1. Stern also described detailed radio broadcasts regarding crimes. C FitzGibbon Denazification (London: Joseph, 1969) pp 96–97. Jaspers draws significance from the anonymity of the accuser: K Jaspers The Question of Getman Guilt (trans E B Ashton) (New York: Fordham University Press, 2000) p 41.

2. See B B Ghali ‘Agendafor Peace’ which refers to peace-building and post-conflict societal reconstruction: An Agenda for Peace: Preventive Diplomacy, Peacemaking and Peace-keeping A/47/277, S/24 111 (1992).

3. J Elster Closing the Books: Transitional Justice in Historical Perspective (Cambridge: Cambridge University Press, 2002) pp 1–2. He draws particularly upon the twentieth-century German transitions, including those after the Second World War and in 1990 noting that individuals who were keen to hold outgoing regimes to account were adamant in their determination not to repeat mistakes of the earlier transitions.

4. N J Kritz ‘The Dilemmas of Transitional Justice', available at http://www.usip.org/ruleoflaw/pubs/tjintro.htmlintro. See also N J Kritz Transitional Justice: How Emerging Democracies Reckon with Former Regimes, 3 vols (Washington DC: US Institute of Peace, 1995).

5. R G Teitel ‘Transitional Justice Genealogy’ (2003) 16 Harv Hum Rts J 69 at 73–75.

6. M Minow Between Vengeance and Forgiveness: Facing Histon after Genocide and Muss Violence (Boston: Beacon Press, 1998) p 7.

7. D J Goldhagen Hitler's Willing Executioners: Ordinary Germans and the Holocaust (London: Abacus, 1996) p 395.

8. Habermas and Broszat were among the left-liberal historians resistant to such a trend. See Historikerstreit: die Dokumentation der Kontroverse um die Einzigartigkeit der nationalsozialistischen Judenvernichtung (Text von Rudolf Augstein et al) (München: R Piper, 1987). See also C Maier The Unmasterable Past: History, Holocaust and German National Identity (Cambridge, MA and London: Harvard University Press, 1988); J Evans In Hitler's Shadow: West German Historians and the Attempt to Escape from the Nazi Past(New York: Pantheon, 1989) and comment in (1988) 6(1) German History 63–70.

9. '… discussed in front of mass audiences on television, debated in public symposia, and fought over in cyberspace': G D Rosenfeld ‘The Controversy That Isn't: The Debate over Daniel J. Goldhagen's Hitler's Willing Executioners in Comparative Perspective’ (1999) 8 Contemporary European History 2 at 249.

10. Norman Finkelstein excoriatingly reviewed Goldhagen's thesis and offered some conclusions on its popularity, citing the divergence between Holocaust scholarship and Holocaust literature and the latter's flourishing post the 1967 Arab-Israeli war. N Finkelstein and B Bim A Nation on Trial: the Goldhagen Thesis and Historical Truth on Trial (New York: Henry Holt, 1998) pp 87–100.

11. Finkelstein also noted that the Final Solution was shrouded in secrecy and all public discussion of Jewry's fate was banned: above n 10, pp 53 and 65–66. Laurence Rees details accounts which outline how ordinary Germans ‘looked away’ and were aware that the Jews were going into a ‘terrible world’ and were not coming back: L Rees Auschwitz: The Nazis and the Final Solution (London: BBC Books, 2005) pp 76–78. On those Germans who resisted see M Gilbert The Righteous: The Unsung Heroes of the Holocaust (New York: Doubleday, 2002) which devotes a chapter to Germany and Austria. Obvious examples of non-Holocaust-specific resistance can be witnessed in the 20 July plot to kill Hitler and the Social Democrat Party's refusal to vote to pass the Authorisation Act in 1933 which effectively ceded power to Hitler. The SDP lost 24 lives as a result. Thomas Dehler, the first justice minister of the FRG was also a well-known resister.

12. For more detail on this see M Goodman ‘After The Wall: The Legal Ramifications Of The East German Border Guard Trials In Unified Germany’ (1996) 29 Corn IU 727; M J Gabriel ‘Coming To Terms With The East German Border Guards Cases’ (1999) 375 Col J Transnat L 38; and M Kamali ‘Accountability For Human Rights Violations: A Comparison Of Transitional Justice In East Germany and South Africa’ (2001) 40 Col J Transnat L 89.

13. See G Theissen Between Acknowledgement and Ignorance: How White South Africans have dealt with the apartheid past', available at http://www.csvr.org.za/papers/papgt0.htm. For examples of different approaches see E Daly ‘Between Punitive and Reconstructive Justice: The Gacaca Courts in Rwanda’ (2002) 34 NYUJIL & Pol 355; and P Ironside ‘Rwanda Gacaca: Seeking Alternative Means to Justice, Peace and Reconciliation’ (2002) 31 NY Int LR. More generally see M J Aukerman ‘Extraordinary Evil, Ordinary Crime: A Framework for Understanding Transitional Justice’ (2002) 15 Harv Hum Rts J 39.

14. The Nuremberg IMT only dealt with the prosecution of leading Nazi figures such as Goering, Hess and Ribbentrop. Twelve war crimes trials were held in Nuremberg by the American Military Tribunal up until 1949 and were held under the authority of Allied Control Council Law no 10 which provided that each occupying authority within its zone of occupation should have the right to arrest and try persons suspected of crimes. This article will not be focusing on these subsequent proceedings.

