Genocide on Trial: War Crimes Trials and the Formation of Holocaust History and Memory (review)

"The greatest history seminar ever held"--;that is how Robert Kempner, a leading war crimes prosecutor, described the Nuremberg trials. Kempner's words capture the contrasting purposes that lay at the heart of the trial of the major Nazi war criminals before the International Military Tribunal (IMT). Created to submit unprecedented atrocities to legal judgment, the IMT also aimed to provide a full and accurate representation of the historical record. It was also, however, intended to teach history lessons--to locate in history clear morals that could shape collective memory and future behavior.

Whether the ends of justice and didactic history are compatible, and whether criminal trials have provided a reliable or appropriate forum for making sense of the Holocaust are, of course, matters of controversy. Hannah Arendt argued in her famous critique of the Eichmann trial that the "purpose of a trial is to render justice, and nothing else." We must be wary, Arendt insisted, of subjecting the trial to pressures that may distort the solemn dictates of justice. The danger of turning justice into a pedagogic spectacle is that it becomes a legal farce, a show trial lacking the element of "irreducible risk"--the bona fide possibility of acquittal--that the noted legal theorist Otto Kirchheimer identified as the sine qua non of a just legal proceeding.

Other scholars, such as Martha L. Minow, Michael Marrus, and Mark J. Osiel, have tendered a critique that is the obverse of Arendt's. Here the argument is not that law's tutelary role will distort its responsibility to do justice to the accused. Rather, it is that when called upon to clarify the past, trials fail to do justice to the historical record. The law, it is argued, cannot productively engage with the most disturbing and fundamental issues raised by traumatic events, issues more satisfactorily explored through the discourses of history, philosophy, literature, theology, or psychoanalysis--or in alternative forums, such as truth commissions.

Donald Bloxham's Genocide on Trial offers a fresh, informative, and nuanced elaboration of this latter position. Through a careful examination of how the IMT and other proceedings conducted by the Americans and British juridically represented and comprehended the Holocaust, Bloxham concludes that these trials "were conceptually flawed as didactic tools." Far from doing justice to the radical crimes they were meant to document, the trials contributed to numerous simplifications and distortions. These included a systematic downplaying of the race-specific nature of Nazi genocide; a failure to appreciate the complicity of the Wehrmacht in these acts; a tendency to elide the difference between forced labor as practiced in various concentration camps, and extermination as perfected in such pure killing centers as Treblinka, Sobibor, and Belzec; and a tendency to explain all Nazi crimes in terms of a vast intentionalist design hatched by Hitler and implemented by the SS.

The entire book is a sturdy affair, as Bloxham demonstrates an expert command of source material and a light writerly touch. Particularly excellent are his discussions of: the Allies' aborted plan for a second IMT-style proceeding; the fraught and controversial trial of Field Marshal Erich von Manstein before a British military court; and the Allied jurists' conflation of slave labor and systematic annihilation. If there is a problem, it is with Bloxham's larger claim--namely, that the blame for the shortcomings that he carefully documents deserves to be laid before the bar of the law. Bloxham's chapters bear ambitious titles--"The Limits of the Legal Imagination," "The Failure of the Trial Medium"--but on closer examination, it is far from clear that the author has made his case. Many of the deeper structural limits and failures he pinpoints had very little to do with the nature of the legal process; indeed, Bloxham...