Guilt about the Past (4 page)

The law’s ability to be moulded into opposing functions to support the social task of remembering and forgetting is not merely instrumental. However the law is instrumentalised – it shows one of its true functions. Also, it brings the law into conflict with its opposing function. Coming to terms with both the national socialist and communist German past through law created legal conflicts concerning the statute of limitations and the prohibition against retroactive punishment. The time granted under the statute of limitations for prosecution and adjudication of national socialist and communist offences had run out or was about to run out, and, moreover, under the prohibition against retroactive punishment the defendants could only be prosecuted and sentenced if their acts had already been criminal offences at the time.

When the statute of limitations threatened to run out in the sixties and seventies for national socialist offences, and in the nineties for communist ones, extending or suspending the not-yet-expired period of limitations averted the deadlines. Some German legal scholars expressed concern about making such changes in the law governing the statute of limitations. They argued that the prohibition against retroactive punishment would be violated. But the Federal Constitutional Court accepted the extension or suspension of the statutes of limitation that were to expire as in accordance with the constitution. Indeed, there is a lot to be said for punishable acts being defined in law before the deed so that the definition of the crime includes the elements of the offence and its punitive sanctions, but not the duration of the possibility of criminal prosecution. Citizens should feel secure and know which of their behaviours and omissions are punishable and how they will be punished, but they do not have the same need to know how long after the crime the administration of justice will still prosecute them. This also corresponds to the principle of guilt: a citizen does not bring guilt upon themself if they consider their behaviour not to be punishable and, in view of existing law, can believe so in good faith; but they are no less guilty solely because after a set date ensured by law their punishable behaviour will no longer be prosecuted.

More problematic by far under the rule of law is the prosecution and adjudication of national socialist and communist offences that, without a doubt, would never have been prosecuted or punished in the Third Reich or in the GDR. The perpetrator assumed at the time that their behaviour was not punishable, and they could reasonably do so in view of then-existing law. In the Third Reich, when soldiers had murdered Jews without a command to do so and were called into account for their actions before the law, it was for failing to follow the military code and expressly not because of killing Jews; even though murder was, of course, punishable, for soldiers there was an exception and justification for killing Jews. In the GDR, when an attempted illegal border crossing was prevented by firing lethal shots it was justified by the border law of the time and was not only not punished, but praised and rewarded.

The Federal Republic of Germany enshrined in its constitution the prohibition against retroactive punishment, in direct opposition to the statute of the International Military Tribunal in Nuremberg and Allied Forces’ Control Council Act Number 10 that expressly suspended it. But from early on, its courts built on a principle articulated by the German legal philosopher Gustav Radbruch in justifying the punishment of national socialist offences. The so-called Radbruch formula states that when statutory law stands in unbearable contradiction to justice, the law must yield and justice be fulfilled. The courts punished the killing of Jews and other offences in accordance with the criminal laws valid during the Third Reich, but by applying the Radbruch formula they stripped the laws of those justifications and exemptions that would have prevented the perpetrators from being punished during the Third Reich. Although the will and command of the Führer was the supreme law and even its sole source under the national socialist system, Hitler’s order to annihilate the Jews was, with Radbruch, seen as unable to overcome the essential core of the law, that includes in accordance with the consensus of civilised human beings, the prohibition of genocide.

In dealing with the laws of the GDR, the court decisions of the Federal Republic make a similar argument. Under the aegis of the Radbruch formula, the GDR’s legal justifications for fatal shootings at the Wall are ignored because they violate the commonly-held conviction of all people concerning the worth and dignity of human beings and they infringe upon the fundamental idea of humanity and justice. Aside from that, in their decisions the judges considering what the law in the GDR was at the time of the offence did not feel bound by how the law of the GDR was interpreted and applied. Instead, they interpreted the GDR laws as if they were the laws of a constitutional state respecting human rights and the principles of proportionality. Under this Federal Republican interpretation, the GDR’s border law could not be interpreted to justify fatal shootings at the Wall.

