TY - JOUR
AB - Abstract This article reconsiders Judgment at Nuremberg in its historical and cultural context in order to draw conclusions on the legitimacy of how it balances social ethics and filmic aesthetics to the end of producing a film with mass popular appeal. In the 1960s, with the ‘hot’ war safely in the rear-view mirror and West Germany firmly established as a stable Cold War bulwark against Soviet communism, there emerged a strong cultural current in the US to examine more closely the degree of complicity of the general German population in the horrors of the Nazi period.1Judgment at Nuremberg2 is an important early artefact of this process of memory recovery, bringing the question to the heart of popular culture in the shape of a major Hollywood film, with star actors in the lead roles.3 The film has been the subject of a good deal of critical attention from various academic constituencies (recognition of both its cultural importance and status as a classic) and it is a film that continues to fascinate despite its age.4 Given the ‘based on fact’ nature of the film, much of this attention has focused on unpacking and evaluating the tension, to some degree inherent in all films of this type, between the facts and the surrounding fictions—a tension all the more important since the film deals with such grand themes of history and humanity. The present article first situates the film in the cultural and historical context of post-McCarthyite America examining the cultural role played by the ‘courtroom drama’ genre, before turning to the issue of shifting US public perception of general German complicity in Nazi-era crimes. The article then picks up on the work of various commentators who have queried the film’s facts and fictions, its attempt to tackle the question of complicity, and its use of this question as a mirror to reveal tolerance of injustice in the contemporary US. Our conclusion is that the compromises with, and distortions of, historical fact that undeniably characterise the film were not undertaken casually by the filmmakers, or in ignorance—as is proved by their demonstrably in-depth knowledge of the original trial transcript. Rather they were made with an eye to how film as a medium—and specifically Hollywood film as a project of mass popular appeal—could import complex questions of individual human conscience that were not specific to Nazi Germany into an American public sphere. As such the historical distortions may be regarded as revealing more than they conceal, and point the way to the film’s coherence on the artistic plane.5 JUDGMENT AT NUREMBERG IN ITS CULTURAL AND HISTORICAL CONTEXT In his insightful essay on ‘Law, Cinema and Ideology’, David Papke notes that although cinematic history is marked by films with legal themes from the earliest days, it isn’t until the late 1950s and early 1960s that there emerges (in the US) a consolidated, sustained and high-quality body of work sufficient to ground what has become recognised as the ‘courtroom drama genre’. Between 1957 and 1962, numerous archetypes of this genre were produced: Twelve Angry Men, Witness for the Prosecution, Compulsion, Anatomy of a Murder, Inherit the Wind, Judgment at Nuremberg, and To Kill a Mockingbird. Of these films, Judgment at Nuremberg is notable in that it deals with an international legal theme, and yet the film has been recognised as falling squarely within the genre of courtroom drama. The fact that it is populated with a star-studded, largely American, cast is one feature; others include the familiar structuring around dramatic cross-examination of witnesses, and the delivery of a resounding summation and verdict.6 Dealing with these films as a group, Papke argues that they carry a coherent ideological message of the centrality and value of the ‘rule of law’ as a core aspect of American society. This message is delivered in various ways: from the notable political centrality of the protagonists in the films (their allegiance is—primarily at least—to law as due process) to the grandeur of the courtroom settings, to the iconic status of many of the lead actors (Spencer Tracy, Henry Fonda, Gregory Peck), to the focus on the clarity and drama of witness testimony and judicial intervention (as opposed to depicting standard courtroom delays, confusions, missteps). Such elements contribute subtly, and in a way which accords with general filmic conventions, to a satisfying package that delivers its ideological punch in the form of a caress. What emerges is an image of the American courtroom as a site where heroes walk in the shadow of justice, and where there is daily defence of the American way. The films evoke a faith and inspire a belief in the rule of law, and attach this to a notion of what America is. Papke goes on to situate the emergence of the courtroom drama on film within the socio-cultural context specific to the US of the late 1950s and early 1960s. The previous ten years or so (the 1947 commencement of hearings by the House of Un-American Activities Committee (HUAC) into communist activity in the film industry may serve as a convenient marker of origin) had seen the raising to fever pitch of an anti-communist mood in the country, with Senator Joseph McCarthy as ringleader and cheerleader.7 The investigations of HUAC, which led to the imprisonment for contempt of the ‘Hollywood Ten’ when they refused to testify as to membership of the Communist party, was succeeded and complemented by a film industry ‘Blacklist’, when the major studios refused work to actors and writers suspected of having communist links or sympathies.8 The Screen Actors’ Guild, under the leadership of Ronald Reagan, far from rebelling, actually required its own members to take a loyalty oath to the US.9 By the mid-1950s, however, a backlash had set in, fuelled in part by McCarthy’s fall from grace.10 The reaction Papke identifies included a series of moves on the part of prominent legal figures and legal institutions to distance themselves from the punitive actions of extrajudicial and quasi-judicial bodies (such as HUAC) by identifying the paradox that the activities of such purportedly anti-communist bodies in fact mirrored the abuses of the Stalinist Soviet Union, with their show trial processes and punishments for what were essentially thought-crimes. In contrast, on this account, the US should be proud of promoting due process and rule of law as characteristically and fundamentally ‘American’.11 The zenith of this counter-movement was reached in 1958, when President Eisenhower declared 1 May—International Worker’s Day in the Soviet Union—as ‘Law Day’ in the US, declaring: ‘[i]n a very real sense the world no longer has a choice between force and law. If civilisation is to survive, it must choose the rule of law.’12 Other significant analyses have highlighted the role of the activist ‘Warren’ Supreme Court in promoting a sense of the law as a heroic enterprise.13 Warren was appointed as Chief Justice in 1952 and served in that role until 1968, a period which saw numerous landmark constitutional rulings on civil rights.14 So it was, Papke argues, that a space arose, in the latter part of the 1950s, for Hollywood to capture on and through film a wider public sensibility of the rule of law as a fundamentally American concern, defence of the rule of law as a fundamentally American value, and a sense of confidence in the correct alignment of law and justice. Judgment at Nuremberg managed to take this popularity of the filmic courtroom drama and mobilise it as a device to reawaken the audience to the crimes of the Nazi period. If the general cultural mood of receptivity to courtroom drama was propitious for the success of the film, there were also signs that the prevailing willingness to regard the German public as having been simply misled was waning in the face of a heightened interest in the Holocaust and the detail of life in the Nazi period. In 1959, the film version of The Diary of Anne Frank had great popular and critical success.15 In 1960, William L Shirer’s The Rise and Fall of the Third Reich became an unexpected runaway bestseller, winning the 1961 National Book Award for non-fiction and going on to sell more than a million hard-copies.16 From April to August 1961 heavy media coverage of the Eichmann trial in Jerusalem included both televised news and, famously, Hannah Arendt’s series of