Confronting Apartheid: A Personal History of South Africa, Namibia and Palestine. By John Dugard. Auckland Park, South Africa: Jacana Media, 2018. Pp. 312. Index.

Abstract

exclude a reference to Katyn was made. Nikitchenko wrote a separate and dissenting opinion. Or, rather, he filed a separate and dissenting opinion that had been written for him, in whole or in part. The issues that so troubled the Vishinsky Commission were actually not that important. The Soviet judge argued for conviction of the three defendants whom the other judges had voted to acquit, Schacht, Von Papen, and Fritzche. He also contended that Hess deserved a death sentence. Nikitchenko’s disagreement with the majority appeared to be essentially about the assessment of the facts. Nevertheless, there was also a legal dispute, although Nikitchenko did not directly call attention to it. Nikitchenko considered that Rudolf Hess and Hjalmar Schacht were responsible for various acts of persecution, including racial attacks directed against Jews, that had taken place during the 1930s prior to the outbreak of the war. Rudolf Hess, explained Nikitchenko, was an advocate of the Nazi “master race” theory who had signed the Nuremberg laws in 1935 and legislation extending them to Austria in 1938. The majority judgment adopted a restrictive reading of the definition of crimes against humanity and rejected any criminal liability for acts perpetrated prior to the outbreak of the war. Hirsch dispenses with the traditional bibliography, replacing it with a bibliographic essay highlighting the most useful materials. It is positive in tone, dealing with less adequate sources by omission rather than dismissing them with criticism. She also helpfully discusses the primary sources, going out of her way to thank the generosity of Russian archivists. Archival research is by its very nature somewhat hit and miss. Scholars may know of relevant materials that remain inaccessible but there are also sources whose existence is unknown and whose discovery may depend on serendipity. The more open the sources, the greater the likelihood of discoveries that change our understanding of history. There is certainly more to be written and researched on the Nuremberg trial, with unexploited sources for all four of the participating states. Documents in Russia probably exist that can help provide answers to some of the questions that remain. However, their availability to scholars may be dependent on political decisions. For example, several years ago the relatives of victims of the Katyn massacre were denied access to certain of Moscow’s files on the ground of national security. Their challenge went as far as Strasbourg and the European Court of Human Rights, but they were unsuccessful. In any event, with the expulsion of Russia from the Council of Europe even that avenue is now blocked. Russian resistance to release of the materials confirms the fact that important information from that period remains hidden from view. For researchers like Francine Hirsch, further study of Russia’s engagement with international criminal law, and with public international law more generally, may prove to be more difficult in the future in light of recent developments. The window that she has peered through with such skill and wisdom may soon be shuttered.