Australian War Crimes Trials of the 1980s and 1990s: Law Confronts the Shoah
David Fraser, Law and Social Theory, University of Nottingham
Research Grant, 2007
This project examines the history of Australian attempts to prosecute alleged Nazi collaborationist war criminals who had found refuge in that country in the aftermath of the Second World War. The study reveals the many difficulties that Australian authorities encountered in this process. More particularly, issues of time and space hindered attempts to bring alleged perpetrators before the bar of justice. The investigations into war criminals took place more than fifty years after the events and in a country distant from the locale in which the atrocities occurred. In addition to these obvious difficulties, the project, based in a detailed study of previously unavailable transcripts, investigative materials, and interviews with participants, reveals apparently irreconcilable differences in the approach to facts and truth between historians engaged as experts and legal professionals.
More careful examination of the archival record, however, reveals that the apparent differences in disciplinary norms were not as significant as might have been thought. History and legal principle were invoked, at different times and for different reasons, in the three cases that were eventually brought before Australian courts, by both defense and prosecution. While normative differences do exist between law’s search for truth within the bounds of criminal trial proceedings and historians’ understandings of the facts , the Australian war crimes trial experience as revealed in this study demonstrates that they can be brought together in a fruitful dialogue that assists in the creation of an invaluable record of tragic historical events.
History and legal principle were invoked, at different times and for different reasons, in the three cases that were eventually brought before Australian courts, by both defense and prosecution.
The Australian war crimes cases uncovered previously unknown eyewitness accounts of the Shoah in remote parts of Ukraine, as well as Soviet legal and historical archives that had not been made available to Western lawyers or historians before these prosecutions. In addition, Australian police and forensic experts conducted operations that resulted in the study of massacre sites and the recovery of the remains of forgotten victims of the Holocaust. This study reveals how the Australian war crimes experience combined legal, historical, and scientific expertise not just to enable prosecutions but to allow for the recovery of historical memory and the memorialization of the Shoah in remote parts of Ukraine. This Australian expertise was subsequently deployed in other international criminal contexts as lawyers and forensic specialists used the experience gained to prosecute alleged perpetrators from the wars in the former Yugoslavia.
The project reveals the significant ways in which rule of law norms could be invoked in order to ensure both the prosecution of alleged war criminals and the protection of the rights of the accused that are central to Western criminal justice systems. The study demonstrates unequivocally how the demands of historical justice and the rule of law in criminal trials can coexist despite the inherent difficulties involved in balancing these principles in Holocaust perpetrator trials.
Bibliography
- Fraser, David. Daviborshch's Cart: Narrating the Holocaust in Australian War Crimes Trials. Lincoln: University of Nebraska Press, 2010.