January 6, 2012
It was an unusual coincidence, one that presented a difficult choice. Mossad agent Rafi Eitan described the missed opportunity to an interviewer from Der Spiegel almost fifty years later:
In the spring of 1960, as we were planning the arrest of Adolf Eichmann, we learned that [Josef] Mengele was also in Buenos Aires. Our people checked out the address and it proved to be correct. … There were just 11 of us and we had our hands full dealing with Eichmann. After we had brought Eichmann to the house where we kept him until we flew him out, my boss at the Mossad, Isser Harel, called. He wanted us to arrest Mengele as well, but Mengele had left his home in the meantime. Harel said we should wait until he returned and then bring both him and Eichmann to Israel in the same plane. I refused because I didn’t want to endanger the success of the Eichmann operation. … When our agents returned to Argentina, Mengele had moved out of his apartment and gone underground.1
So Eichmann went to Jerusalem, and Mengele remained in South America. The first was executed after facing survivors, witnesses, and judges in an Israeli court in 1961 and the second, who died in hiding in Brazil, ended up as a skeleton on the examination table for forensic experts in 1985. Each of these forums exemplifies, and perhaps even inaugurated, different forms and sensibilities within the ethics and epistemology of war crime investigations and human rights.
The “era of testimony” began, by most accounts, with the trial of Eichmann in Jerusalem in 1961, the first major war crimes trial since Nuremberg and Tokyo and the crucible of all the great debates about international criminal justice and accounting for atrocities since.2 In the two chapters of The Juridical Unconscious devoted to Eichmann, Shoshana Felman argues that the new political agency of survivors as witnesses established at the trial was acquired not in spite of the fact that the stories they told were hard to tell, hear, or sometimes even to believe, not in spite of the fact that they were unreliable, but, paradoxically, precisely because of these flaws. Nuremberg prosecutor Robert Jackson had himself contrasted the bias and faulty memories of witnesses with the solidity of documentary evidence: “The documents could not be accused of partiality, forgetfulness, or invention, and would make the sounder foundation.”3 In their book Testimony, Felman and Dori Laub had earlier argued that it was often in silence, distortion, confusion, or outright error that trauma—and hence the catastrophic character of certain events—was registered.4 The frailty of the witness, the unreliability and even at a certain point the impossibility of bearing witness, had become the decisive aspect of testimony, its power to register and convey the horror of events. “Paradoxically, it is precisely the witness’s fragility that is called upon to testify and to bear witness,” wrote Felman.5 In this sense, as political scientist Michal Givoni has suggested, one of the characteristics of testimony in the context of war crimes is that its ethical function exceeds its epistemic one.6
The case of Mengele, though—the path not taken and the trial that never happened—provides an instructive alternative to the story that seems to begin with Eichmann. For when Mengele was finally found, dead, many years later, the investigation that determined his identity opened up what can now be seen as a second narrative, not the story of the witness but that of the thing in the context of war crimes investigation and human rights. If the trial of Eichmann indeed marks the beginning of the era of the witness, we would suggest that the exhumation of a body thought to be that of Mengele in June 1985 signals the inauguration of an era of forensics in human rights and international criminal justice. To better understand the present place of forensic evidence in this context—not only of the exhumations that still go on but also the use of DNA, 3D scans, nanotechnology, and biomedical data in these investigations—we must return to the story of Mengele, where it began.
The mid-1980s saw what amounted to a last ditch effort by the US, Israeli, and other governments, as well as a range of private voluntary organizations like the Simon Wiesenthal Center, to track down and capture those former Nazi leaders who remained alive. Particularly concerning Mengele, everything seemed to come to a head in 1985. Early in February the US attorney general announced that the Justice Department would begin an investigation which would “compile all credible evidence on the current whereabouts of Mengele as well as information concerning his movements in occupied Germany and his suspected flight to South America.’’7 In May, anticipating the fortieth anniversary of Germany’s defeat, the US, West Germany, and Israel announced a joint effort to find Mengele and bring him to trial for crimes against humanity.8 Obviously, time was running out for both witnesses and perpetrators.
The break in the Mengele case came shortly after that. On the last day of May 1985, based on tips gathered as part of their own investigations, West German police raided a house in Mengele’s home town in Günzberg, Bavaria, and uncovered a trove of documents, including letters with coded return addresses, which pointed them to Brazil and to an Austrian couple named Wolfram and Liselotte Bossert.9 The Bosserts, who lived in São Paulo, then told police there that they had indeed sheltered Mengele in Brazil, and helped him assume a false identity. They also pointed investigators to what they said was his grave, in the cemetery of a small town outside São Paulo called Embu. He had, they said, drowned at the beach resort of Bertioga in 1979, and they had buried him in Embu under a false name, Wolfgang Gerhard. On June 6th, the Brazilian police exhumed the body…10