by Michael Dorf
Reasonable people can disagree about whether German authorities' filing of murder charges against a 91-year-old woman for her work as a telegraph operator at Auschwitz comes too late. Because of the defendant's advanced age, even if she is deemed sufficiently competent to stand trial and to withstand imprisonment, the horrific acts she allegedly committed (where "allegedly" signals only the question of whether she committed these acts, not some sort of Holocaust skepticism) occurred so long ago as to raise the possibility that she is a different person now. Yet there is no statute of limitations for murder and there is something admirable about the German government's relentless pursuit of Holocaust perpetrators. In any event, the question whether to continue to bring such cases will be mooted by the actuarial tables soon enough.
Indeed, in some important sense, the Holocaust has entered history already. With the exception of the soon-to-be-no-more trials of nonagenarians, discussions of the Holocaust these days almost always have some other purpose. It is invoked--or the invocation is resisted--in connection with the Israel/Palestine conflict. Dictators with alleged territorial and/or genocidal ambitions are compared to Hitler. And perpetrators of other injustices, both substantial and insubstantial, are compared to Nazis, with offense-taking usually following. For a particularly sensitive investigation of that last phenomenon, I recommend Professor Colb's essay on the use of Holocaust comparisons to the treatment of non-human animals.
In general, new accounts and depictions of the Holocaust and its aftermath are difficult to see as making simply a historical point. Consider Christian Petzold's terrific 2014 film Phoenix (only recently released in the U.S. with English subtitles). Nelly Lenz, a concentration camp survivor, has facial reconstruction surgery that makes her unrecognizable to her husband Johnny, who, she comes to suspect, may have betrayed her to the Nazis in the first place. It's a gripping story told in a film noir style that makes a number of points worth examining.
Two of these concern the grandchildren's generation of Germans' continuing processing of the Second World War. First, the very fact that the film is set in the immediate post-war period marks the film as distinctively German. In American memory, after we won the war, we brought the Marshall Plan to Europe and everything worked out well. But Germans remember (or have been taught about) the substantial period of post-war suffering. Phoenix shows bombed-out buildings everywhere, the breakdown of law and order, and American soldiers behaving not so much badly as obliviously.
Phoenix also makes a point that is in some sense at odds with the German post-war experience seen in broader perspective. More so than nearly any other country to have perpetrated crimes against humanity, post-war Germany has sought to deal honestly with its past. The repudiation of Nazism is the central organizing principle of the modern German state. And yet, Phoenix serves as a reminder that the honest reckoning did not occur overnight. At one point in the film, a character who is asked to impersonate a survivor of the camps as part of a financial scam asks her co-conspirator how she will be able to get away with this. Won't people ask her what her experience in a concentration camp was like? No, she is told. No one will ask. And no one does. To ask would be to acknowledge complicity.
But while Phoenix is an important piece of German memory, it is not just that. A child who was ten years old when the war ended is now 80. Most Germans alive today, and even a greater proportion of movie-going Germans alive today, are too young to remember the Second World War or its immediate aftermath. For some substantial number of these Germans, I suspect, Phoenix raises issues of somewhat more recent vintage.
In particular, the film's focus on the question of whether Johnny betrayed Nellie to the Nazis can be read through the East German experience. The Stasi did not invent the concept of people owing a duty to betray their close family members as enemies of the state. The tactic was borrowed from the Gestapo. But the Stasi perfected the tactic, creating a state of perpetual paranoia. (Since I'm talking about German film, a reference to the outstanding The Lives of Others is obligatory here.) At least for Germans who remember living under communist rule in East Germany, it is hard to imagine that Phoenix does not connect to that experience.
Historians decry presentism--the idea of recounting the past for its lessons about the present--and they have a point. Viewing the past through present-day concerns will often provide a distorted picture of the past. As a constitutional lawyer, I am familiar with the perils of law-office history.
But people in their everyday lives will tend to be interested in the past, if at all, chiefly because of what it tells them about the present, or at least about themselves. And so it is with the German government's continuing efforts to prosecute the last surviving Nazis. Germany does so to communicate--to others but also to itself--that it takes its repudiation of Nazism extremely seriously.
Postscript: In the foregoing, I have obscured some plot points of Phoenix to avoid spoiling the film, which I highly recommend to readers.