Caught on Camera
Film in the Courtroom from the Nuremberg Trials to the Trials of the Khmer Rouge
Christian Delage. Edited and translated by Ralph Schoolcraft and Mary Byrd Kelly
2013 | 352 pages | Cloth $59.95
Law | Film/Media Studies
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Table of Contents
PART I. FILM AS EVIDENCE: AN AMERICAN JURISPRUDENCE (1920-1945)
Chapter 1. The Filmmaker, the Judge, and the Evidence
Chapter 2. The Camera: An Impartial Witness of Social Relations?
Chapter 3. Learning to Read Enemy Films
Chapter 4. Face to Face with Nazi Atrocities
PART II. THE STAKES OF THE INTERNATIONAL MILITARY TRIBUNAL (NUREMBERG, 1945-1946)
Chapter 5. "Establishing Incredible Events by Means of Credible Evidence"
Chapter 6. Getting Film into the Courtroom
Chapter 7. Catching the Enemy with Its Own Pictures
PART III. NUREMBERG HISTORY ON FILM
Chapter 8. The Un-United Nations and the Ideal of a Universal Justice
Chapter 9. Documentary Archives and Fictional Film Narratives
PART IV. THE ERA OF JUSTICE ON FILM (1945 TO THE PRESENT)
Chapter 10. Trials of the Present or the Past?
Chapter 11. Hearings on Film, Film in Hearings
Chapter 12. The Face of History
Chapter 13. The Spectator's Place
Chapter 14. Court Settings and Movie Stagings: From Nuremberg to the Khmer Rouge Trial
Excerpt [uncorrected, not for citation]
Spring 1945. Although President Truman had just given Robert H. Jackson the responsibility of setting up the judicial body sought by the Allies for bringing the main Nazi criminals to justice, Justice Jackson simultaneously took two entirely original initiatives: presenting motion pictures as evidence in court, and filming the trial to make it an historical archive. Faced already with the novelty of an international tribunal, the exercise of justice would also discover that the fleeting nature of oral courtroom debate was altered considerably. The conditions, the unfolding and the consequences of these experimentations lie at the heart of the research whose results we present here.
This double jurisprudence born of the Nuremberg trial (using film in the courtroom, filming the trial), which falls within the context of immediate treatments of the World War II, is of singular concern to historians. In this exceptional situation, it is not the historian who first and foremost institutes the historicity of the collected archives (be they written or audiovisual) and determines their truth value. Rather, it is in a public venue, the court, whose authority would be critical to the citizenry of the nations represented by the judges.
Today this question is inscribed in the framework of a rapidly growing historiography centered on, among other issues, the role of the judicial hearing and film at the conclusion of wars, the terminology for qualifying mass violence, and the memory of World War II and of the genocide of the Jews of Europe.
How was Jackson, a magistrate trained in the culture of the written word, led to place so much importance on film? It might seem only natural in the country that was home to Hollywood, the most powerful movie industry in the world, that motion pictures should benefit in all quarters from an unequalled socialization. The United States certainly fed on fictions produced by the big studios to celebrate national pride and seize upon countries' mythologies. But as for news and documentaries, it was often in the contact with the future allies of their country (Russia and England in particular) that the young directors called by Roosevelt's administration to participate in mobilizing the New Deal learned their trade in the 1930s. Thanks to the German artists and intellectuals who had sought refuge in New York or California, this reflection on the social and political role of film was then carried out on the motion pictures produced by the Third Reich and the means of counteracting their influence. These two realms, fiction and documentary, constantly enriched by the contributions of new immigrants, came together at the historic moment of the allied landing in Europe. From distant observers of "Nazi atrocities," Americans were now transformed into witnesses. Cameramen from the army and intelligence service, directed by John Ford, constructed an initial account of the end of Nazism and discovery of the camps. They did so as professionals, respecting the terms and conditions necessary for the eventual validation of their films as evidence.
It was with this legacy in mind that Justice Jackson determined the role of motion pictures in the gathering of evidence and the construction of the charges against the Nazis. His desire, however, was "to establish incredible events with credible evidence" by putting together a trial in which the "documents" would be the deciding factors in proving the guilt of the accused. In fact, the massive and unprecedented character of the crimes committed and their authors' attempt to cover them up made it necessary to go beyond mere attestation of their reality and to make them the object of a confrontation inside the courtroom. This is how we must interpret the role of the inaugural projection, barely nine days into the trial, of a compilation of images filmed by the Allies in the camps in the West. One of the goals was to subject the defendants to viewing these crimes, but also to promote public awareness of their scale and gravity. The effect was gripping. The Soviets, who in turn presented in February 1946 a film devoted mostly to the Majdanek and Auschwitz-Birkenau camps, made a lesser impression, due to the lack of care taken to evoke what had been their daily backdrop throughout the war: mass death.
To maintain the standard of a "fair" trial even though it was a justice emanating from the victors, Jackson also asked that the images the Nazis had filmed and shown throughout occupied Europe be collected in Germany. The Nazi Plan, a four-hour documentary montage, would allow people in the courtroom to hear the words uttered, in the exercise of their power, by those now on trial.