reports for The New Yorker.17 The genesis of Judgment at Nuremberg intersects with this broader cultural story. In 1957, Abby Mann, a jobbing scriptwriter, happened to meet Abraham Pomerantz, who had worked as a prosecutor at the Nuremberg Jurists’ Trial, at a New York party. Mann was so struck by the fact that Pomerantz had left the Nuremberg trials in protest because of his perception that prosecutions were being hampered by political support for German reconstruction, that he quit his $1000 a week scriptwriting Hollywood job and took a $500 advance from CBS to research the story for a potential teleplay for CBS’s live TV drama slot, Playhouse 90.18 Mann’s research unearthed ‘an even more startling fact’ about the trials: ‘Of the ninety-nine men sentenced to prison terms in the second series of the Nuremberg trials, not one was still serving his sentence.’19 Mann delved into the massive volume of materials constituted by the Jurists’ Trial Transcript20 and its supporting evidentiary papers, and supplemented these by interviewing amongst others, Leni Riefenstahl (Hitler’s noted filmmaker propagandist), Hjalmar Schacht (Hitler’s financier), the widow of a Wehrmacht general who had been convicted in the first Nuremberg trials and hanged, and the lawyer Robert Kempner (who had originally prosecuted Hitler after the Munich putsch). It was from Kempner that Mann took the core insights that would shape the central theme of his script. In an interview, Mann recalled that, whereas the widow of the executed General had told him, ‘[w]e must forget. We must forget if we are to go on living,’ Kempner said the opposite: ‘if we forget, then all these people would have died for no reason and no one was responsible and it will happen again.’21 In his introduction to the 2001 Broadway edition of Judgment at Nuremberg (in which he positions the play as still relevant to America in the shadow of 9/11), Mann reiterates Kempner’s words and continues as follows: I finished the script. I tried to the best of my ability to find the most powerful thing one could learn from the greatest crimes in recorded history. It is spoken by Judge Haywood the central character of the play. It is this: ‘This trial has shown that under the stress of a national crisis, ordinary men, even able and extraordinary men, can delude themselves into the commission of crimes and atrocities so vast and heinous as to stagger the imagination.’22 On his return from Germany, with his script written, a Playhouse 90 slot secured, and his cast in place, Mann and the production team faced opposition from a nervous and interventionist Eisenhower Administration which feared reviving the themes of German war guilt at a time when Cold War tension had re-escalated.23 The producers faced down the Administration and the television screening eventually went ahead in April 1959, to a very positive reception.24 That might have been the end of the matter, but for the fact that Katherine Hepburn saw the programme and recommended it to Spencer Tracy. Tracy recognised the importance of the story, saw himself in the lead role as Judge Dan Haywood, and proposed to Stanley Kramer (Hollywood’s ‘message movie’ director) that he should direct a film version in which Tracy would star (Kramer had recently directed Tracy in Inherit the Wind).25 Kramer accepted and managed to persuade United Artists that he could somehow make a film about war crimes trials and death camps that could succeed at the box office.26 His plan was simple: to recruit a cast of huge stars so that people would turn up to see them, whatever the subject matter. With Tracy already on board, he had a lot of leverage and, extraordinarily (and largely due to the personal convictions of those involved as to the worth of the project), he was able to sign up Burt Lancaster, Marlene Dietrich, Montgomery Clift, Judy Garland, Richard Widmark, and the relatively unknown Maximilian Schell. A crucial part of the jigsaw fell into place when he was able, in the winter of 1960, to recruit Mann to write the screenplay. Filming began in early 1961. JUDGMENT AT NUREMBERG: BALANCING ETHICS AND AESTHETICS To state the obvious, Judgment at Nuremberg is a Hollywood vehicle for the portrayal of the Jurists’ Trial, and as such incurs a series of what might be considered debts to truth.27 Mann and Kramer’s film was intended as a warning as much as a history lesson; they never pretended the original source material was not manipulated in order to speak clearly to the US audience. This is obvious, for example, in the representation of the two trials that are reviewed by the US judges for evidence of judicial criminality, by way of examination and cross-examination of the people convicted in the original trials.28 The first witness is ‘Rudolf Peterson’, played by Montgomery Clift. This portrayal draws heavily on the trial transcript and supporting documentation in the real-life case of Rudolf Klees, who, like ‘Peterson’, was sterilised for being ‘feeble-minded’, with a thinly veiled political motive.29 However, Klees was a Social Democrat while Peterson in the film is strongly associated with the political views of his father, a communist. The echo of McCarthyism is unmistakable as is Mann’s reflective critique. Furthermore, Klees identified himself as the employee of a Jewish cattle merchant, while this detail is excised from Peterson’s biography, leaving only political bias as the basis for his persecution.30 In the film, defence counsel Rolfe manages to demonstrate that Peterson is incapable of passing the test posed by the relevant court for assessment of ‘feeble-mindedness’, and quotes into the record the upholding of similar law in the US. Peterson’s demolition as a witness thus draws attention not only to the issues of eugenics and persecution for political views, but also to the fact that, in the US of the time, both injustices were still being promoted.31 The second principal witness in the film is ‘Irene Hoffmann-Wallner’, played by Judy Garland, whose testimony of her experience as a defendant facing judge Janning in the Feldenstein case under the Nazi regime, triggers Janning’s undoing in this trial. Her demeanour in the courtroom carries her conviction and sentence of two-years hard labour. Under cross examination she runs a gamut of emotions. We see her tremble with the memory of the terror of her first court appearance. Her face is world-weary as she acknowledges that she was aware of the Nuremberg laws and the consequences of her friendship with a Jewish man under those laws. Finally, in a classic piece of method acting, her simmering rage erupts, rolling across the courtroom in a wave of confused grief and anger, her body knocking the wood of the stand repeatedly as she hurls the words at her cross examiner Rolfe, ‘Stop it! Stop it!’ Her co-accused was executed, for having contravened the Nuremberg laws on racial purity: she was ‘Aryan’ and he a Jew. This case was based on the ‘Katzenberger case’.32 Leo Katzenberger was a religious leader in Nuremberg who came before Chief Judge Oswald Rothaug of the Special Court in March 1942, and was eventually sentenced to death.33 Mann has Hoffmann-Wallner as an innocent 16 year-old, rather than the married 22 year-old Irene Seiler on which the character is based. Furthermore, situating the date of the trial in 1935 (rather than 1942) and making ‘racial pollution’ a capital crime (which it was not) emphasises the cruelty and illegitimacy of Nazi legal measures even without the pressures of a war situation—again the implicit reflection on the US is clear.34 From the mass of material, therefore, that Mann researched, and out of which he could have drawn any number of themes, the two he chose were those that could speak most directly to the contemporary US situation.35 Kramer as director was equally clear in various interviews that what interested him most was the conduct of the Americans in the film, and the question of what America stood for, rather than what Germany or the Germans stood for.36 Kramer had also carefully chosen his actors for these two roles: Clift and Garland were notorious (in Hollywood and also in general culture) as ‘broken’ Hollywood icons, and here they were engaged to play characters broken, rather than exterminated, by the Nazi system.37 They were also notoriously ‘difficult’ to work with, and the roles were extremely demanding in their