The idea that GDR laws can be applied according to some later Federal Republican interpretation and are still GDR laws is an attempt to leave the natural law argument of the Radbruch formula behind – natural law is a dubious argument among modern lawyers. But to pit what should and ought to be valid against strict adherence to valid statutory law is true to the spirit of natural law. No reasonable concept of legal validity is yielded when a law’s validity at a certain time and place is content free – with the content being filled in in different ways by different later interpretations and applications. There is no way around it: what German courts did, and still do, in dealing with the Third Reich as well as the GDR is use natural law to relativise, to partly neutralise the prohibition against retroactive justice.

When the prohibition against retroactive punishment is valid and enforced, a society can no longer fall back on the stark measures of criminal law statutes to exclude perpetrators from their midst. Instead, integration into the collective biography must be achieved through other means and the fact that exclusion through criminal law cannot be successful must also be integrated. How is this to be done, if a society neither can nor wants to? Or if the past is so horrible that it can only be integrated through the means of criminal law exclusion?

The prohibition against retroactive punishment is guaranteed in nearly all constitutional law countries by their respective constitutions. Therefore, the legislature cannot suspend or alter it through regular legislation. But the legislature has the power to amend the constitution on this point. The relativisation of the prohibition against retroactive punishment achieved by case law at the cost of the integrity of the prohibition would have been attained without this price had an amendment to the constitution suspended the prohibition against retroactive punishment expressly for prosecuting national socialist or communist offences.

Rather than the courts, the legislature would have been answerable for the question of retro-active punishment – with all the political debate and publicity that constitution-amending legislation enjoys. It would have also rightly deserved this discussion and publicity; whether past events should be retroactively punished and thereby excluded or if they should be integrated in another way into the collective biography is one of the critical questions of coming to terms with the past.

There are several grounds for why the leading cases in the Federal Republic answered the question on their own rather than leaving it to the legislative process. For one thing, the crimes of the Third Reich were so heinous that there appeared to be only one possible answer to the question of retroactive punishment; it seemed legally superfluous that this question first be referred to parliament instead of immediately answered by the courts that had to determine the final result concerning retroactive punishment anyway. Second, the old theory of comparative totalitarianism equating national socialism and communism may have played a role in judging the communist past with the same legal tools as the national socialist past. But much more relevant was the simple circumstance that once the GDR offences came up, the criminal law provision against retroactive punishment had already been relativised. The courts were not particularly interested in comparing equal, similar or differing totalitarian political systems and their equal, similar or differing qualities as countries without adequate justice. They needed to consider discrete acts and they found the old jurisprudence on national socialist offences could be applied to GDR offences with some minor adjustments despite the criminal law provision against retroactive punishment. So apply it they did.

Therefore, constitutional debates, discussions and decisions about using constitutional law to come to terms with the national socialist and communist past through retroactive punishment did not take place. The law could not make its most profound contribution in coming to terms with the past. With the constitutional law guarantee against retroactive punishment, the constitution stands as the level at which the question of coming to terms with the past through retroactive punishment is to be asked and answered, as a political question of vital importance, to be answered in a political debate with political publicity to reach political clarification. Surely, it was a lost opportunity for the Federal Republic of Germany that the question was not asked and answered in that manner in coming to terms with the past.

The law’s most profound contribution in coming to terms with the past is not what society decides to construct as its past and to integrate into its biography, but how the decisions take place. Somehow the law plays an important role whatever society decides; it supports forgetting in repressive cultures and remembering in cultures of remembrance. But its real work is providing forms and procedures in which decisions about construction and integration are made. It allows for condemning perpetrators not through revolutionary fury and revenge but only through trials, it accepts trials not as irregular revolutionary tribunals but only as regular court cases, it demands that courts decide their cases not through a usurpation of power, but with respect for the law and the decisions of the legislature, it requires decisions of the legislature not with a simple majority but with a qualified constitutional majority once the constitution is at stake, decisions with the corresponding political discussions, publicity and elucidation. In coming to terms with the past, the law’s specific contributions are the forms and procedures it provides. They are its contributions to coming to terms with the past and to political culture in general.

