War Crimes Trials in Popular Culture: The Afterlife of Nuremberg
- Valerie HartouniValerie HartouniDepartment of Communication, UC San Diego
How do we account for the place that the Nuremberg trials have come to occupy in American popular memory, culture, and discourse? For some observers, the Nuremberg trials, conducted at the end of World War II, represent an exemplary, and thus to be celebrated, first effort to establish international norms of conduct between nations in the wake of unimaginable atrocity. Rather than exercising arbitrary or indiscriminate retribution, the war’s victors turned to law for redress against Germany and in the process laid the foundation for a normative framework that might subsequently be employed to adjudicate global conflict. Little appreciated in such legal-centric accounts of the impact of the trials or explanations of their lasting importance is the role of visual texts in the proceedings and, more specifically, the prosecution’s use of concentration camp liberation footage to provide evidence of Nazi criminality. In the context of the trials, these texts established a certain regime of truth, fortified a particular moral position, and fixed as self-evident Nazi lawlessness. Significantly, they have since come to securely anchor what people believe animated the trials’ legal arguments and thus what the trials were about. To understand, therefore, the place that the Nuremberg trials have come to occupy in popular memory, culture, and discourse, one must consider how the prosecution incorporated and used visual texts and how these texts then helped shape not only popular renderings of the postwar proceedings but an enduring belief in the magically transformative nature of law to counter (Nazi) evil and reestablish humanity’s common bonds.
- Criminology and Criminal Justice
Introduction: The Afterlife of Nuremberg
Writing in 1970, Telford Taylor turned to the legal principles established by the International War Crimes Tribunal at Nuremberg (1945–1946) to assess charges then gaining traction that the United States’ military action in Vietnam and covert counterinsurgency campaigns in Laos and Cambodia together constituted an unlawful war of aggression. To briefly remind readers, the International Military Tribunal (IMT) at Nuremberg was the first and only international of thirteen trials that convened at the end of World War II. A collaborative effort between the governments of the Allied powers—the United States, Great Britain, the Soviet Union and France—this first and best known of the postwar war crimes trials pursued the prosecution of seven criminal organizations and twenty-four prominent or prominently placed members of the Nazi regime–the “Grand Criminals” as Winston Churchill described them–on one or more of four counts: (1) Conspiracy to Wage Aggressive War; (2) Crimes Against the Peace; (3) War Crimes; and (4) Crimes Against Humanity. According to critics, both domestically and abroad, America’s military mission in Southeast Asia not only represented brutal interference in the affairs of another country, and thus a crime against the peace, but it had also come to perpetrate as a matter of standard practice both war crimes (the torture and abuse of POWs as well as women and children) and crimes against humanity (the massive displacement and indiscriminate slaughter of civilian populations, coupled with the use of napalm and phosphorus bombs, as well as toxic gas and chemical defoliants) (Elkaςm-Sarte, 1968). These were forms of war-making and conduct for which the original tribunal at Nuremberg had found individuals, as well as political, military, and paramilitary organizations in Germany, morally culpable and for which German legal, political, medical, military, financial, and industrial leaders were imprisoned or executed. Were American political and military leaders now similarly culpable? (Taylor, 1970, pp. 14–15).
For Taylor, the former chief prosecutor during the secondary series of trials at Nuremberg, answering this question first required considering the contemporary significance, if any, of the legal principles set out at Nuremberg and then determining whether and in what sense they provided a basis for judging American involvement in Vietnam. Did parallels exist between the kind of aggressive war American officials had orchestrated in Vietnam and Germany’s march of conquest across Europe? And if such parallels existed, could the Nuremberg precedent serve to hold them and the country accountable? Could a distinction be drawn, as American political and military leaders sought to draw it, between hapless bad judgment and criminal behavior in the commission of atrocities by military personnel? Or did the moral calculus need to be altogether reset given that the overarching or governing motive for U.S. involvement in Southeast Asia, according to officials, was not the obviously suspect, internationally condemned pursuit of imperialist conquest but rather “defeating and preventing [communist] aggression,” indeed, preventing as Dean Rusk put it, a third world war? These were laudable principles, Taylor noted (1970, pp. 178, 185), that actually upheld the Nuremberg standard and were consistent with the anti-aggression spirit of the U.N. Charter.1
A similar set of questions has more recently been posed regarding the U.S-UK led invasion of Iraq in 2003. Readers will remember that Gulf War II, “Operation Iraqi Freedom,” was promoted as a “preemptive” military mission launched in the wake of a newly declared war on terror to address what officials insisted at the time was “a grave and gathering danger”: the imminent, potentially apocalyptic threat posed by Saddam Hussein’s stockpiling of nuclear and chemical weapons and collusion with the terrorist organization, al-Qaeda. In other words, invading Iraq and deposing Hussein were presented to the American public and the world at large as military necessities that would “defeat aggression” and so preserve international peace and security in the Persian Gulf region. But as it became clear that the Bush administration’s case for war was built largely on pretext and a manipulation of facts, some commentators at the time and many more critics since turned again to the Nuremberg standard to condemn and hold officials accountable for embarking on what they argued was a war of aggression. The war had been initiated without provocation or authorization from the U.N. Security Council in violation of the U.N. Charter and other relevant international treaties; it was promoted on the basis of disinformation as well as the skewed culling of intelligence, some of which had been obtained through a newly implemented, legally sanctioned torture program; and it was prosecuted tactically in ways that breached the Geneva Conventions and thus entailed war crimes.2
Supreme Court Justice Robert Jackson (1892–1954), chief U.S. prosecutor at the IMT, called the waging of aggressive war “the supreme international crime.” And, at least rhetorically and perhaps even morally, it remains so. But as Taylor noted in his assessment of Vietnam, practically and even legally speaking, for a host of reasons including semantics, perspective, power, and geopolitical context, the matter was and remains hardly so clear or straightforward. Consider by way of example the notion of “imminent threat,” which is so crucial in determining whether war-making is seen as aggressive or (broadly speaking) defensive and certainly a pivotal issue in the popular debate over the legality of both the Vietnam War and the Iraqi invasion.3 In making the case for war in Iraq, the Bush administration took pains to argue that conventional understandings of “imminent threat” were now dangerously antiquated and needed to be more robustly figured to accommodate a changed world in which preemptive action might routinely be required to defeat the radically new and atypical adversaries of the twenty-first century. As the president described them, such adversaries were no longer historically conventional states or conventionally recognizable armies, but individuals and groups “whose avowed tactics [were] wanton destruction and the targeting of innocents, whose so-called soldiers [sought] martyrdom in death and whose most potent protection [was] statelessness” (George W. Bush Whithouse Archives V, 2002, para. 9). With the cessation of Cold War hostilities and in the wake of 9/11, the argument went, the many new forms and necessities of war-making had fundamentally altered the normative architecture of global relations. The question is whether and to what extent the foundational bedrock of these relations—the set of human rights and conventionally understood humanitarian law principles ostensibly established with Nuremberg and championed since the end of World War II—had been similarly eclipsed? (Brown, 2006, p. 29)4
Nuremberg and Its Cultural Double
For some readers, this brief overview of U.S. military entanglements might seem to take us far afield of this article’s topic—war crime trials in popular culture. But we begin with a glance back to public questions and contests over the legality of the wars in Vietnam and Iraq in order to foreground a compelling set of tensions. On the one hand, Nuremberg has come to occupy an important and, in some sense, canonical place in the popular imagination. It is regarded both as an historical event representing the victory of justice over evil and the nascent beginnings of a lasting moral enterprise and normative international framework. This framework may not always contain the arbitrary exercise of power, but nevertheless it exists to ensure that the most egregious expressions of such power can and will be made accountable. It is marshaled as an example and a continuing expression of the majesty and unassailable character of American justice. And, too, it exists as a moral touchstone, galvanizing the Winter Soldier investigations and a host of public tribunals in the late 1960s during the Vietnam War and more recently inspiring the World Tribunal on Iraq.5 To be sure, these “people’s tribunals” were (and are) powerless to impose sanctions against offending nations. But they nevertheless claim the authority to act on behalf of humanity, as Robert Jackson had, for the protection of civilization and against what participants across wars and generations regard as the flagrant disregard for a system of laws and rules“ that were created out of the ashes of more than 50 million dead in the Second World War.”