emotional intensity and range. Nevertheless Kramer wanted exactly the ‘broken’ quality that he felt these actors would bring to the roles, and the direct pathway to the emotional heart of the US public that he felt they would provide.38 Aside from the thematic manipulations, which are arguably relatively minor—in that the film tended to somewhat downplay the Nazi abuse of the judicial system in order to draw a parallel with abuses in the US—there were many further liberties taken by the film-makers. The film condenses the defendants in the original Jurists’ Trial from 16 down to four, and then further condenses by devoting most attention to a single defendant, Ernst Janning. Janning is presented as an eminent international legal scholar and jurist of the Weimar Republic who took office in the Reich Ministry of Justice under Hitler—a fictionalised composite of some of the original defendants, but ostensibly based on Franz Schlegelberger, Minister of Justice in the Third Reich for a period, who had a reputation as a legal scholar.39 This film encases the fictionalised trial of Janning within the broader story of the (likewise fictional) lead judge in the case, Dan Haywood, who must come to terms not only with the implication of judicial responsibility in the administration of Nazi justice, but also with the question of how much the judges and indeed the entire German people knew about the murderous Nazi regime. The latter question will inform his view of what the judges could have known about the consequences of their decisions.40 The Haywood and Janning characters thus provide a play of opposites in the film, which serves to overlay the progress of the trial, with the dramatic arc comprising both Haywood’s struggle to comprehend and measure up to the historical moment, and Janning’s coming to a realisation of his own complicity and guilt. We spend much of the film with Haywood, who, as lead judge on a panel of three (without jury) considers and delivers the verdict. The camera often lingers on his reactions as his understanding develops, whilst he in turn spends much of his time observing Janning’s reactions to each fragment brought to light by court proceedings. If the manifold subtle expressions of Tracy’s face provide a map to the unfolding drama of the film, then Janning, played by Burt Lancaster, cuts for the most part a silent, ventriloquised, vanquished figure, his face an impassive mask.41 The intersecting character arcs of Haywood and Janning, which provide an element of structure within the unfolding of the narrative, bring to the fore the question of filmic convention and how this is brought into play. Suzanne Shale, in her examination of the film, observes that ‘no medium, be it human speech, sign language, the plastic arts, television, radio or film, can do otherwise than represent an object in accordance with its own conventions’. For Shale, the conventional Hollywood form is that of the epic, the journey of self-realisation taken by, and defined by the decisions of, a ‘character’, a modern day Odysseus, in this case Judge Haywood. Given that the ‘message in the medium’ is ‘character’, the critical point for Shale is to accept the film as bound by certain conventions and, with that in view, to approach it critically as a refraction of legal (historical) issues, rather than a pure reflection of them. This refraction serves to carry an idea of the nature of law into popular culture, but without providing a realistic understanding of how the law works. So if we accept the Hollywood framing conventions, we might expect the movie-going public to display a grasp of the ‘great themes and grand conflicts of law, while remaining ignorant of its day to day routines’.42 In short, it is the job of trial movies to shear the law of the boring bits, and leave alive a sense of the justice issues at stake. By these measures, Shale accepts the success of Judgment at Nuremberg in opening ‘great themes’, without attempting to judge whether this or that artistic decision was justified. She points out that Mann had written an earlier more complex draft screenplay, which was more faithful to the trial transcript and the intellectual grappling of American judges with the logic of Nazi law detailed therein.43 However, Mann revised his script in favour of a more typical Hollywood narrative arc. Rather than have Haywood intellectually fascinated by German law, for example, he created instead a ‘love interest’ for Haywood, seeking to represent, in Mrs Bertholt (Marlene Dietrich) a class of conservative, cultured aristocrat, who hated the crass bourgeois Hitler yet allowed itself to be seduced or bullied into accepting the promise of a glamorous, classical, thousand year-long regime and in the after-war period wanted to cling to contempt of Hitler as a mark of aristocratic honour.44 In other words, Mann swapped an intellectual story for a love story, but did so in order to illustrate a historical point on the seductive qualities of Nazism, and, of forgetting. It is a test of Haywood’s character whether he can forego the sleeping draught presented by the beautiful Bertholt. Other commentators are neither as sanguine nor as forgiving as Shale with regard to the details of how history was bundled into a Hollywood frame. For example, Anthony Chase identifies one of the film’s themes as judicial independence: Kramer/Mann condemn the judges for having allowed their independence to have been stripped away leaving them incapable of defending justice (the point emerges in the film when Janning’s old law professor and mentor Dr Wieck is put on the stand to explain the loss of judicial independence). Chase asks ‘how did Kramer and Mann get the legal and historical bit that wrong?’,45 characterising the film as misleading on a point where clarity and accuracy are of particular importance. For Chase, Kramer and Mann ought to have written up the actual story of the conservative Weimar judges, whose very independence, he claims, coupled with their own brand of monarchist and anti-liberal prejudices, allowed them to ‘dig the grave of the Weimar republic’.46 ‘It was not the absence of judicial independence that marked the Nazi judge—just the reverse. Hitler came to power partly because of judicial independence.’47 Chase argues that it was the lack of a form of judicial review, ‘including the practical political independence of judges’ in the Weimar Republic that led to the largely conservative judiciary accepting Hitler, allowing the Nazis to violate the law and manipulate it to align with their anti-democratic interests. These critical observations by Chase undoubtedly have their value. There were conservative elements of Weimar society amongst judges, who joined with other sections of the establishment—industrialists and economists—to support Hitler. Turning a blind eye to his fervour for aggressive war, they permitted the Nazi movement to grow until it was unstoppable. So many were the active police, SS, army and Nazi party members in Hitler’s movement that, in time, those judges and other professionals who harboured misgivings with the political direction of the ship of state soon found they could do nothing about it.48 They watched it play out, participating zealously or moderately, or resigning.49 Chase’s criticism also permits a closer look at the ‘side-shadowing’ created by the film—Saul Morson’s term for the degree to which an alternative legal reality on screen may cast a shadow over the realities outside.50 Chase’s criticism is that there remains an absence of an accurate broader historical, structural understanding of the role of the German judiciary in the Holocaust. This criticism highlights the transformation inherent in the transposition from the law on the books to the law on the screen. And yet (in Mann’s defence), the historical story of judicial independence in Nazi Germany, or the lack of it, is more complex than Chase suggests. Chase does not refer to the Nazi decrees that clearly countenanced interference with the independence of the judiciary—and of which Mann would have been aware from his reading of the law records—an obvious one being the dissolution of district judicial government over the district courts which hired and oversaw tenure of judges.51 The emergence of a ‘dual state’, as it has been famously called, was triggered by the security measures implemented after the Reichstag