FWO Fellow at Ghent University, Ghent, Belgium
I start this chapter by determining five separate waves of historical expert testimony. Of these five I discuss two categories of predominantly European trials where historians have been active as expert judicial witnesses. These categories consist of the Eichmann trial, the German Frankfurt-Auschwitz Trials, and the Ludwigsburg Paradigm, the French Vichy trials, and the Holocaust denial trials like Irving v. Lipstadt.
In my soul and conscience, I believe that an historian cannot serve as a “witness,” and that his expertise is poorly suited to the rules and objectives of a judicial proceedings.
After World War II, historians have served as experts in a multitude of legal cases in different countries. This globalization of the historian as an expert witness is traditionally divided into five categories. I have already referred to the first category of transnational justice. The second category of expert witnessing is the collection of all the post-Holocaust and post-World War II litigation in Israel, Germany, and France. For these three countries, these trials were as much about individuals as they were about national history and the role their country or people had played during the war. This category has had a major impact on the perception and reception of the forensic form of history by the legal as well as the historical profession. A third category is that of Holocaust denial litigation. The most famous examples are the British case Irving v. Lipstadt and the lesser-known Zündel trials in Canada. In many European and Commonwealth countries the denial of the Holocaust is penalized. This is also a category comprised of litigation which has had an important influence on the concept of the judicial use of expert historical testimony. The litigation which is presently going on in former Commonwealth countries like Australia, Canada, and New Zealand define a fourth category. Historians serve as expert witnesses in post-colonial trials concerning the rights of native peoples. These cases are litigated because of land rights, water rights, rights to raw materials, and reparation of historical wrongs. Historians have testified on native peoples’ history in specially established tribunals and normal civil litigation. Most famous are the Waitangi tribunal in New-Zealand, the Delgamuukw v. British Columbia case in Canada and Mabo v. Queensland in Australia.1 A fifth and final category, is a broad category that comprises all civil American litigation where historians are involved in, ranging from land and water rights cases, indigenous peoples litigation, tobacco litigation, racial discrimination cases, gender related litigation, environmental cases, toxic tort litigation, etc.. Expert witnessing by historians is an established, institutionalized, and growing practice in America. The litigation-driven history in the US has an influence on the American historical profession as a whole due the number of historians involved. This is the category that has the most bearing on and relevance to historical practice today.
In this book, I examine the second, third, and fifth wave of expert witnessing in the twentieth century. The second and third waves have had a distinct impact on the general discourse on the interaction between history and law in Europe and the United States. Several cases were highly political and had polemic aftermaths. This controversial nature is very apparent in Wijffels’ selection of cases. He discussed the German Frankfurt-Auschwitz trials and the French Vichy trials, and the infamous Irving trial. The Ludwigsburg trials are not examined by Wijffels’ work, thereby leaving an important part of the German post-World War II litigation out of the picture. I have added these trials to my own limited overview to ensure a more balanced review of this second wave. I use the fifth wave of expert witnessing to make a comparison with the examples from the second and third wave. By comparing the European and American categories of expert witnessing, I can reassess Wijffels’ concept of the forensic context of history.
6.1 The Second Wave: Post-Holocaust and Post-World War II Litigation
These trials are criminal cases against individuals who were accused of committing crimes against humanity during World War II or during the Shoah. In Germany, France, and Israel these trials were more than a judgment on the crimes of an individual. These trials were historical lessons of a psychological and a pedagogical nature. For France and Germany the cases aspired to come to terms with a difficult and shameful period in the nation’s history. I divide this category further into three topics. I begin with an analysis of the Israeli example from 1961: the trial of SS-officer Adolf Eichmann. Secondly, the German Frankfurt-Auschwitz trials and the Ludwigsburg paradigm are discussed. Subsequently, I go into the French tripartite Papon, Barbie, and Touvier. All three categories have had a significant impact on the way European and American historians and lawyers perceive the interaction of their fields.