On the other hand and alongside this much celebrated understanding of Nuremberg, we find a somewhat more sobering picture, especially in terms of how far leading global actors have actually been willing to go to disturb what is a fairly pervasive culture of impunity with respect both to war crimes and mass atrocities. Global leaders rhetorically champion the cause of international justice against all forms of lethal violence and “gross ethical barbarities” and also support ongoing efforts to memorialize the “lessons” of the Holocaust alongside Nuremberg’s aspirational legacy. Unfortunately, however, the world’s leaders’ approach to real-time genocidal atrocities has more typically been one of strategic inaction and disinterest. It is not often appreciated, or for that matter even remembered, that the United States was a reticent signatory to the UN Convention on the Prevention and Punishment of Genocide; it did not join to support the convention officially until some forty years after it was first introduced in 1948 (Roberts, 1988). Nor is it generally known or appreciated that the country not only opposed the creation of a permanent International Criminal Court—a direct descendant of the Nuremberg Military Tribunal—but has at times, especially since the initiation of the War on Terror, worked aggressively to discredit, impair, and subvert its operation (Rumsfeld, 2011, pp. 595–600).6
Finally, and perhaps most significantly, as historian John Dower writes, the now much celebrated, core legal precedents and principles that are represented by the Nuremberg Tribunal to both stand against and prevent the mutilation and murder of marked populations were for all intents and purposes– and contrary to public perception– “repudiated almost as soon as the trial wound down,” a consequence of political exigencies and Cold War imperatives (Dower, 2010, p. 376).
How then do we account for the place that Nuremberg has come to occupy in popular memory, culture, and discourse? And Telford Taylor again provides a place to start answering this question, similarly acknowledging a version of the gap or tension that I have just set out. In the opening pages of his consideration of the American tragedy he calls Vietnam, Taylor suggests that there are in effect two Nurembergs. There is what actually happened at the Palace of Justice over the course of a year following the war’s end—and by this he means the actual organization and execution of the pedagogically driven, political inflected case against the accused as preserved in the transcript or bare record of the proceedings. And, there is what people think happened at Nuremberg’s Palace of Justice. And while these two iterations of the event are related, of the two, Taylor writes, it is the second version of the trial—what he calls the “ethos” or spirit of Nuremberg—that is ultimately the more influential and important one: it is what informs popular discourse and debate even as both contribute to and sustain it; and it is what provides the moral compass and basis for challenges to state conduct of the sort initiated during the Vietnam era and the war in Iraq (Taylor, 1970, pp. 13–14).
The ethos of Nuremberg, what people say and believe happened, has been produced over the course of generations. Thus, we can say and easily see in the archives that its construction begins with the press accounts and first newsreels that circulated during and after the trial. We can also observe that this construction was augmented gradually over the course of the next thirty-five years with the diffusion of cultural texts, books, stage plays, movies, and television. When what we today know as the Holocaust entered popular culture and consciousness in 1960 with the Eichmann trial, the “ethos of Nuremberg” became reinvigorated; but it was also recast over the course of the next decade to position more centrally the Jewish Catastrophe as the Holocaust assumed an increasingly more powerful cultural presence as a discrete, morally coherent, universally instructive event. Finally, with the 1978 announcement that a National Holocaust Memorial Museum would be built on the Mall in Washington, DC—a symbol of both the nation’s commitment to tolerance and human rights and what happens when such a commitment is abandoned– and later, with the museum’s opening in 1993, what Taylor calls “the ethos of Nuremberg” became fully institutionalized as historical fact and as the end for which a world war was fought: the story of the camps and the genocidal regime that built them, “the great antitheses to all American values,” became the story of the war.
But the most salient, national chapter of this story features the camp’s liberation and the bringing to justice of perpetrators (Cole, 1999, p. 156). The country’s sacrifice in the defense of the sacred tenets of freedom, human rights, and democratic values, its refusal to ever again stand idle when confronted with state-sponsored mass murder, its pledge to safeguard civilization, act forthrightly against evil, and prevent future genocides, and its declaration that mutual understanding and justice must be humanity’s common aspiration—these narratives together are developed throughout the exhibit space and not only constitute what the museum stages as some of the central, enduring lessons of the Holocaust (Hasian, 2004). They also congeal to animate contemporary American understandings of what Nuremberg both accomplished and represents, in effect representing “the solution to the return of a second Holocaust” (Shosh Rotem, 2013, p. 130).
In the discussion that follows, we first revisit the proceedings of the original International Tribunal at Nuremberg. We do so not to set the record straight about what “really” happened during the trial or opine as to the Tribunal’s ultimate success or failure in establishing a lasting normative framework for adjudicating global conflict. These are issues covered in a large literature, and historians, political scientists, and legal scholars continue to debate them. Our aim, rather, is to foreground within the trial traces of the very tension Taylor suggests develops in its aftermath. This tension emerges between the prosecution’s document-driven strategy for establishing the criminality of the accused—anchored in the meticulously kept records of the Nazi regime that Allied forces had amassed at the war’s end—and its use of “motion pictures,” which were introduced early in the proceedings when what was supposed to be a great spectacle of reckoning appeared to be collapsing under a tedious and disorganized recitation of events, dates, and assorted facts predating Europe’s devolution into war.
These films and in particular the first of three screened, Nazi Concentration Camps (USA, 1945, 58 min), concretized for spectators the trial’s central motif, which Nuremberg judge Sir Norman Birkett described as “a duel to the death between the representatives of all that is worthwhile in civilization and the last important surviving protagonists of all that is evil.”7 And they encapsulated its pedagogic case and necessity for a number of different audiences: a defeated German populace undergoing “denazification” so as to be able to “democratize”; an initially skeptical American public, the majority of whom, when polled in May 1945, favored summary execution of Nazi leaders and war personnel; and perhaps most significantly and successfully, for posterity (Bosch, 1970, pp. 92–93).8
Although Taylor, among others, insists that the visual texts contributed little to the legal case against the defendants or toward establishing their individual guilt (Taylor, 1992, p. 187), these texts seem nevertheless to have hijacked the proceedings and have come to be seen since as the essence of both the righteousness of the victors and the guilt of the vanquished: they established a certain regime of truth, fortified a particular moral position, and fixed as self-evident Nazi lawlessness as a radical historical break. Nuremberg itself was to remedy this break. The visual texts then securely anchor what people (have come to) believe were the trial’s legal arguments and thus what the trial was about. Now they are regularly recycled on cable channels, incorporated in most World War II docudramas, featured in history units designed for middle and high school students, and endlessly replayed at the many museums commemorating the period. As such, they constitute the animating core of Nuremberg’s legacy, at least as this legacy lives on in popular memory and understanding.9
Following a discussion of the initial postwar proceedings, we will turn to two popular renderings of the trial: Judgment at Nuremberg, an Academy Award-winning film by Stanley Kramer that premiered in the shadow of the Berlin Wall on December 14, 1961, or the day before an Israeli court handed down its judgment against Adolf Eichmann; and Nuremberg, a two-part, cable television docudrama that takes its inspiration from Joseph E. Persico’s book Nuremberg: Infamy on Trial and aired in July 2000.10 Pivotal to the narrative development of both the film and the miniseries is their use of the concentration camp liberation footage originally shown at Nuremberg. Within the context of these two popular renderings, this footage functions as a dramatic hinge explaining, legitimizing, and simplifying the exercise of justice that each production stages, while also foregrounding, more importantly and by contrast, the unassailability and moral obligation of American justice. But what we see as well in juxtaposing these two films are both changes in how the stakes of what each calls “Nuremberg” are configured and significant continuities. In other words, although there are notable differences in how each film understands the crimes depicted in the footage, ever enduring is the majesty and magically transformative nature of law to counter (Nazi) evil and reestablish as well as preserve (and protect) the common bonds of humanity (Kushner, 1994, p. 278). Such is the ethos of Nuremberg.