15. W J Bosch Judgment on Nureniberg (Chapel Hill: University of North Carolina Press, 1970) p 231.

16. General Dallaire, UNAMIR chief, also expressed unease at such institutional bystanding in Rwanda: P Gourevitch We Wish to Inform You that Tomorrow We Will be Killed with Our Families: Stories from Rwanda (London: Picador, 2000) p 160.

17. W Friedmann The Allied Military Government of Germany (London: Stevens & Sons, 1947) p 225.

18. One German historian explained Goldhagen's book's German success due to its putting the problem in simple moralistic terms': E Jäckel ‘Nazism, Vichy and the Papon Trial as Seen by a German Historian’Le Monde. 7 November 1997, reproduced in R J Golsan (ed) Memory and Justice on Trial: the Papon Affair (London: Routledge, 2000) pp 195, 197. See also Birn, above n 10, p 148.

19. Department of state Bulletin, 25 October 1941.

20. Deputy Reich Protector of Bohemia and Moravia in former Czechoslovakia, who established a Jewish ghetto at Theresienstadt. Close to Himmler and involved in the implementation of the Final Solution, he was assassinated by British-trained Free Czech agents. All 172 men and boys over age 16 in the village were shot on 10 June 1942, while the women were deported to Ravensbrück concentration camp where most died. Ninety young children were sent to the concentration camp at Gneisenau.

21. See also Paul Touvier's French conviction for the Rillieux-le-Pape massacre for which he was tried in 1994, reported at (1995) 100 ILR 338.

22. Jaspers, above n 1, p 35.

23. However, in their analysis of population surveys in the US zone, Merritt and Merritt concluded that post-war, only roughly 15–18% of the adult population in the American zone of Germany were unreconstructed Nazis and the bulk of Germans emphatically rejected the specifically Nazi aspects and leaders of their history, A J Merritt and R L Merritt Public Opinion in Occupied Gemany: The OMGUS surveys. 1945–1949 (Urbana, Chicago and London: University of Illinois Press, 1969) p 38.

24. It is difficult to ascribe moral culpability to a homogeneously sick society with no moral awareness. ‘Who can condemn a crazy people?': Finkelstein, above n 10, p 13.

25. Although some Germans continued to express National Socialist ideas after the war (eg 10% condemned mixed Aryan/non-Aryan marriages, 33% rejected equal rights between Aryans and Jews and similar racism was displayed towards ‘negroes') analysts of population surveys concluded that Hitler had not created, but merely tapped into, and reinforced through propaganda, underlying anti-Semitic and racist views in Germany. They do, however, note that such sentiments may well have been prevalent in other industrialised Allied countries. Merritt and Merritt, above n 23, pp 3 1–32.

26. See publications such as Der Stürmer and the execution of the Nazi chief propagandist Julius Streicher after the IMT.

27. Eg the infamous Statut des juifs of 3 October 1940, which defined who was Jewish for the French state and excluded Jews from all but the most menial public service positions. For further detail see R Weisberg Vichy Law and the Holocaust in France (New York: New York University Press, 1998).

28. W Manoschek ‘The Murder of Jews as a Societal Project’ in R R Shandley (ed) (trans J Riemer) Unwilling Germuns?: The Goldhagen Debate (Minneapolis and London: University of Minnesota Press, 1998) pp 83, 86 which analyses Viennese involvement in atrocities and reflectson the fertile anti-Semitism of 1930s Austria.

29. See Y Bauer Jews For Sale?: Nazi-Jewish negotiations, 1933–1945 (New Haven and London: Yale University Press, 1994). Hannah Arendt similarly commented that all Jews alive post-war were rendered as innocence personified: L Kohler and H Saner (eds) (trans R and R Kramer) Hannah Arendt Karl Jaspers Correspondence 1926–1969 (New York, San Diego, London: Harcourt Brace Jovanovich, 1992) p 54.

30. Rudolf Kastner was head of the Hungarian Jewish community during the Holocaust and negotiated with Nazis, in particular Eichmann, for Jewish lives. Later denounced as a collaborator, he sued a journalist in Israel for libel and lost. He was murdered prior to the Supreme Court rendering its appeal judgment. Bilsky noted that for the first time a ‘Jewish’ court had painfully to focus on the (perhaps questionable) behaviour of certain Jewish leaders and the ‘evil inside’. However, it is her view that legal language was used to produce a judgment that suited political forces dependent on the modern Zionist myth of Jewish resistance to the Holocaust: L Bilsky ‘Judging Evil in the Trial of Kastner’ (2001) 19(1) Law and History Review, available at http://www.historycooperative.org/journals/lhr/19.1/bilsky.html.

31. Ghali, above n 2.

32. Goldhagen, above n 7, p 178. See Bim's critical comments on Goldhagen's readiness to synonymise: above n 10, pp 140–141.

33. Goldhagen, above n 7, p 304.

34. Birn criticised Goldhagen's use of the term ‘ordinary Germans’ as applicable to the SS who were at the forefront of the ideological movement: above n 10, p 140. See also E Jäckel referring to an inaccuracy in Goldhagen's thesis ‘Simply a Bad Book’ in Shandley (ed), above n 28, pp 87, 88.

35. J Joffe ‘Killers Were Ordinary Germans Ergo Ordinary Germans Were Killers: The Logic, The Language and the Meaning of a Book that Conquered Germany’ in Shandley (ed), above n 28, p 217.

