The Historiography of the Holocaust

398 Donald Bloxham
chapter, however, seeks to move away from the legal-theoretical approach, and
instead will emphasize the influence wielded over any given trial by the political
milieu in which it is conducted. The history of the legal accounting for the
Holocaust is the history in rarefied form of the way in which each prosecuting
power has dealt with the Nazi past, a truth reinforced by the fact that the most
significant Holocaust trials have been shaped ad hoc. Each Holocaust trial may
tell us something of the Holocaust, but it tells us at least as much about the
imprint of the Holocaust on the society bringing the trial, and the latter factor
dictates the former. What emerges from any given trial in terms of a ‘representation’
of the Holocaust owes more to politics than to the law, and so the ‘accuracy’,
‘appropriateness’ or otherwise of that representation is largely a matter of
utility.
‘The law’, in so far as we can apply such an all-encompassing label to a host
of disparate and fluid doctrines, is clearly not inherently judicious. But nor
does it appear in each Holocaust trial as a neutral, fully adaptable mechanism
awaiting the appropriate implementation for the representational demands of the
crime; it comes pre-shaped and manipulated, ready to serve specific ends among
which the historical record is a wild card, sometimes useful, sometimes not,
but never to be addressed in its totality or complexity. This will be illustrated
with reference to trials of Holocaust perpetrators from the end of the war to 1999
across the continent of Europe and in Israel, and by comparison and contrast
across these case studies of a series of criteria relating to the forms and use of
evidence, the legal scope of charges lodged, and the profile of the defendants.
The cumulative outcome provides considerable grounds for scepticism about
the ability of the courtroom to serve faithful historical purposes as opposed to
political purposes.
The post-war decade
By far the greatest concentration of prosecutions of Nazi criminality occurred
in the five years following the end of the war. In that period the British authorities
in Europe tried more than 1,000 Axis nationals, primarily Germans, for
war crimes, and the US tried more than 1,800. Neither would convict another
war criminal until the London trial of the Belorussian collaborator-murderer
Anthony Sawoniuk in 1999. Soviet figures are imprecise, but we know that in
May 1950, Soviet camps held 13,532 inmates convicted of war-related offences.
In the same five-year period, in the Soviet zone of Germany, later the DDR,
there were 12,177 convictions for Nazi- and war-related crimes; thereafter, there
were only 630 such convictions up to 1964, and thence only 54 convictions to
1978. The French authorities in occupied Germany and in French military
courts tried more than 2,000 individuals for war crimes and crimes against
humanity from 1945 to 1954, the majority in the first half of the period; the