And such is its fiction. One could argue that the problem with a framing that sees the restoration of law as redemptive is that it ignores and even obscures, as did the original tribunal at Nuremberg, the ways in which the Nazi state and policing system, however horrific, were suffused with law. Judgment at Nuremberg, as we will see, takes up this question of whether Nazi law was indeed law, only then to deflect and dismiss it– this is part of the cultural work that the film itself performs. But if, as Fraser (2005, p. 419) notes, “many if not all of the factors [or normative underpinnings] which created the legality of Auschwitz, continue to inhabit today’s legal universe,” then the question is not one of shattered common bonds due to an absence of law, as these films and the original tribunal at Nuremberg didactically suggest. The question, rather, is one of broken bonds due to law’s often scientifically informed, conventionally robust, and creatively expansive dexterity on behalf of normative social order in pursuit of the criminal other.
The International Tribunal at Nuremberg: Visualizing Atrocity
The first, and the only international, of twelve trials that convened at Nuremberg on November 20, 1945, was organized under the direction of Supreme Court justice and chief of counsel, Robert Jackson and designed explicitly to advance didactic ends. In the words of one of the prosecutors: “One of the primary purposes of the trial of the major war criminals is to document and dramatize for contemporary consumption and for history the means and methods employed by the leading Nazis in their plan to dominate the world and to wage an aggressive war” (Bloxham, 2001, p. 17).11 As noted earlier, in order to present the full breadth of the regime’s crimes and war-driven genocidal goals, the prosecution turned not to witness testimony—as the Eichmann trial would do some 15 years later—but to the mountains of incriminatory records that Allied forces had amassed at the war’s end. Jackson’s rationale for pursuing a document-based strategy was twofold. On the one hand, he was concerned to build and leave historians with a case against the accused that was both objective and indisputably accurate; such could be achieved, he argued, only by using the Germans’ own record against them. On the other, Jackson was eager to eliminate the possibility that critics might discount or dismiss “the most serious claims of Nazi brutality on the theory that such claims had been exaggerated for wartime propaganda purposes (Landsman, 2005, p. 26).” For these reasons, the chief justice insisted that the documents be allowed to speak for themselves and that the case proceed without the emotionally compelling but in his view distracting and evidentially compromised, because biased, testimony of those who had suffered under the boot of Nazi rule (Bloxham, 2001, p. 61).12 Better for justice and posterity that the defendants hang by their own words and record regardless of what they now had to say about either.
Although Jackson’s document-driven approach to Nazi criminality may have been sound strategy, at least theoretically, from the opening sessions its shortcomings were immediately apparent: the prosecution’s complex case was monotonous, mired in detail, difficult to follow, and, from the point of view of the press at least, painfully ineffectual. Writing for the New Yorker, Rebecca West (1955, pp. 17, 18) described the trial as a “citadel of boredom,” nothing less in fact than “boredom on a huge historic scale.” And as historian Bosch (1970, p. 95) reported: “those who had been assigned to constant attendance at the court grimly joked that they were the last victims of Nazi persecution.” The introduction of visual texts, therefore, a mere eight days after the proceedings began, was “dictated not by logic but by felt necessity (Taylor, 1992, p. 186).” Introducing the films, Thomas Dodd aimed to reorient the Court by inviting it to see the visual text as merely a more graphically rendered legal document:
This is by no means the entire proof which the prosecution will offer with respect to the subject of concentration camps, but this film which we offer represents in a brief and unforgettable form an explanation of what the words “concentration camp” imply. The subject arises appropriately in the narrative of events leading up to the actual outbreak of aggressive war, which .º.º. was planned and prepared by Nazi conspirators. We propose to show that concentration camps were not an end in themselves but .º.º. an integral part of the Nazi system of government. .º.º. We intend to prove that each and every one of these defendants knew of the existence of these concentration camps; that fear and terror and nameless horror of the concentration camps were instruments by which the defendants retained power and suppressed opposition to any of their policies, including of course their plans for aggressive war.(Carruthers, 2011, pp. 337–338)
Moving pictures were thus introduced to revive the proceedings. Although the early screening of documentary footage upset the schedule of the trial, it also, as one commentator observed, “put [the trial] back on the front page” (Delage, 2007). The footage ostensibly offered an unimpeachable account of atrocity from an impeccably disinterested witness, the camera. As such, it served both legal and extralegal agendas and worked simultaneously on several related fronts. Most obviously, perhaps, the footage of the camps provided an illustration of Nazi criminality, or at least its aftermath, and rendered self-evident the need for and overarching significance of the trial—in effect, a response to detractors, skeptics, and an otherwise apathetic, disgruntled, or insulted German public as to why, as the New York Times put it, “the world’s conscience crie[d] out for justice and for punishment” (Bosch, 1970, p. 99). That such a “conscience” was something of a chimera produced through news reporting practices as well as in the prosecution’s claim to represent it and act on its behalf is a matter we will briefly return to later.
Film also underscored the ultimate moral rupture and social pathology of Nazi rule in a way not easily captured by document or legal discourse because the “rational mind,” as it was explained in court, could not be expected to fully fathom or conjure for itself the horror implicit in or explicitly detailed by either. Finally, the use of film at Nuremberg worked to distinguish the victors in their restrained righteousness from those they would judge: as Jackson put it in his opening address before the tribunal, the Allied powers had opted not to answer atrocity with a “cry for vengeance” or pass those in the docket a “poisoned chalice.” Guided by reason, in the name of civilization, and with an eye toward History, they would instead “summon such detachment and intellectual integrity [as was required to] fulfill humanity’s aspirations to do justice,” however horrific the transgressions of the now-vanquished enemy (Carruthers, 2011, p. 73). Justice Jackson continued:
The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored because it cannot survive their being repeated. That four great nations, flushed with victory and stung with injury, stay the hands of vengeance and voluntarily submit their captive enemies to the judgment of law is one of the most significant tributes that Power ever has paid to Reason.(Justice Jackson, cited in Carruthers, 2011, p. 73)
Three films were prepared for viewing at Nuremberg, although until relatively recently, with the release of footage shot by Soviet as well as British film crews, only the first of the three was widely known or circulated in the West. These films are Nazi Concentration Camps (USA, 1945, 58 min), The Nazi Plan (USA, 1945, 3.4 hr), and The Atrocities Committed by the German-Fascists in the USSR (USSR, 1946, 60 min).13 Nazi Concentration Camps was shot by the U.S. Army Signal Corps and produced by prominent Hollywood director, George Stevens, on the order of General Dwight Eisenhower, as Allied troops moved through France, Denmark, Belgium, Germany, and Austria encountering what were primarily labor camps. The now better known of these camps included Dachau, Buchenwald, and Bergen-Belsen. Moving images that we today associate with the end of the war and the liberation of “death” camps, indeed, images that represent what we have come to think genocide looks like—skeletal men in striped clothing standing behind barbed wire or lying abreast on a sleeping platform; bodies being piled onto carts or lined up in neat rows in an open courtyard; bodies being placed or bulldozed into a mass grave, piles of hair, shoes and eyeglasses; in short, death and brutality so massive as to seem beyond human comprehension—these images are for the most part taken from the “untainted” visual record that Nazi Concentration Camps was, then as now, thought to provide.