6.1.1 Eichmann in Jerusalem
On the 21st of May 1960, a plane carrying Adolf Eichmann landed in Israel. He had been captured by Mossad operatives in Argentina a couple of days earlier.2 Eichmann had been a high-ranking SS officer during World War II. He had been responsible for the administration of the transportation of the Jews to the extermination camps. For his role in the Shoah, the Israelis had brought Eichmann to Israel to be tried in an Israeli court. Ben-Gurion, the Israeli prime minister at the time, had clear intentions for the trial. The Eichmann trial needed to become the living recreation of a national and human disaster. Ben-Gurion wanted to retell and rewrite the legacy of Nuremberg in the Eichmann trial.3 While the former had been about an unjust war and about crimes against humanity–not only those committed against the Jewish people–, the latter would concentrate solely on crimes committed against the Jewish people.4
Historians seem to agree that the trial played out how Ben-Gurion had intended it. Serbian historian Vladimir Petrovic concluded that the Eichmann trial had revised history and had indeed stressed the uniqueness of the Holocaust.5 Both Georgi Verbeeck and the Canadian historian Michael Marrus acknowledged the didactical role the Eichmann process had played in shaping Jewish public memory of the war and the Shoah.6 Marrus went even further when he suggested that the process was more dramatic than it was judicial.7 Hannah Arendt, the famous political theorist of Jewish descent who herself had fled to the United States from Europe reported the Eichmann trial for The New Yorker.8 On these articles and her experience of the trial Arendt based her famous book Eichmann in Jerusalem: A Report on the Banality of Evil. In the book Arendt argued that the Eichmann trial had become a show trial where Eichmann’s physical presence was the only thing that helped the audience remember that Eichmann was on trial and not history. Eichmann had become peripheral in his own trial, according to Arendt.9 American legal scholar Mark Osiel writes that the Eichmann trial created a national saga and a national story which repaired the broken band between history and the Jewish people.10 Not surprisingly the history proposed by the Eichmann trial was a populist version of Jewish history, consisting of recurrent versions of the legend of David against Goliath, of respectively brave resistance and barbaric repression.11 Furthermore, the Eichmann trial created a new collective memory of the Holocaust for the newly established Jewish nation but also on an international level.12 The Eichmann trial has created much political sympathy for the Jewish people and their suffering during World War II.13
“I appear here as a witness, not an eyewitness or a jurist, but as a historian”, Salo Baron said when he took the stand to testify at the Eichmann trial.14 Baron was the only historian who appeared as an expert witness during the trial. Similarly to Arendt, Baron had fled Europe from his Polish hometown to America. In America, Baron continued his academic career and institutionalized Jewish history as a field in American faculties of history. It was in his capacity as an expert on Jewish history that Baron was called upon to testify against Eichmann.15 Rather than giving a historical overview of Eichmann’s crimes, Baron’s testimony explained the general context of the Nazi genocide of the Jews.16 Baron was questioned by counsel for the defence who tried to attack his testimony on an epistemological level. Eichmann’s German lawyer Dr. Robert Servitius attempted to discredit Baron’s testimony by directing attention to what Arendt called “the murky issues of philosophy of history.”17 Hannah Arendt condemned the mixture of the task of the historian and the judge, an issue that was also addressed during the proceedings in court.18 For Arendt it was wrong to have Baron testify on the Holocaust in general because it drew attention away from Eichmann’s person, who was actually on trial. Arendt argued that the story of the Eichmann trial should have been that a person like Eichmann, a bureaucrat without special pathological signs of being a psychotic murderer, had played such an important role in the organization and planning of the extermination of millions of people, or what Arendt called: the banality of evil in the person of Adolf Eichmann.19 Eventually the court’s decision was not greatly influenced by the testimony given by Baron.20 Hannah Arendt concluded that the Eichmann trial had failed to deliver a fair trial for Eichmann. “[t]he purpose of the trial is to render justice, and nothing else”, Arendt wrote disillusioned.21 Adolf Eichmann was sentenced to death and hanged on the 31st of May 1962. The Eichmann trial became an example of how history and the testimony of a historian as an expert witness could be used for political purposes in the courtroom.
