“Transitional justice” and national “mastering of the past”: Criminal justice and liberalization processes in west Germany after 1945

Abstract

From its emergence in the 1950s, the term Vergangenheitsbewältigung—usually translated as “mastering of the past” or “coming to terms with the past”—was associated with how West Germans contemplated and interpreted the Nazi era. In the last twenty years, the implosion of the GDR and the sixtieth anniversary of the end of the Second World War helped drive a profound historicization process, which gave rise to considerable differentiation in terminologies, perspectives and approaches. With the recent “cultural turn” in contemporary history writing, one important current of research explores how concepts of gender and sexuality have informed postwar debates about guilt and suffering, perpetratorship and victimhood. A second approach, which reflects the increasing influence of notions like memory, truth, and justice, focuses on the role the law and legal categories have played in this entanglement. Following the unprecedented German crimes of the war period, the Allies launched ambitious war crimes trial programs at Nuremberg and in their individual occupation zones. These have since become something like the international blueprint for strategies of judicial accounting in other cases. In a paradoxical and twisted sense, this was even the case in West Germany, where the Allied war crimes policies were, from the start, contested and derided as “victor’s justice.” In more than four decades after the war, West German lawmakers, judges, and members of civil society repeatedly adapted, revised, and reinterpreted concepts and categories of international humanitarian law, as well as of typical German traditions like Rechtsstaat and Naturrecht, in an effort to come to grips with the Nazi genocide and other forms of state-sponsored mass criminality. In addition, processes of transfer and distancing shaped the way severe human rights violations were viewed in different contexts around the world. This chapter analyzes which factors influenced the judicialization of West Germany’s confrontation with the Nazi past, and how this shaped the understanding of historical injustices at various times and whether it can be seen as a vehicle of “Westernization” and a democratic learning process.