By Dr. Mark A. Drumbl
It is easy to assume that only ‘evil’ people commit atrocity. And it’s equally easy to imagine all victims as ‘good’ or ‘innocent’. But the reality is far more complex. These binaries and antipodes don’t fit well. Many perpetrators, after all, are tragic — they may begin as victims. Some victims survive – and some even thrive – because of harm they inflict upon others. The persecuted may become persecutors.
In recent writing, I explore how to approach the pain that victims inflict upon others. When someone is harmed by another victim, how should that someone speak of the harm? Does the tragic nature of the perpetrator dull the pain? Or might it worsen it? I try to think about these questions through various venues – law, of course, but also literature and film.
Writings of Jewish Holocaust survivors such as Primo Levi are populated by many victimizing victims. Levi scorns them; but all the while refrains from denouncing them, judging them, or locating in their desperate conduct any diffusion of responsibility away from the Nazis. The literary format of these accounts, to be clear, does not oblige them to punish or to determine sentence.
Unlike Levi, Israeli legislators and courts did judge some of the victimizing victims in the 1950s and 1960s in forty national trials called the Kapo trials. Kapos were concentration camp inmates who served as leaders of barracks or labor platoons. They, along with police and ghetto officials, were prosecuted as Nazi collaborators. In addition, other Kapos were prosecuted in communal courts in displaced persons’ camps throughout Europe after the war. And in a criminal libel trial, Rudolf Kastner, a Hungarian Jew involved in rescue efforts, challenged how a journalist had portrayed him as a traitor. At trial, the journalist prevailed – Kastner was found to have ‘sold his soul to the devil’ for having negotiated and bargained with Adolf Eichmann to save some Jews in exchange for remaining muted about the extirpation of several hundred thousand others.
The verdict discredited Kastner. He was ostracized. He appealed but was then assassinated by a right-wing extremist. Posthumously, an appeals court found otherwise, conceptualizing Kastner as a victim whereas at trial he was found to be a villain. In reality, perhaps, he was both, or neither. But criminal law does not permit this liminality, gauziness, or ambiguity.
Rather, the energy of criminal law is one of finality and disjunctive category: guilty or not-guilty, victim or perpetrator, oppressor or oppressed, right or wrong, powerful or powerless. The criminal law’s status as the iconic manner in which to deliver accountability for atrocity thereby hinges upon a vocabulary that struggles to narrate how and through whom atrocity actually proliferates, becomes massive, and metastasizes. Criminal trials play an adversarial zero-sum game. Prosecutors seek to convict. The Defense pushes to acquit. Both sides thereby present contrasting narratives. It is their job to do so.
The indictment of a former child soldier, Dominic Ongwen, at the International Criminal Court offers a contemporary case-study. Reductionist zero-sum games do not do justice to the realities of child soldiering. Many child soldiers demonstrate mercy and kindness. Other child soldiers can do wretched things as children. Former child soldiers can do horrific things as adults. And adults who do horrific things may begin on that path when they are abducted and tortured as a shy child. Great pain can be caused by morally ambiguous people.
So instead of casting Kapos in World War II or child soldiers like Dominic Ongwen as monstrously evil – the prosecutor’s impetus (welcomed by some judges) – or as innocently helpless – the defense’s impulse (welcomed by other judges) – another narrative goal could be to uncork the conundrum that mass atrocity involves the handiwork of people who are neither too purposeful not too purposeless. Without this handiwork, after all, atrocity would never become massive in scope or reach.
Is a criminal trial up to this challenge?
This blog post combines excerpts from earlier posts OUPblog and InterGentes. The blog is written as part of the lecture on ‘Tragic Perpetrators and Imperfect Victims’ that takes place on 4 October 2017 at the T.M.C. Asser Instituut in The Hague.