fire, a ‘prerogative state’ on the one hand and a ‘normative state’ on the other.52 The prerogative state was the realm of arbitrary power and official violence, against which citizens enjoyed no legal protection. The normative state was the legal order, which included both traditional law and the newly enacted Nazi law.’53 The range of extraordinary courts from Hereditary Health Courts to the People’s Court were tribunals set up by the Nazis to run concurrently with the district courts yet these incrementally and increasingly took over the jurisdiction of courts already in place. No doubt Mann could have waded further into that discussion (as the transcript does), or into the broader history Chase suggests, but he chose to express the corruption of the judicial process through the trial of two native Germans who had experienced first hand the blurring of the ‘prerogative’ and ‘normative’ states. The move, once again, is away from a presentation of relatively sophisticated historical detail and towards, instead, the illustration, through the characters of Peterson and Hoffman-Wallner, of human stories that provide an alternative measure of the historical moment. Chase also argues that Mann did not investigate the judges more thoroughly because he wanted to champion the liberal judges in the American South and blame the German judges for not being equally liberal. However, he overlooks both Mann’s close engagement with the transcript and his recognition that some members of the German judiciary may have believed that remaining in post might present the best hope of ameliorating a terrible situation.54 This allows for an examination of personal conscience: in the film an argument along these lines is put into the mouths of Defence Counsel Rolfe and one of the American judges, Judge Ives, who dissents from Haywood’s judgment, arguing that the judges under indictment were simply doing their job. The trial transcript and film both document this struggle within the judiciary. In the figures of the judges, the film manages to be both didactic and complex. This in turn allows for a more effective reflection on the US context, which is made all the more pointed through Rolfe’s periodic explicit references to US law in support of his arguments. In dramatising the conflict between Rolfe (the blisteringly able young defence attorney) and Janning, Mann adds a further dimension to his examination of German judicial society, which performs a metonymic role as a cipher for society as a whole. He dramatises the intergenerational element of the conflict in the German judiciary. His inclusion of Janning’s mentor Dr Wieck and Janning himself, as well as the youthful Rolfe, touches on German generations that span the First World War, the interwar years, the Second World War and the post-war period. The Hollywood rendering (which provides for extra-courtroom scenes) allows Rolfe the space to perform his beliefs both in intimate conversation with Janning in prison (where we see the older judge as a fallen idol and the young aspirational attorney desperately seeking to revive him for the good of reconstruction in the country) as well as allowing Rolfe to perform publicly the exculpation discourse of contemporary Germans to their American victors in the courtroom, along the lines of ‘if we are guilty for facilitating the rise of Hitler, then the whole world is guilty too … No-one knew how things would go’. So while Chase is fundamentally correct that the independence of conservative judges during the Weimar period allowed the Nazis to come to power, Mann, through the device of the judges, delves into the relationship between older and younger German men of letters and professionals and so offers an insight into the frequent simple careerism behind the support of Hitler.55 Similar to other professions, purging the judicial ranks meant greater scope for professional advancement among those who remained. Mann, in other words, through the measure of the intergenerational legal professional relationships shown in the film, seeks to illustrate a broader social point. Whilst we might be aware of Kramer and Mann’s limitations and stereotypes, and of the simplifications of law in the film’s side-shadowing, we can appreciate the measure of their desire to go deeper than their filmic predecessors had (with the exception of perhaps Charlie Chaplin in The Great Dictator) into the minds of the German semi-state and civil society, and their achievement in finding a way to examine intergenerational issues through the limited compass provided by a trial scenario. Most poignant in considering the film’s free treatment of history in the service of an effective didactic vehicle, is the use of documentary footage from the death-camps and how this references the use of the US Army newsreel film Nazi Concentration Camps in the first Nuremberg Trial. Mann’s use of an edited version of the same documentary in Judgment at Nuremberg contrasts the intention and effect, first of the film within a trial (the first Nuremberg Trial) and second, of the film within a film (Judgment at Nuremberg itself). Lawrence Douglas highlights that in the first Nuremberg trial, the drawn-out and visually static and dull court procedure in the first week of proceedings, made possible contrasting ‘moments of most extraordinary spectacle’ in the second.56 Sensing a need to re-infuse some drama into the trial, the prosecution at Nuremberg announced the showing of a motion picture. It was introduced as follows: ‘the film we offer represents in brief and unforgettable form an explanation of what the words “concentration camp” imply … these motion pictures speak for themselves in evidencing life and death in Nazi concentration camps.’57 As a visual artefact, the motion pictures could offer evidence that the court might have found difficult to believe from witness testimony alone. For Douglas, ‘the crucial function of the film in a trial designed as an exercise in didactic legality’ was to confront the court ‘with the chief challenge of the trial: to submit unprecedented horror to principled legal judgements.’58 It was a novel use of film in a courtroom and the magnitude of the crimes it depicted was without precedent. The film ‘provided a register of extreme atrocity’ crossing ‘a threshold of representation from which there was no turning back’.59 Not only did a piece of documentary film itself perform a starring role in the proceedings, but while the screening was making legal history, it was itself filmed, the reactions in the court being recorded on film and by the world’s media, for the record.60 If, in the first trial, Nazi Concentration Camps re-infused drama into the ‘citadel of boredom’61 of legal procedure, in Kramer’s film-trial its purpose is, by way of shock, to bring the viewer to identify with American prosecutor Lawson, who supposedly witnessed the atrocities in person. The film was never shown in the actual Jurists’ Trial. Lawson’s (fictional) first-hand experience serves to explain his atypical (for a lawyer) obvious emotional investment in the trial process, as well as his emotional excess in the extra-trial scenes (he is obviously drunk on one occasion). The screening of the documentary footage also provides a pivot for Judge Haywood’s changing views. As the film is shown in court, there are cuts to his horrified, if controlled reaction. It marks a break in his hitherto growing affection towards Bertholt, and therewith towards the entire question of knowledge and silent complicity on the part of the mass of the German people. Haywood and Bertholt meet on the evening of the day when Lawson has shown the film in court, and it is obvious that Haywood is in no mood for Bertholt’s self-justifying speeches to the effect that ‘we didn’t know’. When Bertholt counters that the Americans denied her husband the dignity of a firing squad as evidence of wrong on both sides, Haywood can only find the reference repugnant. So, in an important sense, even the use of the concentration camp footage falls into the ‘epic’ narrative pattern identified by Shale, tracing the character journey of Haywood. Certainly the documentary footage sits awkwardly in the film. For James Jordan, as for Alan Mintz, criticism centres on the effacement of Jewish experience. For them, it is striking that there is not a single Jewish witness in Judgment at Nuremberg with the effect