6.1.2 The Frankfurt-Auschwitz Trials and the Ludwigsburg Paradigm
Just as Ben-Gurion had felt that it was necessary to reinterpret the history of World War II and the Holocaust, West Germany started a series of trials, known as the Frankfurt-Auschwitz trials, to address anew Germany’s responsibility in the Shoah. Historians have played a considerable role in these legal cases.22 Expert historians were primarily recruited from The Institute for Contemporary History in Munich.23 They were there to sketch as clearly as possible a picture of the historical and political landscape in which each individual crime on trial had taken place. Historians were needed to provide a general background to enable the judges to consider the actions of the individual in their historical context.24
The first of many trials started in 1963, when 22 officers and guards who had worked at Auschwitz were put on trial.25 Like the Eichmann trial and the Nuremberg tribunal, the Frankfurt-Auschwitz trials had a pedagogic purpose.26 The testimonies of historians were used to provoke public debate.27 As much as the German trials were about changing and constructing public memory, they produced excellent historical research that is still part of the historiography on the Holocaust and World War II.28 The judges frequently cited and used the witness reports in their judgments.29 Again attempts were made by, among others, legal scholar Ernst Forsthoff to undermine historians as expert witnesses by making the argument that the historical profession contemporized its knowledge in court and was therefore irrelevant. “History was rewritten every few years by a new generation of historians; hence, it had no legal value, which allowed it to be admitted to the courtroom”, Forsthoff argued. According to Forsthoff, history was not based on solid facts as opposed to legal facts that were treated in the courtroom.30 For Forshoff, in the Frankfurt-Auschwitz trial “justice had become beholden to the expert historian and history turned into a forensic historicism.”31
In 1958, an institution was formed in the German town of Ludwigsburg to investigate the crimes of the German national socialists through historical research and documentation. It was called the Zentrale Stelle der Landesjustizverwaltung zur Aufklärung Nationalsozialistischer Verbrechen or the Central Agency of the State Judicial Administration for the Investigation of National Socialist Crimes.32 In the litigation that was initiated as a consequence of newly uncovered evidence, historians played an important role as expert witnesses in collaboration with jurists.33 Historian Erich Haberer called that corporation and the results it produced “the paradigm of Ludwigsburg.”34 The Ludwigsburg paradigm was a “reciprocally beneficial relationship” between historians and lawyers.35 Haberer argued that the Ludwigsburg paradigm had succeeded in demystifying “the Nazi genocide”, because the historical testimonies, based on solid historical research, were able to change the defendants from monsters into ordinary men and women.36 This de-demonization had been the problematic issue, which according to Hannah Arendt had been absent in the Eichmann trial.37 When in 1990, the 80-year-old Josef Schwammberger, who had been an SS officer active in Poland, was brought to trial, he was expected to be the last person to answer in court for his crimes during the Holocaust.38 However, the trials had not seen their last act, for in 2008, 90-year-old Josef Scheungraber was convicted for war crimes committed in Tuscany during World War II.39 Altogether, in total there were 6,500 German criminal cases tried concerning crimes committed during the Holocaust or World War II.40 The German post-Holocaust and post-World War II litigation shows that, although at first the Frankfurt-Auschwitz trials had tried to create a politically informed version of the German experience in World War II, interdisciplinary cooperation in the Ludwigsburg paradigm had procured excellent historical research and more just judgments for individuals involved in mass atrocities.