The second film shown at Nuremberg, The Nazi Plan, was especially assembled for the trial by novelist and Hollywood screenwriter Budd Schulberg, working as a member of the OSS Field Photographic Branch led by yet another Hollywood director, John Ford. It consisted of footage from the Nazi’s own archives of propaganda films and aimed to reconstruct for the tribunal the regime’s “quest for power and subsequent use of it.”14 These Nazi propaganda films were spliced and edited together to create a continuous narrative that featured in turn each of the accused as conspirators—“re-enacting from the screen some of the events in the course of the conspiracy,” as Jackson explained it to the court—secretly preparing (in plain sight) for and then executing a war of aggression with the aim of world domination. Because it was archival footage that formed the basis of this narrative (or renarrativization), The Nazi Plan could be seen secondarily to detail the regime’s exploits as that story was construed for, and marshaled to dupe and incite, the German people, Hitler’s first victims, as the prosecution repeatedly insisted.15
The third film shown at Nuremberg, The Atrocities Committed by the German-Fascists in the USSR, was a Soviet production. As the title suggests, this film was also compiled specifically for the trial and was submitted as evidentiary material in anticipation of the testimony of a handful of witnesses, most of whom were Jewish survivors, which Soviet counsel intended to call to the stand.16 As with the other two documentaries—although “even more terrible,” according to Gustave Gilbert (1995, p. 161), a prison psychologist—it too proffered a visual representation of Nazi criminality that aimed to expand the meaning of “crimes against the peace” as well as “crimes against humanity.” Incorporating rare footage of the Soviet liberation of Auschwitz (January 1945) and Majdanek (July 1944)—albeit, in the case of Auschwitz, restaged for the camera—it was designed to “put images to the words of witnesses” and thereby enable the judges and the world at large to more accurately grasp the full scope of violence and suffering as well as destruction and plunder wreaked by German troops as they moved east across the Ukraine into the Soviet Union.17
About these films, Telford Taylor reports that they were wrenching to watch—even for those like himself who had seen them previously. But beyond “hardening sentiment against the defendants” (Taylor, 1992, p. 187), they otherwise contributed little in his view to the prosecution’s overall effort to definitively establish the individual guilt (or innocence) of any one of the accused: none of the defendants after all were shown on scene at the camps or committing the atrocities whose effects the cameras captured in all their stark horror. In this respect, the visual texts were, as Stephan Landsman observes, “classically prejudicial.”18 Once spectators were hailed by the spectacle of carnage and were positioned as witnesses to the larger story this spectacle appeared to tell, the connection between the depicted atrocities and the accused was foregone, even if (or precisely because) the connection was established though emotional rather than legal incitements (Landsman, 2005, p. 28).19 As the American representative on the bench, Judge Francis Biddle, later wrote about the screening, revealing precisely this process of capture despite a desire to look away: “There was no end to the horrors .º.º. The mind shrank from them, grew tired, rejected the imaginative and systematic cruelties. Or one tried to feel, to share the heroism of the victims” (Specher, 1999, I:621).
Whereas visual texts had been of limited utility in terms of disciplining the moral gaze of a subject population, they had a decidedly more profound and pronounced impact in the context of the courtroom at Nuremberg. Not only did they lend credibility to the proceedings, the visual texts essentially hijacked them, fixing a certain regime of truth and establishing a certain set of imperatives about looking that even today remain more or less in place and undisturbable without admonition. That Nuremberg lent itself to, indeed invited, such hijacking can be clearly discerned in the structure of both the legal case and the organization of the courtroom’s physical space. On the one hand, the traditional rules of procedure and evidence were relaxed from the outset in the interest of efficiency and, somewhat ironically, historical truth: the aim as it was imagined by those crafting the London Charter– the decree that set down the laws and procedures by which the Nuremberg trials were to be conducted—was to create a stage on which the complex story of Nazi criminality could be fully told; this, in their view, required lifting “traditional constraints regarding relevance, heresy, and authentication” (Landsman, 2002, p. 1571). As a consequence with respect to the films in particular, the interpretive and associative possibilities that would otherwise have been more narrowly circumscribed circulated in an utterly unrestrained, uninterrogated manner: the images once viewed reconfigured the indictment eight days into a nearly year-long trial, overwhelmed the proceedings they also served however poorly, and rendered a verdict that reverberates, indeed puts viewers under conviction, even today.
On the other hand, the very organization of the courtroom at Nuremberg was configured in its reconstruction for the trial to accommodate (and we could even say feature) a movie screen in precisely the space at the front of the room normally reserved for the judge’s bench. This tells us something about the significance of the visual evidence and the power given over to it to shape the meaning of the proceedings, whether by chance or design and quite aside from what the transcripts report “actually” transpired. The images stood in judgment and delivered the judgment. For with these images there could be no plausible argument, credible explanation, or convincing response that was not vulnerable, once uttered, to providing ground for the indictment or to being read as evidence of guilt and depravity. Indeed, at Nuremberg, as at each of the subsequent war-related trials through the 1970s, these films and related images were called upon to speak where words failed and because words failed.20 What the “truth” they espoused demanded in turn was that one look in silence—to better hear what one was seeing—and, having looked, retreat in shame and under conviction.
Atrocity and the Ethos of Nuremberg
The grammar of seeing that was established at Nuremberg, the putting under conviction of spectators, is adopted by Hollywood as the atrocity footage comes to be incorporated in filmic and televisual re-creations of the trial. Consider in this regard the most recent popular rendering of the postwar tribunal, the miniseries, Nuremberg.21 This two-part series aired in the summer of 2000, starred Alac Baldwin as chief justice Robert Jackson, and provides viewers with an account of the proceedings that, while more or less chronologically accurate, substantively reconstructs the event from the historical vantage point of the present: we are watching a reenactment that is true to the ethos rather than the record of Nuremberg. Thus, generally accurate if extraordinarily abbreviated is the arc of action prior to the court’s opening session: the film begins with a montage of black and white newsreel footage similar to that used in The Nazi Plan of past rallies at Nuremberg, thereby quickly transporting viewers to what Jackson/Baldwin refers to as the “spiritual center of Third Reich.” The American legal team is shown making plans for a trial they seem already to know will “establish a basis for conduct among nations” and “fashion a future in which aggressive war will be dealt with as a crime” (2000, Film) Their world-building efforts are juxtaposed with the rounding up and processing of the major war criminals, identified in the film as those leaders who ran the concentration camps and exploited slave labor. Whereas the prosecutors wonder whether the trial will be perceived as legitimate, as the triumph of superior morality rather than superior might, the soon-to-be-defendants are represented as being either befuddled by their confinement, “We were only following orders,” or defiant, “Just shoot us.” The notable exception is Albert Speer (played by Herbert Knaup), Hitler’s chief architect and Minister of Armaments and War Production, who from his earliest appearance on the screen commits to being the author of the crimes with which he is charged, who knows himself to be a criminal subject, who signals that the decision of the judges will be his own, and who offers to assist his captors, specifically the prison psychologist, Gustave Gilbert (Matt Craven), in helping his fellow Nazis recognize their guilt and avow their deeds. Finally, the opening of the film depicts the rebuilding of the courtroom, the amassing of documents under which trial planners are already buckling, the arrival of the judges, and the onslaught of the world press.
