GRIFFITH JOURNAL OF LAW & HUMAN DIGNITY GRIFFITH JOURNAL OF LAW & HUMAN DIGNITY Editor-in-Chief Leanne Mahly Executive Editors Vanessa Antal Jacklin Molla Alexandria Neumann Editors Mark Batakin Gian Chung Ana-Catarina De Sousa Elizabeth Danaher Rebecca Durbin Jessica Farrell Charlotte Fitzgerald Danyon Jacobs Ashleigh Leake Dillon Mahly Lisa Neubert Consulting Executive Editor Dr Allan Ardill Volume 6 Issue 1 2018 Published in August 2018, Gold Coast, Australia by the Griffith Journal of Law & Human Dignity ISSN: 2203-3114 CONTENTS THERESE WILSON THE PRIVATE PROVISION OF ESSENTIAL FINANCIAL SERVICES AND THE 1 CORPORATE SOCIAL RESPONSIBILITIES OF BANKS AND INSURANCE COMPANIES JACOB DEBETS THE INTERNATIONALISATION OF AUSTRALIA’S HIGHER EDUCATION 23 SYSTEM: TRADING AWAY HUMAN RIGHTS K ABRAHAM THOMAS AFFIRMATIVE ACTION IN PIERCING THE BAMBOO CEILING WITHIN THE 6 AUSTRALIAN LEGAL PROFESSION — UTOPIAN IDEAL OR DYSTOPIAN 5 NIGHTMARE? ELISE KLEIN ECONOMIC RIGHTS AND A BASIC INCOME 10 Dr 2 COLLEEN DAVIS PRE-PLANNED STARVATION AND ADVANCED DEMENTIA — IS THERE A 11 CHOICE? 6 JAKE BUCKINGHAM A CRITICAL ANALYSIS OF LEGAL REPRESENTATION IN QUEENSLAND’S 13 MENTAL HEALTH REVIEW TRIBUNAL 3 AIRDRE MATTNER RAPE IN SOUTH KOREA: BREAKING THE SILENCE 16 1 OLIVERA S & DEFINING RAPE IN WAR: CHALLENGES AND DILEMMAS 184 DrJEAN COLLINGSIMIĆ MARK A DRUMBL THE KAPO ON FILM: TRAGIC PERPETRATORS AND IMPERFECT VICTIMS 229 ELIZABETH ENGLEZOS AG-GAG LAWS IN AUSTRALIA: ACTIVISTS UNDER FIRE MAY NOT BE OUT 27 OF THE WOODS YET 2 THE KAPO ON FILM: TRAGIC PERPETRATORS AND IMPERFECT VICTIMS MARK A DRUMBL* The Nazis coerced and enlisted detainees into the administration of the labour and death camps. These detainees were called Kapos. The Kapos constitute a particularly contested, and at times tabooified, element of Holocaust remembrance. Some Kapos deployed their situational authority to ease the conditions of other prisoners, while others acted cruelly and committed abuse. This project explores treatment of the Kapo on film. This paper considers two films: Kapò (1959, directed by Pontecorvo, Italy) and Kapo (2000, directed by Setton, Israel). These two films vary in genre: Kapò (1959) is a feature fiction movie, whereas Kapo (2000) is a documentary. Both films nonetheless vivify themes of agency, blame, survival, shame, sacrifice, and recrimination. This paper interrogates how these creative works speak of victims who victimise others and the pain that results; how these works contribute to history, memory, and recollection; and didactically how they explain ‘what happened,’ ‘why,’ and ‘what to do now’. This paper additionally contrasts cinematographic accounts and criminal law’s accounts, in particular, those in Israel’s Kapo trials. In the 1950’s, the Knesset passed legislation — the Nazi and Nazi Collaboration Punishment Act — to criminally charge suspected Jewish Kapos who had immigrated to the state of Israel following the Holocaust. Authorities conducted approximately forty prosecutions. The trials were awkward, the language of judgment gnarly, the absolutes of conviction or acquittal crudely reductionist, and the judges ‘trembled’ at having to sentence. This paper contends that cinematographic depictions of victim- * Class of 1975 Alumni Professor of Law and Director, Transnational Law Institute, Washington and Lee University. I extend my thanks to Michal Buchhandler-Raphael, Solange Mouthaan, Caroline Fournet, Saira Mohamed, Olivera Simi Edwin Bikundo, Brian Murchison, Adam Brown, TJ Briggs, Kristin Mynes, and Colt Justice for insightful comments; to participants in colloquia and film screenings with law faculties at William and Mary,ć, London School of Economics, Warwick, Ottawa, Monash and Griffith universities, and panels at the 2016 Conference of the Southeastern Association of American Law Schools and the 2017 International Association of Genocide Scholars Conference (Brisbane, Australia); and to Linda Newell for invaluable assistance in locating materials. VOL 6(1) 2018 GRIFFITH JOURNAL OF LAW AND HUMAN DIGNITY victimisers can sooth the criminal law’s anxieties by filling spaces it poorly serves. CONTENTS I INTRODUCTION.............................................................................................................................. 230 II MELODRAMA, KITSCH, AND A FEATURE FILM........................................................................... 23 III INTERVIEWS, VOICEOVERS, AND A DOCUMENTARY.................................................................. 2 7 IV CONCLUSION: MOVING FROM COUNTING CADAVERS TO TELLING VICTIM STORIES............ 