36. Such as discussed in C R Browning Ordinary Men: Reserve Police Battalion 101 and the Final Solution in Poland (New York: Penguin, 1992); ‘Ordinary People’ in T Todorov Facing the Extreme; Moral Life in Concentration Camps (London: Phoenix. 2000); or the ‘doubling’ lives of Nazi doctors, referred to in V J Barnett Bystanders: Conscience and Complicity During the Holocaust (Westport, Conn and London: Praeger. 1999) pp 27 and 144; and R J Lifton The Nazi Doctors: Medical Killing and the Psychology of Genocide (London: Macmillan, 1986). Two hypothetical trials of ordinary bystanders make interesting reading in R S Landau Studying the Holocaust: Issues, Readings and Documents (London and New York: Routledge, 1998) pp 21–29.

37. On the public-private gender split in Nazi society see generally, K Lacey ‘Driving the message home: Nazi propaganda in the private sphere’ in L Abrams and E Harvey (eds) Gender Relations in German History: Power, Agency and Experience from the Sixteenth to the Twentieth Century, (London: UCL Press, 1996).

38. It has been disputed that Nazism meant a radical cult of motherhood or that the famous ‘Kinder Küche Kirche’ command was part of Nazi propaganda and ideology: see G Bock ‘Ordinary Women in Nazi Germany: Perpetrators, Victims, Followers and Bystanders’ in D Ofer and L J Weitzman Women in the Holocaust (New Haven and London: Yale University Press, 1998) p 95.

39. G P Fletcher ‘The Storrs Lectures: Liberals and Romantics at War: The Problem of Collective Guilt’ (2002) 111 YLJ 1499 at 1532; and Jaspers, above n 1, pp 26–27.

40. Gourevitch, above n 16, p 353.

41. M Marrus The Holocaust in History (Hanover, NH: University Press of New England, 1987) p 157, as referred to in Barnett, above n 36, p 12.

42. Gourevitch, above n 16, p 183.

43. Barnett, above n 36, p 11.

44. Barnett, above n 36, p 9.

45. R Hilberg Perpetrators Victims Bystanders: The Jewish Cutastrophe 1933–1945 (London: Harper Perennial, 1992) p xi.

46. Barnett, above n 36, p 7, and referring to G Horwitz In the Shadow of Death: Living Outside the Gates of Mauthausen (New York: Free Press, 1992) p 35.

47. Barnett, above n 36, p 6.

48. Todorov, above n 36, p 231. ‘Bystanders’ also refers to the role of some states during Jewish persecution: see PA Levine and D Cesarani (eds) Bystanders to the Holocaust: A Re-Evaluation (Routledge: London, 2002);and Hilberg, above n 45, pp 195–211.

49. Hilberg, above n 45. p xi.

50. Barnett, above n 36, p 5.

51. Jaspers, above n 1, p 100.

52. Barnett, above n 36, p 9.

53. P Akhavan ‘Justice and Reconciliation in the Great Lakes Region of Africa: the Contribution of the International Criminal Tribunal for Rwanda’ (1997) 7 Duke Journal of Comparative and International Law 325 at 348.

54. The tension between amnesia and purge remains in modern societies tussling with transitions: R Goldstone ‘Past Human Rights Violations: Truth Commissions and Amnesties or Prosecutions (2000) 51(2) NILQ 164 at 172.

55. Minow, above n 6, p 75.

56. D Dyzenhaus Judging the Judges, Judging Ourselves: Truth, Reconciliation and the Apartheid Legal Order (Oxford: Hart, 1998) p 12.

57. Gourevitch, above n 16, p 196.

58. Dyzenhaus, above n 56, p 12.

59. Minow, above n 6, pp 19, 74–75 and 78.

60. Paraphrasing Dyzenhaus’ view of South African judges, above n 56, p 170.

61. Kamali, above n 12, pp 116–118.

62. Gourevitch, above n 16, p 186.

63. Referred to in Barnett, above n 36, p 2.

64. S Felman ‘Film as Witness: Claude Lanzmann's Shoah’ in G Hartman (ed) Holocaust Remembrance; the Shapes of Memory [Oxford: Blackwell, 1993) pp 90–103 at p 93.

65. After much delay, effort and dissent only a few prosecutions with light sentences were achieved. See Violation of the Laws and Custonn of War: Reports of Majori? and Dissenting Reports of American and Japanese Members of the Commission of Responsibilities, Conference of Paris 1919, Pamphlet Series of the Carnegie Endowment for International Peace Division of International Law, no 32.

66. The anxious Polish government in exile found its demands for accountability met with acool response from both the British and French, extending to adilution of the 1942 Declaration's draft text: A J Kochavi Prelude to Nuremberg: Allied War Crimes Policy and the Question of Punishment (Chapel Hill and London: University of North Carolina Press, 1998) pp 7–9.

67. Reproduced in Kochavi, above n 66, p 13.

68. Those responsible for atrocities would ‘have to stand in courts of law in the very countries which they are now oppressing and answer for their acts’. He reiterated these words in the broadcast of August 1942 subsequently referred to.

69. ‘… retribution for these crimes must henceforth take its place among the major purposes of the war’.

70. The British merely hosted the occasion and the US sent a guest representative who was to refrain from associating himself with the declaration. Kochavi contrasts Eden's cautious opening address against the firm stand expressed in the declaration: above n 66, pp 19–20. Although the USSR did not take part along with the US and Britain in the later development of the UNWCC, its enthusiasm for retribution for war criminals is illustrated in the wartime Kharkov and Krasnodar trials: Kochavi, above n 66. pp 64–73.

71. Similarly, Hannah Arendt described Eichmann as an outlaw: hostis humani generis– an enemy of the human race: above n 29, p 414.

