Sing the Rage

Listening to Anger after Mass Violence

Sonali Chakravarti

• Publisher: University of Chicago Press
• Year: 2014
• ISBN:
  9780226120041
• Topic: Politica e relazioni internazionali
• Subtopic: Politica

What is the relationship between anger and justice, especially when so much of our moral education has taught us to value the impartial spectator, the cold distance of reason? In Sing the Rage, Sonali Chakravarti wrestles with this question through a careful look at the emotionally charged South African Truth and Reconciliation Commission, which from 1996 to 1998 saw, day after day, individuals taking the stand to speak—to cry, scream, and wail—about the atrocities of apartheid. Uncomfortable and surprising, these public emotional displays, she argues, proved to be of immense value, vital to the success of transitional justice and future political possibilities.Chakravarti takes up the issue from Adam Smith and Hannah Arendt, who famously understood both the dangers of anger in politics and the costs of its exclusion. Building on their perspectives, she argues that the expression and reception of anger reveal truths otherwise unavailable to us about the emerging political order, the obstacles to full civic participation, and indeed the limits—the frontiers—of political life altogether. Most important, anger and the development of skills needed to truly listen to it foster trust among citizens and recognition of shared dignity and worth. An urgent work of political philosophy in an era of continued revolution, Sing the Rage offers a clear understanding of one of our most volatile—and important—political responses.

CHAPTER ONE

More than Cheap Sentimentality

Victim Testimony at the Nuremberg Trials, the Eichmann Trial, and the South African Truth and Reconciliation Commission

Antjie Krog, an Afrikaner journalist who covered the South African Truth and Reconciliation Commission, described her time at the hearings as follows:

Week after week; voice after voice; account after account. . . . It is not so much the deaths, and the names of the dead, but the web of infinite sorrow woven around them. It keeps on coming and coming. A wide, barren, disconsolate landscape where the horizon keeps on dropping away.¹

Her words capture what was felt by many in the audience, along with those who were following the proceedings through the media—emotional exhaustion and uncertainty. The phenomenon of hundreds of public testimonies prompted several questions: How does one make sense of the countless testimonies of grief, suffering, and loss? What purposes do they serve? Are the testimonies of victims connected to justice?

Gathering the testimony of war victims, in contrast to that of a victim or a family member during an individual criminal trial, is an overwhelming endeavor because of the number of people involved and the often complete physical and psychological devastation they have faced. Asking victims to testify may seem like a foray into “infinite sorrow,”² yet this practice has become a central element of truth commissions, temporary institutions set up by heads of state or the United Nations to investigate the violence of a previous period.³ The South African Truth and Reconciliation Commission, the most well-known of the more than thirty truth commissions that have been created since the late 1970s, made victim testimony central to its mission and solicited it on an unprecedented scale, inviting over two thousand people to testify at public hearings and collecting written statements from thousands more.⁴

The concept of victim testimony as a part of the transitional justice process was foreshadowed by experiences of criminal justice and oral history in the aftermath of World War II. The trial of Adolf Eichmann marked a watershed moment in the relationship between the experiences of victims, their impact on society, and the demands of justice in the aftermath of war and mass atrocity. Whereas prosecutors at the Nuremberg trials aimed to convict Nazi officials solely on the basis of documentary evidence, the chief prosecutor during the Eichmann trial, Gideon Hausner, made the oral testimony of victims central to his case against Eichmann and to a larger argument about the relationship of the Holocaust to the legitimacy of the state of Israel. This approach to victim testimony, although in many ways flawed and potentially undermining to the ultimate goal of the prosecution, sparked a discussion about the significance of victim testimony that continues to the present.

Not everyone agreed with the inclusion of victim testimony in the proceedings of criminal justice. Hannah Arendt, the person largely responsible for documenting the Eichmann trial for the international media, and the trial’s most famous interlocutor, was suspicious of the ability of testimony to provoke emotions in the audience and highly critical of the prosecution’s strategy of using witnesses who could not provide direct evidence about the defendant. For Arendt, the ideal witness in a criminal proceeding should testify for the purpose of providing greater facts about the case and should be able to do so without the complicating factors of emotional expression.⁵

Despite Arendt’s criticisms of victim testimony in the Eichmann case, it represents a pivotal moment for transitional justice. The trial of Adolph Eichmann was the most prominent case of a war crimes trial that considered the emotions of victims as central to the practice of justice. By doing so, it challenged previous distinctions between reason and emotion and between the public and private spheres. The Eichmann trial, although not without serious shortcomings in procedure, laid the foundation for a new, still-unrealized type of transitional justice that has the potential to engage with anger in a way that encourages trust. As a way of situating the Eichmann trial between the conventional perspective of criminal justice after war and new frameworks for understanding justice, I place it on a theoretical continuum between the Nuremberg trials and the South African Truth and Reconciliation Commission. Over the course of these cases, there has been a move toward a more integrated conception of reason and emotion, a renegotiation of the public-private boundary, and a greater acceptance of the significance of unsocial emotions—Adam Smith’s term for the emotions that are difficult to sympathize with—including anger after mass violence.⁶

