Spaulding - Resistance, Countermemory, Justice PDF

Resistance, Countermemory, Justice
Author(s): Norman W. Spaulding

Source: Critical Inquiry, Vol. 41, No. 1 (Autumn 2014), pp. 132-152
Published by: The University of Chicago Press
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Resistance, Countermemory, Justice
Norman W. Spaulding
1. Resistance to Memory
Paralysis
I was asked to pose for a photograph with one of these items—a child’s shoe. Let me
tell you, when this little shoe was handed to me, I froze. . . It just devastated me.1
Memory doubles over itself in this letter from Miles Lerman, national
campaign chairman for the Holocaust Memorial Museum, describing the
transfer of objects for the museum from Poland to Washington, D.C. To
begin with, Lerman’s statement that he “froze,” however accurate an ac-
count of his immediate reaction to taking hold of the Holocaust victim’s
shoe, is pressed into a considerably different service once incorporated
into a letter soliciting funds for the museum. Lerman is certainly no longer
frozen; the experience presumably reinforced the reasons for which he
placed himself in a position to receive the shoe (not least of which was the
camera shot). Hence the letter. And however arresting he hoped the effect
of this story would be upon readers of the fundraising letter in the spring of
1993, the year the museum was dedicated, that feeling was surely not in-
tended to last among prospective donors either. Immediately following his
confession that he “froze” holding the shoe, Lerman insists that his readers
“bear in mind that I am a former partisan. I was hardened in battle and I
deal with this Holocaust story almost on a daily basis” (“IPS,” p. 22).
Memory at once arrests and impels action.
1. Quoted in Liliane Weissberg, “In Plain Sight,” in Visual Culture and the Holocaust, ed.
Barbie Zelizer (New Brunswick, N.J., 2001), p. 21; hereafter abbreviated “IPS.”
Critical Inquiry 41 (Autumn 2014)

© 2014 by The University of Chicago. 0093-1896/14/4101-0010$10.00. All rights reserved.
132
Critical Inquiry / Autumn 2014 133
Memory is also doubled over in the location and design of the museum.
James Freed, the architect, intended that it “take you in its grip,” that it
operate upon visitors “viscerally.”2 Moreover, the museum’s elaborate
promotional materials insist that its very location just south of the Wash-
ington Monument is intended to produce an arresting affect on tourists
enjoying sites celebrating American democracy and freedom: “Located
among our national monuments to freedom on the National Mall, the
museum provides a powerful lesson in the fragility of freedom, the myth of
progress, the need for vigilance in preserving democratic values.”3 But,
again, however arresting the initial experience may be, the point of the
“lesson” is not to freeze or be frozen:
With unique power and authenticity, the Museum teaches millions of
people each year about the dangers of unchecked hatred and the need
to prevent genocide. And we encourage them to act, cultivating a sense
of moral responsibility among our citizens so that they will respond
to the monumental challenges that confront our world. Today we face
an alarming rise in Holocaust denial and antisemitism—even in the
very lands where the Holocaust happened—as well as genocide and
threats of genocide in other parts of the world. This is occurring just
as we approach a time when Holocaust survivors and other eyewit-
nesses will no longer be alive.4
The museum was thus designed and located to confront the danger of
denial and forgetting—to confront resistance to memory—as the end of
personal Holocaust memory approaches.
And yet one cannot help but wonder if the location does not invite a
certain kind of resistance to memory, a kind of strategic forgetting. Can
any proper Holocaust memorial have an exit? Can it responsibly seek to do
more than arrest and detain its visitors? And even if it must have an exit,
even if it must release its visitors from what Freed called the “grip” of
2. Quoted in “The Architecture,” United States Holocaust Memorial Museum,

www.ushmm.org/museum/a_and_a/
3. “About the Museum,” United States Holocaust Memorial Museum, www.ushmm.org/
information/about-the-museum. Freed wanted the building to draw into relief the “ambiguity
of the symbols of American democracy that surround it and that it transforms” (“IPS,” p. 19).
4. “About the Museum”; emphasis added.
N O R M A N W . S P A U L D I N G is a professor of law at the Stanford Law School

and a former associate at Skadden, Arps, Slate, Meagher, and Flom LLP, where
he did environmental litigation. His research focuses on the history of the
American legal profession.
134 Norman W. Spaulding / Resistance, Countermemory, Justice
memory, isn’t releasing them onto the overwhelmingly triumphalist ter-
rain of the National Mall irresponsible? Just northeast of the museum is the
new World War II Memorial honoring the sixteen million American sol-
diers who served in the armed forces—“the more than 400,000 who died,
and all who supported the war effort at home”— then the reflecting pool,
and then the Lincoln Monument.5 The location, especially the proximity
of the World War II Memorial, places the Holocaust Museum, its visitors,
and arguably even the victims whose memory it honors rather firmly in the
“grip” of America’s self-congratulatory understanding of its own sacrifices
in the name of freedom.6 Arrest, impel, redeem, forget.
A similar movement of historical consciousness can be identified in
many other forms in which memories of the Holocaust are represented as
well as in legal, historical, and artistic representations of other twentieth-
century genocides and mass atrocities.7 These representations are prolif-
erating as the work of international criminal tribunals and the new
International Criminal Court has gradually expanded, as new documen-
tary evidence of genocide and other mass atrocities has been uncovered in
Eastern Europe with the fall of the Berlin Wall, and as professional anthro-
pologists have shifted focus from “violence, conflict, and warfare in sub-
state and prestate societies . . . [to] political violence in complex state
societies” in the “‘Century of Genocide.’”8 Memorials of genocides have
increasingly become destinations for tourism as well, though for many
travelers visiting a memorial is little more than an impromptu detour
during vacations in Eastern Europe, Cambodia, Rwanda, and Bosnia.
5. “Welcome,” National World War II Memorial, www.wwiimemorial.com