72. Speech, October 1942.

73. Kochavi, above n 66, p 57.

74. Kochavi referred to a perception that such Roosevelt's declarations were principally aimed at placating the governments-in-exile and reflected no established policy: above n 66, pp 60–61. G Bass Stay the Hand of Vengeance: The Politics of War Crimes Tribunals (Princeton: Princeton University Press, 2000) p 150. See also the Quebec Declaration on German Crimes in Poland, August 1942, although its status is debatable.

75. Kochavi, above n 66, p 81.

76. Bass, above n 74, p 154.

77. Bass, above n 74, p 154.

78. Kochavi, above n 66, pp 84–85.

79. Detail taken from Kochavi, above n 66, p 85.

80. Bass, above n 74, pp 152–173.

81. 22 January 1945, the ‘Yalta memorandum’/‘Crimean proposal’ which formed the groundwork of the later drafts submitted by the US for an international agreement regarding the prosecution of war criminals.

82. US Attorney-General, later a judge at the IMT, perhaps raising concerns as to a conflation of the political and judicial processes.

83. Although at Yalta nothing other than an agreement for later consideration by the governments there represented was achieved.

84. (1945) AJIL 39 Supp 257.

85. This article will be focusing on arts 6 which detailed the crimes within the purview of the IMT, arts 7 and 8 which concerned individual liability, and arts 9 and 10, which concerned group criminality.

86. Speech on the Conciliation of America in J Dodley Works of the Right Honourable Edmund Burke (London: Pall Mal, 1792) vol 2, p 53.

87. All of this detail is taken from R Jackson The Nurnberg Case; as Presented by Robert Jucksori (New York: Knopf, 1947) pp 30–38. For another contemporary perspective of a prosecutor see T Taylor The Anatomy of the Nuremberg Trials: A Personal Memoir (Boston: Back Bay, 1992).

88. Jackson, above n 87, p 36.

89. Jackson's characterisation momentarily lapsed, however, when referring to evidence that ‘The Germans were always meticulous record keepers’ and a ‘Teutonic passion for thoroughness’ in preparing paper records: above n 87, p 35.

90. N Kritz ‘War Crimes Trials: Who Should Conduct Them - And How’ in B Cooper (ed) War Crimes: The Legacy of Nuremberg (New York: TV Books LLC. 1999) p 169. This of course depends on careful, selective prosecution. See also B Berkeley ‘Ethnicity and Conflict in Africa: The Methods Behind the Madness’, also in Cooper (ed), pp 183, 189–190.

91. A Sa'adah Germany's Second Chance: Trust, Justice, and Democratization (Cambridge, Mass: Harvard University Press, 1998) which considers reconciliation after 1945 and 1989.

92. Dyzenhaus, above n 56, Foreword, p vii.

93. M Marms The Nuremberg War Crimes Trial 1945–46: A Documentary History (Boston: Bedford, 1997) pp 91–94.

94. For comment on such characterisation see E Davidson The Trial of the Germans (Columbia: University of Missouri Press, 1997) ch 15. Indeed Frank Schirrmacher criticises Goldhagen's book as simply leading him back into ‘the Faustian depths of German consciousness’: ‘Hitler's Code: Holocaust from Faustian Aspirations’ in Shandley (ed), above n 28, pp 41,45.

95. Available at http://www.yale.edu/lawweb/avalon/imt/proc/07-26-46.htm.

96. F Schick ‘The Nuremberg Trial and international Law’ (1947) 41 AJIL 700 at 785.

97. Q Wright ‘War Criminals’ (1945) 39 AJIL 47.

98. There was concern as to what ‘conspiracy’ as detailed in IMTC, art 6 would entail. The IMT ultimately limited this crime of conspiracy to the waging of aggressive war being simply designed to include accomplices and principals engaged in such an enterprise and was not a free-standing charge. This pushed liability up the Nazi hierarchy.

99. Kochavi, above n 66, p 102.For UNWCC chairman Hurst's opinion re this approach see Kochavi, above n 66, pp 102–103.

100. Schick, above n 96, at 787.

101. The Nazi leadership, SS and Gestapo/SD.

102. War crimes. crimes against the peace, crimes against humanity.

103. Even in the SS, persons drafted who had committed no individual crimes were excluded: Wright, above n 97, at 70.

104. Which no longer require a connection with an armed conflict: as suggested in Prosecutor v Tadic (Appeals chamber judgment) (1996) 35 ILM 35: and see International Criminal Court Statute, art 7.

105. Yale University's Avalon project at http://www.yale.edu/lawweb/avalon/imt/proc/judorg.htm.

106. Stimsori Diaries, vol 48,24 October 1944, p 180, referred to in Bass, above n 74, p 171. Perhaps a surprisingly prescient analogy given the emerging notion of corporate responsibility. See also R Teitel ‘Nuremberg and its Legacy: Fifty Years Later’ in Cooper (ed), above n 90, pp 44, 47–43.

107. Bass, above n 74, p 173.

108. D Cohen ‘Beyond Nuremberg: Individual Responsibility for War Crimes’ in R Post and C Hesse (eds) Human Rights in Political Transitions: Gettxshurg to Bosnia (New York: Zone Books, 1999), referred to in M J Osiel ‘Ever Again: Legal Remembrance of Administrative Massacre’ (1995) 144 U Pa LR 463 at 509. Osiel also thinks that a simplified ‘intelligible, coherent and evocative story’ was produced.

