Yidn, shraybt un farshraybt.
[Jews, write and record.]
SIMON DUBNOW, December 1941
Up to this point, we have followed two paths marked out by Jewish historians and frequented by their readers: liberation and consolation. In many cases, the historians I have discussed, most but not all of whom have been Jewish, have written in ways that traverse the boundary between history and memory. That is, they have aimed not merely to provide a factual reconstruction of past events but to use historical recollection to inspire, ground, and craft memory. Some may regard these functions as a distraction from, or even an abrogation of, what we might call the Thucydidean Code—the historian’s commitment to produce “an exact knowledge of the past,” as the ancient Greek formulated it. Thucydides stated that he set out to write history not “to win the applause of the moment, but as a possession for all time.” This timeless quality toward which he strove could not tolerate an excess of distortion or subjectivity.1
At the same time, Thucydides believed that an accurate rendering of the past could serve as “an aid to the interpretation of the future.” Indeed, this seems to represent a minimalist understanding of the historian’s utility—the assembly of knowledge dispassionately gathered in order to enlighten future generations. It seems especially important to acknowledge and embrace this function in our current age, in which the study of history can be cast as an expendable luxury, especially when compared to the STEM disciplines (science, technology, engineering, and math). In fact, history is an essential, though oft-neglected, ingredient in informed civic engagement and policy debate.
Alongside this function, it is also important to remember the calling of the historian as a “physician of memory,” to borrow the phrase of Eugen Rosenstock-Huessy repeated by Yosef Yerushalmi on several occasions. Often enough, the modern Jewish historian has paired a commitment to the methods of the guild with a desire to fortify the historical consciousness and remembrances of the collective.
This chapter will explore a version of this mission by tracing the ways in which history and the historian serve as witnesses. Admittedly, we do not think of history as the primary realm in which the witness operates. Religion makes a greater claim on the witness, who is called upon to affirm the truth claims of the faith. The stakes of religious witnessing have been high, as is evident in the close association between “witness” and the Greek word for “martyr,” the latter of which was often used by early Christians interchangeably with the former.2 Witnessing was, in that sense, a matter of life and death.
So too witnessing is a vital part of the process of legal adjudication. In biblical times, an obligation to come forward to testify to what one witnessed on pain of punishment had already been articulated (Lev. 5:1). Since that time, most systems of law practiced in the world have depended on witnessing, often requiring two eyewitnesses to corroborate (or discredit) each other’s account. In related fashion, we note the way literature serves as a witness, especially in the wake of trauma or tragedy.3 We might think here of the proliferation of fiction in the wake of the Holocaust, as author-survivors sought to give insight into an experience that verged on the unknowable. One of the most profound of this cohort of writers, Primo Levi, fused the literary and legal functions of the witness in his own writerly practice, as he averred in The Reawakening: “When describing the tragic world of Auschwitz, I have deliberately assumed the calm, sober language of the witness, neither the lamenting tones of the victim, nor the irate voice of someone who seeks revenge. I thought that my account would be all the more credible and useful the more it appeared objective and the less it sounded overly emotional; only in this way does a witness in matters of justice perform his task, which is that of preparing the ground for the judge.”4
This plea for sobriety and objectivity calls to mind another Italian Jew, the historian Carlo Ginzburg, who reflected on the fate of the witness in the wake of the Holocaust in an important essay dedicated to Primo Levi. In “Just One Witness,” published in a conference volume edited by Saul Friedlander, Probing the Limits of Representation (1992), Ginzburg undertakes to perform three interrelated functions: first, to juxtapose the legal tradition of relying on two witnesses for verification to the historian’s practice of sufficing with one; second, to suggest that, despite their “different rules and different methodological foundations,” law and history, following the eighteenth-century Jesuit Henri Griffet, in fact rest on a shared commitment to proof and truth; and third, to criticize scholars who abandon that commitment in favor of “skepticism and relativism” and thereby challenge the very possibility of historical veracity. As he makes abundantly clear, Ginzburg’s chief target in this last regard is Hayden White, whose 1973 Metahistory is, to his mind, the locus classicus of historical skepticism. Ginzburg probes deeply, albeit not always persuasively, into White’s intellectual biography to root this skepticism in the subjectivist stance of the Italian fascist philosopher Giovanni Gentile. He traces this rather ignominious historical genealogy in order to reveal the high moral cost of attacks on historical truth.5
In his battle against “the lazily radical form of skepticism,” Ginzburg imagines the historian as a particularly qualified and effective agent of witnessing. He exemplified this point in a small, curious volume he wrote in Italian around the same time as “Just One Witness” that appeared in English eight years later as The Judge and the Historian (1999).6 The book was an extended brief in defense of his friend Adriano Sofri, who was accused of murdering an Italian policeman in 1972 while a member of an underground leftist cell. Ginzburg maintained absolute certainty in Sofri’s innocence and set out to expose the “miscarriage of justice” that led to his conviction in 1990. Over the course of his inquiry, he discovered divergences between historians and judges in how they used sources, understood facts, and made use of contexts.7 And yet, Ginzburg here and elsewhere insisted that the meticulous sifting of evidence, along with careful argumentation, could serve as a counterweight to efforts to blur the boundary between fact and fiction.