The Nuremberg Trials

The Nuremberg trials were the most influential of the twentieth-century tribunals addressing postwar justice.⁷ Conducted in 1945–48, they established the precedent for prosecuting war criminals that would later be used to form the International Criminal Court. They gave an institutional framework to the principle that crimes committed during war fall under an international jurisdiction and that the perpetrators of war crimes, such as the torture of detainees, and of larger “crimes against humanity” can be held accountable. The architects of the trials at Nuremberg were concerned with being charged with offering “victors’ justice” through proceedings that, while invoking principled moral and legal justifications, would be merely a façade that allowed the winners of the Second World War to impose punishment and retribution on their defeated enemies. Instead, the Allied forces in charge of drafting the charter to set up the International Military Tribunal at Nuremberg wanted to be seen as offering a new model for international justice, one based on international law and the impartial application of prohibitions against aggression and war crimes, not victors’ justice.⁸ The lessons learned in hindsight about the debilitating impact of the Treaty of Versailles on German political and cultural life informed this orientation, and the language used by the judges at Nuremberg was meant to mute the centrality of vengeance and retribution in the rhetoric of the trial in order to focus on narrower concerns of criminal responsibility.⁹ The actions of the International Military Tribunal would show in word, as well as legal procedure, that it was part of a more just political structure than the one of Nazi Germany. To protect against the perception of a miscarriage of justice, the judges and prosecution at the tribunal emphasized the rationality of the charges, rules of evidence, and protections for the defendant.¹⁰

Robert Jackson, the American Supreme Court justice who served as the chief prosecutor at Nuremberg, most clearly embodied this vision of an impartial and rationalistic approach to transitional justice after war. In his opening statement, Jackson articulated that an American was best suited to lead a dispassionate inquiry into the war because his country did not experience the physical devastation of the European allies. Moreover, he suggested that he, in particular, was an appropriate candidate for the job of chief prosecutor because he was able to separate his personal feelings about the defendants from his legal obligations.¹¹ Both of these justifications for the legitimacy of American leadership in the prosecution stemmed from the belief that an emotional predisposition to anger or vengeance had no place in a criminal trial and that the separation of rationality from emotion was the mark of a just and legitimate trial. This philosophy carried over into the strategy for providing evidence that would show the individual accountability of the twenty-four Nazi officials on trial, including Hermann Göring, the commander of the Luftwaffe; Albert Speer, an architect who served as minister of armaments; and Hans Frank, ruler of the central government of occupied Poland. They were charged with the following crimes under international law:

1. Participation in a conspiracy to commit crimes, including crimes against the peace

2. Planning, initiating, and waging wars of aggression

3. War crimes

4. Crimes against humanity¹²

Of these charges, the ones related to wars of aggression and crimes against humanity were the most contested. Critics argued that waging a war of aggression was an inadequate legal charge because it would be interpreted as a way to blame the losing side for its defeat. Defining the proximate cause of war is always difficult, and the lack of specificity as to the definition of “aggression” further obfuscated the precision of this charge.

The trials at Nuremberg were the first to prosecute individuals on the charge of crimes against humanity, a term that first appeared in 1915 in a joint declaration by France, Great Britain, and Russia directed toward the Ottoman Empire with respect to the genocide of Armenian Ottomans. It came into popular use after its inclusion in the London charter for the formation of the International Military Tribunal in 1945.¹³ The charter, signed by representatives from the United Kingdom, France, and Russia, defined crimes against humanity as “[m]urder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial, or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of domestic law of the country where perpetrated.”¹⁴ Two of the notable aspects of this definition were the attention given to the political, racial, or religious motivation for murder and the transcendent jurisdiction of the International Military Tribunal over domestic law.

The defense that was mounted against these charges, although tailored to the situation of each defendant, was based on the claim that the defendant either did not know the extent of the crimes that were committed in the name of the Third Reich or was simply following orders within a regime.¹⁵ Such orders did not allow those commanded the individual autonomy to decide whether or not to carry them out. For example, in his testimony under cross-examination, the defendant Hermann Göring stated, “So far as opposition is concerned in any form, the opposition of each individual person was not tolerated unless it was a matter of unimportance.”¹⁶