It was logical that in continuity with the screenings organized in the courtroom, the lessons of Nuremberg should take a cinematographic form. We will consider in detail the difficulties of the American party in the writing, making and distribution of their film on the International Military Tribunal (IMT). In fact, to the premises of the Cold War were added the disputes over jurisdiction between Washington and the American military government in Berlin. The Soviets took advantage of this quibbling to produce their own documentary on the trial, which they presented in New York with a particularly offensive advertising slogan. In Hollywood, the big studios were content to let the "independent" directors deal with the stakes of the IMT. Even before the Nuremberg trial was held, Orson Welles thus had the idea of presenting the power of projecting archival pictures of the Nazi camps in a movie entitled The Stranger (1946). Samuel Fuller, rich with his experience as a soldier in the famous artillery unit, the "Big Red One," worked instead on the role played by film in Germany's de-Nazification. Finally, Stanley Kramer reconstituted the day at Nuremberg of November 29, 1945, during which Nazi Concentration Camps was presented.
The IMT is the impetus for the recent formation of tribunals for judging crimes committed in Rwanda (IPTR) and in the former Yugoslavia (ICTY), as well as a permanent International Criminal Court. In a final, more diachronic part of this book, we will raise the question of the cinegenic character of these trials, in the double mediation ensured by the projection of films in the courtroom and the audiovisual recording of court sessions. In the latter case, film directors, who were urged to respect often constrictive terms and conditions, were the first ones to perceive the tensions between historical time and courtroom narrative. In Jerusalem, the Israeli State was particularly preoccupied by the immediacy of the publicity of the court sessions of the Eichmann trial. In France, it was in anticipation of constituting an historical archive and by force of a law that the trials of Klaus Barbie, Paul Touvier, and Maurice Papon became the objects of audiovisual recording and even of abridged television broadcasts some time later. Jurists and historians wondered then about the effects produced by the elimination of statutory limitations on crimes against humanity when it creates a contemporaneousness that is twice removed with respect to the facts being judged: in addition to the trials being held at forty years' distance, the present saw the televisual narration organized as a daily soap opera. For their part, with the concept of "open court," Americans have since the 1980s been following up the experiments begun in Nuremberg by extending them to ordinary courtrooms, civil or criminal.
Through the examples of depositions filmed in Nuremberg (Marie-Claude Vaillant-Couturier), Jerusalem (Holocaust survivors) and Lyon (parents and educators of the Izieu children), we will revisit the role of "witnesses" and the importance of the face of history that they embody in the courtroom and even more on the screen. It is often with respect to them (and the jurors if need be) that judges' reservations concerning cameras are the strongest. Moreover, is it necessary to impose on the defendant the lasting recording of his image and allow public consultation of it, at the risk of freezing forever what belongs only to a moment in an individual history?
Today it is not only a matter of knowing how the court protects itself from mediatization, but how the court itself is capable of organizing it. In requiring that films of the camps be shown in closed session, the judges at the Eichmann trial failed to appreciate fully the system of mediation set in place in Nuremberg. On the other hand, the public screening at the ICTY on June 1, 2005 of a film showing a Serbian militia executing young Muslims from Srebrenica compelled Serbian authorities to react that very evening and to order the arrest of several suspects identified in the footage.
Does it need to be spelled out? These film images—the ones captured by the people in charge of summary executions in 2005, like those recorded by the first visual witnesses of the situation in the camps in 1945—do not "screen" us from reality, and they are even less of an obstacle to the distanced analysis to which the historian must give priority. This does not mean that simply "reading" them enables one to prove absolutely the sequence of decisions and behaviors that led to the crimes. We share Georges Didi-Huberman's idea that "the image is characterized by not being all. And it is not because the image gives what Walter Benjamin called a flash rather than the substance that we must exclude it from our inadequate means of broaching the terrible history in question."
In the research that led to this book, we have come across several types of archive, many of which had never been consulted until now. It was first a matter of locating the various films presented as evidence in court sessions, then of reconstituting the path that took John Ford's team to Nuremberg. Next, we immersed ourselves in the IMT's archives. It was also fitting to observe from this inside how Justice Jackson lived this venture: we compared the minutes of the meetings of his team with the journal he kept during the preparation of the IMT and the oral interview he gave in the early 1950s. Some new information thus came to light, in particular on the dialogue initiated very early on with representatives of Jewish organizations, usefully putting into perspective the place given in the trial to the extermination of European Jews. The Telford Taylor archives also allowed us to assess the evolution of the thinking of one of the most brilliant prosecutors of the Nuremberg trials.
Among specialized sources, we should mention the archives linked to the activities of the MoMA and in particular of Siegfried Kracauer, as well as those of Leo T. Hurwitz and of Guy Saguez, both unpublished. The corpus of filmed archives of the IMT, which we consulted at the NARA, are now available at the Mémorial de la Shoah's documentation center.
From image to text, from text to image: the movement back and forth among archives, organized with a eye to respecting the specificity of what cinematographic language contributes to the knowledge of history, is in itself already enough to explain the richness of inscribing film into a judicial process.