6.1.3 Dealing with a Troublesome Past: Vichy in Court
France has known three landmark court cases concerning World War II. These three have many things in common, but the most striking common feature has to be the enormous political influence on the trials and their theatrical character. The Papon trial is the best known of the three, not in the least because the trial lasted for 15 years, from 1983 to 1998, making it the longest trial in modern French history, according to French historian Annette Wieviorka.41 Another factor for the resonance the Papon trial got in French society was the fact that after his career as a senior police official in the Vichy regime, where he had actively supported the German operations and also collaborated to transport French Jews to extermination camps, Papon had been a high official in the post-war French government. He had functioned as the police chief of Paris after the war and later as a minister of budget under president Giscard d’Estaing.42 Papon was sentenced to 10 years in prison.43 He was released in 2002. Papon died a free man in 2007. The second trial discussed is the Barbie trial. Klaus Barbie was a German SS officer who had been head of the Gestapo in Lyon during the war. He had earned himself the nickname: “The Butcher of Lyon.”44 While spending most of his post-war years working for American secret agencies, Barbie moved to Bolivia. In 1983, he was arrested and extradited to France, where he was indicted for his war crimes. The trial started in 1987 and Barbie was sentenced to life in prison. He died in prison in 1991. Paul Touvier, the protagonist of the third Vichy trial, was, according to Wieviorka, only of a secondary level in the Vichy apparatus when compared to Papon.45 Nonetheless, the Touvier trial had a significant impact on French national debate on the Vichy-era. Touvier was the first Frenchmen to be tried and convicted for crimes against humanity.46 He had been ordered to kill seven Jewish hostages near Lyon in 1944 as retaliation for the murder of a high-ranking member of the Vichy administration. His trial began in 1994. In 1995, Touvier was convicted to serve a life sentence. Touvier expressed remorse for his deeds. He died in prison in 1996. There could have been a fourth similar trial. René Bousquet, who had also been a police chief under the Vichy regime, was accused of crimes against humanity in 1991, but shortly before his trial he was shot and killed in 1993. Historians have been active players in these trials as expert witnesses as well as in the public debate that surrounded them.
The French Vichy trials proved to be an insurmountable task for the already strained relationship between law and history, according to Henry Rousso.47 Historians were asked to testify in all three cases. American historian Robert Paxton testified in both the Papon and Barbie trial. French historian Henry Rousso was asked to testify both in the Papon and Touvier trial. He refused twice. Since, Rousso has devoted an extensive amount of publications to the defence of his choice. Rousso wrote an eloquent letter to the court who presided over the Papon case.48 Rousso declared: “I refuse to be used, not for my knowledge but for my position.” Another problem according to Rousso was what he called The Vichy Syndrome, which became the title for a book he later published. In his book Rousso quoted Emmanuel Le Roy Ladurie on the subject. According to Le Roy Ladurie, the prosecution of Paul Touvier had turned into “the subject of enormous media attention and the vehicle for a debate on the legitimacy and activities of the Vichy regime, becoming popularly identified as a trial of the Vichy government.”49 This issue was very problematic for Rousso because there was an individual’s fate to consider in all three cases.50 This phenomenon is especially apparent in the case of Touvier who, despite his low rank, became a scapegoat for the crimes of the Vichy regime.51 American historian Richard Golsan described the Touvier trial as a trial for the remembrance of the Vichy regime. Touvier became “a character out of a novel.”52 The depersonalized character of the Touvier trial bears much similarity with the Eichmann trial and the first Frankfurt-Auschwitz trials.
In the case of Barbie, who had personally tortured and killed several victims, the purpose of the trial was somewhat different than reckoning with the Vichy past. For Rousso, the Barbie trial was all about the revenge on history by those who had suffered.53 Osiel quotes the French philosopher Finkielkraut who agreed with Rousso when he described the Barbie trial as “an unpaid debt with truth.”54 Osiel went even further when he wrote that the Barbie and Touvier trials were attempts to blame someone else other than the French themselves. In Barbie’s case, this was easy since he was not French but German. Touvier, in contrast, was presented as a simple tool in German hands.55 Papon, as a fully autonomous Frenchman, had been convicted for collaborating with the Germans in the Holocaust. The important difference was that Papon, in contrast to Barbie and Touvier, had not killed anyone personally, so he was sentenced to 10 years in prison, while Touvier and Barbie had to spend the remainder of their life behind bars because they had personally committed murder.
