The Moral Witness: Trials and Testimony after Genocide

Introduction

If the Greeks invented tragedy, the Romans the epistle, and the Renaissance the sonnet, our generation invented a new literature, that of testimony. We have all been witnesses and we all feel we have to bear testimony for the future.

—Elie Wiesel, The Holocaust as Literary Inspiration (1977)

By the end of the twentieth century, the witness to genocide had become a pervasive icon of suffering humanity. The term initially referred to the survivors of the Holocaust of European Jewry, but is now also the title of books, conferences, articles, and museum events about the Cambodian, Rwandan, and other genocides. Bearing witness to genocide has become an increasingly common expression of social solidarity and a protest against the pain of others, characterizing activities as diverse as the work of journalists covering ethnic cleansing in Bosnia and the visits of spectators to exhibits on genocidal violence.¹ How did the witness to genocide become a central trope of contemporary moral culture?

Like witnesses from earlier periods, including abolitionists fighting slavery, Jews condemning pogroms, and humanitarians denouncing mass atrocities in the nineteenth and early twentieth centuries, the witness to genocide is a moral witness for whom false testimony is a sacrilege.² Over the last two hundred years, moral witnesses embodied the Western imagination of collective violence and determined whose injuries should compel our attention, whose testimony was most credible, and whose deaths we should grieve.³ In the nineteenth and early twentieth centuries, they were dismayed spectators more often than victims because distance afforded them credibility that victims’ accounts did not possess.⁴ Witnesses sympathized with the victims of slavery, war, and humanitarian disasters, testified on their behalf, and spoke movingly about their plight. They were sometimes aligned with radical political movements and sometimes not. They appealed to audiences’ sympathy for suffering humanity, on whose behalf publics were presumed to feel aggrieved and wish to act.

The witness to genocide emerged in the interwar period (1919–39) and made the crime of genocide legible. He or she represented the authority of the victim’s experience and marked a significant shift in the Western imagination of mass violence away from unspeakable outrages committed regrettably against innocents to genocide perpetrated against peoples whose persecution endowed them with moral authority. This moral witness tracks the history of how Western Europeans and North Americans’ understanding of genocide changed over time, from an unconscionable, reparable, and at worst regrettable form of barbarism to a permanent feature of modern political formations. Witnesses to genocide now warn of impending catastrophe if no action is taken by those in a position to prevent mass murder. As genocide has become a seemingly intractable phenomenon, witnesses’ authority has, paradoxically, waned, and their warnings often encounter indifferent audiences who need convincing.⁵

How did the witness to genocide take shape? How did this figure, now a ubiquitous and self-evident reference to the Western moral imagination, first appear and develop? Why has its moral power diminished? In this book I trace this witness icon over the course of the last century up to the emergence of its current form in the late 1990s, after genocide became a pervasive term for state-sponsored murder.

Although there are many possible approaches to the subject, including a synoptic intellectual history of the concept of witnessing, I focus on how the witness to genocide developed in the course of five courtroom battles spanning the 1920s to the 1960s. All of these trials struggled to understand, recognize, and redeem victims’ suffering and survival in conditions of radical powerlessness that were distinct from conquest and war. They include the trial of Soghomon Tehlirian, an Armenian acquitted in Berlin in 1921 of murdering Talaat Pasha, an architect of the Armenian genocide, and the trial of Jewish avenger Scholem Schwarzbard, acquitted by a jury in Paris in 1927 for having murdered the alleged leader of Ukrainian pogroms against Jews (chapter 1). Two others were libel cases that paraded victims of the Soviet Gulag before the courts: the Paris trials initiated by Victor A. Kravchenko and David Rousset in 1949 and 1950–51, respectively (chapter 2). The best known is the trial of Adolf Eichmann, held in Jerusalem in 1961–62, which fashioned yet another witness figure, the Jewish Holocaust survivor (chapter 3). The last chapter assesses how the moral witness changed in the 1990s, when human rights institutions and activists—the International Criminal Court, aid workers, and spectators of atrocity photography—invoked the survivor of mass atrocities to justify their mission.⁶

