Coming to Terms with the Past through Politics and the Law
What can – indeed, must – be come to terms with are the burdensome consequences for survivors of a political event that now lies in the past. In this sense the word is suggestive of a task that is both unpleasant and unavoidable. It sounds both weighty and ambiguous; it is considered to be one of those typically German words that are virtually untranslatable and certainly always necessitate explanation. Perhaps it also reveals what Bernhard Schlink described as a ‘yearning for the impossible’, a defiantly naïve, childish view, similar to the expectation of being able to ‘make good’; to ‘fix what happened, so that the memory of it is no longer a burden on the present’.
That which is not explicitly stated apparently goes without saying. Everyone who hears or uses the word immediately knows that it refers to the Nazi past, and this alone. For as long as the expression ‘overcoming the past’ dominated public analysis and discussion of the ‘Third Reich’, it was as if that period had rendered all other pasts insignificant, as if all the pre-history of our present had shrunk to this short period of the twelve years of the Hitler dictatorship. For many years it was as if the German national consciousness were being suffocated by its own inhibitions over its proximity to National Socialism and the crimes of the Nazis. Only gradually was it able to establish some distance between itself and this past that remained oppressively present, and to regain a sense of temporal depth. The social memory of the German people, generally rooted in their national history, was largely deprived of this foundation in 1945, and was therefore characterised by a certain uneasiness and insecurity. To this day, our ‘unhappy national historical consciousness’ vacillates between a historicisation of the Nazi past, and turning it into an absolute. It vacillates between the forced propensity to normalise German national history in the interpretation of it, and the no less pronounced tendency to focus historical retrospection on the narrow timeframe of those twelve short years that had such far-reaching consequences.
The Göttingen-based historian Hermann Heimpel pinpointed the problem as early as the late 1950s when he wrote that ‘the restlessness and unease with which we encounter history, or try to evade it, is therefore for the time being a German phenomenon, a German fate – it is the often-cited “past that has not been come to terms with”. It befalls everyone, whether they know it or not – because the struggle with our past lies not behind us, but before us.’ Heimpel had no way of knowing how soon and how emphatically he would be proved right in his assessment. The Eichmann and Auschwitz trials began not long afterwards, followed by the parliamentary debates on the statute of limitations and the political controversies about contemporary historical dramas by authors from Rolf Hochhuth to Peter Weiss. On the eve of the 1960s, which were to be extraordinarily eventful and conflictual from a historical-political point of view, Heimpel had good reason to worry about a certain ‘weariness of and threat to historical sensibility’.
Whoever invented the term ‘coming to terms with the past’, it started to circulate just as the first post-war decade was coming to an end, the wartime destruction had for the most part been cleared away, and it seemed that Germany had overcome, or come to terms with, the consequences of the unjust Nazi regime. It had instigated integration into the West and rearmament; the Federal Republic had obtained its sovereignty with the signing of the Germany Treaty; and the West German ‘reconstruction society’ was leaving the past behind in the optimistic upswing of the ‘economic miracle’ – regardless of how much a far from insignificant minority stubbornly continued to talk about a ‘past that had not been confronted’ and demand that society should deal with this difficult legacy, reasoning that it had a political and moral duty to all generations to do so. After the Nuremberg trials, the end of denazification, the pardoning of ‘war criminals’ and reparations, the silent majority were crying out for a definitive conclusion – which generally always comes, sooner or later, after drastic changes to the political system.
The coining of a new word meaning ‘to come to terms with the past’ thus addresses a situation that is by no means new. The problem of how to deal in political and legal terms with the consequences of a system of government that has come to be regarded as illegitimate is one that repeatedly presents itself to successor states. The fundamental question is whether to make short work of the people who had authority under a dictatorship, or whether one is willing to embark on a lengthy analysis of and engagement with the ramifications of the dictatorship. There are some reasons to argue for a ‘short and bloody’ end to a tyrannical regime, because constitutional methods do not make it is possible to ‘come to terms with the material and physical inheritance of hatred, anger, outrage and contempt that tyranny leaves in its wake’. There were no ‘St. Bartholomew’s Day massacres’ in Germany (E. Kogon), which many victims of Nazi persecution had expected would happen when the war came to an end.