109. H L Stimson ‘Nuremberg: Landmark in Law’ (1947) 25 Foreign Affairs 187–188.

110. Fletcher, above n 39, at 1541.

111. For contemporary provisions see ICC Statute, art 25(1).

112. H Kelsen Peace Through Law (Chapel Hill: University of North Carolina Press, 1944) pp 81–83.

113. See Wright, above n 97, at 271; and Ex parte Quirin 317 US 1 (1942).

114. This finds parallels in Fletcher's interpretation of Jaspers’ position that those who act under duress or personal necessity, though morally and legally excused remain morally guilty if they could have avoided the act: Fletcher, above n 39, at 1531.

115. ‘Principles of International Law Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal’Yearbook of the International Law Commission (1950) vol 11.

116. Eg November 2001, ICTY Trial Chamber Judgment Re Kvocka et al case (Prosecutor v Miroslav Kvocka, Milojica Kos, Mlaco Radic, Zoran Zigic, and Dragoljub Prcac Case no IT-98-30/1-T).

117. Fletcher, above n 39, at 1514.

118. M Cherif Bassiouni ‘The Nuremberg Legacy’ in Cooper (ed), above n 90, pp 291, 301.

119. Fletcher, above n 39, at 1554. Fletcher argues that this is a problem of characterising the very concept of guilt, not just collective guilt

120. Fletcher, above n 39, at 1534.

121. Indeed Fletcher's example is the September 11 attacks: above n 39, at 1534.

122. Dyzenhaus, above n 56, pp 7–8. Similar use of propaganda to create fear in the Hutu population was used in Rwanda: see Berkeley, above n 90, p 190; and the case of The Prosector v Jean Bosco Barayagwiza ICTR-97- 19.

123. Jaspers, above n 1, p 35.

124. Merritt and Merritt, above n 23, p 35. See also the French post-liberation Purge which simultaneously sought vengeance and was an exercise in the exculpation of those with shady wartime pasts.

125. Bassiouni, above n 118, p 296.

126. Bosch, above n 15, p 233.

127. Arguably it also displayed ‘their moralism through subjection of nations to scrutiny by ethical norms, their desire for peace through attempts to establish barriers to future aggression, and their idealism through submitting the fate of the Nazis to reason and law rather than the arbitrary dictates of power’: Bosch, above n 15, p 233.

128. ‘Nuremberg was the American thing to do’: Bass, above n 74, p 181.

129. Bosch, above n 15, p 233.

130. These included realists such as George Kennan and Hans Morgenthau: Bosch, above n 15. p 236.

131. Jackson's opening address focused on ‘crimes against the peace of the world’. Bassiouni counts among its legacies the drive towards arms control and a right to peace: above n 118, pp 301–302.

132. Sentenced to 20 years’ imprisonment and hanging respectively.

133. See Bass, above n 74, p 174.

134. See also R J Goldstone For Humanity: Reflections of a War Crimes Investigator (New Haven and London: Yale University Press, 2000) p 75.

135. Although the IMT expressed awareness of the fact that many (and indeed most of the German Jews) had been persecuted before 1939 it was unconvinced that international law was sufficiently developed to encompass such acts unless they were linked with war crimes or crimes against the peace.

136. Bosch, above n 15, p 237.

137. Teitel, above n 5, at 90.

138. Bass, above n 74, p 205. Although Orentlicher maintains that the vaulted position of crimes against humanity disinclines its invocation by states: D F Orentlicher ‘A Half Century of Silence: The Politics of Law’ in Cooper (ed), above n 90, pp 107, 110.

139. Kritz, above n 90, pp 168, 170.

140. Bosch, above n 15, p 237.

141. Arendt and Jaspers, above n 29, p 19.

142. The IMT judgment referred to Nazi control of the media from 1933 and how criticism invited severe penalties: Yale University's Avalon project at http://www.yale.edu/lawweb/avalon/imt/proc/judnazi.htm.

143. This sense of common fate inevitably increased as the war took hold ‘repeated victories convinced the Germans that they were foolish to fear war, that the Fuehrer knew best and the Deutschtum was Nazism’: FitzGibbon, above n 1, p 55.

144. FitzGibbon, above n 1, pp 44–45. Although, he does note that the army seemed to be exempt from this programme: p 53.

145. For a review of Nazism now created and fulfilled a social ideology see D Scboenbaum Hitler's Social Revolution: Class and Status in Nazi Germany 1933–1939 (New York: W W Norton, 1997). See also D Welch ‘Manufacturing a Consensus: Nazi Propaganda and the Building of a “National Community” (Volksgemeinschaft)’ (1993) 2 Contemporary European History 1.

146. Barnett, above n 36, p 43.

147. Barnett, above n 36, p 3: eg Jewish children were excluded from the Hitler Youth.

148. FitzGibbon, above n 1, p 48.

149. Auschwitz's commandant.

150. Friedmann, above n 17, p 8.

151. For an overview of how these processes overlapped see U Gerhardt ‘A Hidden Agenda of Recovery: The Psychiatric Conceptualization of Re-education for Germany in the United States during World War II’ (1996) 14(3) German 295. Although reconstructive aspirations were illustrated with the training and installation of thousands of new teachers in the four zones (Friedmann, above n 17, p 180) arguably the policy's reconstructive component became obscured by its more punitive effects

152. E Plischke ‘Denazification Law and Procedure’ (1947) 41 AJIL 807 at 827.

153. FitzGibbon, above n 1, p 28.

154. Finkelstein comments on the similarities: above n 10, pp 41–42. Morgenthau's initial plan for German reconstruction involved persons between 16 and 40 being transplanted to central Africa for re-education. This echoed Hitler's early notorious Madagascar plan for a form of quarantined Jewish exile: Kochavi, above n 66, p 83.

