The historian Joan Wallach Scott started thinking of the judgment of history when the Charlottesville riots took place in 2017. The appearance of a large number of marchers chanting antisemitic slogans (such as “Jews will not replace us”) and displaying Nazi paraphernalia ran counter to her assumption that history had rendered its final judgment on the Nazis. She had thought that Nazism had been banished forever from the political stage. How could she have been so wrong?
The question of how to provide a reckoning for large-scale state wrongs has been at the forefront of the efforts of the international human rights movement for decades. In the latter half of the 1980s and in the 1990s, despite such disasters as the genocidal conflicts in the former Yugoslavia and Rwanda, it appeared there was a global trend toward democratization and greater respect for rights. The Soviet empire collapsed; military regimes in Latin America and parts of Asia were forced to yield power; and apartheid in South Africa came to an end. Efforts to secure accountability accompanied democratization. National and international tribunals and investigative commissions led to the punishment of the perpetrators of atrocities in Latin American countries such as Argentina and Chile, African countries such as Liberia and Sierra Leone, and in the European countries of the former Yugoslavia. They also contributed to democratic reforms in several such countries. Also, in a few countries, including Morocco and Canada (where an investigative commission addressed abuses against the country’s Indigenous population), the state has paid reparations to victims and their survivors.
Yet it is also the case that many of those most deeply involved in promoting accountability have experienced a high level of frustration. Many consider that what has been accomplished falls far short of what they anticipated. Autocratic leaders now dominate many states, including some that preserve the trappings of democracy but not its substance. The prospect of a reckoning has not tempered the behavior of the leaders of powerful states such as Russia, China, the United States, Brazil, or India, or the leaders of secondary powers, such as Turkey, Israel, Iran, or Saudi Arabia. Holding officials to account for great crimes—in the wars in Syria and Yemen; the mass incarceration of China’s Uighur minority; the slaughter of thousands of suspected drug users in the Philippines; the genocidal attacks against the Rohingya minority in Myanmar—seems almost a forlorn cause.
In her new book On the Judgment of History, Scott examines three attempts to secure a historical reckoning for great crimes: the Nuremberg trials of the top Nazi leaders following World War II; the Truth and Reconciliation Commission in South Africa, which examined the crimes committed under apartheid; and the demand in the United States, which began several decades before the Emancipation Proclamation, that slaves and their descendants should be given reparations for slavery and Jim Crow. What did these movements achieve, and what did they leave undone? How do you keep the most hateful acts and ideologies out of politics for good?
Nuremberg was different from any of the more recent struggles for accountability. The Allies had defeated the Nazis. Those accused of atrocious crimes were in the custody of the victors. Many important leaders on the winning side, including British Prime Minister Winston Churchill, initially espoused summary execution of the top Nazi war criminals, though not on the large scale proposed by the Soviet leader, Joseph Stalin. Yet the U.S. prevailed in its support for a tribunal that would conduct fair trials. The most influential figure in persuading the Roosevelt and Truman administrations to favor this course was the U.S. secretary of war, Henry L. Stimson. He was a conservative Republican Wall Street lawyer who had a long history of service in high government posts. A strong believer in the rule of law, Stimson argued that the best way to demonstrate the evil of the Nazi regime would be to hold trials.
Criticism of the Nuremberg tribunal at the time and ever since has emphasized that it was “victor’s justice.” The winners provided both the prosecutors and the judges. Indeed, the Nazis had committed the most horrifying crimes, but the Allies had also committed significant crimes. The failure to address these crimes produced a number of distortions in the proceedings. The Soviet prosecutors used the opportunity to accuse the Nazis of carrying out the Katyn Forest massacre, in which nearly 22,000 Polish officers and intelligentsia were executed by shots to the back of the head in 1940, a period following the Molotov-Ribbentrop Pact when the two powers had divided between them control of Poland. It was not until 1990 that Mikhail Gorbachev, the last president of the Soviet Union, publicly conceded that the massacre was carried out by the Soviet Union. The attempt to blame the Nazis at Nuremberg did not enter the tribunal’s judgment, but it tarnished the proceedings.
Victor’s justice also affected efforts to prosecute the Nazis for the indiscriminate bombing of cities that caused great numbers of civilian casualties, and for rape. These were crimes the Nazis had committed, but the same was true of Allied forces. The highest-ranking Nazi defendant at Nuremberg was Hermann Goering. He had commanded the Luftwaffe and was accused of the bombing campaigns that destroyed such cities as Rotterdam and Warsaw. The judgment of the tribunal did not find him guilty of this crime. If he had been convicted for indiscriminate bombing, it would have raised questions about the role of Britain and the U.S. in the firebombing of such cities as Hamburg, Berlin, and Dresden. As to rape, Soviet forces had raped great numbers of women as they advanced through Eastern Europe and as they occupied parts of Germany. French commanders of Moroccan forces in Italy had permitted their troops to rape many Italian women. Little was said about rape at Nuremberg.