6. Weissberg quotes from the Architectural Record on the “‘cathartic evocation’” of the
museum’s location (“IPS,” p. 19). See also Matthew Dodd, “Remembrance Days,” New
Statesman, 29 July 2002, www.newstatesman.com/node/143519. Dodd notes criticism of the
World War II Memorial by architectural critics as “‘imperial kitsch’” and “‘worthy of Albert
Speer’s Germania.’”
7. I discuss other forms of representation of the Holocaust in what follows. Evidence of a
parallel movement of historical consciousness in the representation of other genocides can be
found in Vaddey Ratner, In the Shadow of the Banyan (New York, 2012), pp. 296–98, and Cathy
J. Schlund-Vials, War, Genocide, and Justice: Cambodian American Memory Work (Minneapolis,
2012). See also Stephanie L. McKinney, “Narrating Genocide on the Streets of Kigali,” in The
Heritage of War, ed. Martin Gegner and Bart Ziino (New York, 2012), p. 160; Jan-Werner
Muller, Memory and Power in Post-War Europe (Cambridge, 2002); Paul Williams, Memorial
Museums: The Global Rush to Commemorate Atrocities (New York, 2007); The New Bosnian
Mosaic: Identities, Memories, and Moral Claims in Post-War Society, ed. Xavier Bougarel, Elissa
Helms, and Ger Duijzings (London, 2007); Angus Calder, Disasters and Heroes: On War,
Memory, and Representation (Cardiff, 2004); and Curating Difficult Knowledge: Violent Pasts in
Public Places, ed. Erica Lehrer, Cynthia Milton, and Monica Patterson (Hampshire, UK, 2011).
8. Alexander Laban Hinton, “The Dark Side of Modernity: Toward an Anthropology of
Genocide,” in Annihilating Difference: The Anthropology of Genocide, ed. Hinton (Berkeley,
2002), p. 1.
“Typical visitors to Kigali’s memorial are tourists who have travelled to
Rwanda to see the wildlife and the mountains.”9 The current manager of
the five-star hotel at the center of the film Hotel Rwanda reports that “tour-
ists turn up every day to get their pictures taken by the entrance sign,”
manufacturing their own postcards of the film’s sentimental depiction of
resistance to genocide (“RGM”).
The consumption of traumatic memory has many possible motives, but
as one commentator suggests, the most basic impetus for tourists may be
“to see something they can discuss when they go home. . . . While they still
want the relaxation they get from sitting on a beach, they also want to
broaden their horizons. ‘People want to be challenged. It may be voyeur-
istic and macabre but people want to feel those big emotions which they
don’t often come across. . . . It’s about creating your own history, reminding
yourself how lucky you are’” (“RGM”; emphasis added).10 The exits from
memorials of genocide for such travelers typically lead back to gorillas and
other unique or endangered species in wildlife refuges, to Sarajevo and
skiing in the southern Alps, or to the temple ruins of Angkor—the terrain
of inspiring national treasures. As with the location of the US Holocaust
Memorial Museum, both national and personal self-congratulation are on
offer. And then, of course, the tourists have the luxury of returning home.
Arrest. Impel. Redeem. Forget.
This movement of historical consciousness in the reproduction and
consumption of traumatic memory is not just toward forgetting in any
direct sense—though the “alarming rise in Holocaust denial” depends
upon this amnesic short circuit. Even those who are deeply committed to
remembering and redressing past injustices struggle with resistance in
memory work, resistance structured by oscillation between the arresting
and mobilizing effects of irreparable injury. Indeed, quite irrespective of
the representational form (literary, visual, historical, forensic), this oscil-
lation renders the movement from memory to forgetting not only difficult
to control but difficult to recognize.
The problem is not so much that events like the Holocaust lie “at the limit
of representation,”11 either in the sense that the experience is beyond represen-
9. Clare Spencer, “The Rise of Genocide Memorials,” BBC News Magazine, 11 June 2012,
www.bbc.com/news/magazine-16642344; hereafter abbreviated “RGM.” See also Tim Winter,
“When Ancient Glory Meets Modern Tragedy: Angkor and the Khmer Rouge in Contemporary
Tourism,” in Expressions of Cambodia: The Politics of Tradition, Identity, and Change, ed.
Leakthina Ollier and Winter (New York, 2006), pp. 37–53.
10. See also Richard Sharpley and Philip R. Stone, The Darker Side of Travel: The Theory
and Practice of Dark Tourism (Bristol, 2009).
11. Saul Friedlander, Probing the Limits of Representation: Nazism and the “Final Solution”
(Cambridge, Mass., 1992), p. 3. In this respect, I share Debarati Sanyal’s skepticism regarding
tation (victims themselves rely on representations in order to bear witness to
their suffering) or in the sense that morally responsible representations of
mass atrocity must respect certain limits to avoid distorting or trivializing
suffering. The defiance of conventional representational forms can in fact re-
veal suppressed aspects of mass atrocity. The problem is rather that in seeking
to do justice to the past we long for the very closure of judgment, along with its
too-tidy hierarchical ordering of authoritative evidence, that memories of ir-
reparable injury can never be expected to provide.
Representations of mass atrocity are always on trial. Even if we cannot or
should not ever release this desire for trial and the closure of judgment, artists
and critics interested in sustaining collective memory of irreparable injuries
may profit from understanding the depth of this forensic desire. And histori-
ans and advocates of assigning legal responsibility for mass atrocity may profit
from understanding the techniques artists and survivors have developed to
draw the lethean elements of memory work into relief. Responsible theories of
justice, aesthetics, and historiography addressed to mass atrocities must not
only be concerned with defining or expanding the evidentiary and epistemo-
logical criteria of a properly detailed record and assigning accountability. They
must also be concerned with exposing the respects in which resistance is trig-
gered by the enormity of what the memory work reveals. To do so, the struc-
ture of that resistance must be interrogated.
Anonymity
Even the evidence of mass murder relied upon to trigger collective
memory of trauma resists its status as such. Weissberg writes that the shoes
of Holocaust victims have “become useless objects,” not just because “their
owners’ real sufferings take place after they were left behind,” but because
they have “faded to a uniform color that masks their individual shapes”
and are “unable to tell any stories of their bearers” (“IPS,” p. 23; emphasis
added). Piles of shoes are thus reduced to elliptical evidence of anonymous
death—“turned into a still life . . . [of] mass murder” (“IPS,” p. 23). The
evidence and the terrors it can only obliquely suggest arrest the very imag-
ination and conviction it activates in viewers.
Suicide
Survivors, too, struggle with resistance to their status as such. Art
Spiegelman’s depiction in Maus of his father’s experience at Auschwitz
any “post-Shoah literary ethics . . . founded on the impossibility of representing historical