Forgiveness and Reconciliation

When I was a child my day ended with a prayer. Before my mother gave me a goodnight kiss, she watched over me as I thanked God for the good things that had happened to me during the day, as I confessed my failings and promised to improve, as I talked about what I had planned for the next day, as I asked for His guidance, and as I prayed for His mercy on those I knew to be sick or in distress. On the nights there weren’t too many offerings of thanks, confessions, reports, and requests, I closed the prayer with an ‘Our Father’.

One evening I asked God to forgive me for hurting my brother or one of my sisters. After the prayer my mother wanted to know if I had asked for forgiveness from the brother or sister themselves. No, I had not done that. She replied that then I had no right to ask God for forgiveness and that God does not grant forgiveness as long as we have not sought it from those we have injured. We can ask God for forgiveness, she continued, only after our attempt has failed because the other person is too hurt, stubborn or self-righteous to forgive, or if they are dead and can no longer forgive. It sounded to me as if God did not even have the right to forgive as long as the person injured had not exercised their right either to grant or withhold forgiveness.

That is not what my religious mother would have meant, but she certainly believed that the grace of God consists of removing the burden of guilt by forgiving it when we cannot attain forgiveness from those whom we have hurt. For that we need God; that is what He is there for. Or, those who do not believe might point out, mockingly or enviously, that is why those who believe in God invented Him.

I think that my mother was right. If a person does not believe in a forgiving God, then they have to live with their guilt when they can no longer obtain forgiveness from the person they injured. No one can step in as a replacement for the victim to offer forgiveness; forgiveness granted by someone other than the victim is presumptuous. In seeking forgiveness, there is the possibility of advocacy or intercession, but not of stepping in as a replacement. Asking for forgiveness requires the perpetrator to acknowledge that they committed the act that harmed the victim, to affirm their own guilt, and to also recognise the right of the victim to grant or to deny forgiveness – to lift the burden of guilt from the perpetrator or to leave them carrying it. No one can achieve that in the victim’s stead.

But often there are more involved than the perpetrator, the victim, and perhaps God. Friends and relatives suffer as well under the effects of the crime, in addition to the actual victim. The trauma suffered by parents can be passed down to children and even grandchildren – as can the guilt.

If an act affects not just the victim, but also the victim’s partner, parents, and children, then these affected persons, while not capable of offering forgiveness for what the perpetrator did to the victim, can either grant or withhold forgiveness when the perpetrator seeks it for the suffering they themselves have endured. If the subsequent generation is partially mired in the perpetrator’s guilt and partially entangled in the victim’s fate, then there is a certain correspondence between the trauma experienced by the victim’s children and the burden of guilt carried by the perpetrators’ children. The children bound in their parents’ fate as victims and those entangled in their parent’s guilt as perpetrators belong to the same generation and are connected by the same crime. But the perpetrator’s children cannot ask for forgiveness for this crime, and neither can the victim’s children grant it. They are not each other’s victims or perpetrators.

A young German, grandchild of an SS soldier who was assigned to a concentration camp, one day becomes aware of what his beloved grandfather did and then resolves to make amends and a sign of atonement by working in a kibbutz. He cannot hope for forgiveness when he meets a Jewish boy there who is the grandchild of a man who died in a concentration camp. Loving his grandfather and not breaking off his relationship with him are nothing he did as an affront to the young Jew and nothing for which he could beg him for forgiveness. Correspondingly, the Jewish boy, traumatised by the victimisation of his grandfather in a concentration camp, can neither accuse the young German of it, nor forgive him for it. And yet, the correspondence based on the penumbra of guilt and the fate of the victim makes it understandable that these two young people are able to experience themselves as also being somehow intertwined, as two who have something to talk about and work out.

