Nuremberg Trials, dir. Roman Karmen and Elizaveta Svilova (Tsentralnaya Studiya Dokumentalnikh Filmov, 1947). Nuremberg: Its Lesson for Today, dir. Stuart Schulberg (Schulberg Productions, 2010 ). Judgment at Nuremberg, dir. Stanley Kramer (Roxlom Films, 1961). Nuremberg, dir. Yves Simoneau (Alliance Atlantis Communications, 2000). Atrocities against Jews (c. 1941), IMT Doc. 3052-PS (US Exhibit 280). Nazi Concentration Camps, dir. George Stevens (1945), IMT Doc. 2430-PS (US Exhibit 79). The Nazi Plan, dir. George Stevens (1945), IMT Doc. 3054-PS (US Exhibit 167). Reality is always more complicated than invention: less kempt, cruder, less rounded out. It rarely lies on one level. – Primo Levi1 My father was a lawyer; he knew what he did. – Niklas Frank2 It is possible to trace the rise and fall of Nazi Germany, its delusional conceit and negation in genocide, in a series of geographic metonyms: Weimar, Munich, Wannsee, Stalingrad, Auschwitz. But these locations need to be bookended by another: Nuremberg. Unusually, Nuremberg is a dual metonym; it represents two very different and yet intimately connected episodes. First – as framed by the filmwork of Nazi supporter Leni Riefenstahl in Triumph of the Will (1935) – it encompasses the apogee of Nazism. This ‘Nuremberg’ reflects the Nazi party congresses which symbolized Gleichschaltung, the integration of the Nazi movement and the German state. The congresses gathered millions of people in perhaps the most grotesque example of ‘society worshipping itself’ in human history. Second – as framed by a series of representations that we can characterize as the ‘Nuremberg films’ – it represents the judgment the world passed on the catastrophe that followed this ‘triumph of the will.’ The second Nuremberg is very self-consciously and explicitly embedded in notions of law and justice at the International Military Tribunal (IMT) for ‘major war criminals.’3 Nuremberg was chosen as the locus of this judgment precisely because of its association with Nazi rallies and racist laws. This ‘Nuremberg’ is widely regarded as the starting point of contemporary transitional justice. It is given a central position in Ruti Teitel’s genealogy of the field: Through its most recognised symbol, the Allied-run Nuremberg Trials, this [initial] phase reflects the triumph of transitional justice within the scheme of international law. … The legacy of the post-war trials that criminalized state wrongdoing as part of a universal rights scheme far exceeds the actual force of historical precedent, and this legacy forms the basis of modern human rights law.4 A number of scholars have engaged specifically with the legacy of the Nuremberg Trials for the field.5 Transitional justice practitioners give them equal import.6 At the same time, transitional justice scholars and practitioners increasingly suggest that transitional justice trials and truth commissions have a dramatic, performance-based element. In addition, films, documentaries and oral histories of the marginalized are increasingly seen as alternative forms of transitional justice, which bring new voices and perspectives in from the margins, by using less legal language and ‘ways of telling.’ In this context, it is worth revisiting how we ‘know’ about Nuremberg, and the connections between representation, reality and which stories are heard. As the generation that was participant in and witness to the trials dwindles, people are getting to know about Nuremberg through one of what we can characterize as the ‘Nuremberg films.’ These films offer a unique window onto the question of what Nuremberg represents in terms of transitional justice.7 This review addresses that question by examining four filmic essays on ‘Nuremberg,’ alongside three films that were presented as evidence at the IMT.8 The transitional justice challenge before the Nuremberg Trials was monumental.9 The Nuremberg films all recognize this challenge. As a key character in one of the films states, ‘the avowed purpose of this tribunal is broader than the visiting of retribution on a few men. It is dedicated to the reconsecration of the temple of justice. It is dedicated to finding a code of justice the whole world will be responsible to.’10 But the films also both frame and reflect the tension between two contradictory propagandas being constructed by the West and the Soviet Union at – and out of – ‘Nuremberg.’ Our films invent as much as they document, and they obfuscate as much as they clarify. In particular, the moments at which they distort the court record offer an unusually clear example of the tension between representation and reality. This in turn provides a key to the question of whether the vision of transitional justice at Nuremberg – ‘the reconsecration of the temple of justice’ – was realized in the context of postwar realpolitik. Film at Nuremberg and Nuremberg on Film The nexus between Nuremberg and film was there from the first. As Ulrike Weckel observes, the layout of Courtroom 600 was altered for the IMT to accommodate a film screen that could be seen by the entire court.11 Both figuratively and literally, the moment of film as witness had arrived.12 In the aftermath of the IMT, there was a pre-echo of the ‘space race,’ as the Soviet Union and the US rushed to produce ‘documentary’ accounts of the trials. The Soviet Nuremberg Trials (1947) was released in the Soviet Union and Germany, as well as in the US. Nuremberg (1948) was produced by the US Department of War but never released in the US, partly because the Soviet film had aired first. While the US film was shown as Nürnberg und seine Lehre to German audiences as part of the denazification process, the English-language version of the film was suppressed by the US Army primarily because of Cold War politics – the content was regarded as compromising its West German allies. A restored version was finally released in the US as Nuremberg: Its Lesson for Today in 2010. There has been a succession of Nuremberg films ever since 1947. The most influential is Judgment at Nuremberg (1961), a fictionalized depiction of the Justice Trial,13 the third of 12 war crimes trials the US authorities held in their occupation zone in Germany in the late 1940s. These trials occurred before US military courts and were collectively known as the Trials of War Criminals before the Nuremberg Military Tribunals (NMT) or the Subsequent Nuremberg Trials.14Judgment at Nuremberg remains a highly successful film, commercially and artistically. Writer Abby Mann won an Oscar for his screenplay and Maximilian Schell won a best actor Oscar for his performance as the principal defence lawyer. The lasting significance of this self-consciously ‘message movie’ was recognized in 2013 with its inclusion in the Library of Congress National Film Registry. In a review written for The Guardian in the same year, historian Alex von Tunzelmann confirms this sense of import: Judgment at Nuremberg doesn't stick precisely to the facts of the judges' trial, but its fictionalisations are intelligent. It raises complex questions, resists easy answers, and leaves the viewer keen to think and know more. For those reasons, it's an exceptionally good historical film – and a haunting one.15 When we review the film in the context of the historical record, however, we find it takes us some distance beyond not sticking precisely to the facts. While it takes the Justice Trial as its inspiration, it also profoundly distorts the trial record in a number of ways. Most obviously in terms of its legacy, it embeds the film Nazi Concentration Camps – an evidence film presented at the IMT – plumb in the centre of the trial. This film was not shown at the Justice Trial. Nuremberg (2000) – a broadly fact-based ‘docudrama’ – returns Nazi Concentration Camps to its proper location within the IMT. But it also frames the trial with fictional dialogue and drama involving all the key participants, including chief prosecutor Robert Jackson and chief defendant Hermann Göring. In this sense it moves even further away from the court record than Judgment at Nuremberg. A look at the profusion of Nuremberg films confirms that any attempt to find a definitive version of even the IMT is problematic. These representations of the trials become increasingly difficult to read in any ‘documentary’ sense. There are different editions and versions of each of the films, cut by language and ideology, before we even begin to engage with questions of style and narrative drive. For example, the Soviet Nuremberg Trials, mentioned above, has appeared in a number of iterations, with titles that become increasingly incongruous and misleading. Thus, while it appeared as Nuremberg Trials in the US, it was released as ‘Judgment of the People’ in the Soviet Union (Sud Narodov) and in Germany (Das Gericht der Völker).16 When it appears in video form, it is Nazi SS in the UK, while in the US it is first 9 Men in Hell then Crimes of the Gestapo then Passion’s Payment.17 There is, however, a solution to this confusion. As the 2000 film Nuremberg has the IMT chief prosecutor Robert Jackson (Alec Baldwin) say, ‘those films … you know I’d read any number of affidavits, reports, statistics but I didn’t really understand until I saw those films.’ ‘Those films’ are the documentary films used as evidence in an unprecedented way throughout the IMT and subsequent trials. They are crucially not films about Nuremberg but rather films presented as evidence at the Nuremberg Trials. There are a number of these ‘evidence films’: the above-mentioned Nazi Concentration Camps,18 as well as The Nazi Plan, The People’s Court,19Atrocities against Jews and The Atrocities Committed by German Fascist Invaders in the USSR.20 These films feature ‘icons of atrocity,’ such as shrunken heads, lamp shades and gloves made of human skin, and soap made from human corpses.21 For some, the prominence of these uncontextualized horrors in the films becomes justification for a litany of contemporary Holocaust denial. In addition, one of the films, The Nazi Plan, which was later reframed and released as a 20th Century Fox production, incorporated the work of Nazi supporters Leni Riefenstahl and Heinrich Hoffmann as core material and listed them in the credits. For all their shocking realism, therefore, the evidence films remind us that we need to be wary of the notion that any film can testify unproblematically to crimes against humanity. Nonetheless, these films remain the main and most profound motif of the atrocities perpetrated by the Third Reich. Nazi Concentration Camps became by far the most important of the evidence films in terms of its use after the trials. IMDb suggests that the film has been featured in 13 other films.22 Thus the corpus of Nuremberg films is characterized by the juxtaposition of a crafted, scripted analysis of ‘Nuremberg’ alongside documentary evidence confirming the worst Nazi atrocities. This use of the ‘film-within-a-film’ device is a striking example of what André Gide characterized as mise en abyme: ‘In a work of art I rather like to find transposed, on the scale of the characters, the very subject of that work. Nothing throws a clearer light upon it or more surely establishes the proportions to the whole.’23 But the juxtaposition can confuse as much as it enlightens. As Richard Cardwell suggests, mise en abyme involves ‘a series of apparently endlessly overlapping, enclosed networks of conceptual or structural spaces which form a kind of labyrinth leading to a shifting, ever-unattainable nucleus or centre.’24 It might be assumed in this case that the mise en abyme is purely functional in the well-established tropes of courtroom drama. In both Judgment at Nuremberg and Nuremberg, having frightened us with the prospect that the ‘German war criminals’ might evade justice, Nazi Concentration Camps is played as a trump card by the prosecution. Here is the stark, brutal, incontrovertible evidence that the defendants are guilty of something terrible. But decades after the actual trial, the mise en abyme begins to have another, contradictory effect. The use of the film-within-a-film device in the Nuremberg films creates a defining tension between the fictionalized and the evidence films. The ‘truth’ or ‘reality’ or ‘integrity’ of the inserted work is immediately deconstructed by its relationship with the framing work. Instead of Nazi Concentration Camps transcending the performance aspects of the court and the encircling Cold War geopolitics, we now find the surrounding fictions beginning to deconstruct our primary evidence: Where did Nazi Concentration Camps come from? Who made it? Why did they make it? Is everything presented within it ‘true’? To further confuse, since most of us ‘know’ Nazi Concentration Camps through Judgment at Nuremberg, it comes as another surprise to find that the most memorable moment of all – the image of child survivors, which is dropped into the evidence film segment – is not from Nazi Concentration Camps at all. The image of these children exposing their tattooed camp numbers, which has become perhaps the most powerful visual meme of the camps, is dropped in unacknowledged. But these children were survivors of Auschwitz, rather than Buchenwald as is implied in Judgment at Nuremberg. They were liberated by the Russians, not the Americans or the British. Moreover, this footage was staged after the liberation. The Soviet filmmakers provided the ‘striped pyjamas’ they wear in the film and that have remained an iconic reference ever since.25 This begins to hint at the complexity of the story being told at Nuremberg and the labyrinthine quality of the telling. At every level across these films, elements that present as fictive or real become immediately interpolated and reframed. The ‘real’ or ‘documentary’ is always filmed and edited, but it is also sometimes reconstructed and faked. The fictive is determinedly ‘based on real events,’ introducing real, historical characters and often recycling a court transcript as film script. In each of the four Nuremberg films discussed in this essay, we find documentary film from the ‘real world’ inside a scripted framing or ‘re-enactment’ which acknowledges its own unreal status to a greater or lesser degree. Crucially, Nazi Concentration Camps becomes the ‘real’ which anchors the fictive elements and transcends the tedious legalese of the court – the ‘affidavits, reports, statistics’ noted by the chief prosecutor character in Nuremberg. It becomes central to our understanding of ‘Nuremberg.’ Yet, this film too is something more than a simple or neutral evidential artefact – it is also a Hollywood construction. Nazi Concentration Camps was directed by George Stevens, Oscar-winning director of Giant and A Place in the Sun, and produced by John Ford, who won a record four Academy awards for best director across his career. The film was also part of a larger body of propaganda work by outstanding Hollywood directors during the Second World War – a story told in the current Netflix television series Five Came Back.26 There is so much studio addition, re-enactment, censorship and political interference at play across this body of work that it is not shocking to find Stevens observing, ‘All film is propaganda.’ The director made this observation to Leni Riefenstahl in recognition of his engagement with her work.27 Despite this caveat, the chief prosecutor’s fictional utterance in Nuremberg remains true for all of us – or at least for all of us who have not bought into the Holocaust revision/denial project. It is in fact through Nazi Concentration Camps and other evidence films that we understand Nuremberg. The Evidence Films and Representations of Justice Nazi Concentration Camps was shown at the IMT on 29 November 1945. In subsequent representations, the screening becomes the defining aspect of the Nuremberg Trials. The official transcript, however, captures none of this drama: If the Tribunal please, we shall proceed with the projection of the film, Document 2430-PS, Exhibit USA-79… . [The film was then shown.] COL. STOREY: That concludes the presentation. [The Tribunal adjourned until 30 November 1945 at 7000 [sic] hours.]28 This dry verbatim account of proceedings gives no sense of the impact of the film on the court – or indeed on history. Nazi Concentration Camps was a key piece of evidence, not because it provided conclusive proof in pursuit of convictions but because it made clear that something momentous was at stake amid the tedium of the trial process. Although they were not represented in this way, all the evidence films signify different ‘ways of telling.’ They offer a form of witnessing by both those victims who could not testify and those survivors who were not called to testify at Nuremberg. But the evidence films also signify the contradictions of ‘judging’ what is being presented. They are always framed for us, and the framing cannot but mediate our relationship to the testimony. For example, Judgment at Nuremberg – with Nazi Concentration Camps embedded – first appears as a television programme from Playhouse 90 on CBS.29 The TV programme is lent gravitas by an introduction from the actual chief prosecutor in the Justice Trial, Telford Taylor. This seriousness is undermined, however, by the bizarrely inappropriate TV advertising that bookends and interrupts the programme – for Camel cigarettes, ‘wonderfully soft’ Delsey bathroom tissues, Kleenex, Anscochrome Film that takes ‘perfect pictures’ of ‘gleaming sunlight on golden hair, a pair of laughing blue eyes, pretty as a picture,’ and, most distastefully of all, ‘Your Gas Company’ (‘You’ll see why more people than ever are cooking with gas’). More shocking still, it transpires that this sponsor, the American Gas Company, asked that the term ‘gas chambers’ be omitted from the programme.30 It is salutary to remind ourselves that the question of gas chambers has become the central motif in contemporary Holocaust denial. While the TV version of Judgment at Nuremberg is not Holocaust revision as we would usually understand it, it makes it clear that ‘Nuremberg’ must be packaged appropriately for postwar consumption. In other words, we must question the added value of any filmic interpretation. The court transcripts are all available online. It is also easy to watch filmed extracts from the actual IMT trial online, including the Soviet Judgment of the People and, at least since it was finally declassified, the US Nuremberg. With the advent of the Five Came Back TV series, Nazi Concentration Camps is now available – uncontextualized – on Netflix. All the horror and the drama and the truth of Nuremberg is there – readily accessible – in the archives.31 