trauma” (Debarati Sanyal, “A Soccer Match in Auschwitz: Passing Culpability in Holocaust
Criticism,” Representations 79 [Summer 2002]: 14).
relies upon the “ciphers” of an animal fable to avoid the limitations of
more realistic genres.12 The story is not only “interrupted time and again by
banal everyday events in the New York present” (“MM,” p. 31) it is jar-
ringly interrupted by the human representation of his mother’s suicide
inserted into Maus from an underground comic Spiegelman originally
published five years after her death in 1968. As Andreas Huyssen has writ-
ten, “these four pages, all framed in black like an obituary in German
newspapers, intrude violently into the mouse narrative, breaking the
frame” by showing father and son (as mice) observing themselves (as hu-
mans) mourning the death of Anja, herself a survivor of Auschwitz (also
drawn in human form) (“MM,” p. 32). Actual family photos are “mon-
taged into the comic, all of which function not to document, but to stress
the unassimilability of traumatic memory” (“MM,” p. 32). And the scenes
deviate radically from the “‘normal’” discursive mode of the comic—
Artie’s interviews of his father about Auschwitz and their “bickering”
(“MM,” p. 32).
Confronted with Anja’s suicide both father and son suffer an “emo-
tional breakdown” at her burial (“MM,” p. 32). Huyssen concludes that
“the memories of Auschwitz not only claim Anja; they also envelop the son
born years after the war” (“MM,” p. 32). Anja is irretrievably arrested by
memory; Spiegelman is arrested, then impelled (as Huyssen reminds us,
Anja’s suicide “triggered” his interviews of his father “in the first place”),
and outraged when he learns that his father destroyed Anja’s diaries after
her suicide (“MM,” p. 37).
Oblivion
Spiegelman’s point of entry is the memory of those who survived con-
centration camps; Lerman and Weissberg’s is the shoes of those who did
not. These mnemonic paths back to the Holocaust exist in important re-
spects not so much in spite of the concentration camps but because of
them. Indeed, what David Rousset famously called “l’univers concentra-
tionnaire” was but a single dimension of the Holocaust.13 Most Jews who
died in the Holocaust never made it to a camp like Auschwitz. As Timothy
12. Quoted in Andreas Huyssen, “Of Mice and Mimesis: Reading Spiegelman with
Adorno,” in Visual Culture and the Holocaust, p. 34; hereafter abbreviated “MM.” Spiegelman
has insisted “I’ve never been through anything like that . . . and it would be counterfeit to try to
pretend that the drawings are representations of something that’s actually happening. I don’t
know exactly what a German looked like who was in a specific small town doing a specific
thing. . . . I’m bound to do something inauthentic. Also, I’m afraid that if I did it with people, it
would be very corny” (“MM,” p. 34).
13. See David Rousset, L’Univers concentrationnaire (Paris, 1947).
Snyder has recently argued, drawing on new archival material made avail-
able for research since the fall of communist regimes in Eastern Europe:
Today Auschwitz stands for the Holocaust, and the Holocaust for the
evil of a century. Yet the people registered as laborers at Auschwitz
had a chance of surviving: thanks to the memoirs and novels written
by its survivors, its name is known. Far more Jews, most of them Pol-
ish Jews, were gassed in other German death factories where almost
everyone died, and whose names are less often recalled: Treblinka,
Chelmno, Sobibór, Belzec. Still more Jews, Polish or Soviet or Baltic
Jews, were shot over ditches and pits. Most of these Jews died near
where they had lived.14
Part of the reason for this had to do with the demographics of Germany
and Eastern Europe at the time Hitler came to power:
Jews were fewer than one percent of the German population when Hit-
ler became chancellor in 1933, and about one quarter of one percent
by the beginning of the Second World War. . . . Only when Nazi Ger-
many invaded Poland in 1939 and the Soviet Union in 1941 did Hi-
tler’s visions of the elimination of Jews from Europe intersect with the
two most significant populations of European Jews. [B, pp. viii–ix]
But part of the reason was administrative convenience. Field officers mov-
ing east from Germany preferred using deceptively organized roundups
and firing squads to eliminate local populations of Jews.15
Snyder contends that the number of deaths outside l’univers concentra-
tionnaire requires a reassessment of how we remember the Holocaust:
“Misunderstandings regarding the sites and methods of mass killing pre-
vent us from perceiving the horror of the twentieth century. . . . About a
million people died because they were sentenced to labor in German con-
centration camps—as distinct from the German gas chambers and the
German killing fields and the German starvation zones, where ten million
people died” (B, p. xiii). Snyder concedes that the “distinction between
14. Timothy Snyder, Bloodlands: Europe between Hitler and Stalin (London, 2010), p. viii;
emphasis added; hereafter abbreviated B. Compare Snyder, “Hitler versus Stalin: Who Killed
More,” New York Review of Books, 10 Mar. 2011, www.nybooks.com/articles/archives/2011/mar/
10/hitler-vs-stalin-who-killed-more/; hereafter abbreviated “HVS.” Of course, anonymous
death was also possible within the camps. “An overwhelming majority of the Jewish victims
remain anonymous” at Majdanek because camp authorities “ceased registering the deaths of
Jewish prisoners” in December 1942, and in 1944 “a large portion of the camp files . . . were
burnt” (Tomasz Kranz, Extermination of Jews at the Majdanek Concentration Camp, trans. pub.
[Lublin, Poland, 2007], p. 75).
15. German officers apparently complained about disposing of gassed bodies.
concentration camps and killing sites cannot be made perfectly: people
were executed and people were starved in camps. Yet there is a difference
between a camp sentence and a death sentence, between labor and gas,
between slavery and bullets” (B, p. xiii). Thus, even if Auschwitz (which
was both labor and death camp) “belongs to two histories,” we must take
these differences seriously. Indeed, Snyder contends that we misremember
the Holocaust by focusing on l’univers concentrationnaire.16 Once the gaze
shifts east, however, the absence of survivors who might share their mem-
ories comes starkly into relief. Evidence either disappears altogether or
diminishes from testimony into the excavation of mass graves and Nazi
and Soviet archives. We confront not just failing memory, not just ques-
tions about how to represent what memory has revealed to us about
l’univers concentrationnaire, and not just the tragedy of memory consum-
ing even those like Anja, who survived. We confront not just anonymity
and suicide but oblivion.
