James Heartfield

Frail old men with thick, foreign accents are tried for crimes committed half a century earlier. This does not teach any useful moral lesson

The dead need memorials, but the Statute Book is not the place to erect them. This week a British jury has travelled to Belarus to hear evidence in the trial of a 77-year-old retired railwayman. The crimes for which Anthony Sawoniuk stands accused took place in that country in 1942. But the law under which he is prosecuted was passed in this country in 1991. The War Crimes Act is retrospective, and extra-territorial. It was not passed to redress an injustice in any ordinary sense of the word. It does not satisfy a legal need, but seeks to assuage a political appetite. And it thus stands uneasily with the values for which the Second World War was fought.

For the German Culture Minister, Michael Naumann, the continuing British fascination with that war seems like a national personality disorder, an example of obsessive-compulsive behaviour from a country that cannot wash its hands of the past. But his exasperation at the weekend was misplaced. The Sawoniuk trial, the most dramatic current illustration of the war's capacity to grab the national imagination, is not evidence of a continuing obsession, but a symptom of two very modern phenomena.

The first is the itch to use laws as wreaths. In our emotionally correct age victims can win any argument by appeal to the High Court of grief, which always finds for suffering over logic. In the aftermath of the Dunblane tragedy the laws which were passed to govern handgun ownership were sombre Acts of Piety not sober Acts of Parliament. The need to show we sympathised overwhelmed other considerations. Hard cases make bad laws. But so do soft hearts.

The War Crimes Bill, which preceded the handgun legislation, was another attempt to use the law to show sympathy. No one can deny the enormity of the crimes it sought to address. But no law could satisfy the emotional needs embodied in the War Crimes Bill. It is not possible to put evil on trial, only men. A Court of Law cannot re-run historical events, it can only punish people for what they did. And in the case of these trials the real danger exists that people will be punished to satisfy an emotional need, whether they are guilty or not.

The other modern development which was reflected in the War Crimes legislation is our growing cultural fascination with the Holocaust. As the memory of the event itself recedes, Holocaust films, plays, documentaries and museums increase in number. The definitive film of the decade, Schindler's List, has inspired others, such as the Oscar-nominated Italian feature Life is Beautiful. From the Washington Museum to the Berlin memorial, the public appetite for recollections of the Holocaust is growing. The fascination permeates popular culture. Television advertisements are currently running for a new magazine devoted entirely to the Nazi horror.

It is right that we should never forget. But the culture of remembering is more than just recalling brute facts. It demands critical engagement. The current fascination with the Holocaust is a product of the demand for moral absolutes. When so much else seems uncertain it provides a kind of comfort to know that there are some things which are black and white. If we can be sure of nothing else, we can be sure that the Holocaust was wrong. From the Anti-Nazi League to Margaret Thatcher, everyone agreed that the Holocaust should not be forgotten. With the war crimes law, the hope was that unalloyed evil would be put in the dock.

Instead, frail old men with thick, foreign accents are put on trial for crimes allegedly committed half a century earlier. These recent trials do not teach any useful moral lesson. If anything, they make a mockery of the real importance of the Holocaust. The original Nuremburg hearings had gravitas, with the Nazi elite such as Goering and Hess in the dock. Today we have a sorry spectacle of pensioners on trial. History repeats itself - the first time as tragedy, the second time as farce.

These elderly East Europeans, even if guilty, are hardly representative of the might of Nazi Germany. German historians have been trying to pass the blame for the Holocaust onto the backward culture of Eastern Europe for years - as if the Nazis' atrocities were just an example of "going native". They must be thrilled to see those accused of being Ukrainian gofers carrying the can.

Anthony Sawoniuk might be guilty or not. But his trial will not test evidence in any normal sense. Instead, the witnesses have been historians, debating the interpretation of past events. It is a trial that cannot meet the emotional demands behind the 1991 law, because those needs are beyond adjudication.

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