H-Diplo Review Essay 318
26 February 2021
Joan Wallach Scott. On the Judgment of History. New York: Columbia University Press, 2020. ISBN: 9780231196949 (hardcover, $95.00); 9780231196956 (paperback, $25.00).
Editor: Diane Labrosse | Production Editor: George Fujii
Of all the concepts that are constitutive of modernity, the idea that History moves inevitably in the direction of what is right and good is one of the few that has not been divested of its metaphysical valence. Born of Enlightenment constructions of linear time and indebted to historicism’s infusion of temporality with meaning and purpose, the “Judgment of History,” as Joan Scott underscores in her new book, stubbornly persists, offering us hope when the horizon looks bleak. This collection of Scott’s 2019 Ruth Benedict lectures at Columbia University asks how the rhetoric of history’s judgment informed the Nuremberg Trial of 1946 and the 1996 South African Truth and Reconciliation Commission, judicial and quasi-judicial proceedings whose agents cast themselves as the embodiments of historical redemption. The third essay uses the Movement for the Reparations for Slavery in the United States to describe an alternative way of thinking about how social movements move us over to the ‘right side of history.’
An analysis of Nuremberg, the Truth and Reconciliation Commission, and the Reparations Movement in three short essays necessarily requires extreme compression of an enormous literature spanning a variety of disciplines. Scott takes up the particular discussions that have shaped the literature on the Trial and the Commission, noting, for example, that Nuremberg affirmed the principle of state sovereignty by defining Germany’s main offense as a war of aggression and assault on international peace, sidelining Nazi crimes against Jews before the war. She recounts how the Truth and Reconciliation Commission’s mandate was limited by the reality of white political and economic power and provides a multidimensional account of how its advocates developed alternatives to retributive justice. She incorporates these complexities into her own argument in order to show how political choices to support state sovereignty or restorative over retributive justice, regardless of all the debates about why those choices were made, belie the ostensibly apolitical and inevitably righteous character of history’s judgment.
To that end, she argues that both Nuremberg and the Truth and Reconciliation Commission overcame past injustice (whether in the form of retribution or forgiveness), paradoxically by whitewashing the violence of the racist nation-state. Both proceedings, she notes, defined the violence at the core of the state as aberrant and individualized rather than structural. The Nuremberg Tribunal represented Nazi genocide as an aberration within the comity of so-called civilized nations, while the violent imperialism of the Great Powers went unsaid. The Truth and Reconciliation Commission’s insistence on defining victims as those with direct experience of harm, rather than as all Black South Africans, negated the racism built into the state apparatus. The apartheid state could thus be taken over without radical social and economic reform, leaving intact the massive socio-economic inequities created by white supremacy. In both proceedings, the portrayal of systemic persecution as deviant and individualized also displaced state violence. Nuremberg displaced imperial violence onto Nazism, and Nazi crimes onto crimes of aggressive war, ignoring the scope of the genocide of European Jewry even while evoking it. The Truth and Reconciliation Commission proceedings displaced white supremacy as a system onto violent white individuals, and ongoing oppression onto past, now memorialized, violence. Finally, Nuremberg redeemed the victims of Nazism in the name of a morally serene Western civilization that was dismayed by the violence committed in its name. The Truth and Reconciliation Commission transfigured victims’ anger into forgiveness in the name of a multiracial future, disavowing the victims’ long struggle against apartheid. Or, as Scott puts it, the Truth and Reconciliation Commission rendered “invisible dissenting agencies that produce[d] alternative visions of how life might be lived together” (80).
Scott recounts the judgment of history, that redemptive moment when the justice for which we have been waiting finally arrives, as an emperor’s clothes story. She interprets the righteous march of history as the politicized and ideologically driven self-fashioning of the racist nation- state. The argument thus revisits the well-known limitations of both the Nuremberg Trial and the Truth and Reconciliation Commission to reveal how our stubborn faith in history’s judgment aligns uncomfortably with assumptions about Western modernity—its Eurocentrism and racist hierarchies. This is the book’s significant accomplishment.