“Of the fourteen million people deliberately murdered in the blood-
lands between 1933 and 1945,” Snyder adds, “a third belong in the Soviet
account,” and “not a single one . . . was a soldier on active duty” (B, pp. viii,
x). Indeed, his alternation between Nazi and Soviet crimes throughout the
book reads these deaths of noncombatants together in a “human geogra-
phy of victims” that suspends even as it seeks to emphasize the singularity
of genocidal animus (B, p. xviii).17 We learn that multiple political regimes,
not just the Nazis, used common techniques for mass killing (starvation,
forced labor, and execution). The populations designated “enemies of the
state” and targeted for murder included both Jews and non-Jews living in
a relatively compact and contested geographic area. And the killings were
committed with the intention of achieving a wide range of political and
social ends (empire, national purification, anti-Semitism, class warfare,
seizing and stabilizing food supply and other natural resources, and so on).
The bloodlands thus not only decenter Auschwitz, calling for a reorienta-
tion to the east in the way we remember the final solution, they decenter
the gulags in Siberia, calling for a westward reassessment of how we re-
member Stalin’s systematic repression “in the name of defending and
modernizing the Soviet Union” (B, p. x).
16. Though recent research suggests that l’univers concentrationnaire was staggeringly
extensive. There were apparently tens of thousands of “ghettos, slave labor sites, concentration
camps and killing factories” set up by the Nazis “throughout Europe” (Eric Lichtblau, “The
Holocaust Just Got More Shocking,” New York Times, 1 Mar. 2013, www.nytimes.com/2013/03/
03/sunday-review/the-holocaust-just-got-more-shocking.html?pagewanted⫽all&_r⫽0)
17. See also Tony Judt, “The ‘Problem of Evil’ in Postwar Europe,” New York Review of
Books, 14 Feb. 2008, www.nybooks.com/articles/archives/2008/feb/14/the-problem-of-evil-in-
postwar-europe/
Snyder anxiously insists that “the special quality of Nazi racism is not
diluted by the historical observation that Stalin’s motivations were some-
times national or ethnic. The pool of evil simply grows deeper” (“HVS”).
But he also admonishes readers that “the Holocaust overshadows German
plans that envisioned even more killing. Hitler wanted not only to eradi-
cate the Jews: he wanted also to destroy Poland and the Soviet Union as
states, exterminate their ruling classes, and kill tens of millions of Slavs” (B,
p. ix). Germany and the Soviet Union were locked in a kind of “belligerent
complicity in which one side killed more because provoked or in some
sense aided by the other” (“HVS”).18
Pan farther out to other twentieth-century holocausts—extend the at-
tempt to name and count victims—and the oscillation of mass atrocities
between the singular and the terrifyingly commonplace comes into even
sharper relief. The problem is not the “limits of representation” in the face
of such deadly pathologies but rather the representation of limits. All nar-
ratives rely for coherence, if not dramatic effect, upon exclusions and
breaks that arise from alternating emphasis upon the singular and the
commonplace. Identity rests in difference. But in histories of mass atrocity
exclusions, classifications, and periodizations are always at peril of being
pressed into service, by author or reader, as unconscionable and yet irre-
sistible invitations to oblivion.
2. Resistance as Memory
Survival
Even during the war, the landscape north and east of Auschwitz was not
completely defined by death and oblivion. The very first Holocaust me-
morials not only emerged in Snyder’s bloodlands during World War II,
they represented “acts of resistance.”19 In May 1943, prisoners in the Ger-
man death camp Majdanek outside the city of Lublin, Poland completed a
sculpture proposed by an “imprisoned Catholic Polish artist [who] per-
suaded an SS administrator to permit the ‘beautification’ of his section of
the camp.” The prisoners fashioned from concrete three eagles taking
18. Historiographic repetitions of that belligerent complicity are always at risk of breaking
out, as are debates about the singularity of genocide as compared to other mass atrocities.
Repetitions have been particularly acute among German historians struggling to account for
the “pool of evil” in its past; see Helmut Walser Smith, “When the Sonderweg Debate Left Us,”
in Imperial Germany Revisited: Continuing Debates and New Perspectives, ed. Sven Oliver Muller
and Cornelius Torp (New York, 2011), pp. 28–31.
19. Harold Marcuse, “Holocaust Memorials, The Emergence of a Genre,” American
Historical Review 115 (Feb. 2010): 55; hereafter abbreviated “HM.”
flight with interlocking wings and placed them on a two-meter column.
“The camp administrators accepted the monument because they saw the
eagles as a Nazi symbol,” but eagles are “also a Polish national symbol, and
to the prisoners, the three birds taking to the air symbolized the ultimate
freedom of the three imprisoned groups: men, women, and children”
(“HM,” p. 56). The prisoners also “secretly placed a small container of
human ash” (“HM,” p. 56) from the camp’s crematorium into the base of
the column “to pay homage” to those who were exterminated there.20
Albin Boniecki, the artist, designed other sculptures in the camp to repre-
sent, if not inspire, resistance: “a tortoise, to symbolize resistance through
work slowdowns, and a lizard baring its teeth in the direction of the guards
at the entrance gate” (“HM,” p. 56).21 These were not Boniecki’s only acts
of resistance. Before his arrest he had served as a medic in the Home Army
when Poland was invaded in September 1939; once imprisoned at Maj-
danek “he selected the most emaciated prisoners as his helpers” for the
construction of the sculptures, thereby “giving them a chance to survive”;
and upon his release he served in the resistance movement in Warsaw in
1944.22
The original Column of Three Eagles most likely did not survive libera-
tion; local citizens may have destroyed the capital of the sculpture on the
assumption that it was nothing more than “a symbol of Nazism” (“HM,”
p. 56 n. 10). But the question of what survived liberation, and whatever
concerns about authenticity that fact might now raise, is less important
than what survived and inspired survival during the Holocaust itself. In the
extended debate about the possibility and status of art after the Holo-
caust,23 and the almost numbingly protracted debate about how to remem-
ber a historical event that is said to lie “at the limit of representation,”24 this
first memorial is all too often forgotten. To remember was to survive, and
even to aspire to survive was to resist.25 History may have reached a kind of
20. “Albin Maria Boniecki,” State Museum at Majdanek,