How does a victim of mass atrocities or genocide become a witness? The trials on which I focus dignified victims’ lives and deaths not only because they offered victims an opportunity to testify, but also because the proceedings cleansed them rhetorically of blame and rendered them worthy of recognition. These legal forums developed narratives about the experience of mass murder that eventually replaced an older humanitarian language of horror, pity, and sympathy. Nineteenth- and early twentieth-century condemnations of mass violence proclaimed a moral obligation to speak out against barbarism elsewhere in the name of laws of humanity, but these were often pleas by distant spectators to show pity for their victims. Abolitionists, who organized around victims’ struggles, used the language of sympathy.⁷ International humanitarian missions in the interwar period, often under the aegis of the League of Nations (founded in 1920) and spearheaded by committed activists, sought to inspire their audiences by appealing to their human conscience, itself the moral achievement of an abstract comity of civilized nations and empires.⁸

The trials I discuss began to alter this picture. They recast victims’ survival as a redemptive force, placing their suffering and their perspective center stage in place of humanitarian spectators and their dismay, and making the restoration of victims’ dignity eventually vital to an international global image of the right and good.⁹ Their proceedings articulated how and why victims’ suffering mattered, and how most properly to memorialize the unburied. They explained Hannah Arendt’s postwar contention that being stripped of the symbolic trappings of dignity—being nothing but human—facilitated rather than hindered statelessness, torture, mass murder, and want of refuge.¹⁰

The moral witness forged in the trials on which I focus drew on victims’ testimonies but was a composite of survival only loosely attached to particular individuals and experiences. Witnesses are symbols of darkness and hope that have an ideological and memorial function, erase some realities and distort others; most problematically, especially after the 1970s, witnesses transfigured victims into quasi-sacred signs. Like all symbols, they condense specific survival stories to convey a broader message. Witnesses’ positive traits cannot overcome deep-seated racism, antisemitism, or political interests: the Rousset trial redeemed witnesses deported for political opposition at the expense of Jewish ones; the Eichmann trial’s redemption of Jewish victims hardly eradicated antisemitism; and recent cases before the International Criminal Court target disproportionally non-Western perpetrators, revealing the economic, political, and racial hierarchies embedded in the international justice system.

The definition of who is and is not a moral witness varies from one location to another and is always linked to cultural projections that may have a tenuous relationship to real victims. That definition also depends on whether there develops a moral consensus around victims whose suffering can be universalized and whose presence no longer inspires guilt, denial, and displacement—most victims, after all, will not have their day in court. All the trials I analyze shaped moral witnesses by incorporating former victims into broader but restricted definitions of humanity. In the interwar period victims were integrated into European civilization represented by a comity of nations; after World War Two, they became part of the universalized Western image of suffering humanity embodied by the patriotic anti-fascist survivors of Nazi camps; and later, after the Eichmann trial, Jewish survivors of the Holocaust became the quintessential witnesses to genocide, not because of their anti-fascist heroism, but because they survived an assault on their collective existence. In the postcolonial period, now that every victim matters and all of humanity is theoretically entitled to equal justice, the moral witness is, ironically, less likely to be a survivor than a humanitarian who works on his or her behalf.

A durable Western moral consensus formed around the Jewish Holocaust survivor, a consensus itself belated, extremely fragile, and contested by Holocaust denial. In the aftermath of the Eichmann trial, Jews, once berated for not having resisted their persecutors and suspected of complicity in their own deaths, were recast as innocent survivors of unspeakable violence. Because Western powers still rationalized imperial conquest as subduing savagery and repressing rebellion rather than violating humanity, the Holocaust survivor, rather than colonized victims of genocidal violence, came to represent Western Europeans’ and North Americans’ discovery of their own murderousness and to reflect their shocked self-recognition. By the 1960s there was a thin consensus against the violence colonized victims had suffered but not against the colonial regimes that perpetrated it. In contrast, the consensus that developed around the Nazis’ attempted annihilation of European Jewry rendered Holocaust survivors relatively uncontested reminders of the destruction of which human beings were capable.¹¹

In this book, my aim is not to make the Holocaust more or less central to the historical unfolding of contemporary Western witnessing. Such arguments inform recent discussions of the history both of international human rights and comparative genocide.¹² From within a longer genealogy of the symbolic witness, I ask instead by what figurative process the Holocaust became the self-evidently representative genocide and Holocaust survivors its icons, and why this dubious privilege persisted even as other moral witnesses have emerged.