However, the violent repudiation of and dissociation from the perpetrators, instigators and accessories of a violent crime in a ‘night of the long knives’ inevitably hurts the innocent as well as the guilty. On the other hand, constitutional court proceedings also soon prove inadequate when dealing with crimes planned and committed by the state: firstly because they can only investigate individual guilt, in the sense that an individual can be held personally responsible for unlawful actions, and secondly because criminal trials can scarcely cope with the large number of people involved in the commission of the crime – indeed, the form and extent of the crime effectively invalidate the relationship between guilt and punishment. As Hannah Arendt wrote to Karl Jaspers as early as 1946, it is impossible to deal either legally or politically with an innocence, in the victims, that is ‘beyond virtue’, and with a ‘guilt that is beyond crime’. Hanging Göring was, she wrote, ‘necessary, but entirely inadequate’.
Not a specifically German phenomenon
One can in fact differentiate between a variety of diverse strategies for coming to terms with the more or less inevitable analysis of an illegitimate past following war, revolution and political system change. The law, however, plays a central role as a medium for both remembering and forgetting. In the following article I will differentiate between seven ideal-typical forms of action, defined in a legal-political sense, which in reality generally prove more complex and more contradictory, and are often also combined or mixed together.
‘Coming to terms with the past’ is not a specifically German phenomenon, however much this may be implied both by the term itself and by the prolonged, for many years exclusive preoccupation with the consequences of the Hitler dictatorship. This limitation is now increasingly being overcome: there is interest, at least in academic circles, in comparative research into how different countries have come to terms with the past when transitioning from dictatorships to democratic political systems. The following overview takes this into account, but will focus nonetheless on the subject matter of this introduction.
1. In places where political change is instigated by leading representatives of the old system, the past is, generally speaking, largely ignored. This is what happened in Spain when the Franco dictatorship was superseded by a liberal-democratic monarchy, prior to which the Caudillo himself had designated Juan Carlos as his royal successor. A few high-ranking officers were pensioned off, but there was no examination of the system as it was under Franco, or with the Spanish Civil War that had brought the dictator to power in the 1930s. A similar thing happened in Russia in 1991. After the failed coup attempt, Gorbachov’s successor Boris Yeltsin was restrained in his dealings with the coup leaders, who like himself and his government belonged to the old nomenklatura. They were only accused and sentenced because they had challenged the new political order. The state leadership never instigated any legal-political investigation into the KGB terror or the Gulag archipelago, either at the time or in the years that followed. Yeltsin’s choice of a former KGB functionary to succeed him was an indication that, in this respect, nothing was going to change.
2. Dealing with an illegitimate past in a way that relies on personal continuity during a period of change, that does not even inquire into the guilt of those in positions of authority, thereby ignoring the past, contrasts with the violent action of political cleansing. This deploys fresh terror as a means of seeking retribution and revenge for injustices suffered, and in particular for the collaboration with an enemy occupying force. This is why there was a wave of bloody political cleansing in France in the autumn of 1944, in the south of the country and in places where Communist resistance groups temporarily assumed power, in which between ten and twenty thousand people are estimated to have died. There were also savage executions in northern Italy and in the Balkans. The revenge crimes perpetrated against Croats and ethnic Germans by Tito’s Communist partisans quickly claimed around one hundred thousand lives. People spoke of a ‘frenzy of revenge’, in which the bloody civil war between Fascists and Communists turned into a class war against the big landowners and the property-owning bourgeoisie. As the Serbian-Croatian civil war subsequently showed, this bloodshed was still fresh in the memories of their descendents.
3. An attempt to overcome the consequences of dictatorship by judicial means offers a fundamentally different approach. This does not require a kind of collective scapegoat and the symbolic purifying power of a bloody act of cleansing. Rather, it relies on the legitimacy and rationality of more or less legally structured processes. However, their scope appears so broad that, in strictly constitutional terms, it is scarcely possible to reduce them to a single concept. Essentially, criminal-law liability, which investigates objective misconduct by the accused as well as their subjective guilt or criminal liability, offers two alternative routes. The first follows the principle of nullum crimen, nulla poena sine lege, i.e. that no crime can be committed, and that therefore there can be no punishment for it, unless a previously existing law is broken. The other route pursues the constitutionally dubious path, but one that in exceptional circumstances cannot be avoided, of special laws and special courts. This alternative is supported by the argument that crimes against civilisation or against humanity have long been ‘proscribed by human conscience’, and that accordingly the 1948 Genocide Convention did not create a new international law, but was merely a setting down of ancient rules and norms.