Despite these shortcomings, the trials at Nuremberg represented a great advance for international justice. Convictions and sentences were based on the careful and substantial presentation of evidence. The defendants had counsel of their choice who defended them vigorously. There were some acquittals. The proceedings fulfilled Henry Stimson’s prediction that they would demonstrate the evil of the Nazi regime.
The Nuremberg trials were not the end of the historical reckoning with Nazism. Scott also sees the trial of Adolf Eichmann in Jerusalem in 1961 as a continuation of these efforts. It informed a new generation about Nazi atrocities. It should also be said that over the next several decades, until nearly the present, when hardly any World War II war criminals are left alive, thousands of Nazis have been tried in German courts by German prosecutors and judges. Those trials have continued to inform successive generations of Germans (and some others) about Nazi evils. A relatively small number of those trials took place in East Germany before the country’s reunification in 1990.
The impact on Germany has been a greater willingness to face up to the crimes committed by its nationals than in other countries, including some that collaborated in the commission of Nazi crimes. Wide acceptance of collective political responsibility for Nazi crimes (the German philosopher Karl Jaspers argued after World War II that criminal guilt is individual, but political guilt is collective) did not happen until a good many years after Nuremberg. But Nuremberg and the other trials helped make it happen by presenting irrefutable evidence of these crimes.
Unlike Nuremberg, where justice was imposed by the victors, the South African Truth and Reconciliation Commission was the product of a “negotiated settlement.” The African National Congress, which led the transition from apartheid, did not dictate its terms to South Africa’s all-white government. The ruling National Party insisted on an amnesty for the crimes of its officials, in exchange for permitting a more or less peaceful transition. The Interim Constitution, under which South Africa was governed during the transition period, required an amnesty. If Nelson Mandela and his colleagues in the ANC had declined, they faced the prospect of a military conflict that would ravage the country and cause an immense number of casualties.
Scott credits Kader Asmal, a human rights scholar and political activist, who subsequently held ministerial posts in South Africa, with proposing a truth commission. Another South African who also deserves credit was Dullah Omar, Mandela’s minister of justice. Omar argued that amnesty should be individual, not collective. It should only be available to officials who acknowledged their crimes and fully disclosed how they had been committed.
There had been truth commissions in a number of Latin American countries, including in Chile in 1990–91, from which the name, Truth and Reconciliation Commission, had been borrowed. As in South Africa, it had been created as a result of a negotiated settlement. In that case, the former dictator, Augusto Pinochet, retained his post as supreme commander of the army and was able to threaten reprisals if any attempt was made to put his soldiers on trial. Unlike the South African TRC, the Chilean commission refrained from even mentioning the names of those who committed crimes. But it named the victims, described the ways that they were killed, and made clear that the killers were members of the armed forces. Only several years later, after Pinochet was arrested on a trip to London in 1998, did prosecutions against military men for disappearances, murder, and other crimes get underway.
The South African TRC attracted more international attention than any of the 50 or so other such bodies that have been established worldwide, mainly in Latin America and Africa. One reason was that it provided the spectacle of some former officials—not including most of those with the highest level of responsibility for crimes committed for apartheid—coming forward to obtain amnesty by providing detailed testimony about their crimes.
This was unprecedented. Throughout the apartheid years, the all-white government had worked hard to maintain a facade of legitimacy. This was necessary to maintain its relationships to international corporations doing business in South Africa and to governments, such as those of Britain and the U.S., with which it had extensive economic ties and which regarded South Africa as an outpost of the West in their Cold War struggle with the Soviet Union. One prominent part of South Africa’s facade was the international section of Johannesburg’s airport, as well as the city’s five-star hotels and restaurants. These were places frequented by foreign business travelers. They were not segregated, but they were also places that few Blacks could afford to visit. The domestic section of Johannesburg’s airport, by contrast, was segregated, and less expensive hotels and restaurants actively excluded Blacks. The TRC destroyed the facade of legitimacy. The testimony by officials seeking amnesty provided incontrovertible proof that the apartheid regime engaged in terrible crimes that it routinely covered up. The 21,000 witnesses who testified before the commission included police officers, up to the rank of police colonel, who told how they tortured detainees by such means as suffocation and electric shock that sometimes resulted in death.