Scott’s work is consistent with a broader critique, among legal scholars, historians, and political theorists, of the nation-state and contemporary human rights. A wide array of scholars now contests the assumption that Nuremberg marked the origin of contemporary human rights, as well as related claims about the centrality of the Holocaust to their emergence. Among these scholars is Mahmood Mamdani, whose recent work also couples Nuremberg and the Truth and Reconciliation Commission in order to make an argument about the racist nation-state and its imperialist legacy, one that Scott’s analysis anticipates. Because Mamdani focuses on the Commission in a fuller context, he ultimately folds its work into a broader analysis that presents the post-apartheid transition—in which the Commission’s role, he argues, has been overblown—as a model for societies coping with the aftermath of mass violence.
Scott’s argument also draws implicitly and explicitly on a rich critical literature that asks how we might think about emancipation as a process that does not simply throw off the constraints from which we are supposed to break free. This literature, which stresses the legacy of slavery in freedom and the vestiges of colonial power in the postcolonial state, discusses how our investment in the prefix “post” divides a dark past from a purportedly bright future rather than focuses on work yet to be done. Scholars who adopt this approach do not deny that some measure of social justice can be, and has been, achieved. They seek instead to dismantle the remnants of the progress narrative in scholarship by emphasizing our investments in the disavowal of continuities between past and present. Scott marshals this literature on behalf of her own critique of history’s judgment and identifies the Movement for Reparations for Slavery in the United States as a more accurate representation of struggles for social justice. Unlike the Nuremberg Tribunal’s and the Truth and Reconciliation Commission’s self-representations, the Reparations movement does not embody an inexorable overcoming of impediments to justice in time, but a struggle that has not and does not necessarily expect to fulfill its highest aspirations. The toil of men and women who have been demanding compensation for slavery since 1865 demonstrates that no outcome is inevitable except the ongoing necessity of struggle itself.
Scott’s demystifying account is persuasive and illuminating. She pushes against conventional (if increasingly contested) narratives that credit the Nuremberg Trial with launching contemporary human rights as well as affirmative assessments of the Truth and Reconciliation Commission. She emphasizes the ideological power of history’s judgment in spite of all the various interpretations one might provide of the verdicts. “Although judgment implies interpretation, indeed the possibility of more than one interpretation,” Scott writes in the epilogue, “there is a certain finality assumed for the judgment of history. The case is closed, the guilty condemned, the innocents vindicated—this is the consoling fantasy we have inherited from the Enlightenment” (79-80).
Even though she wants us to imagine these trials from the victims’ perspectives rather than investing in the consoling fantasy they offer, the book’s distilled format recounts how victims’ voices were erased more than what the victims said or felt. The cost of this condensation is that the full force of an implicit dimension of Scott’s argument remains under the radar: paradoxically, victims who invest in the redemptive logic of history’s judgment risk reiterating its violence-erasing complacency in the name of their struggle for justice. Scott considers this risk most clearly with reference to the violence of Israel against Palestinians.
In a section on the “Survival of Ethnonationalism,” she ties the legacy of Nuremberg to the persistence of ethno-nationalist racism in the present and links Israel’s erasure of its violence to the state’s claim to protect former and potential victims of genocide. She cites Hannah Arendt’s criticism of Israel in The Origins of Totalitarianism, in which Arendt wrote that the ‘Jewish question’ was resolved by rendering another people stateless (19). But Scott’s argument echoes Arendt’s account of the 1961 Eichmann trial even more forcefully, for in that work Arendt condemned the rhetoric of Israel’s founding in terms of history’s judgment. Arendt criticized the prosecutor Gideon Hausner for citing Biblical passages promising that Jewish bloodshed would be one day redeemed by a Jewish State. Hausner, she wrote, “suggested that perhaps [Eichmann] was only an innocent executor of some mysteriously foreordained destiny, or, for that matter, even of anti-Semitism, which perhaps was necessary to blaze the trail of ‘the bloodstained road traveled by this people’ to fulfill its destiny.” This rhetoric, Arendt continued, did not differ significantly from the defense attorney’s own invocation of “the spirit of history, which brings history forward,” in order to argue perversely that Hitler had inadvertently fulfilled the dream of a “flourishing” Jewish State. Was not both the prosecutor’s and the defense’s redemptive logic, she asked, “perilously close” to the antisemitic proclamation of the Egyptian Deputy Foreign minister, who claimed that Hitler was an innocent victim of a Zionist cabal, nefarious operators who “compelled him to perpetrate crimes that would eventually enable them to achieve their aim—the creation of the State of Israel”?