If entanglement comes to an end by the third or fourth generation, then the relationship between the descendants of the perpetrators and the descendants of the victims becomes more relaxed. But even after generations, it is a common notion that forgiveness must be sought, forgiveness especially for the injustices caused by imperial and colonial oppression, exploitation, enslavement, and murder. Namibia requests that Germany seek its pardon for the brutality with which the Germans suppressed the Herero uprising a hundred years ago. The Herero argue convincingly that the massacre had a permanent and irrevocable impact on their tribe. But such imprints on history are always permanent and irrevocable. The guilt of the Germans who brutally suppressed the revolt died with them long ago, and their children and grandchildren who were bound in guilt with them are also long dead. The request that the Germans of today seek forgiveness from members of the Herero tribe living today calls for an empty ritual that would show little respect for the Herero of that time. Their fight against a brutal German enemy, their heroic defeat, and their pain and suffering are all a part of their identity and dignity. It was their right and theirs alone to define their identity and dignity with clemency or resentment, condemnation or forgiveness. No one else can lay claim to that right, not even his or her descendants.

Forgiveness is something too crucial, too existential to be made into a political ritual or used as an opportunity for politicians to present themselves publicly as deeply moved and with anguished miens. A minister of the interior who seeks forgiveness for the damages the soccer fans of his country have caused in another country, a cardinal who seeks forgiveness for the suffering that the priests under his watch have inflicted on the children entrusted to their care, a chief of police who seeks forgiveness for the brutality employed by his officers on duty – they all ring hollow. Perhaps the police chief did not supervise his officers properly, the cardinal did not pay attention to the complaints lodged by children and parents, and the minister of the interior neglected the problems with rioting football fans. Then they are themselves guilty. If they would seek forgiveness for their own guilt it would have weight; to ask for forgiveness for someone else’s guilt is cheap.

My impression is that German politicians are reluctant to ask for forgiveness from Namibia not so much because it would be an empty ritual but rather because Namibia might take it as a title under which it could then claim restitution. I have heard other German politicians take a different position; asking for forgiveness and having it granted would, while unable to create a legal title, give Germany’s substantial help for Namibia’s development a different aura, an aura of bonding and commitment instead of economic technicality. I don’t know about Namibia’s intentions; maybe to get if not a legal then at least a quasi-legal title is precisely why Namibia requests that Germany seeks its forgiveness. As much as I can understand all these strategic and tactical considerations, I find forgiveness too existential to be asked for or granted as a strategic or tactical move in negotiations and contracts for restitution.

The right to withhold or grant forgiveness is the victim’s right alone as part of their relationship to the perpetrator. Whatever the victim does not forgive cannot be dispensed with through forgiveness by any other family member, descendant, friend, or, especially, politician. The burden remains on the perpetrator and those who are entangled with them in their guilt. The world is full of guilt that has never been forgiven and which can now no longer be forgiven – unless by God.

But forgiveness is not the only response to an injury that keeps it from festering and allows it to rest. Injuries can be condemned, forgotten, and have their burdensome meaning lifted through reconciliation. How forgiveness and reconciliation are similar but also different becomes apparent when we look at those who can forgive and condemn, forget and reconcile.

While only the victim can forgive, anyone can condemn. Anyone includes the victim, though that person may well be too dismayed and overwhelmed by the event to pass judgment concerning the perpetrator impartially. But to pass judgment means both to identify the crime and the perpetrator, and the determination of just punishment. While the victim may not be capable of determining just punishment, he can certainly charge the perpetrator with the crime.

Everyone is also capable of forgetting. On occasion someone is too deeply injured to ever forget the injury. But again and again one observes someone who is so grievously injured that no one believes they could ever be capable of forgetting who finally does forget.