www.majdanek.eu/articles.php?aid⫽388&acid⫽209&lng⫽1
21. The tortoise was also a symbol of the Polish Underground. See Philip Rosen and Nina
Apfelbaum, Bearing Witness: A Resource Guide to Literature, Poetry, Art, Music, and Videos by
Holocaust Victims and Survivors (Westport, Conn., 2002), p. 128.
22. “Albin Maria Boniecki.”
23. See Zelizer, Visual Culture and the Holocaust; Friedlander, Probing the Limits; Barbara
Foley, “Fact, Fiction, Fascism: Testimony and Mimesis in Holocaust Narratives,” Comparative
Literature 34 (Autumn 1982): 330–60; and Hana Wirth-Nesher, “The Ethics of Narration in
D. M. Thomas’s The White Hotel,” Journal of Narrative Technique 15 (Winter 1985): 15–28.
24. Friedlander, Probing the Limits.
25. Early Holocaust memorials were thus already “reversing [the] implications” of “Nazi
imagery” (“MM,” p. 34). For discussion of other forms of resistance through artistic expression
during the Holocaust, see Anna Wisniewska and Czeslaw Rajca, Majdanek: The Concentration
limit in the Holocaust, as it does for any group targeted for genocide, but
memory and the myriad representational forms through which memory
works most certainly did not.26
The second memorial begun during the war was designed by Nathan
Rapoport, a socialist and “Jewish refugee from Nazi-occupied Poland,”
who “had found sanctuary in the Soviet Union” (“HM,” p. 59).27 He began
work on a model for a monument to honor Jewish resistance after hearing
news of the Warsaw Ghetto Uprising in the spring of 1943—the largest
Jewish revolt during the war, sparked once the true meaning of Nazi “re-
location” was discovered. Upon his repatriation to Warsaw in 1946, the
Warsaw Arts Committee approved Rapoport’s model for “a large framing
monument, approximately 23 meters high, and 27 meters wide, with an
11-meter-tall bronze figure of Mordecai Anielewicz, the head of the Jewish
Fighting Organization, at the center” (“HM,” p. 60). Ruins from the de-
stroyed Ghetto were preserved at the monument site, and the granite for
the massive framing structure was drawn from a quarry in Sweden that had
already cut the stone to meet an order by “Hitler’s favorite sculptor, Arno
Breker, for use in a planned victory monument in the Nazi capital, Berlin”
(“HM,” p. 60). The granite forms a huge, smooth trabeated enclosure for
sculptures of Jewish resistance fighters that recall the figures in Auguste
Rodin’s The Gates of Hell.
In passing, Harold Marcuse describes the use of granite already cut for
Hitler’s victory monument as “an ironic twist of history” (“HM,” p. 60).
But it is surely more than that. Two seemingly irreconcilable but tightly
knotted ends of European history come undone in this displacement of
granite—the “reason in history” posited by nineteenth-century German
idealism28 and the end of history imagined by National Socialism as the
apotheosis of the German volk. The accidental displacement of granite is
Camp of Lublin, trans. Anna Zagórska (Lublin, Poland, 1997), pp. 55–58; Janet Blatter and Sybil
Milton, Art of the Holocaust (New York, 1981), pp. 20, 28; and Mary S. Costanza, The Living
Witness: Art in the Concentration Camps and Ghettos (New York, 1982), p. 133. On the
“mandate” of those who survive to bear witness after the fact, see W. James Booth, “The
Unforgotten: Memories of Justice,” American Political Science Review 95 (Dec. 2001): 782;
hereafter abbreviated “U.”
26. On the tenability of history in mid-twentieth century thought, see Walter Benjamin,
“Theses on the Philosophy of History,” Illuminations, trans. Harry Zohn, ed. Hannah Arendt
(New York, 1968), p. 257.
27. Marcuse’s description is taken from James E. Young, The Texture of Memory: Holocaust
Memorials and Meaning (New Haven, Conn., 1993), pp. 157–58; hereafter abbreviated TM.
28. Unless of course one reduces reason to a mere correspondence between means and
ends. “Tzvetan Tdorov has claimed that ‘given the goals that they set for themselves, the choices
of Stalin and Hitler were, alas, rational.’ . . . Rationality in the sense he meant, which is also the
not, therefore, merely ironic or a twist. The monument was dedicated on
19 April 1948, the fifth anniversary of the uprising. Photographs from the
dedication ceremony show its edifice rising starkly above terrain otherwise
reduced to rubble by the Nazi effort to crush the uprising (by torching and
leveling the Ghetto and deporting survivors to death camps) and subse-
quent battles between German and Soviet forces. All that remained in this
landscape was memory (B, p. 290).29
The rather cruel irony, if there is any mere irony to be found at the site,
is that Rapoport’s use of massive, smooth granite slabs to surround figures
of the Jewish resistance movement (perhaps against his will, as it happens)
encases a memory of resistance in the heroic “socialist realist style” of
monuments prevalent throughout Soviet-dominated Eastern Europe after
the war (“HM,” p. 60; see also TM, p. 164). Rapoport had served as a “state
sculptor of Soviet heroes” as a refugee in Russia, so he was certainly famil-
iar with the socialist realist style (TM, p. 164). But his plans for the Warsaw
Ghetto monument initially contemplated “much more roughly hewn”
granite stones that would have “supported and framed the memory of
events in Warsaw in the iconographic figure of Judaism’s holiest site”—the
Western Wall in Jerusalem—in addition to recalling the former walls of
the Ghetto itself (TM, p. 171). He had set out to make “‘a clearly national
monument for the Jews, not a Polish monument’” (TM, p. 168). But there
were financial constraints; Rapoport and the Warsaw Jewish Committee
had to solicit independent funding for the project. And there was political
pressure both from Moscow, which rejected his original design plan as
“‘too narrow in conception, too nationalistic’—that is, too Jewish,” and
from the Warsaw Arts Committee, which reviewed his revised plans (TM,
p. 165).
So in order to complete the monument, Rapoport had to “anticipate”
and appease “both of his prospective audiences—government and public”
(TM, p. 165). The displacement of total history by memory could not, after
all, have been complete. Indeed, the monument invites, if it does not force,
reflection upon the twentieth-century experience of Poland as a bloodland
caught between two brutal and in so many ways irresistible manifestations
of reason in history. As James Young describes, although Poles initially
“regarded the Jewish rebellion as inspiration for their own uprising a year
narrow sense used in economics, concerns only whether one chooses the correct means to
achieve an end” (B, p. 396).
29. Young writes that in 1948 “all that remained was a moonscape of rubble, piled sixteen
feet high, covering hundreds of acres” (TM, p. 172).
later,” in the decades after the war ended they “found an increasingly
mixed and contrary inspiration in the Ghetto Monument itself. For until
its recent adoption as place de résistance by dissidents of all ranks and
stripes, the monument was widely disdained by Poles as a place of resent-
ment” (TM, pp. 175–76). Some suspected that when Soviet authorities