Rousso had more reasons to refuse to serve as an expert witness. According to Rousso some crimes against the French resistance could no longer be prosecuted due to the statutes of limitations. Osiel agreed with him on this and argued that due to the statutes of limitations, Barbie and Touvier could be convicted only for their crimes against humanity.56 The trials thus stressed the crimes connected to the Holocaust and reduced the significance of their other crimes, for example those against the French Resistance.57 Another problem with the Touvier trial and an important point for Rousso to refuse to participate, was the changed judicial role in which historians were to testify. Instead of going on the stand as expert witnesses who gave their general opinion on the historical context to aid the trier of fact, historians were asked to serve as regular witnesses. The reason behind this choice was an attempt from the court to have historians witness about the personal actions of Touvier rather than the general background in which Touvier had committed his crimes.58 After he had testified in the Touvier trial, American historian Robert Paxton outlined the general context of the Vichy era again at the Papon trial. According to Petrovic, the experts occasionally contradicted each other from time to time which was considered problematic by the courts.59 French historian Jeanneney stated in his bundle of essays on the Vichy trials that the historian had to be superior to a normal witness because he had to give a context, an interpretation of a period, a logic of a time rather than a set of facts.60 Rousso had no intention to join such a biased enterprise and abandon part of his freedom of speech and analysis.61
Furthermore, history itself was again on trial, according to Wijffels.62 In the Papon trial, historical theory was attacked by defending legal counsel. The defence lawyers argued that history was not suitable for judging, something which the expert witnesses were certainly doing. History remained “a fluid matter”, Papon himself added.63 For Wijffels, the Papon case showed that in court, there was a difference between the notion of proof in law and in history. The former was clear, the latter blurred.64
The Papon trial employed historians at different stages. A first group of historians did pre-trial work collecting all the facts that were relevant or needed extra attention. Wijffels argues that this first procedure was crucial. Since this pre-trial process is not public, the historians could remain more objective, according to Wijffels. The pre-trial phase has a major impact on the final story due to the selection and prioritization of elements in the historical narrative that is constructed with its judicial application in mind. Consequentially, it is very important for Wijffels that historians remain, particularly in that initial phase, as impartial as possible. The second stage was the testimony given by the expert historian. For Wijffels that part did the most harm to historical truth. Wijffels argues to confine the involvement of historians to the fact-finding phase.65 We return to his proposal in the concluding chapter of this second part of the book.66
The Vichy trials received enormous media and political attention and became a major part of public memory of the Vichy past of the French nation.67 In historiography several historians debated the outcome of the trials and the role of the historical discipline in it. As could be expected after his refusal to serve as an expert witness, Rousso was a very prominent participant in this debate together with other critics such as the French historians Jeanneney and Dumoulin. All three had clear objections to the role historians had played in the Vichy trials. Jeanneney argued that there had been great confusion in the French legal system to the manner in which historians had to testify. In his book Le passé dans le prétoire: l’historien, le juge et le journaliste (The Past in Court: the Historian, the Judge, and the Journalist), Jeanneney explains that this confusion had unfavourable consequences for the historians in court. The French legal conditions precluded historians from doing any proper historical work.68 Alain Wijffels quotes the French legal scholar Henri Angevin, who wrote that the French legal system was not fit to apply historical testimony and that judges, furthermore, did not prevent historians from making statements about the accused and his character. Historians should come to court to give information, according to Angevin, not to judge.69 Another critical work on the appliance of history in the court room is that of Olivier Dumoulin. In his Le rôle social de l’historien: de la chaire au prétoire (The Social Role of the Historian: from the Academy to the Courtroom), Dumoulin presents a critical overview of French litigation in which historians had functioned as experts. Concerning the Vichy trials, Dumoulin was critical of the considerable influence the adversarial paradigm had exerted. The application of a common law-inspired practice had encouraged both parties to bring their own expert witnesses, a wicked novelty, according to Dumoulin, which harmed historical truth and the historical discipline.70 Wijffels agrees with Dumoulin and concludes that the Vichy trials had no significant contribution to historical knowledge.71