In productive tension with Ginzburg stands the late Yale legal scholar Robert Cover. Cover did not directly address the function of the witness. Instead, he discussed in a widely cited Harvard Law Review article, “Nomos and Narrative” (1983–1984), the potential inhering in law not only to achieve clarity about what was but also to serve as “a bridge linking a concept of a reality to an imagined alternative.”8 Cover elaborated on this point in his 1985 article “The Folktales of Justice,” in which he outlined a position that he defined as “very close to a classical anarchist one.” That is, Cover considered the potential of judges to use the law to curb and “call to account” kings who might overstep their power. The moral demand to deliver justice is tempered by fear of retribution, leading to a “necessarily difficult tightrope act that judges must perform.” Cover also discusses another important balancing act in the work of law: that between myth and history. Myth, he wrote with echoes of R. G. Collingwood, is what “we create and choose to remember in order to reenact.” History, by contrast, is “a counter-move bringing us back to reality, requiring that we test the aspiration objectively and prudentially.” The two interact in essential ways: myth promotes the aspirational vision of human beings for a better society, whereas history disrupts and challenges the vision by recalling how difficult fulfillment of the quest will be. Working hand in glove, myths “supply purpose for history.”9
What is the point of my juxtaposing two such diverse scholars as Carlo Ginzburg and Robert Cover? Both, it must be noted, were keenly interested in the interrelationship of law and history—and the place of narrative in each. Ginzburg, for his part, is intent on upholding the possibility of evidence-based narrative to describe that which is real through an emphasis on the criterion of proof. Cover, on the other hand, focused on the constructive potential of an interpretive legal narrative to build a bridge to the ideal. The two eminent scholars push to the fore a set of tensions—between history and law, history and memory, the real and the ideal, traditional and redemptive visions—that play an animating role in the labors of the historian in general, and as witness, in particular.
The relationship between history and witnessing operates at various levels. First, history, in a metaphorical sense, provides witness to certain events that unfold over its course. Second, the evidentiary base of history depends, to a great extent, on witnesses, in both oral and written form. Third, and of most direct interest to this chapter, historians have been called upon to serve as actual witnesses in trials. In her study of the relationship between survivor testimony and collective memory after the Holocaust, the French scholar Annette Wieviorka homed in on the central role of historians, who “were the first to recognize, in the midst of the genocide, the urgent necessity of bearing witness so that history could one day be written.” After the war, they acted on this recognition by offering testimony in Holocaust-related trials, thereby contributing to what Wieviorka described as “the era of the witness.”10 In doing so, they were crafting a picture of the past with an eye to those who might not have experienced or even lived during the events. They were thus crafting memory for a future generation.
Well before the advent of the “era of the witness,” historians were engaged in various forms of witnessing. We return to the familiar figure Simon Dubnow, who assumed the role of historical witness on numerous occasions, albeit not in the courtroom but rather in print form. In the aftermath of the Kishinev pogroms of 1903 in which scores of Jews were brutally murdered in southern Russia, he joined forces with the Hebrew poet Chaim Nachman Bialik to collect evidence, including firsthand accounts, of the violence. He published a number of articles about the pogrom based on Bialik’s onsite reports, but he did not realize his grander plan of editing a three-volume compendium of primary sources with an overarching narrative. Still, the kernel of the idea to generate a collection of sources that provided textual witness to persecutions under the rubric of khurbn-forshung (research of a major destruction) was born out of this crisis.11
As we saw in the previous chapter, Dubnow collaborated twenty years later with a new partner, Elias Tcherikower, to chronicle the massive loss of life and destruction in the anti-Jewish pogroms in Ukraine during and especially after the First World War. Although the original design called for a seven-volume series under the rubric of the Eastern (European) Jewish Historical Archive, Tcherikower and Dubnow collaborated on a single volume of textual witnessing, divided between narrative and sources, that appeared in 1923 as Anṭisemiṭism un pogromen in Uḳraine, 1917–1918. This text belonged to a larger spate of documentary projects, which extended from Europe to the United States, chronicling the pogroms. It was, as the historian Alexandra Garbarini notes, the era of the documentary collection, one in which “victim testimony and historical scholarship now became a way to bring the perpetrators of mass atrocity to justice.”12
Simon Dubnow’s grandest act—and ultimate sacrifice—as witness came a little less than twenty years after that, as he faced death in 1941. Eight years earlier, he had left Berlin, where he had been for over a decade, for Riga, Latvia, intent on realizing his ideal of Jewish national autonomy in his native eastern Europe. His curious decision to head to Riga, rather than Palestine or America, proved deadly. In July 1941, the German army occupied Latvia and began to round up the local Jewish population. In October, Nazi forces placed Dubnow and his fellow Jews in a ghetto in Riga. They began liquidations the next month. Dubnow, who was already in an infirm state at eighty-one years of age, was killed on 8 December in the massacre of Jews that took place in the Rumbula forest.