The prosecution, under Jackson’s leadership, considered using the testimony of victims to establish the extent of the crimes and the direct complicity of the defendants because they thought this approach would be sufficiently dramatic to hold the attention of the international media while also portraying the Allies as empathetic toward the experiences of victims and survivors.¹⁷ In the end, however, the prosecution decided not to use victim testimony and relied only on documentary evidence in the form of invoices, letter communication, and photographs to provide a straightforward paper trail of the case, one not susceptible to the type of criticism that could be directed toward the credibility of the witnesses. By excluding victim testimony from their strategy, the prosecution was able to further emphasize the idea that the Nuremberg trials were meant not to manipulate the public or international media through a rhetoric of suffering but, rather to present a detailed account of the specific crimes of Nazi officials during and leading up to the Second World War. In his opening statement, after outlining the systematic anti-Semitic practices of the Nazi party and the structures that were put into place for the elimination of the Jews, Jackson said, “I shall not take the time to detail the ghastly proceedings in these concentration camps. Beatings, starvings, tortures, and killings were routine—so routine that the tormentors became blasé and careless.”¹⁸ This statement encapsulates Jackson’s orientation to the particular experiences of victims during the trial: they were central to the case because their experiences showed the extent of the crimes committed, but there was no need to spend time and effort detailing the particularities of suffering. Far more important was to convey how the “tormentors became blasé and careless” and thus create a psychological profile of the defendants.

In contrast to the Eichmann trial that would take place fifteen years later, the prosecutors at Nuremberg did not consider the education of the public about the Nazis’ crimes to be a primary goal. Such education would happen as a by-product, insofar as the evidence would reveal Nazi activity with which many would not be familiar, but it would not be an ongoing concern. Even though the judges and lawyers who participated in the trial knew that they were involved in a historic event in the nascent field of international justice, they did not consider themselves to be historians of the Holocaust or the collectors of oral testimony; the legal aims of criminal prosecution and punishment were focus enough. The court also did not see itself as offering a model for catharsis or reconciliation. Thus, Nuremberg is the paradigmatic case of a conventional postwar criminal trial, one that represents a rationalistic idea of justice through its language of “staying the hand of vengeance,” its dismissal of oral testimony, and its narrow scope for the purposes of pursuing criminal justice rather than education or social transformation.¹⁹

I agree with scholars Gary Bass, Lawrence Douglas, and Martha Minow that Nuremberg was largely successful at achieving its goals of setting a precedent for trying war crimes and crimes against humanity in an international court.²⁰ The highly rationalistic discourse that shunned the language of vengeance and the potential volatility of victim testimony is understandable given the context of the Allied victory and the general perception of the Nazis as “evil,” an image that was perpetuated by the popular media. To avoid publicizing the trials at Nuremberg as yet another battle that could be celebrated as an Allied victory, the prosecution needed to distance itself from the self-righteous language of war and the corresponding demand for retribution that had been part of Allied wartime propaganda. However, while the Nuremberg trials offered a solid foundation for the establishment of international courts to try war crimes, they relied on a schism between reason and emotion that is limiting when considering the broader needs for justice and the psychological restoration of a society in the aftermath of war. The needs of perpetrators, victims, and bystanders to judge the actions of the past and participate in the reconstruction of society are not met by a criminal trial and could not even be articulated during the Nuremberg tribunal given the limitations of what was considered relevant testimony. Emotions, particularly anger, despair, and resentment, could not play a prominent role in Nuremberg because of the constraints of legal procedure. Nonetheless, they cannot be ignored as part of the collective needs of postwar justice; to include them as part of the process of transitional justice would force a reconsideration of the boundary between the legitimacy of reason and emotion in public—a confrontation that is necessary in the wake of mass violence.

Shklar’s Legalism

The trials at Nuremberg served as a case study for Judith Shklar in Legalism (1964), her book about political trials and the theory of law. Although the contemporaneous nature of Legalism and Eichmann in Jerusalem prevented Shklar and Arendt from directly responding to each other, they engaged with the same topics, at the same point in history, with certain similar orientations toward the project of liberalism. Both considered the liberal paradigm to be dependent on individual autonomy and were skeptical of ambitious state endeavors that interfered with such autonomy. Shklar and Arendt differed, however, when it came to the legal ideology that permeated liberalism, an ideology Shklar called “legalism” and described as “the ethical attitude that holds moral conduct to be a matter of rule following, and moral relationships to consist of duties and rights determined by rules.”²¹ She noted that this approach had so distanced itself from questions of history, politics, and ethics that it fell into a solipsistic trap, making it stagnant as a theory of law. In addition to the commitment to rules, legalism was marked by “the dislike of vague generalities, the preference for case-by-case treatment of all social issues, the structuring of all possible human relations into the form of claims and counterclaims under established rules.”²² Instead of these characteristics, Shklar advocated an approach to law “as an historical phenomenon,” and she wanted to “replace the sterile game of defining law, morals, and politics in order to separate them as concepts both ‘pure’ and empty, divorced from each other and from their common historical past and contemporary setting.”²³ Legalism was an ideology, a set of belie...