Arendt scorned the prosecution and the defense equally, mocking the defense’s allusions to Hegel’s “historical law,” but her account of the trial was decried for her insensitivity to the victims, especially the Jewish Councils, which were composed by community elites who sought to save Jews but ended up aiding the Nazis. At the time of the trial, in 1961, twenty-five percent of the Israeli population were genocide survivors. Although the trial was orchestrated for political purposes by the state, the witnesses forged a narrative about the systematic persecution and murder of European Jewry in their own voices, recounting their experiences publically for the first time. For all Arendt’s tone-deafness, she spoke from a victim’s perspective, warning against the sanctimonious invocation of history’s judgment, which she feared erased the European history of antisemitism and Jewish thriving in Europe alike, rendering them nothing more than a prelude to Israeli statehood. She derided the victims’ Israeli saviors for their implicit shaming of purportedly passive and defenseless diaspora Jews. And she was right to call the prosecutor’s questions to witnesses about why they did not resist the Nazis, as if Jews could or should have defended themselves, “silly and cruel.”
I bring up Arendt’s critique in Eichmann in Jerusalem because it provides a commentary on the period between Nuremberg and the present, which Scott’s compressed account largely omits, in so doing obscuring the Nuremberg Trial’s failure to recognize the specifically antisemitic dimension of Nazi criminality even as she acknowledges that the Allies refused to include Nazi crimes against Jews prior to the war in the indictment. This omission is, I suspect, related to the analogy Scott makes between Nuremberg’s imperialism and Israel, one justified by the British-supported Zionist movement’s violent exportation of Western political modernity into Palestine. But it also conflates the victims’ voices with the legacy of Nuremberg, eclipsing Jewish victims’ ongoing struggles for recognition.
Scott mentions Raphael Lemkin, the Polish-Jewish lawyer who coined the word genocide, in passing. The allusion to Lemkin, however brief, is important, because it quietly associates the Nuremberg Trial with the legacy of Western imperialism in Israel. Lemkin would not, she writes, countenance a 1951 petition by an African American group to call lynching a genocide. An anti-Communist and Zionist, he chafed at the group’s Communist ties and threw in his lot with the United States, effectively ignoring the violence of Jim Crow and aligning himself with American racism and support for Israel (8). Whatever we make of the connection between Nuremberg and Israel, Jewish victims were not in the end the trial’s main beneficiaries. Nuremberg was only the beginning of a long quest to define genocide on Lemkin’s terms, one which was never fully successful. When Lemkin rejected the petition, the term genocide had been adopted by the United Nations to define the murder of specific groups, but the Nuremberg Trial had not recognized the genocide of European Jewry as a fundamental dimension of Nazi criminality. The Trial sidelined Lemkin’s definition of genocide (and the U.S. team quite literally shut him out), because he conceived it as the planned and systematic violation of a clearly defined group rather than as atrocities perpetrated against individuals during war. The United Nations Genocide Convention of 1948 represented a watered-down, compromised version of his views, and his notion of “cultural genocide” was never adopted because it conceived the Nazi extermination not only as a physical but also as a cultural violation, the latter of which would have been extraordinarily difficult to litigate.