In what follows I identify four iterations of the witness to genocide and devote a chapter to each: the righteous avenger in the interwar period, the concentration camp survivor in the immediate postwar period, the Holocaust survivor in the 1960s and 1970s, and now, in the postcolonial era, the global victim and the counterwitness. I analyze how, over the last hundred years, witness figures represented a distinction between genocidal killing and the mass violence associated with imperial conquest and conventional warfare.¹³ I also explore how witnesses to genocide came to symbolize a Western moral culture in which crimes against humanity and genocide are identifiable, actionable, and frequent occurrences. The chapters examine repeated but historically differentiated features and concepts that have forged a narrative about witnessing, and illuminate how the narrative changed after the 1990s, when witnessing became the obligation of all responsible citizens. The book focuses on family resemblances rather than on causal connections among various witness figures; it identifies significant patterns of cultural representation rather than demonstrates the particular impact of this or that trial.¹⁴

The Trials

I address the distinctive historical formation of a witness to genocide by analyzing interwar and postwar trials that recognized victims of mass atrocities in courts at a time when no tribunals would try the perpetrators, among them the Turkish, Soviet, and German governments.¹⁵ None of the trials I examine aimed to provide justice for victims of mass violence other than the one of Eichmann in 1961–62, and all occurred in the absence of an international tribunal specifically tasked to try crimes against humanity or genocide. The first four trials I analyze were trials for homicide and libel that turned into judgments of violence against Armenians, Jews, and people imprisoned in the Soviet Union.

The courtroom, as has often been noted, is a particularly powerful arena for the making of new meanings, and trials are a rich source for tracing new narratives about mass atrocities and genocide: witnesses tell their stories, lawyers shape them, and formal rules constrain testimony and shape its meaning.¹⁶ What victims could say in courtrooms and how they could say it constituted new narratives about human suffering and survival that were as important to the outcome of the trials as legal argument alone. Similarly, in the circumstances common to all of these trials, truth claims made by individual witnesses—even when they could not be established as true or false—generated higher, transcendent, seemingly unimpeachable truths about the effects of violence in radically dehumanizing conditions.

In all of these trials, political forces tried hard to hijack the proceedings, turning them into spectacles in which witnesses’ suffering took center stage. Much testimony was ancillary to the charges brought before the courts. All of these trials spotlighted mass atrocities, used victim testimony in highly unusual if defensible ways, put victims center stage to teach the public about their plights, and provided multilingual forums for their revelations. The Eichmann trial had more in common with these earlier trials than not. Though it put a Nazi perpetrator on trial, the Israeli prosecution of Eichmann, like the other trials I examine, used victim testimony in an unconventional fashion, made victims’ voices central, and unfolded as a moral lesson about the Holocaust. Concerns about the Eichmann trial’s legality at the time are well known; such concerns were also raised about the other trials.¹⁷ This book does not aim to ascertain the inevitable limits of legal proceedings from victims’ points of view—it is not a legal history. My interest is rather in the common rhetorical features of the five trials and the moral witnesses they shaped.¹⁸

Together these unusual legal proceedings forged a narrative about the terror wrought by murderous twentieth-century political regimes that their proceedings defined as qualitatively different from tyrannical states. Each trial told variations of the same story regardless of the crimes it adjudicated and the context in which courts addressed the victims. The trials refashioned the witness figure adopted by nineteenth- and early twentieth-century witnesses, who spoke with respect to and on behalf of the suffering and dead; the experiences victims recounted in the trials did not only affront the humanity of audiences but also strained to their limits the traditional tropes used to describe atrocities. And all these trials took place when the term genocide, a neologism formulated by the Polish Jewish lawyer Raphael Lemkin in 1942 to define the state-sponsored extermination of Jews by the Nazis, was not available or rarely invoked, and when the particular nature of Jewish death under Hitler was still a subject of vast ignorance.¹⁹

None of these five trials is a landmark of human rights law or history. Two overlap incidentally with interwar humanitarianism, two with postwar crimes against humanity, and one with genocide, but none fits into the history of international law on human rights or has a significant relationship to Nuremberg except as a reference point.²⁰ Indeed, Nuremberg is famous for the mountains of documents it wielded against the defendants and its minimal reliance on witness testimony.²¹ Robert H. Jackson, associate justice of the US Supreme Court and chief prosecutor for the United States at Nuremberg, feared witnesses could be brought by defense lawyers to waver in their statements.²² In his diary, the British judge Sir Norman Birkett wrote that testimony of the camps at the Nuremberg tribunal was ample. Though moving in its horror and inhumanity, he wrote, from the point of view of this trial it is a complete waste of valuable time.²³

