Under way in Hamburg, Germany, right now is the trial of Bruno Dey, a 93-year-old former SS member and guard at the Stutthof concentration camp located to the east of what is now the city of Gdansk in Poland. He faces charges of being an accessory to the murder of 5,230 people in 1944 — the closing stages of World War 2 — when he was a 17-year-old.
The trial is being conducted in a manner that offers concession to the frailties and diminished capacities of the accused: taking place in a German juvenile court, it recognises his youth at the time he is alleged to have been accomplice to these atrocities. Limited to two-hour proceedings twice a week, it also offers concession to his old age.
But at the heart of this case is the powerful concept at odds with so much of current-day sensibilities: that despite the elapse of 76 years, and even though his crimes were committed when he was what we would now regard as still legally a child, Dey must answer for his actions — that a measure of accountability is owed.
That search for accountability raises several interesting questions. Dey is not himself accused of killing anyone directly. He did not himself herd any prisoners into crematoria. There is no suggestion that, but for his actions, these atrocities may have been averted. As a 17-year-old conscripted into the army but deemed insufficiently healthy to serve at the front, what options did he have to avoid any personal culpability for association with these crimes? And who or what stands to benefit from any conviction of Dey? Those directly victimised are dead. That is likely to be the case too for many who suffered as a result of losing loved ones.
Commentators have suggested that whatever these questions, accountability is still to be pursued for Dey in the courtroom, and that may be especially important in a postmodern, post-truth age where trials can serve as important forums in which “truth and falsehood can do battle in a free and open encounter”, where findings are recorded not just as a matter of personal record but also of historical record.
However, that conclusion ignores some of the most recent research undertaken by scholars examining the reception of the findings of the international tribunal for the former Yugoslavia in the countries of Bosnia and Serbia — the states most affected. That court was established to prosecute those responsible for the atrocity crimes committed during the conflict of the early 1990s and similarly invested with hope that it would inscribe an authoritative historical record.
But as Marko Milanovic writes: “Comparative experience has shown that elite disruption — that is, the extent to which elites currently dominating a society differ in personnel, interests and ideology from those that led it during the conflict — is the single best predictor of whether an international tribunal dealing with wartime atrocities will be believed, especially if the society in question is not genuinely pluralist.”
With the demand today in SA to see the architects of state capture in orange jumpsuits, this contested idea — that courts may be used to inscribe historical record — bears some examination, appreciating that state capture crimes, however heinous, can’t typically be said to be atrocity crimes.
Of course, SA had its own processes addressing accountability for war-crimes atrocities, but with almost no prosecutions having resulted for apartheid-era crimes, it is utterly speculative to venture any conclusion as to the importance of trials for the historical record.
But to the extent that this call for prosecutions is made today, believing that trials and convictions of state capture architects may underline the passage of a new epoch that will authoritatively inscribe the abuse and damage done, we may need to pause.
All we may realistically expect of prosecutions is that they require that the person responsible for the wrongdoing answer to their crimes. But in this country, so short of accountability and responsibility, that seems more than enough.
• Fritz is CEO of Freedom Under Law.
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