This was the route the Allies took when they defined crimes against humanity as punishable under international law in the London Charter of the International Military Tribunal in Nuremberg. This was later adopted in Law No. 10 of the Allied Control Council. The Federal Republic of Germany chose not to do the same. In rebuilding the constitutional state it placed greater importance on legal certainty, also in dealing with Nazi perpetrators. It therefore expressly adopted into the Constitution the principle of non-retroactivity (Article 103, 2 of the Basic Law), thereby taking into account the fact that many perpetrators would only be convicted of aiding and abetting a crime, and that some offences would go unpunished.
In many of the countries occupied by Germany under Hitler, people were not prepared to make such allowances, and different procedures were adopted. Special penal laws were enacted, death sentences were pronounced by special courts against ‘Nazi collaborators’ on charges of treason and high treason, as well as criminal sentences for manslaughter, murder and torture; or they sentenced people to atone through forced labour, imprisonment, or the revocation of their rights of citizenship. In addition, numerous trials of concentration camp guards were initiated by the Allies in their respective zones of occupation. Numerous too were the criminal proceedings before Polish courts against staff of the German extermination camps.
4. The circumstances in Italy and Germany made bureaucratic measures of political cleansing appear necessary. Nowhere else had so many people been involved in crimes, politically corrupted, and disqualified themselves from making a new beginning through their active enthusiasm for and adaptation to the totalitarian ruling system. But the process of separating those who were seriously compromised from those who were merely followers proved both laborious and, ultimately, unfeasible and counterproductive. The rigidly schematic nature and quantitative escalation of denazification not only damaged its reputation and impaired the restoration of public order and economic life: it also had a detrimental effect on the initially undisputed legitimacy of a political cleansing. Every German was liable to be tainted by it, and could see themselves as a potential victim of the occupying powers. This provoked them to defend themselves against an accusation of collective guilt, which the Allies never made against the population as a whole. In the end, with colossal bureaucratic effort, the denazification trials transformed the majority of those who were actively involved in the Nazi dictatorship into followers.
5. Shortcomings and injustices in the bureaucratic and judiciary methods of coming to terms with the past meant that sooner or later it became necessary to come to terms with the consequences of the failure to come to terms with the past, especially because the political framework was altering rapidly in the second half of the 1940s. This was the period of amnesties and pardons. The latter played a part particularly in the emotionally heated debate about the so-called ‘war criminals’ held in Allied prisons. The political cost that such pardons entail is, however, not an inconsiderable one. Certainly they were advantageous as regards the politics of integration, and they attenuated constitutional reservations about the Allies. The price for this, however, was that by the end of the 1950s mass murderers condemned to death by the Americans had already been released back into society. The numerous amnesty laws, the so-called 131st Law and the conclusion of denazification all underline the significance almost all the political parties accorded to coming to terms with the coming-to-terms with the past. They made it substantially easier for the new political conditions to be accepted by society, and increased the integrating power of the two main political parties.
6. The South African ‘Truth and Reconciliation Commission’ under Archbishop Desmond Tutu created a kind of compromise between quasi-judicial trials and the renunciation of political-judiciary sanctions when it came to investigating and coming to terms with human rights abuses under the apartheid regime, i.e. integrating the various interests, injuries and fears of both victims and perpetrators. In the deeply ethnically-divided society it would have been impossible to achieve a transfer of power and overcome apartheid in favour of gradual internal reconciliation either by remaining silent about the victims of racist policies or by punishing the white population for their crimes. On the one hand, impunity was the prerequisite for obtaining confessions. On the other hand, establishing the truth about serious human rights abuses meant acknowledging that the black population, who had been persecuted and discriminated against, were the victims of crimes. The fact that they, like the white minority who voluntarily gave up their positions of power, received material compensation led some critics to denigrate the much-vaunted so-called South African miracle as a ‘bought revolution’. Viewed realistically, payments like these appear as a crucial accompaniment to what was, all in all, a peaceful change of political regime. On the other hand, renouncing a violent conflict meant that the antithesis between black and white was not remedied, and the question of moral superiority relegated to the level of symbolism.
