One is almost embarrassed to talk about this, to obtain thus a general consensus so cheaply, honorable men among other honorable men in an arc that spans the gap between the extreme left and the extreme right. As if the Rome Military Tribunal had finally led almost all Italians to agree. We are all on the side of the just.
And what if the Priebke case had implications over and above the individual episode—all things considered, a fairly squalid one (an unrepentant criminal, a fainthearted tribunal)—and involved us on a deeper level? Would it not suggest that not even we are innocent?
We still assess what happened in terms of the laws in force. Under current law perhaps Priebke could have been given a life sentence, but in terms of jurisprudence it cannot even be said that the tribunal’s decision was an unthinkable one. There was a criminal who had confessed to a horrible crime, and, as every court must, the tribunal had to see whether there weren’t any mitigating circumstances. Well, those were hard times, Priebke was not a hero but a wretched coward, and even if he had weighed the enormity of the crime, he would have been afraid to pay the consequences of a refusal. He killed an extra five people, but when men are drunk with blood, as we know, they become beasts. He’s guilty, all right, but instead of life let’s give him a long stretch; justice is saved, the statute of limitations comes into play, and we can close a painful chapter. Would we not have done the same for Raskolnikov, who murdered an old lady, and without any military excuse at that?
We are the ones who have conferred upon the judges a mandate to behave in accordance with the laws in force, and now we present them with an objection, a moral requirement, a passion; and they reply that they are judges, not killers.
Most of the objections turn on the interpretation of preexisting laws. Priebke had to obey orders, because such is the law of a country at war; but no, even the Nazis had laws that allowed them to avoid obeying an unjust order, and then again Priebke should not have been tried under military law, because the SS were a volunteer police corps. But international conventions justify the right to make reprisals; indeed, one may reply, but only in cases of declared war, and there is no evidence that Germany declared war on the Kingdom of Italy, and therefore the Germans, the illegal occupiers of a country with which they were not officially at war, could not complain if someone disguised as a street sweeper blew up one of their convoys.
We shall not get out of this circle until it is decided that when exceptional events occur, humanity cannot afford to apply the laws currently in force, but must shoulder the responsibility of sanctioning new ones.
We still have not drawn all our conclusions regarding the epoch-making event that was the Nuremberg trials. In terms of strict legality or international custom it was an arbitrary act. We had been accustomed to the notion that war was a game with rules, and that at the end of the day the king would embrace his cousin the winner, and then what do they do, take the vanquished and hang them? Sure, reply those who decided upon Nuremberg: we think that in this war some things happened that exceeded the limits of tolerability, and that’s why we’re changing the rules. But this level of tolerability reflects your values as winners; we had other values, don’t you have any respect for them? No, since we won, and since among your values there is the glorification of power, we shall use power: we’re going to hang you. But what will happen in future wars? Those who foment them will know that if they lose they will be hanged; let them think about that before they start. But your side committed atrocities too! Yes, but that is what you losers are saying; we are the winners, so we are going to hang you. And will you take responsibility for this? Yes, we will.
I am against the death penalty, and even if I had captured Hitler, I would have sent him to Alcatraz. So from now on I shall use «hanging» in a symbolic sense, to suggest a hard and solemn punishment. But apart from hanging, the reasoning behind Nuremberg is flawless. Faced with intolerable conduct, we must have the courage to change the rules, laws included. Can a tribunal in Holland judge the conduct of someone in Serbia or Bosnia? According to the old rules, it can’t; according to the new ones, it can.
At the end of 1982 there was a conference in Paris on intervention, which was attended by jurists, military personnel, pacifist volunteers, philosophers, and politicians. By what right and according to what criteria of prudence can we intervene in the affairs of another state when it is held that something is happening there that is intolerable in the view of the international community? Except for the clear-cut case of a country still ruled by a legitimate government that requests help to repel an invasion, all other cases are subject to subtle distinctions. Who is asking me to intervene? A part of the citizenry? How representative of the country is this group, to what extent does intervention cloak, albeit with the noblest intentions, interference (Saguntium being a case in point)? Is intervention required when what happens in that country goes against our ethical principles? But are our principles the same as theirs? Is intervention necessary because for thousands of years a certain country has practiced ritual cannibalism, which is a horror for us but a religious practice there? Isn’t this the way the white man shouldered his virtuous burden and subjected the peoples of civilizations that were ancient, although different from the white man’s?
The only answer that strikes me as acceptable is that intervention is like a revolution. There is no previous law that says it is a good thing to do; on the contrary, revolutions are made despite laws and customs. The difference is that the decision to launch an international intervention springs not from a restricted elite or from an uncontrolled civil disturbance, but from talks among different peoples and governments. It is decided that although other people’s opinions, customs, practices, and beliefs must be respected, something seems intolerable to us. Accepting the intolerable means casting doubt on our own identity. It is necessary to assume the responsibility of deciding what is intolerable and then taking action, ready to pay the price of error.
When an example of something wholly intolerable occurs, the threshold of intolerability is no longer the one fixed by the old laws. It is necessary to legislate anew. Of course, we have to be sure that the consensus regarding the new threshold of intolerability is as vast as possible, that it goes beyond national frontiers, and that it is in some way warranted by the «community»—a slippery concept, but one that underpins even the fact that we believe that the world turns. But then we need to choose.
What happened with Nazism and the Holocaust set a new threshold of intolerability. Over the centuries, there have been many cases of genocide, and in one way or another we have tolerated them all. We were weak, we were barbarians, we did not know what was happening more than ten miles away from our village. But this genocide was sanctioned (and carried into practice) in «scientific» terms, with an explicit request for consensus, even philosophical consensus, and propagandized as a planetary model. It did more than just violate our moral conscience: it threatened our philosophy and our science, our culture, our beliefs in good and evil. It attempted to wipe them out. We could not fail to respond to this threat. And the only possible response was to conclude that this would not be tolerable, not only immediately, but also fifty years after, and in the centuries to come.
It is in the contact of this level of intolerability that we find purulent the sordid bookkeeping of Holocaust deniers, who spend their time calculating whether the dead were really six million, as if five, four, two, or one million could provide grounds for some kind of a deal. And what if they were not gassed, but had died only because they had been left there without adequate care? Or if they died merely because of an allergic reaction to the tattoo?
But recognizing the intolerable means that all the accused at Nuremberg should have been condemned to hang even if only one person had died, and for simple failure to offer assistance at that. The new intolerable is not only genocide but its theorization. And this involves and places responsibility upon even the peons of slaughter. Faced with the intolerable, distinctions regarding intentions, good faith, and error all collapse: there is only objective responsibility. But (says one) I pushed the people into the gas chambers because they ordered me to do that, in reality I thought they were going to be deloused. That doesn’t matter, Fm sorry, here we are dealing with the epiphany of the intolerable. The old laws with their mitigating circumstances don’t count here: we shall sentence you to hang as well.
In order to assume this rule of conduct (a rule that also holds for the intolerable future, which obliges us to decide day by day where the intolerable lies), a society must be prepared to make many decisions,