approved the Ghetto Monument “it was not only to substitute socialist
heroes of the Jews for Polish heroes of the Home Army but, even worse, to
expunge memory of the Red Army’s passive role in the Nazis’ brutal crush-
ing of the [1944 Polish] rebellion” (TM, p. 176). Poles still refer indignantly
to a separate memorial for Russian soldiers dedicated to the “Soviet liber-
ators of Warsaw” as the “‘Monument to the Sleeping Soldiers’” because the
Red Army remained “camped quietly across the Vistula River” while
180,000 Poles died as “the Germans razed the city a block at a time” (TM,
p. 176).
Testimony
Even in the most mnemonically barren landscapes of the bloodlands,
even in improvised mass graves, people survived to testify. On the outskirts
of Kiev, at the Babi Yar ravine, Nazi soldiers and Ukrainian police rounded
up and shot 33,771 Jews over two days in September 1941—“the largest
single Nazi shooting of Jews in the Soviet Union.”30 After falsely blaming
Jewish resistance for Soviet NKVD and Red Army bombs that had been set
to explode days after Soviet forces retreated east, Germans instructed the
Jews of the city to gather with their belongings at the Jewish cemetery. As
Snyder writes, “disinformation was the key to the whole operation. . . . In
what would become the standard lie of such mass shooting actions, the
Jews were told that they were being resettled. They should thus bring along
their documents, money, and valuables” (B, p. 201). Once at the cemetery,
Jews were stripped of their possessions and all clothing, run through a
gauntlet of German soldiers with clubs, broken into groups and either
forced out to the edge of the Babi Yar ravine to be shot and fall in or forced
to descend into the ravine and lie on the growing pile of dead bodies before
being shot.
Dina Pronicheva survived by her own disinformation and deception,
first by insisting that she was Russian, not Jewish. This led to her separation
from the line. Second, after a German officer declared at nightfall that even
non-Jews would have to be shot because they had witnessed the massacre,
30. Karel C. Berkhoff, “Dina Pronicheva’s Story of Surviving the Babi Yar Massacre:
German, Jewish, Soviet, and Ukrainian Records,” in The Shoah in Ukraine: History, Testimony,
Memorialization, ed. Ray Brandon and Wendy Lower (Bloomington, Ind., 2008), p. 291;
hereafter abbreviated “DP.”
she jumped into the ravine and feigned death. She dug herself out later that
night (see “DP,” pp. 304–7).
As Karel Berkhoff’s research “beyond the perpetrator-focused docu-
mentation” of mass murder in the bloodlands has shown (“DP,” p. 294),
no fewer than twelve accounts of Pronicheva’s experience that day were
produced between the mid-1940s and 1994 in at least three languages (Rus-
sian, Ukrainian, and German). Five accounts are from Soviet and German
postwar judicial investigations and trial proceedings in which Pronicheva
offered testimony recorded or otherwise reproduced via translation; four
are from interviews conducted by “a Soviet journalist, Soviet Ukrainian
historians, a Soviet Russian novelist, and a Jewish writer who later emi-
grated”; two are “second-hand accounts” written by another Jewish sur-
vivor and a journalist; and one other “is a letter by Pronicheva to a
journalist” (“DP,” p. 295).31 Berkhoff is quick to note that “official censor-
ship, self-censorship, and undue artistic or editorial license [in the case of
second-hand accounts and, presumably, all translations] produced re-
cords that differ in substance and, especially, style.” This is, of course, an
understatement. The divergent forensic and journalistic accounts of
Pronicheva’s experience remind us that all traumatic memory—not just
what Huyssen calls Spiegelman’s “mimetic approximations” in Maus—
“must remain fractured, frustrated, inhibited, incomplete” (“MM,” p. 78).
To be sure, Berkhoff’s careful comparative reconstruction of Proniche-
va’s narrative does corroborate other accounts of the basic events at Babi
Yar, and it helps confirm the previously contested conclusion that local
Ukrainian police were not only present but actively participated in the
massacre. But the lethean elements of the Babi Yar ravine remain inescap-
able. As many as one hundred thousand non-Jewish residents of Kiev were
subsequently shot by Germans at the ravine, making the Holocaust there
but a prologue to other mass killings. Indeed, the total number of deaths at
Babi Yar is impossible to know. Two years after the initial massacre, as the
Nazis retreated from Kiev, prisoners were forced to exhume and burn the
bodies “on pyres, and the bones that did not burn [were] crushed and
mixed with sand” (B, p. 203).
Even the indecipherably mixed ashes of Babi Yar contain mixed mes-
sages. As Ray Brandon and Wendy Lower write:
The road around the site of Babi Yar is today named for Oleha Teliha,
a poet shot at the ravine in February 1942. While Teliha is a martyr for
31. The Russian novelist, who promised that his account contained “‘only the truth—AS IT
REALLY HAPPENED,’” was famously plagiarized by D. M. Thomas in his acclaimed novel, The
White Hotel (New York, 1981) (“DP,” p. 299).
nationalist Ukrainians, her affiliation with the faction of the Organi-
zation of Ukrainian Nationalists in Kiev, the faction that most likely
provided the auxiliary police for the murder of Kiev’s Jews at Babi Yar
the previous September, places her in a suspicious light in the eyes of
Jews who memorialize their victims at the same ravine.32
This is but one of what Brandon and Lower call “awkward juxtapositions
in marking . . . Holocaust related sites and the architectural remnants of
Ukrainian Jewish history.”33 Awkward indeed. These juxtapositions test
the very categories of guilt and innocence by which we endeavor to fathom
the scope of mass murder in the bloodlands. As Tony Judt observed, al-
though “the worst wartime crimes . . . were sponsored by Germans, there
was no shortage of willing collaborators among the local occupied na-
tions.”34 Thus even as non-Jewish East Europeans who were also “victims
of atrocities (at the hands of Germans, Russians, and others)” agonize over
“their own suffering and losses,” there is a “powerful incentive in many
places to forget what happened, to draw a veil over the worst horrors.”35
Accountability
The juxtapositions are not merely awkward. They are always potentially
paralyzing—at least for those who survived in Eastern Europe and came to
resist the various strains of collective amnesia inherent in both commu-
nism and nationalist opposition movements. As George Konrad wrote in
his novel on the failed Hungarian revolution of 1956: “I cannot fool myself;
each station of my life was an error. . . . I am looking for my precious
brother, who, incidentally, is a murderer, as am I, incidentally, only he is a
more recent one, his hand is still warm from choking that girl, whereas
from my heroic deeds the blood and gore of the moment have vanished,
and my victims stand motionless in the museum of my mind.”36 Eastern
European intellectuals who had insisted for decades upon a “memory that
32. Brandon and Lower, introduction to The Shoah in Ukraine, p. 12.