Multiple accounts of his death exist. According to one, he was shot in the back of the head by a drunken Latvian soldier. In another he was killed by a German soldier who had been a student of his when he taught in Heidelberg. A variant of that account reports that this former student, Johann Siebert, would boast to Dubnow about the number of Jews that had been liquidated each day, to which Dubnow, who was working without cease, would retort, “I will record it all.”13 Even more poignant and better known are the final words Dubnow was said to have uttered as he walked to his death: “Yidn, shraybt un farshraybt”—“Jews, write and record.”14
This charge has become a legend—and a particularly fitting one given Dubnow’s vocation. Indeed, it stands as a powerful credo for the modern Jewish historian, who has answered the call to record the past as a shield against indifference and a monument to memory. It was the same impulse that informed the Oyneg Shabbes project, perhaps the greatest example of textual witnessing in modern Jewish history. Not only did Emanuel Ringelblum encourage his colleagues to “write and record” all that transpired in the Warsaw Ghetto; he was inspired by the earlier Dubnow-Tcherikower collection project, which was seen not merely as an assembly of historical details but as a repository of memory and a plea for justice.15
Ringelblum, Dubnow, and Tcherikower were important contributors to this era of textual witnessing, though only the last figure, Tcherikower, had the opportunity to translate his historical and documentary expertise into courtroom testimony when he was called to testify at a trial in 1927. Even before that time, the modern scholar had assumed the role of witness in courtrooms, often under the shadow of antisemitism.16 One early case was that of the prominent late-nineteenth-century philosopher (though not historian) Hermann Cohen, who provided testimony at a trial in 1888 at which a local teacher was accused of slandering Judaism. Although the teacher was technically the defendant, it was really the Talmud, as the historian Ulrich Sieg notes, that was on trial. As a prosecution witness, Cohen was asked to offer an expert opinion on the extent to which the Talmud was binding for Jews and whether it permitted Jews to defraud non-Jews. He squared off against the defense team’s main witness, the Göttingen orientalist and antisemite Paul de Lagarde, who submitted written testimony.17 After weighing the two “expert” accounts and the defendant’s own testimony, the judges ruled against the defendant and Lagarde and in favor of Cohen’s position.
With the turn of the nineteenth to the twentieth century, the task of the scholar-witness shifted from the defense of Judaism to the prosecution of perpetrators.18 This, of course, marked a far more consequential shift from an age of intense anti-Jewish rhetoric to one of mass violence, commencing with Kishinev, progressing to the Ukrainian pogroms, and culminating in the Holocaust.
It is important to recall that historians assume a variety of tasks in the legal sphere. They are called upon to provide contextual backdrop to assist in preparing a case, help craft strategy, and write influential friend-of-the-court briefs. Magda Teter has chronicled a number of notable cases in American legal history such as John Hope Franklin’s influential collaboration with Thurgood Marshall in the run-up to the Brown v. Board of Education desegregation case of 1954. She also notes the prominent role of historians such as Nancy Cott, Michael Grossberg, and George Chauncey in writing persuasive amicus briefs in cases involving marriage equality and equal rights for members of the lesbian-gay-bisexual-transgender community.19
In these various ways, history, through the medium of the historian, asserts itself in the domain of law. And yet the most visible and demonstrative encounter between history and law may well occur when the historian takes the stand as expert witness. One of the most significant affirmations of this point came in the EEOC v. Sears trial of the 1970s and 1980s. The case pitted two distinguished scholars of women’s history, Rosalind Rosenberg and Alice Kessler-Harris, on either side of the claim that the Sears department store chain discriminated against women in employment and pay. Apart from the legal merits of the case, the two disagreed over the function of history. In recalling her decision to testify, Rosenberg, who was sharply criticized by many feminist and women’s historians, insisted that “scholars must not subordinate their scholarship to their politics even if their scholarship appears to be heading in a politically dangerous direction.” Kessler-Harris, by contrast, adopted a perspective that acknowledged the difficulty of complete value-neutrality in a case such as this: “You would not lie in your testimony, but you also would not say or write something as a historian solely to hurt a group of people.”20
In the precincts of Jewish history, historians have been called on to serve as witnesses in cases involving claims of mass violence. The twentieth-century tradition begins with Elias Tcherikower, who testified at the trial of Sholem Schwarzbard in 1927. Schwarzbard was the Bessarabian-born Jewish anarchist who was so distraught by the deaths of tens of thousands of Jews in Ukraine, including fifteen members of his own family, that he assassinated in May 1926 Symon Petliura, the Ukrainian nationalist leader whom he held responsible for the deaths. Following the murder, a number of Jewish historians, including Dubnow and Tcherikower, contributed to Schwarzbard’s defense by collecting and sharing evidence intended to prove Petliura’s central role in the pogroms.21 Tcherkikower was, in all probability, the leading expert in the world on the 1919 pogrom, and thus was an obvious choice for Schwarzbard’s lawyer, the French Jew Henry Torrès, to choose as chief historical witness. The defense strategy was to refocus the trial from the assassination in Paris to the murderous destruction in Ukraine. Tcherikower drew on his wide-ranging knowledge and massive trove of documents in his testimony to conclude that “responsibility for the pogroms which were accomplished in the Ukraine falls upon Petlura.”22 With his testimony as a key factor in Torrès’s strategy, the jury took all of fifteen minutes of deliberation to acquit Schwarzbard.