that the camp footage becomes somewhat divorced from Jewish experience: Rather than evidence of a widening understanding of the Holocaust, the inclusion of the footage affirms that sixteen years after liberation, American memory of what was now ‘the Holocaust’ continued to be drawn from the documentary footage shot by the liberators. It is testament to the efficacy of the original film in the formation of memory and meaning, and of Hollywood’s continued reluctance to let the victims tell their own stories.62 For Jordan, the clip’s presence is ‘indicative of the absence of Jewish testimony, thereby silencing the voice of the victim in favour of celebrating and reliving liberation, a moment of redemption as well as revelation for the American audience.’63 Mintz develops the point by noting how this element of the film at the time didn’t trouble the critics: This effacement of the Jewish identity of the victims, moreover, remained completely unremarked upon in the critical notices of the film in its time. Entirely characteristic is the indefinite universality—and the lack of interest in historical fact … It was not until much later, in the writings of Lawrence Langer, Judith Doneson, and Ilan Avisar, that the disappearance of the Jews in the film was clearly registered and this delay in marking a fact that now seems so self-evident is another reminder of the enormous shift that took place in our perception of the Holocaust.64 Further observations that strike Mintz with hindsight, however, are that despite this effacement of Jewish identity in the film, the act of seeing the film as an American Jewish child with the rest of his family (excepting his younger brother—deemed too young) was considered a major turning point in how his community felt perceived by the mainstream: That the fact of the Holocaust was presented in Judgment at Nuremberg and documentary footage shown was taken as a source of wonderment; that the Holocaust as a ‘parochial’ tragedy for the Jewish people should be represented was considered beyond all expectation. Jewish viewers therefore saw themselves as receptors of an encoded communication: they picked up and discreetly unscrambled signals of what could not be said … There are elements in Judgment at Nuremberg that resemble unstable, radioactive compounds that though shielded and stoppered, produce unpredicted effects. The concentration camp footage is the most obvious of these … the aura of the images fades but does not disappear. There occurs a kind of representational seepage that continues to lay down its own film of consciousness independent of its celluloid embodiment. The scope of what is representable in this medium has been enlarged. Something has changed.65 For Mintz, then, the movie marked a turning point in awareness (as did the coverage of the Eichmann trial), and despite the effacement of the specifically Jewish experience in the film, particularly in the handling of camp footage, it opened a door in Jewish-American consciousness allowing that experience to be articulated henceforth in general culture. One might say that the free-floatingness of the atrocity footage within the structure of the movie pays respect to the idea of not forcing the dead to speak; the film, in its awkwardness, allows them to speak for themselves, and they are heard. Once again, therefore, despite the seeming prioritisation of an epic narrative journey arc for the Haywood character, the film contains enough scope that multiple meanings ‘leak’ out on multiple levels.66 Another possible reading is that there was always an authorial and directorial intention that the presentation of the camp footage would bear those multiple meanings, including specifically that of the Jewish experience—both Mann and Kramer were, after all, Jewish.67 Taking the various criticisms of the film outlined above together, which essentially lament the loss of certain truths, an alternative possibility to explore is that the film was setting out to do a different job than simply to report history. If The Diary of Anne Frank (which had been very popular two years before) offered the opportunity to get closer to one victim of the Holocaust, Judgment at Nuremberg, through its dramatic devices and cinematic advantage, offered the viewer a closer understanding of German perpetrators than either Anne Frank, or the original documentary footage of the Nuremberg trials. No longer bystanders, but emotionally present in the courtroom, this prompted a different kind of moral questioning and opportunity for identification. Perhaps more significantly, this proximity invited an emotional response. The moral dilemma of regarding the Nazi judges as citizens or criminals—who took part in atrocities whilst carrying out the duties of office—is further charged with the presentation of their emotional lives on screen. Nazi criminals had hitherto been seen from afar, from fixed cameras in the courtrooms of Nuremberg and Jerusalem (in televised clips of the Eichmann trial), but the dramatisation of these far-away characters allowed for a different cultural debate. Just as Anne Frank allowed Americans a closer and more human identification than that offered by the gaze of the liberator in images of Holocaust victims, so Judgment at Nuremberg allowed for a closer identification with the central character, Judge Haywood, as he seeks to comprehend the different positions Germans might have taken had they stood up to, or spoken out against, the Nazis, rather than being complicit. Much of the Jurists’ Trial transcript reflects the American judges need to understand how German judges and German people could act so differently to how they believed American judges and American people would have acted. Kramer’s cuts allow us to read a series of reactions and counter-reactions across the courtroom and in close-up; the film presents a mirror, but also a way to see past the mirror to basic questions of humanity. In Judgment at Nuremberg, art collaborates with international criminal law to produce a specific effect. It is not its truthful rendition of the procedures of international criminal law, or its codified mirroring of a budding American civil rights movement that places it in a canon of legal films critiquing law and society. Judgment at Nuremberg is worth seeing for its artistry—the artistry of the transposition from transcript to script, the artistry in its performances, and the artistry in its dramatic arc of revelation, which emphasises the change and development of its central characters, in particular Haywood who grows in stature and decides in the last instance to speak up for law as an independent voice for justice and the value of a single human being, over political expediency and notions of community or country trumping individual rights. Without the multilayered performances of Tracy, Clift, Garland, and Schell this higher intended meaning could not carry its cathartic impact. In his Hollywood depiction of legal process, Mann was persuaded that he had found a band of artists ‘not prone to go along with the collapse of international morality that I believe came into sharp focus with the release of the men that this play deals with.’68 The film-makers embrace their own artistry and the artistry inherent in the transposition of life to film in the service of ideals of justice and truth. Telford Taylor, the Chief Prosecutor in the real Jurists’ Trial, demonstrated that he understood the symbolic qualities of justice even as he walked among its ruins when he talked of the need to ‘re-consecrate the temple of justice’. In his opening address to the Court he entreated for guilty verdicts as follows: I have said that the defendants know, or should know, that a court is the house of law. But it is, I fear, many years since any of the defendants have dwelt therein. Great as was their crime against those who died or suffered at their hands, their crime against Germany was even more shameful. They defiled the German temple of justice, and delivered Germany into the dictatorship of the Third Reich, ‘with all its methods of terror, and its cynical and open denial of the rule of law.’ The temple must be reconsecrated …69 There is something of this spirit in Judgment at Nuremberg, something of a flame being carried aloft, of a pledge and a plea to the soul of America and the world. Finding a way to marry authenticity and spirituality in film, as in law, is a difficult road to travel; but sometimes, film and law can help one another along that road. Footnotes 1 ‘In the 1940s and 1950s the term Holocaust had not been invented and survivors were silenced and stigmatised.’ A Mintz, Popular Culture and the Shaping of Holocaust Memory in America (University of Washington Press, 2001) 3. For discussions of a time-lag in the public discussion of the Holocaust in the post war years until the 1960s, see J Doneson, The Holocaust in American Film (Syracuse UP, 2002). 2 Judgment at Nuremberg, dir. S Kramer (1961). 3 Judgment at Nuremberg was not the first film to address the American public on the subject of the Nazi crimes. The Diary of Anne Frank, dir. G Stevens (1959) enjoyed wide popular viewing. The latter was, arguably, a safe means for the American public to approach the subject of the Holocaust: ‘the diary became a symbol of its time—an era when the theme of a unified, postwar America was being peddled—that is a universalised, Americanised version of European history that synchronously meant to educate about the Holocaust while ameliorating its reality.’ Doneson (2002) 226. 4 Relevant film studies scholarship includes D Platt (ed.), Celluloid Power: Social Film Criticism from the Birth of a Nation to Judgment at Nuremberg (Scarecrow Press, 1992) and H Luft, ‘The Screen and the Holocaust’ Davka Magazine (Fall 1975), extracted in Platt (1992) 369-82. Scholarship which covers reception of the film and its place in Holocaust studies includes: J Jordan, From Nuremberg to Hollywood: The Holocaust and the Courtroom in American Fictive Film (Vallentine Mitchell, 2016); Mintz (2001); A Stephan (ed.), Americanization and Anti-Americanism: The German encounter with American Culture after 1945 (Berghahn, 2005). From the cinematic jurisprudence field, the following discuss the film for its jurisprudential content and representation of law: S Shale, ‘The Conflicts of Law and the Character of Men: Writing Reversal of Fortune and Judgment at Nuremberg’ 30 University of San Francisco Law Review (1996) 991; S Davies, ‘From Maycomb to Nuremberg: Cinematic Visions of Law, Legal Actors and American Ways’ 8 International Journal of Law in Context (2012) 449; L Douglas, The Memory of Judgment: Making Law and History in the Trials of the Holocaust (Yale UP, 2001) 62; D Fraser, ‘Judging Judgment at Nuremberg: Law, Justice, and Memory in Hollywood’ (paper delivered at ‘Cinema and Post-Conflict Conference’, Centre for the Study of Post-Conflict Cultures, May 2007), available at https://www.academia.edu/5991394 (last visited 1 May 2018); D Papke, ‘Law, Cinema, and Ideology: Hollywood Legal Films of the 1950s’ 48 UCLA Law Review (2001) 1473; N Rafter, ‘American Criminal Trial Films: An Overview of Their Development 1930-2000’ 28 Journal of Law and Society (2001) 9. 5 A short companion video for this article made by the authors, ‘Judgment at Nuremberg: The Story of a Hollywood Classic’, is available at https://vimeo.com/272655663. 6 Papke has Judgment at Nuremberg squarely within the genre. Nicole Rafter makes a different analysis of the characteristics of the genre, but again includes Judgment at Nuremberg. See Rafter (2001). 7 McCarthy claimed this position of leadership in an already febrile Cold War anti-communist atmosphere when, as a US Senator for Wisconsin, he emerged from relative obscurity on 9 February 1950 to deliver an inflammatory speech in Wheeling, West Virginia, claiming he had a list of 200 communist infiltrators in the Department of State. See T Reeves, McCarthyism (Dryden Press, 1973). 8 For an extended treatment of the impact of the communist scare on Hollywood, see M Freedland & B Paskin, Hollywood on Trial: McCarthyism’s War Against the Movies (Robson, 2007) and G Kahn, Hollywood on Trial: The Story of the 10 Who Were Indicted (Boni & Gaer, 1948). 9 Papke (2001) 1488. 10 McCarthy’s downfall began in 1954 when his attempt to expose supposed communist infiltrators in the Army backfired and he was censured by the Senate for abuse of his position. See The United States Senate, ‘The Censure Case of Joseph McCarthy of Wisconsin (1954)’, available at https://www.senate.gov/artandhistory/history/common/censure_cases/133Joseph_McCarthy.htm (last visited 11 May 2017). 11 Papke lists various relevant developments, including a landmark 1955 Harvard conference on ‘Government under Law’: Papke (2001) 1489. 12 ‘President Calls Law Key to World Peace’, The New York Times, 1 May 1958, 14, quoted in ibid 1490. 13 Davies (2012). See also N Rafter, Shots in the Mirror: Crime Films and Society (Oxford UP, 2000); S Manchura & S Ulbrich, ‘Law in Film: Globalizing the Hollywood Courtroom Drama’ 28 Journal of Law and Society (2001) 117. 14 For discussion see Davies (2012). 15 The diary was published in Holland in 1947 and in the US in the early 1950s. It was dramatised and turned into a film in 1959. 16 W Shirer, The Rise and Fall of the Third Reich: A History of Nazi Germany (Simon & Schuster, 1960). 17 These reports ultimately resulted in her controversial monograph, H Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (Viking Press, 1963). Robert Moeller discusses the influence of public awareness of the Eichmann trial on the reception of Judgment at Nuremberg. He cites ‘public opinion surveys’ which indicated that of those questioned, 87 per cent in the US and 95 per cent in Germany knew something of the trial: Moeller (2013) 505. 18 ‘It struck me as fantastic that perhaps the most significant trial in all history had never been treated artistically and little journalistically.’ A Mann, ‘Foreword’, Judgment at Nuremberg: The Script of the Film (Cassel, 1961) i, iv. See also Emmy TV Legends Archive of American Television, ‘Abby Mann—Archive Interview Part 2 of 6’, available at https://www.youtube.com/watch?v=B9UkTeiaWCg (last visited 1 May 2018). 19 The ‘second series’ refers to the ‘Control Council Law No. 10’ trials that took place in American-occupied Germany after the first Nuremberg trial of the military and political leaders, conducted jointly by the English, American, Soviet and French powers. The US Nuremberg Trials or ‘Subsequent Nuremberg Trials’ reached into the realms of semi-state and civil society to locate criminal responsibility for complicity and engagement in mass criminality amongst doctors, officials from different civil sectors (economic and industrial groups, resettlement programs) industrialists, and the judiciary. The ‘Jurists’ Trial’ was the third in this second series. Unlike the joint International Military Tribunal, this second wave of trials was undertaken entirely by American prosecutors and judges. See Trials of War Criminals before the Nuernberg Military Tribunals under Control Council Law No 10 (United States Government Printing Office, 1951) vol. 3, 13 (‘Jurists’ Trial Transcript’). 20 Also known as the ‘Judges’ Trial’ although not all those tried were judges. 21 Mann (1961). 22 Mann (2001) 8-9. Mann discusses how both 9/11 and the reaction to it brought back vividly to his mind the human capacity for irrationality, self-delusion and corruption under the impulse of nationalist fervour which had so struck him when he wrote his original screenplay in 1959. 23 For discussion on this point, see Moeller (2013) 500. 24 Mann recalled that ‘the government got hold of the script and said this is a no no, we’re trying to save ourselves in this goddamn Cold War! … Brodkin [his producer] called me up and said “we’re not going to air it”.’ With the support of the director and actors, the producers decided to pay for a page advertisement in The New York Times, ‘saying that it was important that the American people see this production.’ CBS got wind of this and was cowed into going ahead with the production rather than be humiliated in the press. It was a disappointment to Mann that the healthy acclaim it received by way of an unprecedented volume of mail and telephone calls to CBS in reaction to the broadcasted teleplay, was overshadowed by an embarrassing controversy caused by Playhouse 90’s sponsors, American Gas Inc., who had sent a memo demanding the removal of any mention of gas ovens. When producer Brodkin refused, CBS took matters into their own hands and during the live broadcast, at a climactic moment, made a sound engineer remove the sound entirely under a phrase noting ‘extermination in gas ovens’. 