155. FitzGibbon, above n 1, p 12.

156. FitzGibbon, above n 1, p 97.

157. US Directive JCS 1067 of April 1945.

158. Comment of Father Wirtz, a German Catholic priest, in FitzGibbon, above n 1, p 85.

159. The policy was deemed unsuccessful and by 12 June 1945 Field Marshall Montgomery had rescinded it in relation to British soldiers speaking to or playing with German children: FitzGibbon, above n 1, p 119. Strictly speaking, Germany had ceased to exist as an independent sovereign state and its territory and population were administered through a condominium established by the four Allied powers: H Kelsen ‘The Legal Status of Germany According to the Declaration of Berlin’ (1945) 39 AJIL 528.

160. J Milton Paradise Lost (London: J & R Tonson and S Draper, 1749) vol 2, book XII, p 379, line 3.

161. Osiel, above n 108, at 489–490.

162. Plischke commented that earlier drafts were more severe in their treatment of denazification. Denazification rules were initially issued by SHAEF (Supreme Headquarters Allied Expeditionary Force). SHAEF was dissolved in July 1945 and the American and British forces developed individual programmes in their respective zones. The Control Council (comprising the four Military Governors of Germany) did not convene until mid-Summer 1945, immediately following the Potsdam Conference. By the time it did convene, substantial agreement had been reached by the Big Three Powers as far as general denazification policy was concerned. See Plischke, above n 152, at 807–808.

163. Their revival or secret reconstitution in any form was also prohibited. The liquidation of the Nazi party etc was already provided for by Military Government Law no 5 in the US zone. This required the dissolution of the Nazi Party and 52 specified Nazi organizations. One of these organisations was the Hitler Youth. A quadripartite dissolution programme was eventually established in October 1945 by Control Council Law no 2 ‘Providing for the Termination and Liquidation of the Nazi Organization’.

164. Control Council Law no 34 of August 1946 provided for the dissolution of the Wehrmacht, which included military and quasi-military organisations and civilian organizations and associations connected with the Wehrmacht.

165. See also Control Council Law no 31.

166. See Control Council Law no 1 ‘Repealing Nazi Laws’. This provided for the repeal of 25 specified fundamental laws enacted after 30 January 1933, when the Nazis came to pwer, together with all supplementary and explanatory laws, ordinances and decrees. Control Council Law no 11 also purged the German Criminal Code of Nazi and militaristic provisions. (Interestingly the repealed provisions included those concerning treason and high treason (ss 80–94 of the Criminal Code) ensuring that Germans co-operating with the Allied Forces would not be prosecuted under such provisions by a future German government.) Some authors had concerns about this in the light of art 43 of the Hague 1907 Rules which indicates that the laws of a country, unless absolutely prevented, should be respected by an occupying force. However, it would have been unthinkable for the Allies to enforce laws which would have represented violations of the law of nations. See D P Goodman ‘The Need For Fundamental Change In The Law Of Belligerent Occupation’ [1985] Stan LR 1573 at 1579, July; and E H Schwenk ‘Legislative Power of the Military Occupant Under Article 43, Hague Regulations’ (1945) 54 Yale LJ 393 at 403. Of course, arguably the occupiers were not classical occupiers but were instead the condominium acting in place of the German government.

167. For example, art 3(b)(ii) stated that the need for Germans to be convinced of total military defeat and of the necessity that they not escape responsibility for what they had brought upon themselves, since their own ruthless warfare and the fanatical Nazi Party had destroyed the German economy, making chaos and suffering inevitable. Article 7, however, focused on German education which had to be so controlled as to completely eliminate Nazi and militarist doctrines and to make possible the successful development of democratic ideas. Other provisions focused on the reorganisation of the judicial system (para 8); on the decentralisation of the political structure and the development of local responsibility (para 9); and freedom of speech, press, religion and so on (para 113).

168. Herz considered that denazification aimed at achieving a legal revolution: J H Herz ‘The Fiasco of Denazification in Germany’ (1948) 63(4) Pol Sc q 569 at 570.

169. FitzGibbon, above n 1, p 101. See also Plischke, above n 152, at 817.

170. For an overview of this problem in Rwanda see M A Drumbl ‘Punishment, Postgenocide: from Guilt to Shame to Civis In Rwanda’ (2000) 75 NYULR 1221.

171. G Roth and K Wolff ‘The American Denazification of Germany: A Historical Survey and an Appraisal’ (Ohio State University) in FitzGibbon, above n 1, p 179.

172. Friedmann, above n 17, p 112.

173. In AMZON alone 13 million individuals records were searched, with 3.5 million cases processed. Theoretically, every fourth citizen was subject to punishment: Merritt and Merritt, above n 23, p 36. By the beginning of 1947 the US authorities had removed 292,089 persons from public or important private institutions and excluded an additional 81,673. Cf the Soviet authorities removal of 307,370 and exclusion of 83,108 and the British removal 186,692 and exclusion of 104,106: Friedmann, above n 17, p 332.

174. Partly due to the large population shifts. By February 1946 arrests had been averaging 400–500 per day, totalling about 100,00 individuals in the first eight months in the US zone alone: Plischke, above n 152, at 812–813.

175. Plischke, above n 152, at 813.

176. Roth and Wolff, above n 1, p 179.

177. See the extremely complex Nazi rules on racial categorisation.

178. Friedmann, above n 17, p 117. Similarly, Plischke, also writing contemporaneously, commented that arrest was based not on the particular culpability of the individual occupying the position: Plischke, above n 152, at 812.