Tcherikower thus stands as a prototype of the twentieth-century historical witness.23 Given his prominent role in a trial dealing with anti-Jewish atrocities, one might have expected to see Jewish historians widely represented in what has been called “the greatest history seminar ever held in the history of the world”—namely, the Nuremberg trials of 1945–1946, at which the Allies sought to bring Nazi war criminals to justice.24 Jewish organizations, led by the Institute of Jewish Affairs of the World Jewish Congress, whose head was the legal scholar and historian Jacob Robinson, agitated for strong Jewish representation to give an overarching view of the scale of destruction at Nuremberg.25 Robinson made this point clear in a meeting on 12 June 1945 with U.S. Supreme Court Justice Robert H. Jackson, who served as chief American prosecutor at Nuremburg. Jackson thought that the most effective person to present “the total picture of the Holocaust” was not a historian, but the renowned Zionist leader Chaim Weizmann.26 Jackson’s plan was never realized owing to the fears of the British team about granting too large a stage to a Zionist leader in 1945, given the ongoing turmoil in Palestine. But beyond the prospect of Weizmann as a witness, the Nuremberg prosecutors doubted the wisdom of centering their case around the testimony of Jews. As Donald Bloxham has pointed out, they “suspected [Jewish testimony] as being somehow biased, and more so than that of other groups.”27 This was the source of great disappointment to Jacob Robinson and the Institute for Jewish Affairs. Nonetheless, Robinson and his fellow researchers offered indispensable assistance to Justice Jackson and his team, compiling a thicket of memoranda, reports, profiles of Nazi defendants, and statistical figures. Robinson described the work of his Institute team as “extraordinary,” which only pointed up the irony he noted regarding the Allied prosecution team: “We, those who are competent, are on the outside, and those who are on the inside are incompetent.”28
If Jewish historians did not play a prominent role as witnesses at Nuremberg, they did have a key background part in convicting Nazi war criminals, as well as in the longer-term goal of crafting a compelling didactic history of the Holocaust. Serving along with Robinson was Philip Friedman, an eminent yet oft-forgotten Polish-Jewish historian and survivor who contributed to the preparation of the Nuremberg cases. Friedman was one of a small cohort of survivor-historians writing in Yiddish during and immediately after the war—others included Rachel (Rokhl) Auerbach, Mark Dworzecki, Yosef Kermish, and Isaiah Trunk—who undertook remarkable and prescient research into the Holocaust.29 We have also gained a fuller picture in recent years of the workings of two sets of Jewish institutions that made extensive use of history in the immediate postwar period of extraterritorial transitional justice for Jews: historical commissions staffed by survivors in displaced persons camps and European countries, and Jewish honor courts set up to determine the degree to which Jews collaborated with the Nazis.30
History in the hands of these individuals and groups not only served as witness to the ruins of European Jewish life, it also reflected their deep passion to pursue justice and demand accountability. It was later, following the Nuremberg proceedings (which lasted until 1949), that historians appeared as witnesses in courtrooms, offering both broad context and specific detail with the dispassionate mien of the expert. Not only were they motivated to testify by the unprecedented nature of the Nazi genocidal campaign, which Jean-François Lyotard likened to an earthquake that “destroys not only lives, buildings, and objects but also the instruments used to measure earthquakes.”31 They also had at their disposal a vast and detailed repository of incriminating historical documents produced by the Nazis themselves. Accordingly, German historians began to testify as expert witnesses in court cases against Nazi war criminals in the late 1950s and early 1960s. In Ulm, Germany, for example, the historian Helmut Krausnick testified in 1958 against ten members of an Einsatzgruppen unit accused of killing thousands of Jews in Lithuania. Krausnick was also one of four historians—the others were Martin Broszat, Hans Buchheim, and Hans-Adolf Jacobsen—who played a key role in the prosecution in Frankfurt in 1963 of twenty-two S.S. Auschwitz functionaries.32