Of course, trials of former Nazis after the war treated victims as witnesses in standard juridical terms (though there was also a great deal of summary justice, from purges of collaborators to high-profile military trials, such as the 1945 judgment of Pierre Laval in France). Witness testimony was particularly important when other forensic evidence was lacking, and it proved essential in some postwar trials, such as the British-led Hamburg trials of Ravensbrück guards, held from 1946 to 1948.²⁴ In such cases, testimony replaced or supported documentary evidence. The 1963–65 Auschwitz trial in Frankfurt best exemplifies proceedings in which the victims’ testimony made a media splash but did not alter collective memory of war crimes in West Germany.²⁵ The shock to German memory would come more than ten years later in the form of a US television series.²⁶ The Frankfurt trial and those of former Nazi war criminals held in Düsseldorf and elsewhere in the 1970s were important for Germans’ coming to terms with the past, but were standard legal proceedings in which lawyers used witness testimony to highlight the sadism of some guards rather than their culpability for industrialized murder, and often ended with startlingly lenient sentences.²⁷

In the alternative story I recount, the proceedings were inventive and didactic. They were embedded in particular contexts, and courts were sites where lawyers and judges questioned claims about mass atrocities. Smart lawyers staged eyewitness testimony to bring crimes to light even when there was no one, except in Jerusalem, on trial for perpetrating atrocities. The trials were not a failure of legal procedure; either they represented the absence of an established legal category with which courts could prosecute state-directed mass murder or, in the case of the Eichmann trial, sought to tell a story about Jewish death that the Nuremberg tribunal’s emphasis on crimes against humanity tied to aggressive war could not.²⁸ Thus victims’ advocates in these five trials strove in every way possible to put victims’ suffering front and center even when that suffering was peripheral to the cases at hand.

The trials on which I focus are, moreover, insignificant for the development of legal norms and tangential to legal history because they left little mark on lawmaking.²⁹ They represent rather how the very absence of a legal concept of genocide created a moral imperative to make some crimes of mass violence legible in new ways or to create a narrative about genocide. Indeed, one iteration of the moral witness, the Jewish Holocaust survivor, captures a dimension of genocide sidelined in the legal codification of the term—the tear in politics and culture produced by what Lemkin termed cultural genocide.³⁰ The proceedings contributed to the broader historical and symbolic processes by which a moral vernacular for symbolizing crimes of mass violence became available.

These trials often went off script in spite of expert staging, the statutes they invoked did not always fit the crimes, lawyers wanted to teach moral and political lessons, and the publics were large, enthralled, and sometimes stunned by the testimony. The courts’ failure to restrain witness testimony was a central feature of all these trials, and was the most common criticism leveled at the prosecution of Eichmann. The contrast between formal legal procedure and distraught witnesses turned the courts into forums in which the witnesses were given unusual latitude to speak or spoke in ways that amplified their testimony. Those testifying were conceived by publics and juries as messengers for the dead and persecuted. Most important, in the process of clarifying what happened and why, each trial, with the exception of Kravchenko’s nonetheless significant libel suit, represents the victim’s survival as a newly discovered source of honor, vitality, or wisdom.

Although they did not fully redeem victims in the eyes of everyone, to varying degrees the trials performed the symbolic work Terrence Des Pres demanded later in his 1976 book, The Survivor: An Anatomy of Life in the Death Camps: We require a heroism commensurate with the sweep of ruin in our time: action equal to situations in which it becomes less self-indulgent and more useful to live… . The grandeur of death is lost in a world of mass murder, and except for special cases the martyr and his tragic counterpart are types of the hero unfit for the darkness ahead.³¹ In addition to empowering the victim, the trials also developed a mythology of heroism outlined by Robert Jay Lifton in a discussion of witnesses to Hiroshima and the Holocaust: the witnesses, he said, have a knowledge of death and therefore a knowledge of life, to bring back. It’s a profound new knowledge. So in that sense the survivor has lived out the mythology of the hero, but not quite.³²

The witness who emerged from these trials revised heroism in terms commensurate with the ruins created by particular events and experiences: the Armenian genocide, the Ukrainian pogroms, the Soviet Gulag, and the Holocaust of European Jewry. By seeking recognition for victims, the trials recast tragic heroism in the wake of mass murder, concentration camps, and genocide. To redeem victims from their humiliation, to integrate them into national or human communities, however defined, lawyers struggled to fashion victims rhetorically as models of heroic humanity in contexts where human beings had been stripped of their humanness and resistance was driven by desperation when it emerged at all. The Eichmann trial restored dignity to every style of dying or enduring—suicide, exploitative or senseless labor, gas chambers, and bare survival—most of which, other than resistance, had until then inspired no broad understanding, let alone respect for those who returned alive. Many of its observers turned Jewish survivors’ experiences of terror and death into a source of moral clarity that underpinned constructions of Holocaust survival by the 1970s and after.

