Exclusive to the readers of this weblog, the remarks I will make tomorrow morning on "the concept of victims in transitional law" at a conference on transitional justice:
I recently had the opportunity to make a tour, together with several of my students, of several of the camps established in Europe by the Nazis in the Second World War period. Among these was the one which is certainly best known of the lot, Auschwitz. But that sentence is in itself misleading. Let me tell you why.
What people commonly refer to as "Auschwitz" is in fact three camps. Monowitz was a labor camp, the smallest of the three. Auschwitz itself was a prison camp principally for Polish political prisoners, though there were certainly other types of prisoners and prisoners of other nationalities there. People were killed in Auschwitz, but it was not organized around the purpose of killing. The camp that most people think of when they hear the name Auschwitz, by far the largest one in the complex, the one with the massive expanse of barracks, with the famous railway platform, and with the gas chambers and crematoria, is Birkenau.
Aside from a sculpture complex, there is little in terms of historical commemoration at the death camp, Birkenau. The museum, library, multimedia centres (and, yes, the snack bars) are at Auschwitz, which is visited by far more people than the other sites. More than that: all of the items from Birkenau which have become iconic, and with which the people in the audience here are probably familiar – the room full of human hair, the large piles of shoes and eyeglasses – are on display at Auschwitz, that is to say that the decision was made to move them from Birkenau to Auschwitz for the purpose of display.
It is not my role to second-guess the decisions of the historians and curators, who I am sure made none of these decisions rashly or without consultation. But I can tell you that many of my students were outraged, and saw the placement of exhibits as an effort to eclipse the massive scale of evil at one camp and claim it for the other one where the prisoners had a different origin and where their experience, while not be minimized in any way, was qualitatively different from the experience of the people who "produced," however involuntarily, the exhibits in question. It would not be unfair to say that at least some of them thought that the museum represented an effort by Polish nationalists to lay claim to non-Polish victimhood.
I cannot take a position on the question of whether any currently living person, or any collective, can claim moral ownership over a pair of eyeglasses stolen from another person who was killed years ago. The prospect that I might put myself in a position where I could address that question is more than a little bit horrifying to me. But I can say that I think that I observed in that controversy among my students a pattern that applies here as well, as much as people shy away from comparisons between the two sets of historical events: the existence of a secondary market in victimhood, which operates through political capital and has no capacity to bring any benefit to victims.
What is a victim? To borrow a bit of Marxist terminology, the role of perpetrators is confined to the primitive accumulation of victims. It is only in the secondary markets that the surplus value of victimhood is extracted and transformed into political and symbolic capital. As in Marxist economic theory, this value does nothing for the people who actually produce it, only for the people who trade in it.
One way to illustrate this might be, in the spirit of Ambrose Bierce (who in his Devil's Dictionary defines "justice" as " A commodity which is a more or less adulterated condition the State sells to the citizen as a reward for his allegiance, taxes and personal service"), to suggest a set of possible definitions. First, a set indicating some of the ways in which advantages can be extracted from victimhood:
Definition A1: a by product of the illicit trade in corpses by politicians mining the past to gain advantage in the present.
Definition A2: a strategy by which another person's humiliation and suffering are converted into political capital by a second actor, to be spent for dubious goals by a third.
Definition A3: an attribution by which an individual assumes a monumental character, limiting all incoming forms of address to the narrow spectrum which ranges from sympathetic silence to meek apology.
Next, a set of definitions suggesting that the recipients of the advantages of victimhood are rarely the victims themselves:
Definition B1: damaged human goods, fit to be respected from a distance but deemed to be too lacking in objectivity to participate in serious discussion.
Definition B2: the recipient of rights such as witness protection and the privilege of inviting recognition at public events, such as memorials and the (rare) sentencing of perpetrators.
Definition B3: a figure admired at a distance by speculators, emulated by nobody.
If any of these definitions are descriptive, they may tell us something about the value of victimhood. Specifically, while there is no value in being a victim, there is tremendous potential value in being able to make property claims with regard to another person's victim status. Conflicts over such questions as commemoration and memorialisation generally have to do with the symbolic machinery by which documentary evidence is mobilized to support these property claims.
I think it is this secondary symbolic market in victimhood that explains the lack of political consensus around the evidence that everybody has seen by now of the murder of civilians in Bosnia and Hercegovina. There is no longer any serious controversy regarding the facts of the Srebrenica case, even in Serbia where denial has been a cottage industry, and in Serbia even among those political forces which have a material interest in denial. Where there is controversy is with regard to the interpretation of events that offered and the implied context into which the cases fit.
A few years ago, Vojin Dimitrijevic set out two strategies by which responsibility is avoided. The first is "denial of the fact": that is the strategy at work when the connections between paramilitaries such as the "Scorpions" and the organizations that supplied and commanded them are negated. The second is "denial of the law": that is the strategy at work when concrete acts are attributed the war environment, which then takes on a false character as an unearthly environment in which everything is permitted and all distinctions (like the distinction between soldiers and civilians) are lost.
I would suggest a third category, to be labeled "denial of the context": this is what we see mostly at work now, and it operates through the competitive bidding process on victimhood. If the Serbian president goes to pay his respects to Srebrenica, is he also required to go to go to another place where a different lobby makes property claims to the victims? Whatever answer you give, it represents an attempt to intervene in the relative position of values on the market of fetishised victim commodities. The criticism being leveled now (in the Serbian parliament, for example) which seeks to equate the campaign for a condemnation of crimes with an "anti-Serbian campaign" represents a recognition that, for various reasons, the market value of Serbian victims is low.
It may be that there are other victim merchants who have better property claims, but the dilemma remains the same. On the one hand, our education and values make it difficult for us to accept a position according which victims are entitled to anything other than recognition, acknowledgement and respect. At the same time, it is often clear that victims are not the beneficiaries of efforts to provide the kinds of responses that appear to us to be necessary. This is a problem of marginal interest to law, but ought to concern people interested in the politics of societies faced by these problems deeply.