It was in this same period that a scholar of Jewish history made a widely publicized appearance at the trial of an accused war criminal. Salo W. Baron was called to the stand as the expert historical witness in the trial of S.S. officer Adolf Eichmann in Jerusalem in 1961. Baron’s selection for this task, for all of his prominence, was far from a foregone conclusion. In the highly unusual deliberations that preceded the trial, in which the leading political officials of the State of Israeli were involved, Prime Minister David Ben-Gurion challenged the wisdom of bringing Baron in from New York. He doubted Baron’s Zionist bona fides and expressed a strong preference for having Zalman Shazar (later president of Israel) assume the role. Part of Ben-Gurion’s reluctance may have stemmed from Baron’s well-known resistance to the “lachrymose” view of Jewish history as a long series of persecutions. In fact, the situation was more complicated, since Baron did not hold to a uniformly rosy view of the modern age in Jewish history.33 But neither did he possess the requisite pessimism about the prospects for diaspora life that was a foundation of the Zionist worldview of Ben-Gurion and the Israeli attorney general and chief Eichmann prosecutor, Gideon Hausner.34
Nonetheless, it was Baron whom Israeli Justice Minister Pinchas Rosen instructed the consul-general in New York, Benjamin Eliav, to invite to testify in late December 1960. Rosen’s memo to Eliav contained a detailed charge that reflected Hausner’s desires. The Columbia historian was to offer in his testimony “a general description of the status of European Jewry on the eve of the Catastrophe, its importance, and national as well as cultural quality, a general description of the human and national potential contained in it, as well as a description of the remnants of the culture which remained after the Catastrophe when the holocaust ended.” The chief point, Rosen added with passing reference to a classic Zionist tenet, was to affirm that “there had existed a dispersion [i.e., the Diaspora] in possession of great values—which now no longer exists.”35
With wide-ranging and often conflicting expectations—not to mention, pressure—placed on him, Baron took the stand on 24 April 1961. In his accented Galician Hebrew, for which he apologized at the outset, Baron delivered a long survey that touched on the demographic, economic, geographic, educational, cultural, and intellectual status of Jews before the war. A key part of his task was what is now deemed a rather intuitive and commonplace assumption among scholars: that in order to grasp the enormity of the destruction of the Shoah, it is necessary to take stock of the full range of Jewish cultural vitality prior to the war.36 This is precisely what Ben-Gurion wanted of Baron, as he stated in a meeting two weeks before his testimony: “It is important to make clear to our youth (and also to the world) the magnitude of the qualitative loss, resulting from the extermination of Six Million [Jews], and therefore [we must describe] the spiritual character of the Jewry that was exterminated.” And it was on this point that Gideon Hausner and presiding judge Moshe Landau sought to draw out Baron. At times the exchange between witness and judge became exceedingly mundane, as, for example, when Baron was describing the vast array of Jewish newspapers published in Europe in the 1930s. He counted 96 in France, 21 in Holland, 16 in Austria, 21 in Hungary, 54 in Romania, 15 in Lithuania, and 113 in Germany. After listing these figures, Baron was asked by a perhaps inattentive Judge Landau: “Are you referring to periodicals?” Baron responded affirmatively, before going on to mention 35 daily Jewish papers in Poland, along with 132 weeklies.37
As Hanna Yablonka has noted, the fear that Baron’s lengthy recitation would be boring and ineffective concerned some of those intimately involved in the preparation for the trial, including Jacob Robinson, who had moved to Israel after his work on the Nuremberg trials and was now Hausner’s chief historical adviser. In fact, Baron’s overall mission, as crafted by Ben-Gurion, Hausner, and Robinson, was virtually impossible to fulfill. He was called upon to be comprehensive and thorough but at the same time sharp and engaging. He was asked to describe the grand achievements of diaspora life, while adding credence to a linear narrative that culminated in its destruction. And he was supposed to be both exacting in detail and yet lapidary in assessing the full course of Jewish history.