So ends what we might call Act I of the film. Running approximately an hour, it is devoted to framing and providing the most preliminary staging of themes. Still, what we learn in this first hour is important: this will be a representation of Nuremberg in which the prosecutorial case is built primarily around the charge of “crimes against humanity” rather than, as in the original trial, “conspiracy to wage aggressive war”; a Nuremberg whose major war criminals are directly implicated in running the concentration camps; and a Nuremberg preoccupied with foregrounding the Holocaust even while the Holocaust as such did not yet exist in 1945 as a discrete, morally coherent, historical event. As scholar James Jordan notes, “in virtually every courtroom scene, the persecution of the Jews is referred to either explicitly or implicitly” (Jordan, 2016, p. 185). Significantly, this re-creates the original tribunal as its legacy insists it is, immune to the charge subsequently made by critics of the proceedings that it treated the slaughter of Europe’s Jews as merely a by-product of the regime’s imperial conquest and drive for world domination.
Act II of the movie takes us into the courtroom to witness not only “National Socialism on trial” but the moral grandeur of American justice and the rule of law. Jackson’s/Baldwin’s opening address to the court, while loosely following the original, nevertheless narrows the central agent of Europe’s destruction and Germany’s ruin—it is no longer the Nazi Party but Hitler and an evil alliance of revolutionists, reactionaries, and militarists who together seized power and first oppressed the German people before bringing the continent to heel. In subsequent scenes, Jackson sets about building his case in tedious detail or ways that are shown to frustrate the judges and bore the press. His team of prosecutors intervenes to insist that the trial lacks dramatic tension and needs a human face. It is thus at this juncture that the celluloid version of the proceedings tampers with the evidentiary structure of the original trial in the interest of drama and didactic simplicity. Three witnesses are put on the stand to detail the sadism that was visited upon inmates of the camps: two are former camp inmates, and the third and most provocative is the film Nazi Concentration Camps. As the liberation footage runs, the judges begin to lose their composure; women in the film audience cry out and rush out or are helped from the courtroom; members of the prosecution cover their mouths or shield their eyes with horror, and the Nazis in the dock look away. As the film ends and the lights are restored, a dense silence envelops the scene: both the audience and defendants retreat in shame and under conviction. And Jackson confesses: “Until I saw those films, I really didn’t understand” (2000, film). The images have spoken.
It is from this point in the miniseries, with the truth and extent of Nazi depravity and guilt now established, that the prison psychologist Gilbert begins earnestly seeking an answer to a question that, according to reporter Rebecca West, the original tribunal had in the end failed to reveal. In West’s words, following the end of the trial, “We had learned what [these men] did .º.º. but we had no idea why” (West, 1955, p. 60). The film remedies this deficiency for a contemporary audience predisposed to expect and accept any rendering of justice to rest on and require an account of the psychological predispositions of the accused. A truth has been established, but for this to be more than victor’s justice or vengeance masquerading as the rule of law, the defendants themselves must claim and explain themselves in terms of it. Thus, from Hans Frank (Frank Moore) chief administrator in the occupied territory of Poland during the war, Gilbert learns that while Frank “did not approve of the persecution of the Jews,” (2000, Film) this was what his job required him to do, and so he “simply” dissociated: as he describes it, there was his civilized self who recoiled at murder and a now despised practical self who did what was expected of him. From Speer, Gilbert learns that there is something in the “German character,” something instinctual, that has made Germans like himself and his prison mates susceptible to authority; and from General Field Marshall Wilhelm Keitel (Frank Fontaine), chief of staff of the German army (Wehrmacht) and author of the “Night and Fog” directive, he learns that a soldier’s highest moral duty is obedience, even while Keitel, the individual, was now “dying of shame.” Finally, explaining his role in the destruction of Europe’s Jews, Rudolf Höss (Colm Feore), Commandant of Auschwitz, echoes Keitel: he had taken an oath of loyalty to defend Germany against its enemies, and his role in the country’s defense had entailed facilitating the efficient elimination of marked populations. Unlike Keitel, however, Höss remains his flint-hearted Nazi self, an unrepentant anti-Semite.
Each of these defendants offers an explanation to audiences for his role in the persecution and murder of Jews that fits comfortably with contemporary (American) accounts of what produced National Socialism–blind obedience, the authoritarian personality, “eliminationist anti-Semitism,” Prussian militarism. But then there is Hermann Göring (Brian Cox), founder of the Gestapo and for much of the Nazi period the second most powerful man in Germany, who is not so easily typecast. Possessing all and none of these characterological predispositions, Göring emerges as the film’s most complicated and sympathetic figure—which, parenthetically, is no small irony given that Turner Broadcasting’s educational division intended to distribute the film along with study guides to schools for historical instruction.22 Göring rebuffs Gilbert’s invitation to see in himself the sadistic, demonic monster the prosecution is certain it is trying. But he saves his most scathing criticism for the tribunal itself, which he sees as punishing the accused for only recently invented crimes and judging Germany by standards each of the four prosecuting nations had themselves violated. Finally, throughout the proceedings Göring challenges the supposedly high moral purpose of what he insists in the end is only a victor’s court. “Let me ask you this” he says to Gilbert in one of their more acerbic exchanges, “What was your Hiroshima? Was it not a medical experiment? Would you have dropped such a bomb on Germany? I think not. To an American sensibility a Caucasian child is considerably more human than a Japanese child.”
Göring’s effort, in the context of the film, to draw attention to the racial conceits, laws, and practices of America or the crimes committed by the Allied coalition in their conduct of the war lends expression to a constellation of concerns that troubled the trial planners and compelled them both to prohibit the use of the tu quoque (you too) defense and to narrowly construe the jurisdiction of the tribunal to the German machinery of war and mass death or the crimes committed exclusively by persons who acted in the interests of the European Axis nations. The very issues that Göring’s outbursts are intended to mark–questions concerning retrospective and selective justice as well as the legality and thus legitimacy of the proceedings–were substantive ones at the time and are today matters of ongoing scholarly debate.23 But in lieu of confession and the acceptance of responsibility, the moral ambiguities his character is made to voice and interject into the film’s narrative function largely only to secure his guilt. Juxtaposed with the enormity and depravity of Nazi criminality, unambiguously established by the screened footage of the concentration camps, there is no moral (and thus legal) ground that Göring can convincingly claim.
In what is the penultimate scene that occurs after the prosecution has cataloged the vast scale and forms of Nazi criminality and rested its case but sometime before the court hands down its judgment, the film circles back to Rebecca West’s question to offer now a global assessment of what drives individuals to commit atrocities. Perhaps not surprisingly, it is the psychologist Gilbert who offers viewers a definitive and distinctly contemporary answer: “I’ve been trying to get inside their minds,” he explains to Jackson, “I’ve been searching for the nature of evil and I think I’ve come close to defining it– a lack of empathy. It’s the one characteristic that connects all the defendants, a genuine incapacity to feel with their fellow man. Evil I think is the absence of empathy.” (2000, film) This insight, such as it is, brings to Nuremberg an explanation, sensibility, and specific pedagogic pivot that one might find circulating throughout the National Holocaust Memorial Museum in Washington, D.C., but that is altogether outside the historical frame of the original tribunal. It nevertheless makes the moral of this complicated story unmistakably clear for a contemporary audience. It reinforces conventional assumptions (versions of which have circulated since at least the eighteenth century) about the critical, indeed, constitutive role of empathetic feeling in the formation of a relationally situated subject, able to exercise moral judgment (Vetlesen, 1994, p. 119).24 By contrast, it also neatly renders genocide as a question of Nazi pathology, a failure to bridge difference, to recognize, understand, and absorb the suffering of others. And finally, by this logic, the film suggests that prevention of genocide is dependent principally on the cultivation of sentiment or right feeling. But when this social adhesive fails, as it will, there is in the end the rule of law.