7. Last but not least, the material compensation of the persecuted is an element of coming to terms with the past, according to its political-legal definition. In the context we are dealing with here, this refers to the restitution of stolen property and the payment of reparations, in particular to the Jewish victims. For a long time now this has been referred to colloquially simply as ‘reparations’, and is the third key element in the process of overcoming the past, alongside criminal prosecution and denazification. In the early days of the German Federal Republic it was one of the main controversial issues in domestic and foreign policy. It has long preoccupied West German society, and became topical once again with the controversial debate about the compensation of forced labourers.
Nulla poena sine lege
This is reminiscent of older, pre-modern societal and legal circumstances which survived in the Germanic legal tradition, according to which the tribe was not just a legal, economic and defensive association: it was also an association founded on joint liabilities. As long as there was no recognised public violence, the type and extent of liability and atonement was settled between the tribes of perpetrator and victim. Roman law, the Christian doctrine of atonement, the Enlightenment, and the transition from feudalism to modern society have increasingly transformed the individual into a legal entity, something he had previously only been by virtue of belonging to the association that protected him. But the legal-historical inheritance, the thought of a collective material liability and moral responsibility, still influence our everyday comprehension of individual guilt. Alongside the criminally relevant actions of individuals, in some cases the focus is also on the ‘offending tribe’, especially when dealing with an offence as exceptional as state-sponsored genocide, in the commission of which it was certainly not every member of the ‘offending tribe’ who became perpetrators and collaborators, but an alarming number did.
For a precise and graphic characterisation of this extended concept of guilt, Schlink introduced the differentiation between a ‘horizontal’ and a ‘vertical’ dimension. The accusation of collective guilt is made primarily against those who were alive at the time. In the sense of moral misdemeanour, they are also guilty who watched and remained silent when the persecution and annihilation of the ‘foreign peoples’ and ‘aliens to the community’ took its course. It is certainly not the case that every German who lived through the years of Nazism can be accused of not having objected and not having resisted, but such an accusation does draw attention to the consequences of a failure to take action.
It is even less possible to speak of collective guilt in the literal sense with reference to the vertical dimension. The next generation cannot be accused of unlawful actions or failure to act. Their guilt consists in their failure to judge the perpetrators and collaborators and exclude them from the community of solidarity, and the extent to which they failed to do so. The debates about the laws of amnesty and the pardons as well as about the statute of limitation on prosecuting people for murder and genocide belong in this context. The controversy about the dictum of ‘secondary guilt’ (R. Giordano) demonstrates the degree to which the principle of collective liability is still incorporated in the thinking.
As far as subsequent generations are concerned, the question of collective guilt primarily arises around communicative misbehaviour in relation to the descendants of the persecuted and their tormentors. Feelings of self-consciousness and embarrassment arise, for example, when German politicians’ lack of sensitivity towards Holocaust survivors causes them to turn sheer chance into ‘the blessing of being born late’, and to do this so insistently that the platitude comes across as some sort of legal claim to reconciliation and normality.
The ‘networks of guilt’, extending both horizontally and vertically, have their own way of working and their own inescapability. Few of the Germans who could in a legal sense have been guilty of criminal actions prior to 1945 were still alive in the year 2000. The German-Jewish contractual obligation still legally requires that compensation be paid, but it is essentially no longer defined in terms of criminal law. Obligations, experiences and feelings relating to guilt have altered over the decades. But as long as we comprehend our collective identity as one that has evolved and faced up to its history, we will not escape having to deal with the question of guilt in the future, too.
This text is an extract from Peter Reichel’s book Vergangenheitsbewältigung in Deutschland (Overcoming the Past in Germany), pp. 20 – 29.© C.H. Beck 2007.
is a professor of political science at the University of Hamburg and a renowned specialist in the history of National Socialism in Germany.
Translated by Charlotte Collins
Copyright: Goethe-Institut e. V., Fikrun wa Fann
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