Rousso’s objections and refusal and those of like-minded historians were met with counterarguments from other prominent French historians among them François Bédarida. In his The Social Responsibility of the Historian, Bédarida wrote: “[a]fter the radical critique of the 1960s, which destroyed the certainties, buried the utopias and disassembled the beliefs, a return of the values of humanism, morals, and meaning since the 1980s has been witnessed. To be sure, historians have their part in that recasting of intellectual life. They must continue to confront the imperatives of the present.”72 Bédarida himself had played a role in the Touvier trial.73 In Histoire, critique et responsabilité, Bédarida discusses the ideas of Paul Ricoeur on memory and history in a legal context.74 Bédarida’s text discussed the relationship of memory and history and how that tension is felt in court cases were historians serve as expert witnesses.75 Wijffels quotes Rousso in an interview in which he also acknowledges the presence of the contradiction of memory and academic history in court.76 The article Bédarida wrote refers to Ricoeur’s major work Histoire et vérité.77 Therein, Ricoeur expressed his resolution that historians were bound by a conviction to find the truth and convey these truths as a mediator: “un médiateur entre l’événement et l’histoire, comme un gardien du temps” (a mediator between the event and history, as a guardian of time).78 For Bédarida history was about the truth, “vérité” while memory was about loyalty or “fidélité.”79 He argued that there was a clear epistemological difference between the two. For Bédarida memory had reigned in the Vichy trials.
Petrovic concluded that the Vichy trials proved that the French courts had not been ready for historians serving as expert witnesses.80 Wijffels came to the same conclusion. To him French legal scholars had badly defined the role of the historians in court.81 The Vichy trials of Papon, Barbie, and Touvier had succumbed to external pressure from the media and politics. This delivered, a certain kind of justice, as Golsan and Rousso remarked: the Touvier trial was against forgetting the crimes committed in World War II and aimed at reaffirming the belief in democratic values.82 For historians as well as for legal scholars, the Vichy trials represented a failed interaction of law and history.83 Yet, as the following citation from the son of one of the victims of Touvier explains, not all had gone wrong with the Vichy Trials: “[m]y father was not judged by anyone. He was arrested, thrown five hours later against a wall, and assassinated. … I am happy to find myself in front of a court that is democratic, engaged in an adversarial debate where everyone can speak, anything can be said, even by the accused.”84 In the end, the Vichy trials became another example of how history in court could be used for political means. Because of their wide coverage in the French media, and the great response to the trials in the French public debate, the Vichy trials influenced French, European, and American historians and legal scholars to think of expert witnessing by historians as a controversial practice.
6.1.4 Conclusions on the Post-War Judgment of History in Court
Almost all authors mentioned above agree that these trials were show trials. Especially the Eichmann trial and the French Vichy trials were grand dramatizations aimed at constructing a collective memory.85 Petrovic calls these show trials a form of judicial memory making.86 The trials had a pedagogic agenda which was set by extralegal factors, predominantly political ones.87 Rousso also called the French trials show trials.88 Defence counsel for Barbie, Jacques Vèrges, was correct, according to Osiel, when he observed that the trials were “an event.”89 For Douglas, the Eichmann trial and the French Vichy trials failed to do justice to history and the character of the Holocaust. It was problematic for Douglas to represent the Holocaust in court.90 Alain Wijffels was clearly not enthusiastic about these trials. He called the testimonies of the experts in the Holocaust trials examples of the forensic form of history. The courts had demanded facts from historians, so that judges could judge those facts–as in the Latin adage: Da mihi facta, dabo tibi ius