Such is the object lesson on which Nuremberg settles. But what happens when law is used, as it was during the Third Reich, to facilitate genocide? This is the question that the 1961 film, Judgment at Nuremberg, addresses. The film’s answer echoes the answer of the original tribunal: Nazi law was not law but law’s perversion. As the International Military Tribunal at Nuremberg presented it, Nazi law was a superficial guise, a vehicle and grand alibi, for a criminal conspiracy against the existing international and political order. Indeed, as Telford Taylor notes, Nuremberg itself was selected as the site of the International Tribunal precisely because it represented “the physical geographical manifestation of all that was wrong with Nazi law” (Sprecher, 1999, p. 1:621); how much more dramatic and evocative would the Allies’ performance of real law appear, by contrast.
With its award-winning, all-star cast–Spencer Tracey, Burt Lancaster, Maximilian Schell, Werner Klemperer, Marlene Dietrich, Judy Garland, William Shatner, and Montgomery Clift–Judgment at Nuremberg is a fictional account that loosely references the so-called Justice Trial, the third of the twelve secondary trials held at Nuremberg between 1946 and 1949. Overseen by the Americans following the International Tribunal’s judgment against and execution or imprisonment of the Nazi regime’s “Grand Criminals,” the Justice Trial prosecuted sixteen former members of the Reich Ministry of Justice or People’s Courts for “participa[ting] in a Common Design or Conspiracy to commit War Crimes and Crimes Against Humanity.” Reducing the number of defendants to four and charging them with perverting the rule of law by using the court system to advance the Nazi’s eugenics program, Judgment at Nuremberg tells the story of New England judge Dan Haywood (Spencer Tracey). Haywood is sent to Nuremberg to preside over this war crimes trial, to judge those who “distorted, perverted, and destroyed justice and law in Germany” and to thereby “drive out evil and enthrone good” (Taylor, 1992, p. 546).
But his is not an easy or straightforward task. The trial takes place on the eve of the Berlin airlift, when the denazification/democratization function of the legal theater that has been Nuremberg is no longer expedient in light of the emergent stand-off between Western powers and the Soviet Union. Pressure thus mounts on the court to circumscribe the proceedings and render a verdict on the well-respected (albeit fictitious) German Minister of Justice Ernst Janning (Bert Lancaster) that might foster the allegiance of the German people in the brewing battle against communism. But even before this dramatic pivot in the film, Judge Haywood struggles to understand how his counterparts in the judiciary abandoned “objective justice,” embraced ideology, and allowed themselves to become critical conduits in the Third Reich’s criminal enterprise. Outside of the courtroom, he debates the issue of moral culpability with fellow judges while also questioning the Germans with whom he comes into contact about what it was like to live in Hitler’s Germany and what they knew about “some of the events that were going on” given the close proximity of Dachau. Within the courtroom he grapples to make sense of a procession of disturbing testimony–individuals rehearsing their sufferings at the hands of the “Health Courts”; a former jurist and law professor detailing for the prosecution how German law grew corrupt when “race was made a legal concept”; Ernst Janning’s defense lawyer, Oskar Rolfe (Maximilian Schell), reading from the U.S. Supreme Court’s ruling in Buck v. Bell to dispel the notion that National Socialist health measures were somehow novel.25
As the trial wears on, Haywood confesses repeatedly in conversation with both citizens of the city–who he reflects appear normal or “human like all others”–and colleagues alike that he doesn’t know what to believe: “Inhuman things happened here,” he notes with frustration, but what and how? Few answers to his questions are forthcoming until the prosecution puts on the stand its final and ultimate witness, “the camera’s eye.” Introduced as evidence of what the legal orders and judgments of the accused actually engendered, the film, Nazi Concentration Camps, again captures the court’s attention and forces it to yield, finally, to the unfathomable depravation of Nazi criminality. As the images are projected in the darkened courtroom, the camera moves from face to face as each participant registers the meaning of what they are seeing: the accused grimace, gasp, and turn away; the defense attorney scowls; Judge Haywood looks on, first in horror and then with steely resolve as he now clearly sees and grasps the full nature and extent of the defendants’ guilt. There will be no abridgment of justice to satisfy the politicians or generals. No longer is the judgment he must render haunted by ambiguity.
The trial and film could end here—the liberation footage has determined what the court’s judgment must and will be. But as with Nuremberg, the defendants have been indicted anew—this time by the images. And for justice to be done, they must be shown to recognize themselves in and explain themselves in terms of this indictment. This Ernst Janning does, despite the objections of his attorney, not only on his own behalf but on behalf of the German people: “We knew,” he says (Mann, 2002, p. 91):
My defense would have you believe that we were not aware of the concentration camps! Not Aware? Where were we?! Where were we when Hitler began shrieking his hate in the Reichstag? My counsel says we were not aware of the extermination of millions. He would give you the excuse we were only aware of the extermination of hundreds. Does that make us any less guilty?
Having insisted to the court that knowledge of the Nazi’s extermination program was widespread, Janning then avows his own decisive place in the regime’s apparatus of death. It began, he confesses, with the courts through the registration of the Reich’s enemies, the repealing of rights, and the rendering of predetermined verdicts against an ever expanding category of those deemed criminal, asocial, and unworthy of life–communists, liberals, Jews, Gypsies, the socially and sexually deviant, the feeble-minded, and infirmed. Hate and power converged in his courtroom, and it was he who helped to ignite through law’s abuse an orgy of destruction.
Both films draw a stark distinction between Nazi criminality and the rule of law typified by the practices and procedures at Nuremberg and produced through the screening of liberation footage from the concentration camps. As we have seen, this footage worked to underwrite the authority and legitimacy of what were, at the time of the trials, newly invented international norms while also definitively establishing the period of Nazi rule, 1933–1945. In particular, the films demonstrate the regime’s instrumental use and systematic decimation of populations across Europe to be an historical aberration or rupture, outside modernity’s and the West’s otherwise progressive and enlightened development. Notably, in the context of the films, despite the nearly four decades that separate them, the authority and legitimacy of Nuremberg, its legality, is simply assumed. Significantly, so too is the tribunal’s animating impetus. Whereas the legal centerpiece of the original tribunal treated genocide as a by-product of aggressive war—and thus “crimes against humanity” as ancillary to “crimes against the peace”—both films treat war as merely a cover for genocide, not of the undetermined many but, specifically, of the Jews. The trials, then, are not only portrayed as chronicling the Nazi program of annihilation, the so-called Final Solution—thereby reproducing a reconstruction of the judicial record—but of providing an instrument to address and repair the moral and political collapse that facilitated state-sanctioned mass murder. This instrument is, of course, the law, not as the Nazi practiced it—which is depicted as an expression only of Nazi pathology and criminality and, thus, not law—but law as the Allied powers staged, modeled, and reestablished it through their judicial denazification program or war crimes trials.
