Holocaust and Law: The Legal Consciousness of Perpetrators

AHA Session 210
Central European History Society 10
Sunday, January 5, 2020: 1:30 PM-3:00 PM
Beekman Room (New York Hilton, Second Floor)
Raz Segal, Stockton University
Wendy Morgan Lower, Claremont McKenna College

Session Abstract

Holocaust was a massive crime. It was massive in terms of the numbers of both its victims and its perpetrators. It was a crime both against humanity, as defined in the post-war international legislation, and against national laws, to whose jurisdiction the perpetrators were subject. This begs the question as to why so many people participated in this criminal enterprise thus making themselves liable to criminal punishment. Paradoxically, although scholars have recently produced a series of first-rate studies of perpetrators, the issue of contemporaneous (il)legality of perpetrators’ actions has been addressed only sporadically. Perhaps their criminal character seems so obvious that no further examination is required. However, criminalization of actions of agents of state carried out in fulfilment of their superiors’ illegal orders had been a novel development in the European continental law and had had a checkered history of enforcement prior to the outbreak of World War II. Thus, the extent to which perpetrators interiorized this relatively new legal norm is far from certain.

The panel sets itself to problematize the apparently limited impact the potential legal liability had on the mid- and lower-rank participants in the Holocaust. In doing so, the panelists intend to move beyond the macrohistorical examination of the strategies employed by the genocidal regimes in striving to attain the “Final Solution.” The panelists propose to examine legal consciousness of mid - and lower-level perpetrators who were citizens of the Axis powers. By relying on such sources as post-war investigative and trials files of perpetrators, their diaries and interviews, the presenters will examine whether and to what extent they were aware of the criminality of their actions and reflected in real time on their potential punishability. The panelists will also explore cultural and psychological contexts that obscured or weakened the impact of such awareness. Besides more usual factors, such stresses of war, ideological fanaticism or personal and institutional loyalties, the impact of various extra-legal “instructions” that might have been perceived as upending the law are of particular interest. Another area of exploration constitute the role l’ésprit des corps prevalent in various bodies such as the army and police played in conditioning their members to the application of illegal violence. And finally, the preceding history of unpunished lawless violence on the parts of government agents against political enemies as a lesson in sui generis “practical” as opposed to “formal” governance will attract attention. The discussion is likely to proceed along the lines of comparative history of legal cultures and practices of axis power.

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