At various points in his testimony, even the sober-minded Baron lapsed into a kind of mystical reverie (an occupational hazard, it seems, of Jewish macrohistorians who must explain the Jews’ survival, as Dubnow sought to do earlier). When recalling some of the towering figures of modern Jewish and Zionist history—Albert Einstein, Chaim Nachman Bialik, Chaim Weizmann, and David Ben-Gurion—he invoked the traditional belief in the Lamed-Vov Tsadikim, the thirty-six righteous Jews on whose existence the world rested. “I found in my lifetime,” he continued, “more than 36 righteous men, exceptional Jews, in fact, abounding in their holy purity, both in the religious sense and the secular sense, who were prepared to sacrifice themselves for the common benefit.” This statement prompted Judge Landau to ask if these figures were hidden, to which Baron responded: “They are hidden. They are unknown.”38
More commonly, Baron made recourse not to mystical or celestial but rather to terrestrial explanations, even when analyzing what he saw as unique aspects of Jewish history. For example, in reflecting on the disproportionate impact of Jews on world culture, he noted their need and ability “to find new openings for themselves,” to create new paths when old ones were no longer available to them. Baron explained this adaptive mechanism through use of a curious, though not altogether surprising (given the preparation he had received), term: halutziut, the Hebrew word for “pioneering” associated with the early socialist Zionist settlers. “This pioneering spirit, this Halutziut,” Baron observed, “was a constant feature in the history of the Jews, both in economics and in social affairs, and also, especially in culture, from the days of the Babylonian exile to the present day.”39
The struggle to resist metaphysical leaps in spanning the entirety of Jewish history was not only an inner battle. At the conclusion of his testimony, Baron also had to parry the thrusts of Eichmann’s German defense lawyer, Robert Servatius, who tried to insist that the long history of antisemitism was an unbroken chain motivated by irrational forces beyond the free will of individuals. Baron rooted his response to Servatius in mundane terms. He not only insisted on the agency of individuals such as Eichmann in history; he challenged the insinuation that an enduring religious stigma against the Jews existed. Treatment of Jews under the Nazis was very different from treatment of the Jews prior to the modern age. Consistent with the view announced in “Ghetto and Emancipation,” Baron held that “there was practically no violence with bloodshed” against Jews in the ancient and medieval periods.40 By contrast, he had earlier declared that “the Nazi movement not only did not turn the clock back . . . it brought to the world new elements which had no precedent but which were distinct from the whole history of anti-Semitism of two thousand years and more.”41
This was not the answer that Servatius was seeking. Nor did Baron deliver the exact answers for which Ben-Gurion and Robinson were looking. Both sharply criticized Baron’s performance as ineffective and error-riddled. Ben-Gurion, for his part, confided to a small group in November 1961, “He embarrassed us. He spoke with me, and I knew at once that we had failed miserably.”42 No doubt, Baron’s anti-lachrymose view of the distant past did not comport with Ben-Gurion’s classic Zionist vision of “negating the Diaspora.” Nor, for that matter, did Baron’s style win universal praise among observers. Various international journalists, as Yablonka notes, questioned the efficacy of his presentation. But by no means was there universal condemnation. A number of Israeli newspapers gave an uncritical description of Baron, as did the New York Times under the heading “Eichmann Court Hears Historian,” adjacent to which was a lengthy profile, “Top Jewish Historian: Salo Wittmayer Baron.”43
Navigating between the highly scripted demands of his Israeli handlers and his own professional judgment was a difficult, if not impossible, task. Equally challenging was the need to strike a balance between sweeping and granular approaches, between the longue durée of Jewish history and antisemitism and the particularities of interwar Jewish life and Nazi efforts to extinguish it. In light of these challenges, Baron did more than a credible job in his several hours of testimony, though it may not have risen, at least in rhetorical terms, to the “masterly summation” that his biographer claimed.44
Regardless of how we assess his performance, two distinct, though interrelated, points emerge from the Eichmann trial: first, Baron pushed—or was prompted to push—the function of the Jewish historian well beyond the limited ambit of the academy and into the public sphere. In fact, the primary audience to whom he was speaking was not the panel of judges before him but the wider public, as his handlers knew well in aspiring for a lively and compelling presentation. Baron was also testifying for posterity, to establish a definitive account of the past that would serve as an anchor for the memory of future generations. These functions led to a second point, articulated by Hannah Arendt; namely, that “it was history that, as far as the prosecution was concerned, stood in the center of the trial.”45 Arendt insisted in Eichmann in Jerusalem that this was not an effective or sincere use of history; rather, it was an abuse of history for the purposes of a staged show trial.46 And although she may have misjudged the banality of Eichmann’s evil, as Bettina Stangneth has recently argued, she is on target in describing the staged quality of the trial.47
But did its theatricality undermine the value of the trial altogether? In his study of political trials in The Memory of Judgment, Lawrence Douglas addresses the category of “didactic history.” For Douglas, when political trials have failed, “it was not the pursuit of didactic history that ultimately eroded the legal integrity of the proceeding conventionally conceived; rather it was the strenuous efforts to secure formal legal integrity that often led to a failure fully to do justice to traumatic history.”48 There can be no doubt that Ben-Gurion, Hausner, and Robinson had in mind to construct not merely a solid factual trial, but to set in place what Douglas called a “heroic memory” of the Holocaust in which an ineradicable boundary would mark off virtue and criminality.49 With less overt and developed ideological intentions, Baron joined in that task and contributed his share through the professional medium of history. Sadly, mass murder did not cease after the Holocaust. It has recurred on varying scales in Cambodia, Rwanda, Darfur, the Congo, and Bosnia among others (and, of course, it surfaced earlier in the Armenian genocide of 1915). And yet, it is in confronting the criminal legacy of the Holocaust that historians—and history—have most directly assumed center stage in seeking justice and planting seeds of memory.