Today the moral of the story today seems self-evident: the corruption of law is what made and makes genocide possible, and the restoration of real law is the antidote. But as legal scholar Fraser (2005, p. 163) asks, what precisely distinguishes law from Nazi law, especially when the ideals, policies, and legal regimes that operated in the governmental structures and discourses of the Allies can be shown to be nearly indistinguishable from those of Nazism and the German ‘criminal state’? To be sure, both films flirt with this question. Nuremberg addresses it through the figure of the recalcitrant Göring who, in addition to posing the problem of Hiroshima to an incredulous Gilbert, also raises the issues of the Japanese detention camps and Jim Crow segregation laws. And although Nuremberg does not make this clear for viewers, Jim Crow had in fact been an early model for lawyers crafting the Nuremberg laws of 1935 that initiated the segregation and formal disenfranchisement of Jewish citizens in Germany. Judgment at Nuremberg flirts with this question in a somewhat more explicit way through the defense that Oskar Rolfe attempts to mount on behalf of Hans Janning and the German people more broadly. Rolfe repeatedly seeks to underscore the extent to which eugenics, a bioracial world view and practice, was considered throughout the West to be a scientifically legitimate, rational approach and practice of great social and legal utility. Indeed, it was a vehicle for advancing a progressive social vision. However, in both films, as we have seen, the question is rendered moot by the atrocity footage. And it enters the historical record as such, becoming, as historian Tony Judt, notes one of the many politically essential myths that facilitated the recovery of a war-torn world and the reinvention of a democratic Europe in partnership with a morally impeachable United States (Judt, 2000).
The question nevertheless persists: what precisely distinguishes law from Nazi law? If the Nazi project, however horrific, was not outside of but contiguous with Western legal practices, then the issue, following Fraser, is not law’s absence in the making of death worlds, but its role as a critical, indeed essential, constituent in their creation. The original tribunal at Nuremberg was unprepared to address this issue, to consider law’s proficiency and complicity in organizing and administering populations; in refiguring what is called freedom and security; and in developing ever more refined, scientifically informed systems of classification from which new legal norms and subjects emerged—some subjects to be more intensely scrutinized, monitored, and regulated, and others to be destroyed. Popular texts routinely reproduce the elision to reinstate a vision of triumphant progress, inviting audiences on the one hand to celebrate the return to law that Nuremberg ostensibly facilitated and the international legal and moral norms it ostensibly enshrined; and on the other to explore the criminal mind of an abnormal or psychopathic minority, prone to prejudice and susceptible to authority, carrying out criminal policies through criminal organizations for a lack of empathy.
Such is the contemporary ethos of Nuremberg. But the story now needs to be rewritten without what were serviceable postwar fictions; and complicated in ways that might feature the unmistakable extent to which the logic and legal mechanisms that created the condition of possibility for Auschwitz remain ongoing, materially and discursively continuous features of organized life today. How else to understand and explain a contemporary world replete with state-sponsored atrocity, political expulsion, refugee crises, mass murder, and war crimes—much of which unfolds with legal sanction? “It is not because the Holocaust was unique,” Fraser writes (2005, p. 12), that it poses challenges to our legal system or to our conceptions of law and justice. “It is [rather] the very normality of the Holocaust and of the legal basis of the Holocaust that challenges us.”
War crimes trials often have a didactic or educative function. They aim not only to adjudicate instances of apparent criminal abuse and human rights violations, but to provide a public record for current and future generations. This public record provides evidence that a given trial was not merely a vengeful pretense for delivering a preordained verdict but was conducted fairly, according to established principles and laws, and thus sought and achieved justice rather than retribution. Such a record typically includes: (1) a detailed account of what happened; (2) the testimony of witnesses who were themselves involved in some capacity, whether as victim or perpetrator, in the event(s) being tried; and (3) an account from the accused detailing what they did and why.
Because each side in a case must produce a story about what happened and why, courtrooms can be sites of often dramatic and aggressive debate and disagreement not only over facts but over what significance should be attached to particular facts. Courtrooms, no more so than the war crimes trial courtroom, are also sites that lend expression to a full range of complex human emotion, competing human values, and questions concerning the nature of evil, individual culpability, and moral responsibility. This makes them a rich medium for cinematic reinterpretation and representation. Therefore, a common place to start an examination of “war crimes trials and popular culture” is with scholarship that focuses specifically on the many films, plays, and televisual reenactments of historical trials that were held in the wake of World War II to address what was then a newly established category of crime—crimes against humanity. The two, historically most famous war crimes trials (on which all subsequent such trials have been modeled) include the Nuremberg Trials, the first and most famous of which was held immediately after the German defeat in World War II (1945–1946), and the trial of the German war criminal Adolf Eichmann in Israel in 1960.
It will be easy to get lost in the vast scholarship that exists on both of these trials. But it will be important to at least situate the trial, historically (what was its rationale, how did it come about, what was its political, moral, legal, and cultural impact?) because popular entertainment mediums will often abridge, reinflect, and even change the plot lines of a particular case to highlight certain themes, foster certain identifications, or deliver certain messages. A starting point, then, in this regard, might be to examine the various accounts about a trial written by trial planners and/or prosecutors who worked to build and execute the case; to read about the war criminals on trial; and to consult trial transcripts, which are readily available online. It will also be important to situate the trial culturally. How the Nuremberg Trials or the trial of Adolf Eichmann are understood, how the story of these trials is told, and what their lasting significance is thought to be will often differ depending on the cultural location of the narrator.
Thus, for example, it is said that the Holocaust—which entailed the genocide of the Jews in Nazi Germany—has been “Americanized” for popular audiences in the United States to foreground a set of universal lessons having to do with the virtues of tolerance, the fragility of democratic values, and the resiliency of the human spirit in the midst of calamity. For Jewish audiences, however, the Holocaust might have a different significance. Its lessons may be considerably more specific and tailored to underscore not only the existential vulnerability of diasporic Jews, but the existential necessity of a Jewish state. Bear in mind then that how the Nuremberg and Eichmann war crimes trials are historically situated and how the justice each trial delivered is interpreted may well differ depending on the cultural framing of the procedures.
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- Fraser, D. (2005). Law after Auschwitz: Towards a jurisprudence of the Holocaust. Durham, NC: Carolina Academic Press. Fraser weaves together the insights of contemporary theorists Giorgio Agamben and Michel Foucault and critical legal theory to query the law’s relationship to the Holocaust and specifically the conventional, historically constructed and accepted notion that genocide reflects the absence of law rather than its expression.
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- Taylor, T. (1970). Nuremberg and Vietnam: An American tragedy. Chicago: Quadrangle.
- Taylor, T. (1992). The anatomy of the Nuremberg trials. New York: Knopf.
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1. See also Michael R. Belknap (2002), The Vietnam War on trial: The My Lai Massacre and the court-martial of Lieutenant Calley (Lawrence: University of Kansas Press, 2002), and Lt. Calley and the Nuremberg Trials (1971) Patterns of Prejudice, 5(3), 29.
2. See, for example, Austin Sarat & Hussain Nasser (Eds.), (2000), When governments break the law: The rule of law and the prosecution of the Bush administration (New York: New York University Press); Marjorie Cohn (Ed.), (2011), The United States and torture: Interrogation, incarceration, and abuse (New York: New York University Press); and Charles Anthony Smith (2012), The rise and fall of war crimes trials: From Charles I to Bush II (New York: Cambridge University Press), 231–264.
3. See T. Taylor (1970), Nuremberg and Vietnam: An American tragedy (Chicago: Quadrangle), esp. Chapter 5, “Aggressive war, Vietnam and the courts,” 95–121. See also Nicolas J. S. Davies (2005), From Nuremberg to Fallujah, Peace Review: A Journal of Social Justice, 17(4), 427–433.
4. John Rodden (2008), Heuristics, hypocrisy, and history without lessons: Nuremberg, war crimes, and “Shock and Awe”, Journal of Human Rights, 7(1), 34–43.