25 Inherit the Wind dealt with the Stokes trial and the issue of teaching evolution. Kramer had also previously directed The Defiant Ones (dealing with racial prejudice) and On the Beach (dealing with nuclear holocaust). He would go on to direct Guess Who’s Coming to Dinner? (inter-racial relationships) and It’s a Mad, Mad, Mad, Mad World (greed). 26 Stanley Kramer explained his choice of actors: ‘… do you think United Artists wanted to make that thing about the trial? They weren’t interested at all in war guilt and those people in the ovens and crooked judges … I studded it with people to get it made as a film so that it would reach out to a mass audience.’ Quoted in Doneson (2002) 97. 27 In his Emmy TV Legends Archive of American Television interview, Mann says: ‘I didn’t attend any of the trials, but I read the transcripts and, of course, I dramatised some of it. You know we didn’t use real names, I thought it was more important to do the symbols of what happened … because if you do a documentary and stick to the facts it’s not drama, usually. Sometimes it can be, but I think it’s more important to build a hundred judges into one and to make actions that really illustrate what you feel deeply about.’ Emmy TV Legends Archive of American Television, ‘Abby Mann—Archive Interview Part 3 of 6’, available at https://www.youtube.com/watch?v=bDSYnKCAy_Y&t=23s (last visited 1 May 2018). 28 For an extended discussion on this point, see Moeller (2013) 512-18. 29 Ibid 516. 30 Ibid. 31 Rolfe reads out an opinion which ‘upholds the sterilisation law in the State of Virginia, in the United States, and was written and delivered by that great American jurist, Supreme Court Justice Oliver Wendell Holmes.’ Mann (1961) 37. 32 ‘No case had riveted the attention of the 1947 tribunal more than the trial of an elderly German Jew, Lehmann Katzenberger, accused of Rassenschande, sexual relations with an “Aryan” woman, Irene Seiler.’ Moeller (2013) 517. Corrupt judicial practices from the trial caught the attention of the American judges, including: Judge Rothaug comparing notes with the prosecution during the recess and telling him how to conclude his case; and the judge using his position in court as a pulpit from which to sermonise about the Jewish question. Because of the way the trial was conducted, it was apparent that the sentence which would be imposed was the death sentence. ‘Jurists’ Trial Transcript’ (1951) 1183. 33 See H Reicher, ‘Evading Responsibility for Crimes Against Humanity: Murderous Lawyers at Nuremberg’, in AE Steinweis & RD Rachlin (eds), The Law in Nazi Germany: Ideology, Opportunism, and the Perversion of Justice (Berghahn Books, 2013) 137, 141: ‘Rothaug resorted to blatant distortions and machinations in order to guarantee that the hapless Leo Katzenberger, who was charged with “racial pollution” arising out of an alleged relationship with an Aryan woman, was sent to his death on the basis of no credible evidence. When Rothaug walked into the courtroom to preside over the case he had two clear items on his agenda: first, the Jew had to lose; and second, the Jew had to be eliminated, ie., sentenced to death.’ 34 See Moeller (2013) 517. 35 Moeller argues that ‘Mann wanted to create characters who could tell American audiences about the crimes of National Socialism but who would also present German fascism as a yardstick for measuring the forms of injustice that, he implied, permeated the daily life of Americans in 1961.’ Ibid 514. Moeller goes on to explore the question of the metaphor of Petersen’s ‘emasculinisation’ in the Hollywood context. For further discussion, see ibid 515. 36 ‘I am interested in the world and what we in America stand for … It is not the attitude of the Germans that I have tried to emphasize in the film. It is the attitude of the Americans—the judge and the prosecuting attorney and all the others who participate in this necessarily fictionalised representation of the momentous judgments at Nuremberg.’ S Kramer as quoted in the Sunday Magazine of The New York Times on the eve of the premiere, quoted in Mintz (2001) 102. 37 Kramer visited Clift in his brownstone apartment. He recalls ‘He looked absolutely brutal, I mean terrible; he looked as though he had one foot in the grave … and this beautiful leading man had come to this point. He was perfect for the role.’ M Leonard, Montgomery Clift (Hodder & Stoughton, 1997) 246. Judy Garland hadn’t been hired for a film for seven years; she was on a remarkable rollercoaster comeback as a live performer, singing to packed audiences around the world. Before casting her, Kramer went to a concert in Dallas on 21 February 1961: ‘I saw staid citizens acting like bobby-soxers at an Elvis Presley Show, I was struck too by the tremendous emotional range of Judy’s performance that night …’. D Shipman, Judy Garland (London Harper Collins, 1993) 451. 38 Judy Garland’s climax, the cross examination from Rolfe, demanded a complete breakdown. After several takes she turned to Kramer and said ‘Damn it, Stanley, I can’t do it. I’ve dried up. I’m too happy to cry.’ He gave her some space and time to muster her resources and she delivered. ‘Still sobbing after the successful take Kramer hugged her, aware that Monty had been watching from a corner huddled in a ball—“like a little animal” … with tears pouring down his cheeks, his shirt and jacket drenched.’ See C Finch, Rainbow: The Stormy Life of Judy Garland (Grosset & Dunlap, 1975) 217. 39 For background on the original ‘Jurists’ Trial’, see M Lippman, ‘The Prosecution of Josef Altstoetter et al.: Law, Lawyers and Justice in the Third Reich’ 16 Dickinson Journal of International Law (1998) 343. Schlegelberger was sentenced to life imprisonment, but released due to ‘incapacity’ in 1950, and went on to draw a generous government pension until his death in 1970. 40 Judge Brand (Haywood’s real-life counterpart in the Jurists’ Trial) said that the German judges couldn’t expect him and his co-judges to be so ‘gullible’ as to believe they were unaware of a nation-wide pogrom and atrocities leading to the necessary disposal of ‘mountainous piles of bodies’. ‘The thousands of Germans who took part in the atrocities must have returned from time to time to their homes in the Reich. The atrocities were of a magnitude unprecedented in the history of the world. Are we to believe that no whisper reached the ears of the public or of those officials who were most concerned?’ ‘The judges in the dock read The Stuermer. They listened to the radio. They received and sent directives. They heard and delivered lectures. This Tribunal is not so gullible as to believe these defendants so stupid that they did not know what was going on. One man can keep a secret, two men may, but thousands, never.’ ‘Jurists’ Trial Transcript’ (1951) 1111. 41 Kramer admitted: ‘He wasn’t my choice for the part … I thought he was the least believable person I had in this film.’ Kramer had wanted Laurence Olivier, but filming clashed with Olivier’s honeymoon with Joan Plowright. D Spoto, Stanley Kramer: Film Maker (GP Putnam’s Sons, 1978) 232. 42 Shale (1996) 1021. 43 ‘Mann’s initial outline of the film suggests a depth and sophistication diluted in the process of preparing the commercial presentation. It is this author’s opinion that it was Kramer who was responsible for injecting into the movie the sentimental liberalism of which some commentators were so critical … Straightforwardly, there was more law in Mann’s outline: more explanation of the difference between the German and American legal systems and their conceptualizations of the role of the judge; more discussion of the nature of the charges being brought against the defendants; more concern with the legitimacy of the military tribunals …’. Shale (1996) 1007. Also, in his TV Emmy interview, Mann says his script evolved to replace a daughter for Haywood who would be a dramatic vehicle of exploration of German culture outside the courtroom, with a ‘love interest’ and after his second visit to Germany when he interviewed the widow of the General again, he wrote the character of Bertholt: Emmy TV Legends Archive of American Television, ‘Abby Mann—Archive Interview Part 2 of 6’, available at https://www.youtube.com/watch?v=B9UkTeiaWCg (last visited 1 May 2018). 