33. Ibid.
34. Judt, “The ‘Problem of Evil’ in Postwar Europe.” Irina Paperno points out: “In the
postsocialist world, contrary to the expectations of many, exhuming the victims of terror
brought havoc rather than catharsis. . . . Because repression touched all social strata, including
the leadership and the security apparatus itself, the murderers frequently lie in the same graves as
their victims” (Irina Paperno, “Exhuming the Bodies of Soviet Terror,” Representations, no. 75
[Summer 2001]: 89; emphasis added). See also Brandon and Lowel, introduction, pp. 12–13.
Stalin, for his part, rigidly insisted on categorizations of German atrocities such as Babi Yar that
suppressed the identity of Jewish victims; see ibid., p. 292.
35. Judt, “The ‘Problem of Evil’ in Postwar Europe.”
36. Quoted in Richard S. Esbenshade, “Remembering to Forget: Memory, History,
National Identity in Postwar East-Central Europe,” Representations, no. 49 (Winter 1995): 75;
hereafter abbreviated “RF.”
resists” to counter the “dynamic of state-sponsored forgetting” (the “air-
brushing” of former leaders turned dissidents “out of official photographs
after [their] show trial and execution”) eventually realized that “the
Manichaean opposition of state forgetting and individual remembering
promoted a kind of amnesia in its own right” (“RF,” pp. 74–75; emphasis
added). This amnesia underwrote a fantasy that blame for oppression and
past atrocities rested more or less exclusively with the state. Disrupting that
fantasy, as Richard Esbenshade has argued, releases a torrent of memory—
memory that is “unpredictable, impossible to control, and often incoher-
ent; it lurches backward and forward; it tends to dwell on the painful and
embarrassing, even the humiliating; it immobilizes rather than empowers”
(“RF,” p. 75).37
This is the terror of accountability—its simultaneous ubiquity and ir-
reducible ambiguity in the face of crimes so horrifying as to defy the clo-
sure of judgment. There is no doubt that trials must be held when corrupt
regimes finally collapse. The memory work of civil and criminal trials,
particularly the sifting and authentication of evidence into a coherent re-
cord, is imperative. In the face of mass atrocity, the ordinary operation of
law must be reaffirmed. Thus trials for the Holocaust and other mass
atrocities have been held in situ when feasible, even at the risk of enacting
victor’s justice.38 And international criminal tribunals and special courts
established by the United Nations have strained to establish jurisdiction
and provide adequate alternatives to trials in situ in recognition of the
singularity of genocide and other mass atrocities.39 Moreover, civil suits for
reparations, damages, and restitution against complicit state actors and
private entities persist decades after the events in question as the evolving
evidentiary record and political context provide new facts and leverage in
litigation.40 Finally, in film and other media the reproduction of real and
37. Postcommunist Eastern Europeans face parallel problems of collective memory. See
Brandon and Lower, introduction, and Judt, Postwar: A History of Europe since 1945 (New York,
2005).
38. Antonio Cassese, “From Nuremberg to Rome: International Military Tribunals to the
International Criminal Court,” in The Rome Statute of the International Criminal Court: A
Commentary, ed. Cassese, Paola Gaeta, and John R. W. D. Jones, 2 vols. (Oxford, 2002), 1:3–19;
Ronen Steinke, The Politics of International Criminal Justice: German Perspectives from
Nuremberg to The Hague (Oxford, 2012); and B. V. A. Roling, The Tokyo Trial and Beyond:
Reflections of a Peacemonger, ed. Cassese (Cambridge, 1993).
39. See The Rome Statute of the International Criminal Court; Steinke, The Politics of
International Criminal Justice, pp. 74, 92; and M. Cherif Bassiouni, Crimes against Humanity:
Historical Evolution and Contemporary Application (Cambridge, 2011).
40. See Carla Ferstman, Mariana Goetz, and Alan Stephens, Reparations for Victims of
Genocide, War Crimes, and Crimes against Humanity (Boston, 2009); Holocaust Restitution:
Perspectives on the Litigation and Its Legacy, ed. Michael Bazyler and Roger P. Alford (New York,
2006); Ronald W. Zweig, German Reparations and the Jewish World: A History of the Claims
imagined trials relating to complicity in mass atrocities has become com-
monplace.41 Dina Pronicheva is called to testify over and over.
Arrest. Impel. Redeem.
And yet we know that no number of trials of individual perpetrators, no
amount of restitution, could suffice for crimes that are paradigmatically
irredeemable (see “U,” p. 786).42 We have also long known from Hannah
Arendt that even carefully conducted trials of perpetrators can tend more
to establish the “banality of evil” than its discreteness and singularity—the
more expansive the network of indictments, the more chillingly clear this
becomes.43 Moreover, as the hierarchy of Holocaust representations pow-
erfully suggests,44 the risk that our understandably insatiable desire to re-
affirm the ordinary operation of law will result in staged events—events
that are little more than show trials—haunts every proceeding.45 Avoiding
that risk is precisely what animates obsession with the “burden of authen-
ticat[ion]” in both aesthetic and juridical representation of mass atrocities
Conference (Portland, Ore., 2001); Elazar Barkan, The Guilt of Nations: Restitution and
Negotiating Historical Injustices (New York, 2000); and Martha Minow, Between Vengeance and
Forgiveness: Facing History after Genocide and Mass Violence (Boston, 1998), p. 25.
41. See Film and Genocide, ed. Kristi M. Wilson and Tomás F. Crowder-Taraborrelli
(Madison, Wis., 2012); Leshu Torchin, Creating the Witness: Documenting Genocide on Film,
Video, and the Internet (Minneapolis, 2012); and Documentary Testimonies: Global Archives of
Suffering, ed. Bhaskar Sarkar and Janet Walker (New York, 2010).
42. Civil trials for money damages provide merely “ersatz” compensation for what has been
lost. The problem is not just “how to calibrate compensation” but dealing with what is owed to
the dead “rather than to the living” (“U,” p. 779).
43. Arendt describes Eichmann as “terrifyingly normal” (Hannah Arendt, Eichmann in
Jerusalem: A Report on the Banality of Evil [New York, 1963], p. 253). But see David Cesarani,
Becoming Eichmann: Rethinking the Life, Crimes, and Trial of a “Desk Murderer” (Cambridge,
Mass., 2006), which details Eichmann’s anti-Semitism; see also David Luban, Legal Ethics and
Human Dignity (New York, 2007), chap. 7.
44. Berkhoff concludes that the records of Pronicheva’s testimony at two trials (one a 1946
military trial of German officers later hanged in Kiev’s Independence Square; the other a 1967
West German trial of Sonderkommand 4a members directly responsible for the massacre) were
the most credible of the twelve accounts; see “DP,” pp. 309–10. The conclusion is consistent
with a well-established hierarchy of textual Holocaust representations in which first person and
testimonial genres are either privileged outright or, as in Spiegelman’s ingenious use of the
animal fable as cipher for reproducing interviews of his father’s experience at Auschwitz,
privileged via strategic reversals. See Foley, “Fact, Fiction, Fascism.” Booth discusses the moral
priority of “naming” and “incarnate[ing]” victims (“U,” p. 788).
45. See “DP,” p. 295, which discusses prosecutions for the Babi Yar massacre under secret
article 1 of the Decree of the Presidium of the Supreme Soviet of the USSR of 19 April 1943.
Equally troubling, of course, are trials that can be cleverly restaged in medias res by the accused
or by regimes that remain criminally corrupt. See Margo Picken, “The Beleaguered
Cambodians,” New York Review of Books, 13 Jan. 2011, www.nybooks.com/articles/archives/2011/
jan/13/beleaguered-cambodians/; Arendt, Eichmann in Jerusalem; and “U,” pp. 780–81.
(“MM,” p. 77 ).46 For whatever else memory work does, it must not invite
us to forget what actually occurred (see “U,” p. 780).47 The very least we can
do for those who survive and testify is to insist upon verisimilitude. And
yet as every trial lawyer knows, verisimilitude is what judge and jury assign
retrospectively to the competing mnemonic representations offered at trial;
the memory work of trial is quintessentially partial and selective.48 The
finality of judgment and execution in the ordinary operation of law is also
lethean (and not merely for the dead perpetrator).49 There is more than a
little death wish in every trial.
Justice is done.
3. Resistance, Countermemory, Justice