Although notably preceded by Elias Tcherikower, Baron was the most famous example of a twentieth-century Jewish historian to take the stand at a legal trial. He lent new visibility to this public function of the historian. But he was hardly the last. From the late 1980s on, historians were called upon to testify in an expanding range of trials involving suspected Nazi war criminals and Holocaust deniers in Europe, Israel, and North America. Set against the rise of ominous new voices of denial and the fear of the passing of the survivor generation, these trials sought to establish an indelible memory of the Holocaust.
This is the context in which another distinguished Jewish historian took the stand in Lyon, France, in 1987, when Léon Poliakov, the prolific Russian-born French historian of antisemitism (who also served as an aide to the French team at Nuremberg), was called to testify at the trial of S.S. officer Klaus Barbie. Poliakov recalls that he had a grander mission than simply establishing Barbie’s guilt. He also wanted to offer a definitive refutation of Holocaust denial and make a larger historical point: namely, that Hitler had in mind to undertake mass euthanasia beyond the Jewish population. Poliakov hoped that his testimony would reverberate beyond the witness stand into the popular media so as to leave a lasting imprint on future generations.50
It is important to note that not every historian feels comfortable with this kind of role. For example, Henri Rousso, the scholar of Vichy France, refused to participate in the trial of the accused war criminal Maurice Papon in 1997–1998. He declared unequivocally: “I believe that historians cannot be ‘witnesses’ and that a role as ‘expert witness’ rather poorly suits the rules and objectives of a court trial. It is one thing to try to understand history in the context of a research project or course lesson, with the intellectual freedom that such activities presuppose; it is quite another to try to do so under oath when an individual’s fate hangs in the balance.”51 Rousso continued, “I very much fear that my ‘testimony’ is only a pretext for an instrumentalization of scientific research and historical interpretations.” And to what end might “instrumentalization” lead? It could lead to what Hannah Arendt feared the Eichmann trial was conceived as, a concern echoed more recently by the historian Ian Buruma, who wrote: “When the court of law is used for history lessons, then the risk of show trials cannot be far off.”52
Other historians felt differently about the function of historical witnessing and agreed to testify at the Papon trial in October 1997 in Bordeaux—in fact, on behalf of both the prosecution and the defense. The most notable of the scholar-witnesses was the Columbia historian Robert O. Paxton, whose Vichy France: Old Guard and New Order (1972) demolished previous views of the subservience of the Vichy regime toward France’s Nazi occupiers. Paxton recognized that the Papon trial was intended to advance a pedagogical mission by demonstrating “how the Vichy regime fits into French history.” While this mission was not fully realized, he maintained nonetheless that “all the pious clichés about wartime France were shredded in the gritty specificities revealed in the Bordeaux courtroom.” Paxton also reflected on a distinctive feature of historical witnessing in an interview six months after testifying: “Historians don’t decide the guilt or innocence of an individual with respect to the penal code. Historians are trying to understand the past, to make the past intelligible. But you certainly do judge—this person did well, that person didn’t do well.”53
It is this slippage of function from witness to judge that discourages some historians, such as Rousso, from testifying in trials and, more broadly, from participating in what the British historian Richard Evans has called the “judicialization of history.” In contrast to Rousso, Evans did participate in a trial, serving as an expert for the defense of the American historian Deborah Lipstadt, who was accused of libel by British scholar David Irving whom she described as a Holocaust denier in Denying the Holocaust: The Growing Assault on Truth and Memory (1994). Evans recalls the instructions he received from Lipstadt’s legal counsel, the British solicitor Anthony Julius, when approached about assisting in her defense in 1998. “Expert witnesses,” he recalled, “were not there to plead a case. They were there to help the court in technical and specialized matters.” Above all, the evidence they presented “had to be as truthful and objective as possible.”54 The insistence on precise details and exacting analysis of sources informed the “dream team” of experts that Julius brought together for the London trial, each of whom was a renowned scholar of the Second World War and the Holocaust: Evans, Christopher Browning, Peter Longerich, and Robert Jan van Pelt.55 At the same time, these four were in the employ of the defense, and their goal was to uphold Deborah Lipstadt’s claims that David Irving had repeatedly falsified the historical record in his dozens of books on the history of Germany during the war.
This case raised considerable apprehension among Holocaust survivors, academic researchers, and the general public that the Holocaust—and, as in the title of Deborah Lipstadt’s subsequent book about the case, history itself—were on trial. Once again, a fear sunk in that the imminent passing of the last generation of eyewitnesses would open up the gates of Holocaust denial or falsification. This prospect exposed both the fragility and the strength of history. Could such an established fact as the Holocaust, which had generated a massive and seemingly irrefutable body of evidence, become an open question a mere fifty years after the events in question? Does the variable nature of historical interpretation destabilize the evidentiary foundation on which our notion of truth is placed? This was not the belief of the Lipstadt defense team, upon which the burden of proof rested per English libel laws. The defense attempted to demonstrate to the court that David Irving’s work was rife with falsifications, inaccuracies, and errors, willfully driven by an antisemitic and racist ideology.