Outside South Africa, the work of its TRC has been celebrated. Inside the country, that is somewhat less true. Many South Africans recognize that the TRC was constrained by its legislative mandate. The act establishing it limited it to investigating “gross violations of human rights.” These were defined as such crimes as abductions, torture, and murder, the means by which apartheid was enforced. They did not include the systematic dispossession of Black South Africans, deprived of South African citizenship and designated as citizens of “homelands,” or Bantustans, to which they were assigned on the basis of their supposed tribal origins. Many had never even visited the homelands in remote, unproductive parts of the country to which they were assigned. Most Blacks lived in shantytowns outside South Africa’s prosperous cities, where many of them worked but were forbidden to stay overnight unless they were live-in servants in the homes of South African whites or held jobs that required them to work at night. Millions of “forced removals” took place during the period covered by the TRC’s mandate, but these were not defined as gross violations of human rights.
Scott points out that the negotiated settlement did not call into question established property rights. Whites who owned land stolen during apartheid were allowed to keep it. The TRC stated that it recognized that “[i]t will be impossible to create a meaningful human rights culture without high priority being given to economic justice by the public and private sectors.” But the recommendations did not include a mandate for redistribution. Rather it said, “It is up to each individual to respond by committing ourselves to ways of easing the burden of the oppressed and empowering the poor to play their rightful part as citizens of South Africa.” To the limited extent this has taken place, it has been largely through the adoption of a handful of government policies that have encouraged South African businesses to help nonwhites to overcome the legacy of apartheid. As an example, South African banks have been required to make loans to some Black residents of shantytowns to help them acquire homes with such amenities as running water.
Scott points out “that the full extent of a judgment of history was not realized; in fact it was indefinitely deferred.” She recognizes that it was beyond the power of the TRC to address the enduring economic and political consequences of apartheid. In those crucial respects, the TRC failed to deliver the judgment of history.
The end of slavery in the U.S. was accompanied neither by the establishment of a tribunal like that at Nuremberg nor by the formation of a truth commission like the TRC. Neither the public officials who administered and upheld slavery nor the slaveholders who practiced this crime were held accountable, even when they had engaged in extreme cruelties. People intent on overcoming the injustices of the past focused on trying to help the freed slaves to get a new start by such means as General William Tecumseh Sherman’s unfulfilled promise of “forty acres and a mule.”
Discussion in our time of reparations is a continuation of that focus. Like others who have advocated reparations for African Americans, including Ta-Nehisi Coates, who has been at the forefront of thinking on this issue in recent years, Scott points out that the harms done by slavery continued long after the Emancipation Proclamation and the adoption of the Thirteenth Amendment. After the advances of the Reconstruction era, which itself was marked by incidents of extreme violence against freed slaves, African Americans endured the Redemption era, disenfranchisement, the Ku Klux Klan, Jim Crow, lynchings, de facto segregation, police brutality, and the era of mass incarceration that began in the 1970s and remains close to its peak.
Scott writes, is “less a demand for financial repayment of debt (though for
some it is that) than it is a defiant re-reading of the history of the United States.
It is a re-reading that extends beyond the black experience to a condemnation
of predatory capitalism that has made race a primary instrument of its rule.” She
cites Coates’s advocacy of a living wage, legitimate law enforcement, and
single-payer health care; and Martin Luther King’s call for a “Freedom Budget
that would abolish poverty.” She quotes Coates’s observation, “For
Americans, the hardest part of paying reparations would not be the outlay of
money. It would be acknowledging that their most cherished myth is not true.”
Acknowledgment is central to all demands for accountability for historical wrongs. Nuremberg and the other trials of Nazi war criminals provided irrefutable judicial acknowledgment of the crimes by officials of Hitler’s regime. The findings of the South African TRC, despite their failure to address meaningfully the economic deprivations that were the essence of apartheid, at least provided acknowledgment of the crimes committed to enforce apartheid. And the demand for reparations seeks acknowledgment not only of the crimes against humanity that constituted slavery but also that American society has perpetuated those crimes for a century and a half by other means.
What’s clear from Scott’s book is that when a country mounts an attempt to reckon with wrongdoing, even when that attempt is flawed, it goes a long way to restoring justice and consigning the worst atrocities to history. What’s also clear is that the U.S., though it led in establishing the Nuremberg trials in Germany, and more recently in establishing tribunals that adjudicated war crimes in places such as the former Yugoslavia and Rwanda, has never undertaken an adequate reckoning with its own past. The white supremacist rally in Charlottesville that shocked Scott in 2017 was not an isolated event. As the violent assault on the U.S. Capitol on January 6 has shown—with its images of a man carrying a large Confederate battle flag in the Capitol Rotunda and another wearing a “Camp Auschwitz” sweatshirt—we still have a very long way to go before it is possible to say that the judgment of history has been rendered in the United States.