44 Schlegelberger’s defence in the transcript reveals more complexities. Schlegelberger claimed he identified little with the Nazis (‘I was never fooled or influenced by Hitler’s demoniacal qualities, and I saved my own conscience, as far as he was concerned.’ ‘Jurists’ Trial Transcript’ (1951) 322). He claimed to have had little power in the ‘isolated’ Ministry of Justice. Yet, Freisler, a notorious fanatical Nazi judge of the People’s Court, would come to Schlegelberger at the Ministry, frequently in tears, needing his absolution. Ibid 333. Schlegelberger’s stance reveals some of the detail of relationships in the judiciary, crossing class/party/authority lines. It did not earn him Judge Brand’s absolution. Like Haywood, Judge Brand called Schlegelberger ‘a tragic figure’ and sentenced him to life imprisonment. Footage of Freisler documenting his terrorising of victims was shown as a piece of evidence to the Tribunal. For Freisler in action see ‘Conspirators of July 20 Plot to Assassinate Adolf Hitler Appears [sic] at People’s Cour [sic] … HD Stock Footage’, available at https://www.youtube.com/watch?v=Fgpbq2hd0yY (last visited 1 May 2018). 45 A Chase, Movies on Trial: The Legal System on the Silver Screen (The New Press, 2002) 151. 46 Ibid. ‘Unconstrained judges freely joined the assault on liberalism in Germany and helped make the barbarism of the Nazi regime possible. That is a point nowhere to be found in Judgment at Nuremberg. One wonders if the film could not just as easily have been made in the form of an attack on independent German judges and legal scholars—“judicial activists”—who boldly deviated from the liberal constitutional theory. But that might have made the film even harder for American audiences to understand during the Kennedy and King years when, we should not forget, judicial activism because increasingly identified with liberalism, civil rights and the Warren Court.’ Ibid 152. 47 Ibid 150 (emphasis in original). 48 In a summary at the end of the Jurists’ Trial, Judge Brand considers Nazi ‘Law in Action’ and refers to ‘sinister influences’: ‘In view of the conclusive proof of the sinister influences which were in constant interplay between Hitler, his ministers, the Ministry of Justice, the Party, the Gestapo, and the courts, we see no merit in the suggestion that Nazi judges are entitled to the benefit of the Anglo-American doctrine of judicial immunity … The function of the Nazi courts was judicial only in a limited sense. They more closely resembled administrative tribunals acting under directives from above in a quasi-judicial manner.’ ‘Jurists’ Trial Transcript’ (1951) 1055-56. 49 Judge Brand (the lead Judge in the real trial) divided judges under the Nazi system into two categories: ‘In the first we find the judges who still retained ideals of judicial independence and who administered justice with a measure of impartiality and moderation. Judgments which they rendered were set aside by the employment of the nullity plea and the extraordinary objection. The defendants they sentenced were frequently transferred to the Gestapo on completion of prison terms and were then shot or sent to concentration camps. The judges themselves were threatened and criticised and sometimes removed from office. In the other category were the judges who with fanatical zeal enforced the will of the Party with such severity that they experienced no difficulties and little interference from party officials.’ Ibid 1056. 50 S Morson, Narrative and Freedom: The Shadows of Time (Yale UP, 1994) 117. 51 For translated extracts of the ‘Law for the Transfer of the Administration of Justice to the Reich’ passed on 16 February 1934 (the first of a series of laws to transfer legal power to the central government), see ‘Jurists’ Trial Transcript’ (1951) 198. Before this the administration of justice was largely the function of the separate German states (Laender) making up the Reich. Schlegelberger’s own take is that during the war, Borman collected newspaper cuttings of reports of trials from the provinces to give Hitler as ‘a distraction’ when Hitler was ‘disgruntled’ with how the war was going. These served as a further means to discredit local judges and courts whilst also motivating Hitler to intervene in legal outcomes in the provinces when he disagreed with them. See ‘Jurists’ Trial Transcript’ (1951) 325. 52 E Fraenkel, The Dual State: A Contribution to the Theory of Dictatorship (Oxford UP, 1941) was written during the 1930s by Jewish German lawyer Ernest Fraenkel. 53 DG Morris, ‘Discrimination, Degradation, Defiance’, in Steinweis & Rachlin (2013) 109. 54 Several defendant judges claimed that they staved off the possibility of even more extreme implementation of Nazi justice. Joel wished to remain silent, Rothaug argued that harsh laws were a reaction to war conditions, Klemm claimed he struggled and used what legal and factual opportunities were open to him in favour of justice before being sacked, whilst Altstoetter claimed to ‘know above all that the German judges, even in hard times and particularly in these hardest times of all, did their duty for right and justice up to the very end.’ (See generally ‘Jurists’ Trial Transcript’ (1951) 972-84.) Janning’s awakening comes when he ceases to be a judge hiding behind the stance that he was doing the best he could to protect a German judiciary under siege (when he ceases to sit silently ‘content to let counsel try to save my name’) and realises that he must openly confess his guilt as a Nazi judge for the nation's salvation. Mid-confession, there is a close up of Janning’s face and Mann’s direction is Pause. His eyes seem to reach out to every German in the audience. (continuing) ‘It is not easy to tell the truth. (continuing with emotion) But if there is to be any salvation for Germany those of us who know our guilt must admit it no matter the cost in pain and humiliation.’ Mann (1961) 147-48. 55 The motives for German legal professionals were complex. Some were committed to racial purity and/or authoritarian one-party rule, others were driven by personal and professional ambition; many believed sincerely in the rule of law, even if the law supported a social order that was racist and a political order that was dictatorial. See Steinweis & Rachlin (2013) 3. 56 Douglas (2001) 20. 57 Ibid 21. 58 Ibid 27. 59 Ibid 29. 60 See the article by Ulrike Weckel in this Issue. 61 The New York Times reporter Rebecca West’s phrase. Quoted in Douglas (2001) 11. 62 Jordan (2016) 84. 63 Ibid 90. 64 Mintz (2001) 104. 65 Ibid 105. 66 The initial leak of the footage into Hollywood relied on an act of bravery: Mann: ‘It was incredible too, I stole some of those concentration camp films from the Signal Corps. I think we were one of the first ones to use it. I’ll never forget a detective knocked on my door and I didn’t answer and someone buried them you know, so that they couldn’t find them.’ Interviewer: ‘exactly how did you get them?’ Mann: ‘Well I was doing some research and I just put them in my breast pocket and walked out.’ See Emmy TV Legends Archive of American Television, ‘Abby Mann—Archive Interview Part 3 of 6’, available at https://www.youtube.com/watch?v=bDSYnKCAy_Y (last visited 28 May 2018). 67 Stanley Kramer’s wife Karen recalls: ‘People asked him, “Nobody wants to see this movie. Did you have family in the Holocaust?” He said, “No, I didn’t, but I’m Jewish so I guess that makes it personal enough for me.”’ S King, ‘“Judgment at Nuremberg” 50 Years Later’ Los Angeles Times, 11 October 2011, available at http://articles.latimes.com/2011/oct/11/entertainment/la-et-nuremberg-film-20111011 (last visited 14 May 2018). 68 Mann wanted to speak to the world about a side to the American character he felt was not widely broadcast: ‘Kramer embarks on a project not with an eye toward the market-place but because he likes and believes in it. The wonderful cast, Tracy, Burt Lancaster, Judy Garland, Richard Widmark, Marlene Dietrich, Maximilian Schell and Montgomery Clift feel the same way too … There are those who are raising their voices. I hope this picture is a voice too.’ Mann (1961) vi. 69 ‘Jurists’ Trial Transcript’ (1951) 64. © The Author(s) 2018. Published by Oxford University Press. All rights reserved. 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TI - Judgment at Nuremberg: Hollywood takes the international criminal law stand
JF - London Review of International Law
DO - 10.1093/lril/lry011
DA - 2018-03-01
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