5. The World Tribunal on Iraq was convened in cities and countries across the globe, including London (2003), Mumbai (2004), Istanbul (2004), Brussels (2004), Stockholm (2004), Rome (2005), Japan (2004), and Germany (2004).
6. See also Brown, The American perspective on Nuremberg, 28; and Henry Kissinger (July/August 2001), The pitfalls of universal jurisdiction, Foreign Affairs, 1.
7. Nuremberg: Tyranny on trial (A&E: The History Channel, 1991), 50 min. The quote as cited is presented as a voice-over in A&E’s documentary but slightly modifies to generalize Birkett’s observation. Birkett was actually describing Robert Jackson’s cross-examination of a contentious Hermann Göring.
8. Bosch notes (p. 113) that in the spring of 1945, public sentiment in the United States leaned toward swift, sharp justice, with mass executions of between 150,000 and 450,000 recommended for members of the SS and Nazi leadership. By the end of the trial, American public opinion had shifted and overwhelmingly regarded Nuremberg as “a positive expression of American superiority and greatness.”
9. As the film studies scholar Thomas Doherty muses, “Imagine how sparse would be the programming options of the History Channel and the Arts & Entertainment Network without the grain black-and-white footage in the public domain, from Universal Newsreel and military photographic units.” “World War II in film: What is the color of reality?” Chronicle Review: The Chronicle of Higher Education, October 9, 1998, B4.
10. Judgment at Nuremberg was written by Abby Mann for television and first aired on Playhouse 90 in 1959; it was then rewritten for film (for which Mann won an Oscar in 1961 in the Best Adapted Screenplay category) and again for the stage (2001).
11. Gordon Dean to Robert Jackson, August 11, 1945, cited in Donald Bloxham (2001), Genocide on trial: War crimes trials and the formation of Holocaust history and memory (Oxford: Oxford University Press), 17.
12. Bloxham, Genocide on trial, 61:“With regard to the potential use of four witnesses who had been involved to varying degrees with resistance movements in the Third Reich, one of [Jackson’s] peculiar objections was that ‘they .º.º. had a strong bias against the Hitler regime.’”
13. Nazi concentration camps was screened on November 29, 1945; The Nazi plan, December 11, 1945; and The atrocities committed by the German-Fascists in the USSR, February 9, 1946.
14. Nuremberg: The Nazis facing their crimes, 35:42. See also D. A. Sprecher (1999), Inside the Nuremberg trial: A prosecutor’s comprehensive account (Lanham, MD: University Press of America), 1: 292–293: A member of the American prosecution at Nuremberg, Sprecher notes that this film was designed to illustrate the prosecution’s case as presented under Count 1 (conspiracy) and Count 2 (aggressive war). The film consisted of four parts: (1) “The Rise of the NSDAP, 1921–1933”; (2) “Acquiring Control of Germany, 1933–1935”; (3) “Preparation for Wars of Aggression, 1935–1939”; (4) “Wars of Aggression, 1939–1944.” The accused were reported to have relished this screening: “Von Ribbentrop is said to have wept saying, ‘Can’t you feel the strength of [Hitler’s] personality?’”; “Goring stated that the film was so inspiring that Justice Jackson would now wish to join the Nazi party.” On the intimate partnership that developed during this period between the Hollywood studios (War Activities Committee of the Motion Picture Industry) and the U.S. War Department (Office of War Information), see Thomas Doherty (1993), Projections of war: Hollywood, American culture, and World War II (New York: Columbia University Press).
15. In Jackson’s words, “We have no purpose to incriminate the whole German people. We know that the Party was not put in power by a majority of the German vote. We know it came to power by an evil alliance between the most extreme of Nazi revolutionists, the most unrestrained of the German reactionaries and the most aggressive of the German militarists. If the German populace had willingly accepted the Nazi program, no Storm-troopers would have been needed in the early days of the Party and there would have been no need for concentration camps or the Gestapo, both of which institutions were inaugurated as soon as the Nazis gained control of the German State” (B. Carruthers , The Nuremberg trials: The complete proceedings (U.K.: Coda Books), 1:76.
16. The Soviet witnesses included a survivor of the German pogrom in Vilna, a survivor of Treblinka, and former inmates of Auschwitz and Majdanek.
17. Unlike the camps encountered by the American and British forces, Auschwitz had been shut down and for the most part evacuated by camp personnel—the inmates taken on the infamous death marches to points west—when Soviet troops overtook the site in January 1945. Next to the graphic images shot by the Army Signal Corps of concentration camps “still in operation,” then, the Soviet footage appears considerably less “spectacular” even while nearly six thousand prisoners remained in and around the camp premises. Still, inmates who did survive and were brought back to health or were at least strong enough to stand performed their liberation for the camera weeks after the original arrival of troops: they are shown cheering and happily greeting soldiers as they streamed through the camp’s gates. The scene was not scripted, but it was certainly staged. Majdanek, on the other hand, was still in operation when Soviet troops arrived in July 1944, and the film taken by Soviet crews is every bit as horrendous as the footage gathered by American and British troops. See: Holocaust: The liberation of Majdanek (2006, 60 min.), Irmgard Von Zur Mühlen, director; Holocaust: The liberation of Auschwitz (2005, 53 min.), Irmgard Von Zur Mühlen, director.
18. Meaning that the potential impact of the films on spectators (or the court), their prejudicial effect, outweighed their relevance as evidence.
19. One of the issues here is the blurred line between “illustration” and “proof”: Donovan presented the films at Nuremberg as a “demonstrative aid” marshaled to explain other evidence of the prosecution’s case. However, in the context of the court—and for the public at large, clearly—the footage was treated as evidence or proof, even while the claims it advanced and the point of view it occupied escaped interrogation. This is where the court’s confidence (and the public’s as well) in the presumed objectivity and factual transparency of the camera comes into play. Does it matter, for example, that the Soviet film presented a reenacted liberation of Auschwitz or attributed a depicted massacre to German soldiers that had actually been committed by Soviet forces? Is it relevant that U.S. troops had rearranged bodies and artifacts in the camps for filmic and didactic effect?
20. In the immediate aftermath of the war, there perhaps were no words to describe the carnage. But to insist across the decades and in the wake of considerable scholarship since the war that this remains the case, as many do and, moreover, that the images demand such silence in order to be both heard and understood works largely to mythify and mystify what is now a densely constructed discursive field.
21. It bears mention that with an estimated 38.8 million viewers, Nuremberg now ranks as the most-watched original miniseries in basic cable history. See: http://www.timewarner.com/newsroom/press-releases/2000/08/01/tnt-s-nuremberg-most-watched-original-miniseries-in-basic-cable.
22. The study guides are designed to “help students ‘analyze the trial from multiple perspectives, explore how history is interpreted in film and study themes of individual responsibility and the nature of evil.’” Cited in Julie Salamon (2000), “TV WEEKEND; humanized, but not whitewashed, at Nuremberg,” New York Times, July 14.
23. The literature on these issues is vast, but for a general overview, see: James J. Weingartner (2011), Americans, Germans, and war crimes justice: Law, memory, and the good war (Santa Barbara, CA: Praeger); and Gary Jonathan Bass (2000), Stay the hand of vengeance: The politics of war crimes tribunals, (Princeton, NJ: Princeton University Press).
24. See also Carolyn J. Dean (2004), The fragility of empathy: After the Holocaust (Ithaca, NY: Cornell University Press), esp. Chap. 1.
25. Rolfe quotes the court’s judgment at length: We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world if, instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Three generations of imbeciles are enough. Buck v. Bell, cited in Abby Mann (2002), Judgment at Nuremberg (New York: New Directions Publishing), 30.