the reader, part two

(see citation and summary here)

Another issue that this movie caused me to wonder about is: why do we prosecute crimes against humanity? And why do we do it in the way that we do?

That is, in The Reader, several death camp guards are put on trial for their crimes (against humanity). And, weirdly, the trial is conducted very much like a normal trial. They want to prove, using the normal legal burdens of proof, who was where when, who knew what, who had intent to commit this specific act, etc. (In this case, the act was leaving three hundred prisoners to be burned to death in a locked church). Eventually, one of them is convicted of three hundred counts of murder, and sentenced to life in prison (she is paroled for good behavior after twenty years). The others are convicted of three hundred counts of aiding and abetting murder, and sentenced to four years or so.

The strangeness of it all is that it seems as if the law is being forced to apply to a case, a context, a world, in which it really doesn't. What was done here was as much like murder in the normal case as as a banana (well maybe more similar than that). They were all part of a system of systematic murder (indeed much of the nation was part of such a system). It's a good deal different than the normal case, which typically involves individuals acting on their own initiative (except for maybe mob killings), for personal reasons. And moreover, what they did wasn't illegal at the time – indeed it was sanctioned by the government. This was a different sort of crime (that is why we invented the term “crime against humanity,” the idea of a crime so foul that its wrongness is written in all of our hearts – though the point is, unfortunately, that it isn't), and it is odd that we apply the “peacetime” system to it.

So, on to “why.” I once heard that there are four reasons for administering legal punishments. One: deterrence. Two: rehabilitation. Three: redress (the convicted benefited in some way from breaking the rules, and we must remove that benefit). Four: retribution. Of these four, only retribution has any real chance of making sense. But even it doesn't. No one human being can ever be made to suffer to compensate for the death of three hundred. We just aren't put together that way (it's not as if pain is measured like the volume of a liquid, and all we have to do is pour enough into this one vessel to make the scales even). Indeed, it just exposes the ridiculousness of the idea – to think that any punishment could ever be commensured with what was done.

So I'll propose a fifth reason that might explain (or justify) what is going on: to uphold the rule of law. The rule of law is the notion that nobody and nothing is above the law itself, something not identified with the whim or will of any one person, or even group of persons. It applies to us all without exception – or it does not apply at all. For this reason, we must try these individuals, and try them according to the law as we have it.

But one young law student exlaims: who knew? EVERYBODY KNEW. Everybody knew what was going on at Auschwitz. Everybody who did nothing is guilty, some more so than others. If we were to really apply the law, we'd have to hang an entire nation. And we can't do that. So even the rule of law has pragmatic exceptions in exceptional circumstances, it appears - if that is even what is going on here.

(cynical sixth reason: PR).