179. Plischke, above n 152, at 813.

180. For an overview of US practice in its zone see Plischke, above n 152, at 814–815; Friedmann, above n 17, p 119.

181. This included all officials, civil servants or employees in governmental and municipal service, and members of governing bodies of political parties, trade unions and other public organisations excepting entities not endangering Allied interests or those committing acts hostile to Allied principles and purposes by reason of that employment. ‘Semi-public office’/‘positions of responsibility in important undertakings’ included policy-making or executive positions and personnel officers in: (i) civic, economic and labour organisations; (ii) corporations and other organisations in which the German government, or its subdivisions had major financial interest; (iii) important industrial, commercial, agricultural and financial institutions; and (iv) the Press, publishing houses and other agencies disseminating news and propaganda.

182. However, despite its detail even this Directive did not ensure uniformity in the practice of the occupying powers: Friedmann, above n 17, pp 51–52 and 18.

183. Encompassing leading officials down to business managers of the economic organisations of industry, and all senior judges and public prosecutors.

184. ‘Removal’ involved immediate and summary discharge and termination of an individual's influence and direct/indirect participation in the organisation/concern with which they were associated.

185. Friedmann, above n 17, p 119.

186. Herz, above n 168, at 571.

187. Friedmann, above n 17, p 115.

188. Although they were to be removed as soon as they were dispensable. However, such an individual could not have been an important Nazi Party member, played more than a nominal part in its activities, been hostile to Allied purposes and was required to be removed as soon as possible. Those considered to be ‘more than normal participants in Party Activities’ and as ‘hostile to Allied purposes’ were individuals who had: (i) held office or otherwise been active at any level from local to national in the Party and its subordinate organisations which further militaristic doctrines; (ii) authorised or participated affirmatively in any Nazi crimes, racial persecutions or discriminations; (iii) been avowed believers in Nazism or racial and militaristic creeds; or (iv) voluntarily given substantial moral/material support/political assistance of any kind to the Nazi Party or Nazi officials and leaders.

189. Friedmann, above n 17, p 116. Numerous officials from the Reich Food Estate were also retained.

190. Friedmann, above n 17, p 116.

191. Friedmann, above n 17, p 116, raising suspicions as to how some people had avoided Party membership.

192. It contrasted with the UK's more elastic view. Using art 7 as a cue, in the British zone the majority of farmers other than prominent Nazis were left in control of their farms: Friedmann, above n 17, p 142.

193. Friedmann, above n 17, p 29.

194. This was a particular problem for the post-war establishment in France: see the post-war career of Maurice Papon.

195. Friedmann, above n 17, pp 119–121.

196. FitzGibbon, above n 1, p 165.

197. FitzGibbon, above n 1, p 166.

198. N Frei Adenauer's Germany and the Nazi Past (trans J Golb) (New York: Columbia University Press, 2002) p xv.

199. K Jaspers The Future of Germany (Chicago: University of Chicago Press, 1967) p 67.

200. Although this had been done on the local, informal and small scale, under the German Law for the Liberation from National Socialism and Militarism of 1946, direct responsibility for denazification was transferred to the Germans, while the military government supervised its enforcement, until August 1948.

201. Merritt and Merritt, above n 23, p 38.

202. Herz, above n 168, at 572.

203. Merritt and Merritt pointed out that the number of those surveyed who were ultimately dissatisfied (65%) was almost equal to those approving of denazification: above n 23, p 37. It seemed that the more socially mobilised groups within the population were the most likely to express criticism. FitzGibbon, however, questions the existence of real public opinion in Germany citing its oppression during the Nazi era and the absence of an immediate post-war infrastructure: above n 1, p 176.

204. Although as late as January 1949, 66% of the AMZON Germans thought it important to hold to account ‘such people as furthered National Socialism in any way’: Merritt and Merritt, above n 23, p 37.

205. Friedmann, above n 16, p 120.

206. Herz, above n 168, at 572.

207. Referred to in Frei, above n 198, p 29.

208. No persons born after 1 January 1919 would be tried by a denazification tribunal unless incriminated and chargeable as major offenders or offenders.

209. Persons in low income groups and persons more than 50% physically disabled would not be tried, unless categorised as major offenders or offenders.

210. Often discovered later: Herz, above n 168, p 573.

211. Herz, above n 168, p 574.

212. Herz, above n 168, p 574.

213. Social Democrat Hermann Brill addressing the National Right's Adolf von Thadden during a Bundestag committee meeting. Referred to in Frei, above n 198, p 35.

214. Frei, above n 198, p 31.

215. Friedmann, above n 17, p 113. The Russians had already transferred economic control to a new managerial class drawn from engineers, foremen, technical employees.

216. K Asmal ‘Truth, Reconciliation and Justice: the South African Experience in Perspective’ (2000) 63(1) MLR 1 at 10. Teitel also acknowledges in contemporary models that: ‘Where the aim is to advance legitimacy in periods of political flux, pragmatic principles guide the policy of justice and adherence to the rule of law. The transitional jurisprudence of the time reflects a conception of imperfect and partial justice, as well as apoliticized rule of law.’ R Teitel ‘Transitional Justice and the Politics of Post-Cold War Nation-Building’ (2003) 26 Fordham ILJ 893 at 897.

217. Friedmann, above n 17, pp 112–113.

218. Friedmann, above n 17, p 121.

219. Merritt and Merritt, above n 23, p 37. FitzGibbon also noted that major criminals’ proceedings were postponed until later as denazification courts became increasingly lenient: above n 1, pp 135–136; Herz, above n 168, at 579.