All the trials in one way or another laid the groundwork for abstracting from the experience of real victims of mass violence to create a symbolic witness who possessed unprecedented experience of a human-made, unfathomable darkness. It is this dimension of the trials—the struggle to conceptualize suffering, degradation, and cultural annihilation distinct from the horror of conquest and war—that is their most innovative, and most revelatory of their limitations. A historically particular incarnation of Western human conscience, the witness serves as a constant reminder of all the evil in the world against which we are called to be vigilant. The analysis of these trials together suggests that orchestrated and yet disruptive public legal forums were critical if hardly the only sites for making meaning out of mass atrocities and genocide; they allotted unusual and extraordinary space to the didactic dimension of testimony, and, most important, they were forums for performatively creating new worlds of meaning. Though the moral witness may emerge in other arenas—I will argue in the last chapter that it also emerges in certain kinds of critical literature—the intersection of the juridical, moral, and historical registers of witnessing are on particularly powerful display in courtrooms. It is perhaps not surprising that moral witnesses appear there.

This book analyzes the trials’ legacy by establishing patterns of representation in the United States and Western Europe that became increasingly legible and even self-evident over time, including the icon of the Holocaust survivor and the secular imperative to bear witness. By placing the Holocaust witness in a longer trajectory of moral witnesses, I reject a teleological account that culminates in the icon of the Holocaust survivor, asking instead how witnesses became symbols of human conscience. I use the trials as evidence that mass atrocities demanded a new vocabulary and constituted new ways of imagining moral sensibility, as well as collective violence and its victims. The moral witness shapes affronts to human conscience and tracks the changing Western cultural meaning attributed to victims’ suffering, from the Armenian genocide to contemporary human rights violations. The witness figure is an unremarked part of a larger narrative one historian has called the genocide script.³³

Histories of Witnessing

There are many accounts of witnesses and witnessing, but few historical narratives of how the witness to genocide became a prominent icon during the twentieth century and witnessing a central activity in Western moral culture. Many works about the Great War address soldiers as witnesses to war because they experienced combat as a revelation about life and death in which they were tragically implicated.³⁴ This form of witness, however, invokes the morally transformed soldier and merges with but differs from the witness to genocide, who symbolizes the distinctive physical and cultural violence associated with ideologically motivated mass murder that often occurs under cover of war.³⁵ Historians of modern Europe have recently written about communities of Jewish survivors in the aftermath of the genocide, tracing their organizations and efforts to document their experiences in France, Poland, Germany, and elsewhere. They are mostly concerned with the evidentiary and memory-preserving role of actual witnesses and their restorative and moral function, treating only tangentially the figure of the witness.³⁶ Finally, there are also myriad recent treatments of humanitarianism (caring for the sick and wounded) and human rights (struggling for justice on victims’ behalf) that discuss contemporary witnessing as both a moral and political activity, but do not for the most part address the witness to genocide as a historical phenomenon it its own right.³⁷

Arguments about how a moral witness emerged appear mostly in the standard narrative about the development of Holocaust consciousness after the 1960s, and with it, the recognition not only of actual Holocaust survivors but of an icon, the Holocaust survivor. That narrative tells a story about the increasing awareness of the genocide and the emergence of the Jewish Holocaust survivor as exemplary witness. After the Eichmann trial in Jerusalem, which emphasized the Jewish dimension of the genocide, public attention focused on the Holocaust. The trial came on the heels of the publication of many Jewish memoirs of the camps, including Primo Levi’s If This Is a Man, which came out in 1947 in a small print run and was finally reprinted to greater acclaim in 1958.³⁸ The Jerusalem trial recounted the fate of the Jews and stirred increased interest in their suffering after a long period of postwar silence punctuated by some Jewish voices—even prize-winning memoirs, including not only Levi’s works, but also Elie Wiesel’s much-praised memoir, Night.³⁹ Night was first printed in 1956 in Yiddish by an Argentinian publisher, but earned renown only in its much-abbreviated French version, published in 1958 with a preface by the