That claim was affirmed in decisive fashion by Judge Charles Gray on 11 April 2000. Gray recognized that “historians are human” and invariably “make mistakes, misread and misconstrue documents and overlook material evidence.”56 But he asserted without equivocation that “Irving’s treatment of the historical evidence is so perverse and egregious that it is difficult to accept that it is inadvertence on his part. . . . He has deliberately skewed the evidence to bring it in line with his political beliefs.”57
Despite Irving’s efforts to salvage some vestige of honor after the trial, Gray’s verdict in support of Lipstadt left little room for maneuver. Press and broader public reactions were overwhelmingly supportive of the decision. Both Lipstadt and Evans, for their part, wrote books about the trial, the final outcome of which they regarded as a powerful victory for history. For Evans, it was the integrity of the historian’s vocation that was safeguarded. Several years earlier, he had published In Defence of History (1997) in order to contend with the challenge of postmodern theory to his field, dismissing some of its devotees as “intellectual barbarians at the disciplinary gate” while insisting that not all its claims should be met with mere ridicule. A similar approach informed his work on the Irving trial and the book he wrote about it, Lying About Hitler. He began by acknowledging perennial questions about the objectivity of history—about whether we can ever know the past in light of our personal and political proclivities. He admitted that all historians bring to their work some measure of personal investment. Evans even suggested that “in many ways Lipstadt seems as politically committed to her cause as Irving was to his.” And yet, “The real test of a serious historian was the extent to which he or she was willing or able to subordinate political belief to the demands of historical research.” In his judgment, Lipstadt met the standard, whereas Irving failed it dreadfully. The overall result of the case, he determined, was “a victory for history, for historical truth and historical scholarship.”58
Lipstadt’s own account made clear that she was fighting not only or primarily for the historian’s craft but also on behalf of the victims and survivors of the Holocaust and against “the attempt to ravage their history and memory.”59 Although Evans asserted that Lipstadt “did not think that memory had won” in the trial, it is unclear if that position holds. Keenly attuned to the passage of time—and of the survivor cohort from the world—Lipstadt felt a sense of urgency in reinforcing “the history and memory” of the Holocaust. Accordingly, she sought both to prevent the history of the Holocaust from slipping into a state of interpretive indeterminacy and to assure that future generations built a firm edifice to remember the attempted genocide of European Jews.60
These differences in emphasis were slight compared to the shared goal Evans and Lipstadt had in beating back Irving’s challenge—and to the sense of relief and elation they felt at trial’s end. And yet, the differences between them help us identify a spectrum of positions regarding the role of the historian as witness. On one end is the view of Henri Rousso, who believes that the task of the historian is fundamentally unsuited to the legal process. “Be it as judge, prosecutor or advocate,” Rousso wrote in The Haunting Past, “historians are no longer in their proper element once they don courtroom robes.” Particularly unnerving to Rousso was the tendency of the historian to serve as an “agitator of collective memory.” He drew a bright-line distinction between history and memory, the former depending first and foremost on factual accuracy and the latter on a more subjective “moralism.”61
At the other end of the spectrum is the view of Lawrence Douglas, for whom history and memory are not antipodes but rather fluid and entwined domains. His analysis of Holocaust-related trials in The Memory of Judgment leads him to identify their multiple functions: “to clarify the historical record, define the terms of responsible memory, and make visible the efficacy of the rule of law.” On this view, history, unmoored from its task as fact-finder alone, has the potential to foster both a “heroic memory” and the cause of justice.62
Richard Evans and Deborah Lipstadt stand between these two poles, but in somewhat different positions. Evans accepts the call to serve as an expert witness, but eschews the judge’s task of rendering definitive judgment. Rather, history, to his mind, functions as an evidentiary aid to those called upon to deliver a verdict. In conceiving of his own sense of mission, he is adamant in insisting that the boundary between factual history and subjective memory must be maintained. Meanwhile, Lipstadt, who was not called to the stand herself but benefited greatly from historical witnesses, shares Evans’s view that their chosen profession has the singular capacity to refute those who “distort, falsify, and pervert the historical record.” The chief threat, she argued earlier in Denying the Holocaust, may not come from outright denial of the Holocaust, which defies all credulity, but rather from a relativistic stance that credits all interpretations of the past as equally valid. In the hands of deceitful Holocaust revisionists, she wrote, such a stance points up “the fragility of memory, truth, reason, and history.” The task of the historian, then, must be not only to shore up history, as Evans imagines it, but also to lay a solid building block of memory for the future. The deep sense of obligation that Lipstadt feels to this task is epitomized by the concluding line of Denying the Holocaust: “The still, small voices of millions cry out to us from the ground demanding that we do no less.”63