Universität KonstanzExzellenzcluster: Kulturelle Grundlagen von Integration

Between Interstate and Civil War

Postwar Legal Purges in Historical Perspective. 1870–2000

Dr. Dimitris Kousouris

Abstract

The post-1945 judiciary transitions can be considered as a process of ‘judiciary reconstruction’ of the continent. It was the largest experience of “transitional justice” ever applied simultaneously in Europe or elsewhere. Taken together, they affected an unprecedented (and hitherto unmatched) number of countries and people. By revisiting these purges as procedures which resulted in blurring the boundaries between internal and international law and politics, this research project intends to shed light on a decisive turn in European history, revealing not only a major experience of coming into terms with the past, but also a defining (as much as controversial) moment of the European integration and globalization process.

Until now scholarly research has mainly focused on the domestic, local character of these judiciary transitions, largely understating their transnational dimension. By the late 1960s a considerable number of such studies had been produced on a national scale. After 1980, the comeback of the traumatic 1940s into the public debates of several European countries renewed historical interest. Yet, the nationally-limited scope of the relevant research started to dissipate only after the end of the Cold War, when the first comparative approaches started appearing.

All the same, each separate discipline has, by and large, considered the post-1945 internal purges as an one-dimensional phenomenon: historians, for instance, have studied them as a war-ending (sortie de guerre) experiences, insisting mainly on their importance for the making of national foundation myths; legal history has considered them mainly as forms of internal emergency legislation, underlining their individual and novel character within different national legal systems; political scientists approach them as a singular technique of conflict-resolution.

All things considered, national borders as well as boundaries between different disciplines, have determined various “particularist” points of view, considering the post-1945 purges as single, isolated, short-term events, with no actual links to the past and no real predecessors. Thus, by recognizing an exceptional and heterogeneous international context, scholars have often dismissed the transnational dimension, studying separately their legal, political and cultural origins and effects.

Against this historiographical orthodoxy, this research project proposes a broad historical account of the post-1945 transitions that will take into consideration the economic, social and cultural contexts within which legal norms were developed. Drawing on the aforementioned literature, this project is based on the hypothesis that the immediate post-war legal purges emerged as an international problem from the very beginning, and they remained so down to the very end. By virtue of the range and the multiplicity of their forms, they standardized a model of judicial transition. As a consequence, a new community of law was created, regarding issues such as national minorities, state boundaries, and the confines of political behaviour. From this point of view these transitions represent a defining moment in the formation of contemporary European legal culture and need to be analyzed as such, if one wishes to detect their real place and importance in European and World history.

Outlining the main political, legal and ideological aspects of the purges will also contribute to explore broader issues concerning their position in the late 19th-early 20th century European History. By way of example, the introduction of individual criminal responsibility for violations of International Law has been acknowledged as a key point in the formation of contemporary international humanitarian legislation. In that sense this research attempts to examine as well:

  1. the continuities and legacies of previous forms of emergency procedures applied in different countries or norms set by international treaties and,
  2. the role of the post-World War II purges in the subsequent reconfiguration of the relations between judiciary and executive powers in European political systems.