How might the ordinary operation of law be interrupted without sur-
rendering accountability for mass atrocities? Why does so much ambiva-
lence surround theories of transitional and restorative justice to which
nations recovering from mass atrocity have turned as alternatives to a
formal trial in recent decades?50 To begin with, it is not obvious that the
answers should be sought on terms any different from those in which
survivors, authors, artists, historians, and literary critics have gradually
come to grips with resistance to memory, resistance as memory, and the
“burden of authentication” in aesthetic representations of mass atrocity
46. Huyssen is particularly concerned, borrowing from Adorno, with the “inauthenticity of
representation within [any] mass cultural genre” (“MM,” p. 81). See also Foley, “Fact, Fiction,
Fascism,” and Wirth-Nesher, “The Ethics of Narration” (on The White Hotel). Compare
Christian Delage, “L’Image comme preuve: L’Expérience du procès de Nuremburg,” Vingtième
Siècle Revue d’Histoire 72 (Oct.–Dec. 2001): 63–78.
47. “Obsessional immersion in the past” gives “voice to the past and its victims . . . insisting
on the restoration of justice in the world against the oblivion of forgetting.” Booth discusses the
“need for precision” identified by Polish poet Zbigniew Herbert (“U,” pp. 780, 781).
48. Recognition of and resistance to this point can be seen in Steink, The Politics of
International Criminal Justice. See also “DP.”
49. Trials offer what Booth has called “premature closure: The guilty leaders are punished,
and we are freed of any burden of responsibility” (“U,” p. 787). Like other forms of collective
memory, Booth reminds us, “trials can help draw a thick line between past and present, and the
crimes of the past then can become historic rather than present. . . . Remembrance itself . . . can
sometimes be used to quit the debt once and for all, to throw off the weight of the past” (“U,”
p. 786). Formal legal doctrines such as double jeopardy and res judicata support this kind of
finality—insulating even erroneous prior adjudications from collateral attack.
50. See Critical Perspectives in Transitional Justice, ed. Nicola Palmer et al. (Cambridge,
2012); Elizabeth Stanley, “Evaluating the Truth and Reconciliation Commission,” Journal of
Modern African Studies 39 (Sept. 2001): 525–46; Kader Asmal, “Victims, Survivors, and Citizens:
Human Rights, Reparations and Reconciliation,” South African Journal on Human Rights 8, no.
3 (1992): 491–511; “U,” pp. 782, 784–85; Bruce Ackerman, The Future of Liberal Revolution (New
Haven, Conn., 1992); and Nenad Dimitrijevi, “Justice beyond Blame: Moral Justification of (the
Idea of) a Truth Commission,” Journal of Conflict Resolution 50 (June 2006): 369–70.
(see esp. TM). All representations of mass atrocity are, in their own way,
trials framed by the terror of accountability for irreparable injury and the
resistance that terror provokes. Can we ask any more of formal trials than
we do of personal memory, collective memory, and aesthetic representa-
tions of mass atrocity?
What we ask of this sort of memory work is not, after all, that it avoid
forgetting anything but that it openly address its all too often subterranean
and lethean desire. We ask memory to address, indeed, to express, its own
resistance, without framing that resistance as something to be overcome.51
“The surest engagement with memory,” James Young reminds us in his
study of contemporary Holocaust “counter-monuments” in Germany,
“lies in its perpetual irresolution” (TM, p. 21). Writing of modernist Ho-
locaust photographers who have broken from the convention of depicting
“evidence” of mass murder and “oversaturated referents of ruins” (“the
remains of buildings once built to kill . . . the sky blue shards of enamel
cooking pots brought by unsuspecting victims, the scraps of barbed wire,”
and so on), Ulrich Baer notes that artists such as Dirk Reinartz and Mikael
Levin “force us into a position of seeing that something cannot be seen,
and they show that something in the catastrophe remains inassimilable to
historicist or contextual readings without, however, attaining spiritual sig-
nificance. . . . Reinartz’s and Levin’s images confront us with a dimension
of the Holocaust that cannot be fully accounted for by drawing on material
or documentary evidence.” In their use of landscape techniques to capture
overgrown grounds of former concentration camps, “the invitation to en-
ter the site is fused with an aura of exclusion.” Their pictures “resist being
fully conquered by means of visual projection.”52
So too, perhaps, with formal trial. In its oscillation between the para-
lyzing and mobilizing effects of irreparable injury, memory wants desper-
ately to surrender to justice and yet survive the ordinary operation of law.
It is therefore the interstices among arrest, impulsion, redemption, and
forgetting that deserve our closest attention. In these interstices the lethean
element of all memory work—the profound desire for closure and the
assimilation of catastrophe into a normative order—is strongest, impel-
ling us not only into the redemptive action of trial and judgment but
toward forgetting the very memories we have just processed and authen-
ticated through adjudication. For this very reason, we cannot fool our-
selves when these countermnemonic spaces are drawn into relief. We
51. See Norman W. Spaulding, “The Historical Consciousness of the Resistant Subject,”
UC Irvine Law Review 1, no. 3 (2011): 677–91, and “U,” p. 788.
52. Ulrich Baer, “To Give Memory a Place: Holocaust Photography and the Landscape
Tradition,” Representations, no. 69 (Winter 2000): 42.
cannot fool ourselves about the need to address injustice and ensure ac-
countability, nor, as importantly, can we fool ourselves about the alluring
promise of closure offered by the ordinary operation of law and memory.
On this view, to see justice done in response to mass atrocity is not, in
the first instance, to be committed to any particular hierarchy of represen-
tations, legal processes, or remedies. It is to be committed to counter-
memory. Formal trial is but one of the contested representational forms in
which the finality of judgment is sought and resisted in response to mass
atrocity. So we cannot look exclusively to law—as Booth has argued,
“memory-justice demands more than what a court or truth commission
can provide” (“U,” p. 788). But we cannot avoid law either; wanting the
finality of judgment and accountability structures artistic, historical, crit-
ical, and personal representations of mass atrocity. The effectiveness, the
beauty, and we might say, with Elaine Scarry, the justice of these represen-
tations turns significantly on the degree to which they alert their audience
to this desire for closure.53 As Baer insists, the “question of our position, as
belated witnesses to the original witnesses, precedes all efforts to confront
the past, to remember, to learn, and to understand.”54
Formal trials assigning responsibility for mass atrocities should accord-
ingly be assessed in countermnemonic terms. So too, the cultural repro-
duction of trials. More than an orderly prelude to judgment and
punishment or compensation, trials should function as representational
space in which our desire for closure in response to irreparable injury is
itself put at issue. This can occur when agents, not just principals, are
named as defendants; when the capacity of organizational structures
(communal, corporate, and bureaucratic) to dissolve individual responsi-
bility is exposed;55 when the presentation of evidence and trial processes
are conducted transparently rather than in secret;56 when competing rep-
resentations as well as legal and evidentiary gaps are acknowledged, not
suppressed or channeled into predetermined narrative paths;57 when open
trials are held rather than circumvented by practices such as targeted kill-
ing, which provide no resistance whatsoever to the desire for closure;58 and,
53. See Elaine Scarry, On Beauty and Being Just (Princeton, N.J., 1999).
54. Baer, “To Give Memory a Place,” p. 43.
55. See Luban, Legal Ethics and Human Dignity, p. 237, discussing wrongful obedience.
56. See Spaulding, “The Enclosure of Justice: Courthouse Architecture, Due Process, and
the Dead Metaphor of Trial,” Yale Journal of Law and the Humanities 24 (2012): 335–40.
57. See Spaulding, “The Rule of Law in Action: A Defense of Adversary System Values,”
Cornell Law Review 93 (Sept. 2008): 1377–1411 and “The Enclosure of Justice,” pp. 340–43.
Compare Dimitrijevi, “Justice beyond Blame,” p. 376.
58. “For the state to mobilize the sentiments of vigilantism itself rather than solemnly insist
on ordinary legal process is most unusual. The almost complete enclosure of practices like
perhaps above all, when remedies are tailored to avoid rather than ensure
complete closure.59 In a word, trials must be seen as resistant space—as
resistant as mass atrocity is to the ordinary operation of law.
Justice as countermemory would thus function on something like the
terms of the now possibly fake Column of Three Eagles at the Majdanek
camp outside Lublin and the Warsaw Ghetto Uprising monument encased
in the displaced granite of Adolf Hitler’s victory monument—the first
Holocaust memorials. Like these memorials, it would offer no easy exit
onto any National Mall.
targeted killing (keystrokes on a computer in a secure location sending a signal to a remotely

controlled predator drone to release a ‘smart’ bomb after classified intelligence has identified
the target) is equally distinctive” (Spaulding, “The Enclosure of Justice,” p. 342).
59. See Minow, Between Vengeance and Forgiveness.

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Critical Inquiry 41 (Autumn 2014)

2. Quoted in “The Architecture,” United States Holocaust Memorial Museum,

N O R M A N W . S P A U L D I N G is a professor of law at the Stanford Law School

5. “Welcome,” National World War II Memorial, www.wwiimemorial.com

any “post-Shoah literary ethics . . . founded on the impossibility of representing historical

20. “Albin Maria Boniecki,” State Museum at Majdanek,

32. Brandon and Lower, introduction to The Shoah in Ukraine, p. 12.

3. Resistance, Countermemory, Justice

targeted killing (keystrokes on a computer in a secure location sending a signal to a remotely

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