2649 1 I INTRODUCTION [E]ither one counts the cadavers or one tells the story of the victims.1 Nazi concentration and forced labour camps, as well as Jewish ghettos, required relatively limited SS (Schutzstaffel) oversight. Instead, the Nazis deployed inmates and ghetto residents in “prisoner self-administration”. Some concentration camps involved up to ten per cent of the prison population in this regulatory structure.2 Participants in prisoner self-administration straddled a broad spectrum. The Sonderkommando (“special squads”) precariously occupied the lowest echelons. They cleared the dead from the gas chambers and incinerated the corpses. Sonderkommando mainly worked in this capacity for just a few months before the SS murdered them. The Prominenz (“Prominents”)3 stood above the Sonderkommando, while the Kapos — who supervised forced labourers and the barracks — stood further above still.4 The origin of the term Kapo has been alternately attributed to the Italian word “capo” (meaning “head” or “boss”) or as a contraction of the German term Kameradschaft polizei (“comrade police”). Many Kapos were compelled to serve, but others made their services 1 Paul Ricoeur, Time and Narrative (Kathleen McLaughlin and David Pellauer trans, University of Chicago Press, 1988) vol 2, 188–189. 2 Yizhak Ahren, Revital Ludewig-Kedmi: Opfer und Täter zugleich? (2002) Leo Baeck Bookshop <http://www.leo-baeck.org/leobaeck/sachbuchallgemein/buch-03917.html>. 3 This category included ‘doctors, messengers, musicians, interpreters, kitchen hands, shoemakers’ and ‘comprised the majority of survivors’: Adam Brown, Judging “Privileged” Jews: Holocaust Ethics, Representation and the “Grey Zone” (Berghahn, 2015) 12. 4 Cf Michael Marrus, The Holocaust in History (New York, Penguin, 1987) 129: describing the Kapo as ‘[t]he Nazis … empowered camp elders, clerks, block leaders, and so forth to supervise the inmates and assume primary responsibility for the routines of daily life’. 230 THE KAPO ON FILM: TRAGIC PERPETRATORS AND IMPERFECT VICTIMS VOL 6(1) 2018 available — at times readily — so as to prolong their lives or the lives of their families. Kapos were organised in pyramidal fashion. More influential Kapos included the Blockälteste (mid-level barracks “elder”) going up to the chief Kapo. While still tenuously positioned, and always occupying liminal spaces;5 more senior Kapos exercised considerable situational authority. Referencing all Kapos, Primo Levi noted that ‘the power of these small satraps was absolute’.6 In the concentration and labour camps, the ranks of the Kapos initially were filled by inmates detained on account of criminal behaviour (marked with green inverted triangles), political prisoners (red triangles), and asocials (black triangles). Over time, Kapos entered from other inmate categories, including Jewish inmates (two yellow triangles).7 In the ghettos, moreover, Jews were routinely enlisted as police (Ordnungsdienst) and other supervisory functionaries: they maintained “order”, enforced Nazi regulations through truncheons and whips, escorted persons selected to be transported to the death camps, and arrested resisters. The Kapos, notably Jewish Kapos, ‘have proven an especially controversial subject’.8 Some Kapos were very cruel. Others did what they could to ease the lives of the prisoners under their watch. Some Kapos were sadistic one day and merciful the next. In the end, most Kapos were killed by the Nazis, although at a lower rate than other prisoner categories. Some were assailed by inmates — or by the Red Army — following the liberation of the camps. Some committed suicide, and some surviving Kapos emigrated outside Europe after the war, including to the newly-established state of Israel. Despite, or perhaps because of, this controversial position, ‘the Kapo is an omnipresent figure in [Holocaust] survivor testimonies’.9 In the 1950s, the Israeli Knesset passed legislation — entitled the Nazi and Nazi Collaborators Punishment Act — to criminally charge suspected Jewish Kapos and 5 Brown, Judging “Privileged” Jews, above n 3, 12: ‘Kapos were subject to punishment by Nazi guards for any problems arising from the prisoners they were responsible for’. 6 Primo Levi, The Drowned and the Saved (Raymond Rosenthal trans, Michael Joseph, 1st ed, 1988) 31. 7 The vast majority of the Sonderkommando were Jewish. 8 Adam Brown, ‘”No One Will Ever Know”: The Holocaust, “Privileged” Jews and the “Grey Zone’’’ (2011) 8(3) History Australia 95, 99; See also Brown, Judging “Privileged” Jews, above n 3, 12: ‘Kapos are infamous in survivor literature for their brutal treatment of their subordinates, with some even taking part in “selections” for the gas chambers’. 9 Brown, Judging “Privileged” Jews, above n 3, 55. 231 VOL 6(1) 2018 GRIFFITH JOURNAL OF LAW AND HUMAN DIGNITY collaborators who had come to Israel in the wake of the Holocaust.10 Authorities conducted approximately 40 prosecutions.11 These trials,