Scott could not possibly recount all of this history in a short book, but it is worth reiterating, because the suggestion that Nazism’s Jewish victims were Nuremberg’s beneficiaries downplays their ongoing struggles and more importantly, represents Israel implicitly as a solution to their problems. Instead, Israel’s establishment was arguably a partial solution, itself complicated and contested by some Jews and fought for by others, to the West’s own ‘Jewish problem’—its postwar refusal to recognize Jewish suffering by the European populations who perpetrated it, its failure to live up to promises of assimilation. And once established, Israel became a repository for refugees other nations did not want or populations they expelled or pushed out. By emphasizing Lemkin’s refusal of solidarity with the African American petitioners, Scott overplays the analogy between the Nuremberg Trial’s triumphalism and Jewish victims’ fates. Yet she also, quite saliently, asks us to consider the cost of victims’ investments in history’s judgment. She sheds light on how an investment in that consoling fantasy does not necessarily neutralize grievances but can become an alibi for ongoing vindication at the expense of others. Lemkin’s radical thinking and his failures—he was poor, without a steady job, and spent his time researching a global history of genocides other than that of European Jewry—also testify to how victims persist through the disappointments, small victories, and the stubborn hope that defines activism. Hope for a more just world, Scott demonstrates, need not take the form of an illusory investment in dreams of closure—the judgment of history—that are borne by other victims. She insists that we remember that most victims remain agents, and that few embrace victimhood. One might add that having suffered may remain so burdensome that being unable to act should not be a source of stigma.
Carolyn J. Dean is Charles J. Stille Professor of History and French at Yale University and the author, most recently, of Aversion and Erasure: The Fate of the Victim after the Holocaust (Cornell University Press, 2010) and The Moral Witness: Trials and Testimony after Genocide (Cornell University Press, 2019).
 See, for example, Robert Meister, After Evil: A Politics of Human Rights (New York: Columbia University Press, 2010); and G. Daniel Cohen, “The Holocaust and the ‘Human Rights Revolution’: A Reassessment,” in The Human Rights Revolution: An International History, ed. Akira Iriye, Petra Goedde, and William I. Hitchock (Oxford: Oxford University Press, 2012), 53-72.
 Mahmood Mamdani, Neither Settler nor Native: The Making and Unmaking of Permanent Minorities (Cambridge: The Bellnap Press of Harvard University Press, 2020), 144-95. Mamdani offers the same critique as Scott of both Nuremberg and the Truth and Reconciliation Commission’s failure to address structural violence. But he argues that the Commission looms so large in the “imagination of the global public that it is now widely assumed that [immunity from prosecution…in return for honest confession] was the heart of the post-apartheid transition. Of course, this was not the case” (181). See also Karen Engle, Zinaida Miller, and D.M. Davis, eds., Anti-Impunity and the Human Rights Agenda (Cambridge: Cambridge University Press, 2016).
 See, for example, Ann Stoler, Duress: Imperial Durabilities in Our Time (Durham: Duke University Press, 2016).
 Hannah Arendt, The Origins of Totalitarianism (New York: Harcourt, Brace, and Co., 1951).
 Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (New York: Penguin, 1994 ), 19-20.
 Arendt, Eichmann in Jerusalem, 283-284. The prosecutor asked such questions to put to rest the cliché that Jews had let themselves be murdered like ‘sheep to the slaughter,’ a then widespread presumption grounded in ignorance about conditions in the camps. Hausner’s questions were unexpected and harsh. In his memoir, he recounted that one witness reproached him, saying his questions were “like a blow between the eyes.” Gideon Hausner, Justice in Jerusalem (New York: Harper & Row, 1963), 176. The trial format itself was not conducive to the questioning of some obviously traumatized people, one of whom collapsed on the stand.
 On the legal status of cultural genocide, see Leora Bilsky and Rachel Klagesbrun, “The Return of Cultural Genocide?” European Journal of International Law 29:2 (2018): 373-396.
 Mamdani argues as much, if from a different perspective. Mamdani, Neither Settler nor Native, 250-326.