220. Referred to in Frei, above n 198, p 31.

221. Herz, above n 168, at 593.

222. Friedmann, above n 17, pp 223–224.

223. FitzGibbon, above n 1, p 177.

224. Roth and Wolff, above n 171; and see also Welch, above n 145, at 1.

225. Herz, above n 168, at 590–591, who gives examples of judicial and mayoral positions being occupied by denazified former Nazis.

226. ‘The Allied and Associated Governments affirm and Germany accepts the responsibility of Germany and her allies for causing all the loss and damage to which the Allied and Associated Governments and their nationals have been subjected as a consequence of the war imposed upon them by the aggression of Germany and her allies’.

227. Fletcher, above n 39, at 1546. He parallels it with the concept of original sin.

228. Fletcher, above n 39, at 1549. He suggests it may be the rationale behind art 9 of the Japanese Constitution. It states that war as a sovereign right is forever renounced along with the prohibition on armed forces. On the other hand, this may point to the penalising of a perceived ‘bad seed’ (at 1537) and so reflect associative guilt (ie attaching to the nation but not the nationals) a perhaps even more damning aggregative guilt (a nation's guilt consists of the sum total guilt of its nationals): at 1540.

229. Jaspers, above n 1, pp 25 and 35.

230. ‘… the experience of recognizing responsibility is usually no more overpowering than an impulse to open one's checkbook’: Fletcher, above n 39, at 1567.

231. Asmal, above n 216, at 12.

232. Eg decent housing programmes for those resident in ghettoised shanty towns.

233. ‘… in the psychologically decisive first year of the occupation it gained much popularity, even in high quarters’: Friedmann, above n 17, pp 223–225.

234. FitzGibbon, above n 1, p 97. Jaspers does refer to God's jurisdiction regarding metaphysical guilt: above n 1, p 26.

235. R Seiffert The Dark Room (London: Heinemann, 2001). The author is of mixed English/German background and lives in Berlin.

236. Fletcher, above n 39, at 1570.

237. M Fulbrook German National Identity afer the Holocaust (Cambridge: Polity, 1999) p 230.

238. Fulbrook, above n 237, p 160, quoting an interviewee from R Ostow Jews in Contemporary East Germany (Basingstoke & New York: Palgrave MacMillan, 1989) pp 65–66.

239. Fletcher, above n 39, at 1567.

240. M Geyer and G Hansen ‘German-Jewish Memory and National Consciousness’ in G H Hartman (ed) Holocaust Remembrance: The Shapes of Memory (Oxford: Blackwell, 1994) p 189.

241. S Friedlander ‘Trauma, Memory and Transference’ in Hartman, above n 240, p 258. See also A Confino ‘Edgar Reitz's Heimat and German Nationhood: Film, Memory, and Understandings of the Past’ (1998) 16(2) German History 185.

242. Geyr and Hansen, above n 240, pp 177–178.

243. Fulbrook, above n 237, p 230.

244. Jaspers, above n 1, p 109.

245. The name given to those non-Jews who rescued Jews and who are commemorated by the planting of a tree in Israel.

246. See FitzGibbon, above n 1, pp 98–99.

247. Reference to Klemperer in N Frei ‘A People of Final Solutionists?’ in Shandley (ed), above n 28, pp 35, 38.

248. As Goldstone controversially said of white South Africans in relation to apartheid: ‘Their discomfort with the truth is a symptom of their shame and that, too, makes them victims.’ R Goldstone in Minow, above n 6, Foreword, p xii.

249. FitzGibbon, above n 1, p 99.

250. Fletcher, in referring to Anton Leist's reflections in 1997 (‘Scham und deutsches Nationalbewußstein’ [1997] Aktuelle Fragen politischer Philosophir 369): above n 39, at 1560.

251. I Kershaw ‘German Popular Opinion and the “Jewish Question” 1939–1943′. referred to in Finkelstein, above n 10, pp 53–54.

252. J Friedrich ‘Nuremberg and the Germans’ in Cooper (ed), above n 90, pp 87, 91.

253. FitzGibbon, above n 1, p 99.

254. FitzGibbon, above n 1, p 99. In a different way, it similarly compared with the attitude of post-war Britons more preoccupied with post-war austerity and day-to-day living than massive political reconstruction. Germans appeared no more different in their day-to-day chalienges than other war-tom but ‘unguilty’ populaces.

255. Frei, above n 247, p 38.

256. R Boed ‘An Evaluation of the Legality and efficacy of Lustmtion as a Tool of Transitional Justice’ (1999) 37 Col J Transnat L 357 at 398–402, citing in support S Pomorski ‘Meaning of Decommunization by Legal Means’ (1996) 22 Rev Cent & E Eur L 331 at 336; and N J Kritz ‘Coming to Terms With Atrocities: A Review of Accountability Mechanisms for Mass Violations of Human Rights’ (1996) 59 LCP 127 at 140.

257. Boed, above n 256.

258. Jaspers, above n 1, p 42.

259. R R Shandley ‘Introduction’ in Shandley (ed), above n 28, p 10.

260. Shandley (ed), above n 28, p 17,

261. V Ulrich ‘A Provocation to a New Historikerstreit’ in Shandley (ed), above n 28, pp 31, 33; Frei, above n 247, p 35.

262. D J Goldhagen A Moral Reckoning: The Role of the Catholic Church in the Holocaust and its Unfulfilled Duty of Repair (New York: Knopf, 2002).