Human Rights 2 the questions of how crimes against civilians became the concern of the international community and whether the human rights movement created a remedy has occupied historians and legal scholars alike. The book under review by historian Annette Weinke is meticulously researched in European and US archives. It is a valuable contribution to this growing field and zooms in into debates of surprising variety.

When analyzing the intellectual debate of the relevant epistemic communities, involving historians and legal scholars alike, the case of Germany stands out in the history of the twentieth century. The debates about crimes against civilians in Germany were always linked to the wars fought and were thus a debate about war crimes carried out during and immediately after conflict. It is therefore a story about Germany’s long twentieth century through the lens of intellectual history. Weinke is to praise for giving a longue durée overview on German perceptions and their change over time as well as Allied responses and postulates. Apart from a lucid overview about the development of international law and its main protagonists, the book’s strength is its delving into several very interesting debates, which – as a principle – always reflect the entanglement of debate, legal response and public memory, and even memory politics.

The book is divided into four parts, which treat the situations during the First World War and its aftermath (The Hague to Versailles), the Second World War, the post-war period (up to the Eichmann trial), and the post-Cold War constellation after 1989, teleologically ending with the world justice system of the ICC at the Hague as its main achievement. The book provides a deep intellectual engagement with one reference study in each of the chapters.
For chapter one, it is Isabel Hull’s A Scrap of Paper3 and this part covers the road from the Hague Peace Conferences through World War I to Versailles, discussing the Treaty and its direct effect. Weinke, engaging with Hull’s findings inquiring the military logics of the German Reich. She confirms Hull's thesis that on the one hand transgressions by the Allies were astutely noted in Germany - the extensive practice of sea blockade being one example for it. On the other hand the Reich invariably committed greater levels of brutality and was usually the first to use new weapons for the sake of “military necessity”. This fact was to play a crucial role at the peace negotiations at Versailles and became its determinant factor. However, memory politics after Versailles clearly show that German transgressions were still carefully hidden from the German public and historians and legal scholars rallied to aid the official governmental narrative instead of scrutinizing the facts.

The second main chapter deals with National Socialism and Second World War culminating in the Nuremberg war crimes trials and the political capital deriving from it in the early Federal Republic. The reference authors, with whom Weinke disputes her reasoning, are two emigrés – Raphael Lemkin (Axis Rule in Occupied Europe, 1944), Franz L. Neumann (Behemoth, 1942/44) – and the German international law expert Hermann Jahrreiß who had remained in Germany during the war and went on to defend General Jodl at the Nuremberg IMT. This chapter shows in a very interesting way the role played by Jewish emigrés in the US within Allied offices planning post-war Germany (OSS), especially the Frankfurt school around Neuman, and the slightly different agenda of Jewish US circles, for example the IJA under Jacob Robinson. James Loeffler’s recent book Rooted Cosmopolitans. Jews and Human Rights in the Twentieth Century (Yale 2018) goes in the same direction, which was, however, not yet published when Weinke wrote her book.

The sub-chapter on Franz Neumann provides numerous original insights on the coining of debates which linked the discourse of international law with a discourse on crimes against mankind, or later, humanity, which aimed to do justice to all victims of the brutal Nazi war of extermination. Since the mass murder of the Jews was to play no prominent role in Nuremberg, it makes sense that this chapter reaches out into the 1950s to capture the growing awareness and use of the new term “genocide”, while at the same time paying tribute to Nuremberg as a milestone in international law.

The third chapter deals with the relationship between Allied law from the Nuremberg war crimes trials and the consolidation of the German self-image as an "Opfergemeinschaft” (“sacrifice community"). Within this chapter, Hannah Arendt’s Eichmann in Jerusalem(1963) 4 is the prime reference book. After 1945 the interventions of very different groups, amongst them defense lawyers at Nuremberg, academic professors and ministry officials, unite in their task to free the war criminals. Aided by historians who acted as expert witnesses in court, a narrative about the omni-present Führer-orders emanates which is a construction, but served the exculpation strategies of a whole nation quite well. This chapter is one of the best of the book as it unites with several of Weinke’s previous works and can thus present a wide array of examples which are very interesting. For example, the author proves that the impulse for West Germany to sign the Genocide convention was domestic politics for the benefit of “expelled ethnic Germans” from Eastern Europe and for ready claims against the Soviet Union.

In Germany, Allied jurisdiction bringing Nazis to trial added to the perception that “them” had now been punished and the rest had nothing to do with the crimes. Here, Weinke gives interesting details in pointing out how SS-Otto Ohlendorf in his trial which dealt with his murderous killing squads in the East for the first time spoke about a written Hitler-order to kill all Jews; not only other Nazis standing trial followed this view but also historians. Weinke argues that on a psychological level it was of paramount importance that there had been materially a killing order, as it would prove that all others except Hitler were innocent. An exculpatory strategy in court emerged introduced as historical fact and generations of historians have searched for the mysterious Wannsee conference-order until recently the debate was closed stating that it was not. Weinke skillfully links this thread with the Eichmann trial at Jerusalem and the debate about Arendt's coverage of it. This sub-chapter is one of the finest parts of the book as Weinke analyzes the re-imported leftist German intellectual view which returned from exile, with Jewish and non-Jewish actors. She contrasts it with legal reasoning which argued in favor of German legal continuity left undamaged by the Nazi period and its aftermath.

The last part, the developments after 1989 and the role of coming to terms with GDR and Stasi violence, is an interesting reflection on how arguments unite or duplicate, when compared to debates from the 1950s. Samuel P. Huntington 5 serves as the authoritative reference of the chapter, and reflections on transitional justice experiences in Latin America add to the transnational perspective. The unified Germany, as Weinke describes it, used the shadow of how it dealt with National Socialism five decades earlier to draw conclusions and to do it “better” this time by not letting a single one escape. Her analysis helps to understand how Western Germans’ harsh judgements on Stasi helpers and political elites were see by former GDR citizens as an act of occupation, which keeps poisoning the relations between West and East German provinces (and politics) until today.

In her lucid conclusion on the entanglement of history’s burden and law she gives us an overview about one century of twisting German debates and the results of moral hubris. Her book will inspire a generation of scholars working in the field and surely find its readers not only among historians and legal scholars but also in the general public as it shows debates and its underlying dilemma which are as relevant today as they were in 1920 or 1945.

1 Martti Koskenniemi, The Gentle Civilizer of Nations. The Rise and Fall of International Law 1870–1960. Cambridge 2001.
2 Samuel Moyn, The Last Utopia. Human Rights in History, Cambridge 2010.
3 Isabel V. Hull, A Scrap of Paper. Breaking and Making International Law during the Great War, Ithaca 2014.
4 Hannah Arendt, Eichmann in Jerusalem. A Report on the Banality of Evil, New York 1963.
5 Samuel P. Huntington, The Third Wave. Democratization in the Late Twentieth Century, Oklahoma Press, 1991.

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