’Probably Tomorrow I’ll Become a War Criminal’: Legitimacy through Law during Political Transitions

Ioana Sendroiu, Harvard University

The Nuremberg and Tokyo trials are typically seen as watershed events in using law to respond to atrocities. Yet the focus on the IMTs has often led to a view of the IMT innovation as not just a matter of legal, elite realpolitik, but instead a newfound and widespread commitment to justice. In this paper, I rely on historical evidence from the post-WW2 transition in Romania, and post-holocaust trial design and implementation in the country, to show that legalism and justice were not as surprising as the literature has argued, and were neither unthinkable nor unprecedented. I show how the turn to law in this domestic contexts was perceived as a common-sense response to behaviors that lawmakers or policymakers deemed unacceptable. I find that the reliance on law as a way of managing transition was not exhaustively legitimated. Instead, policymakers' focus was on the legitimacy benefits of the legal mechanisms themselves. As a result, legal mechanisms meant to address past wrongs were instead used to fight current political enemies. Thus, in Romania, where this strategy proved especially effective for the Communists, policymakers who helped design trials of wartime leaders after the fall of fascism eventually came to themselves be defendants in these trials. A series of propitious circumstances within political fields can thus make policymakers effective in labelling anyone a fascist, no matter the reality of past or present political affiliations.

No extended abstract or paper available

 Presented in Session 210. Law, Incarceration and Punishment