Just as one can lose the ability to judge impartially when one is in shock or has a conflict of interest, and as one can lose the ability to forget when one is particularly seriously injured, one can also lose the right to pass judgment or to forget. Those who live in a glass houses shouldn’t throw stones – whoever has some guilt to contend with should not go around accusing and judging others. Certainly, under the rule of law if a charge is true, then it is true regardless of who made it – it can even be someone who also deserves to be accused and judged. But while this person may still have the right to accuse and judge, they have lost the credibility to do so. Their right to accuse and to judge and to condemn is not accepted unless they ensure that they recognise the precarious nature of the charge coming out of their mouth and explain why they are making it anyway. Similarly, when someone claims that they have forgotten about the crime they committed they will not be entitled to their forgetfulness, and here not even assurances and explanations will help. How can the perpetrator allow themself to forget what they have done – the reaction is speechlessness and indignation. Forgetting can make forgiving easier for the victim, but the perpetrator should not be allowed to make it easier on themself. To forget and pass judgment are the rights of others.

The circle of participants is again small when it comes to reconciliation. In the history of this concept it was not always the case; in German the term
Versöhnung
(reconciliation), was originally related to the term
Verurteilen
(to pass judgment). It included attributing the deed to the perpetrator and determining the atonement required of them in order to stave off revenge and restore public order. As atonement imposed by the legal community developed into the state-regulated system of compensation for damages on the one hand, and the system of state-imposed and -executed punishments on the other, reconciliation became a concept defined as the restoration of peace between people explicitly without state sanctions. After the end of Apartheid, as South Africa strived for truth and reconciliation, it did not want the state to sentence and punish, exclude and lock away. Instead the goal was to heal the damaged relationships between the perpetrators and victims through institutionalised, moderated encounters in such a way that they could once more live side by side with each other.

More people than just the perpetrators and victims can be involved in reconciling with each other. The children and grandchildren who share the perpetrator’s guilt and the victim’s fate can reconcile, enemies can reconcile who are simultaneously perpetrators and victims, even friends and lovers who fought and perhaps only inadvertently injured or wronged or lost each other can reconcile – simply stated, everyone whose relationships have been damaged can reconcile. While forgiveness lifts the burden of guilt from the guilty parties, reconciliation merely makes it a bit lighter. Reconciliation means that further attempts to coexist should no longer fail on account of guilt and recriminations.

At the very least, reconciliation calls for the recognition that others are human beings like ourselves, and for the insight that this equality must sometimes be sufficient to establish the foundation for living together in peace. Sometimes those seeking reconciliation can build on a broader foundation for their coexistence. Then political parties form unusual coalitions mindful of their common responsibility for the delicate state of their country – as happened in most countries at the beginning of the First World War, and in the United States when the country was made to believe that Saddam Hussein was a serious threat because he had weapons of mass destruction. Catholics and Protestants sometimes remember that more than anything else they are both Christians and celebrate the Eucharist together – it happens in hostile territory, between soldiers and prisoners of war in camps. Quarrelling lovers sometimes call to mind that their love is greater than their fight. Against all that would separate us, reconciliation emphasises the ties that bind, from equality to love.

Reconciliation requires at least two people. A third party can reconcile two people whose relationship with each other has been damaged, and there can be not just two but many who repair their damaged relationships by reconciling or being reconciled with each other. Someone may be too gravely injured to reconcile, or they may only be ready to reconcile if judgment or forgiveness has preceded it. But whenever two are ready to reconcile with each other there is no reason to argue against their ability or right to do so. When, however, politicians celebrate reconciliation as if they could heal not only their own damaged relationships but also those between peoples and parties with their embraces, it must be insisted upon vis-à-vis this pretension that reconciliation can only happen directly between those whose relationships with each other are damaged. Not even the Nobel Prize helps; when Briand and Stresemann got it, France and Germany were still not ready for reconciliation, nor were the USA and Vietnam when Kissinger and Le Duc Tho were awarded or the Israelis and the Palestinians when the prize went to Arafat, Peres and Rabin. With reconciliation there is just as little proxy as with forgiveness.