So, what do the different filmic representations achieve? This is easier to answer in the case of the 2000 release, Nuremberg. Here, the most palpable fictionalizations are introduced for narrative drive. Most obviously, we are provided with an apocryphal love interest for the chief prosecutor character that moves his assistant to the centre of the trial process and tempts both him and the audience with the prospect of extramarital romance with Elsie Douglas (Jill Hennessy). As a contemporary New York Times review observes drily: ‘Two questions compete for our attention … Will the Nazis be given a fair trial? Will Elsie and Bob kiss?’32 The distortions are, however, more profound in Judgment at Nuremberg. Quite apart from the inclusion of Nazi Concentration Camps, the film both invents and reframes in a disquieting way. The film focuses on two ideal types based on defendants in the Justice Trial: Franz Schlegelberger and Oswald Rothaug.33 Schlegelberger inspires the character ‘Ernst Janning’ (Burt Lancaster), while ‘Emil Hahn’ (Werner Klemperer) is based on Rothaug. In the film, Janning is the most sympathetic and conflicted of the defendants, ultimately acknowledging his guilt and seeking forgiveness and understanding from ‘Dan Haywood,’ the US trial judge played by Spencer Tracy. Hahn, meanwhile, is the most unrepentant of the accused, calling Janning a traitor for accepting guilt, and telling the court, ‘Today you sentence me, tomorrow the Bolsheviks will sentence you.’ The actual Justice Trial addressed the Nazi justice system emblematically through a re-examination of the ‘racial defilement’ trial of Leo Katzenberger, head of the Nuremberg Jewish community.34 The defendant was accused of having sexual intercourse with a young ‘Aryan’ woman, Irene Seiler. Both Katzenberger and Seiler denied the charge and described his relationship to her as ‘fatherly.’ The most incriminating evidence the prosecution produced was that Seiler was seen sitting on Katzenberger's knee. Rothaug arranged to have Katzenberger's trial transferred to a special court, which found him guilty. Rothaug’s ultimate legal finesse was increasing Katzenberger's sentence from imprisonment (the normal punishment for ‘racial defilement’) to death. Rothaug argued that death was the appropriate punishment for Katzenberger because he thwarted the ‘war effort’ by exploiting the black-out provided by air raid precautions to develop his relationship with Seiler. Seiler, meanwhile, was found guilty of perjury and sentenced to two years’ hard labour in prison. In short, this was a paradigmatic case for Nuremberg as it illustrated the contorted lengths to which Nazi jurists would go to provide racist murder with the cover of ‘the rule of law.’ The portrayal of the Justice Trial in Judgment at Nuremberg raises a series of questions. Apart from the scene in which Nazi Concentration Camps is screened, the brutal cross-examination by the defence for Janning and Hahn of the Irene Seiler character, ‘Irene Hoffman Wallner’ (Judy Garland), is perhaps the most memorable aspect of the film. The film accurately reflects the treatment of the real Seiler, who received little protection from the court. Reading the actual trial transcript, there seems little that is ‘transitional’ about this aspect of the trial, even though it was intended as a condemnation of the Nazi justice system. The notion that any contact with Jews was ‘undesirable’ is completely normalized by the court. As the trial transcript shows, it was left to Seiler to salvage a modicum of human dignity from this line of questioning: Dr Koesse: Did you know that just in Nurnberg [sic] and Nurnberg in particular, not only the sexual relationship with Jews was viewed with disdain but every relationship – every social contact with Jews? Irene Seiler: No, I did not know that and if I had known that, it would not have disturbed me in this case because a friendship cannot be interrupted from today until tomorrow – it cannot be discarded because that person is a Jew. I would have regarded that as inhumane – would not have done it. … Dr Koesse: From those advertisements in the restaurants at that time did you not conclude that the social contact between the Jews and Aryans in general was undesirable?… Irene Seiler: I could not as a human being imagine such a thing as punishable.35 Justice at Nuremberg reflects the moral and judicial tensions in this brutal cross-examination. In a line that cuts to the heart of the question of transitional justice, the prosecution objects: ‘The defence is being permitted to re-enact what was a travesty of justice in the first place.’ But the objection is overruled. The film, however, then diverts completely from the court record to invent a redemptive act for its Schlegelberger character. Janning halts the cross-examination of the Seiler character, Wallner, by his defence lawyer ‘Rolfe’: Wallner: Why do you not let me speak the truth? Rolfe: That's what we want, Mrs. Wallner. The truth. You admitted that you continued to see him [the Katzenberger character]. You admitted that he came to your apartment. You admitted you kissed him. You admitted you sat on his lap. What else do you admit to? What else? Wallner: Nothing. There was nothing like you're trying to make it sound. Rolfe: What else? Wallner: There was nothing. Janning: Stop it! Rolfe: What else do you admit to? Janning: Herr Rolfe! Are we going to do this again? Here, the cross-examination is discontinued and Janning goes on to admit his guilt and shame. It bears emphasis that this did not happen at the actual Justice Trial. Schlegelberger did not intervene to protect Seiler, nor did he accept his guilt or exhibit any remorse. Although Schlegelberger received a life sentence in Nuremberg, he was released from prison in 1951. (Rothaug was released four years later.) Schlegelberger received a generous pension from the West German state. There was nothing in his conduct at the Justice Trial that did anything to redeem German law or German lawyers. Moreover, as Judgment at Nuremberg reveals in a written coda, all the 99 defendants convicted by the American NMT – including Rothaug, characterized as ‘the personification of the secret Nazi intrigue and cruelty’ in the verdict – had been released by the time the film appeared. Transitional Justice as Spectacle The tension between the real trials and their fictive representations helps to reveal a key element of what all the Nuremberg films ‘do.’ The IMT passed sentence on 1 October 1946. Twelve of the 24 defendants were sentenced to death. Both Nuremberg Trials (1947) and Nuremberg (1948) end with these executions; indeed, the former dwells gruesomely on the corpses of the executed defendants as it closes. Nuremberg (2000) also ends with the sentencing. In the films – whatever qualms we might have about the death penalty – it feels like there has been a reckoning, like justice has been served. The Justice Trial announced its sentences on 4 December 1947, sending four of the guilty defendants to prison for life and six to prison for terms ranging between five and 10 years. The court in Judgment at Nuremberg also sentences its four fictional defendants – including the remorseful Janning – to life in prison. With sombre finality, the films suggest that, however imperfectly, justice has been served. Reality, however, has an afterlife that is denied to stories in films. There has been no Judgment at Nuremberg 2. If there had been, the moral and political complexities of the outworking of the Nuremberg Trials would have markedly intensified. One example serves to illustrate the profundity of this silence. When Judgment at Nuremberg appeared in 1961, Hans Globke was chief of staff of the German Chancellery in West Germany. Globke’s key position made both the West German government and the US Central Intelligence Agency keen to conceal his past as perhaps the most influential Nazi lawyer of all. Even before the Nazis came to power, he framed a set of rules to prevent Germans of Jewish ancestry from changing their names to make them less recognizably Jewish. After the Nazi accession, he helped to formulate the Enabling Act of 1933, the law that gave Adolf Hitler dictatorial powers. He co-authored the official legal commentary on the new Reich Citizenship Law which revoked the citizenship of German Jews. He also served as chief legal advisor in the Office for Jewish Affairs in the Ministry of Interior, headed by Adolf Eichmann. In explanation of his tolerating Globke’s Nazi past, the German chancellor at the time, Konrad Adenauer, reportedly said, ‘One does not throw out dirty water so long as one does not have any clean water.’36 Looking back on this now, toleration of the ‘dirty water’ in German politics and justice, instead of a commitment to transitional justice, appears to be the striking legacy of Nuremberg. This is the conclusion we might expect from any critically engaged postwar film – in 1962 or 2000 or today. The actual Schlegelberger was much guiltier than the fictional Janning and yet much less prepared to acknowledge his guilt. Alongside his knowledge of the ‘final solution,’ Schlegelberger, as minister of justice, signed the ‘Night and Fog’ decree which provided a template for every totalitarian regime that disappeared people in the postwar period. When they are juxtaposed, there seems not a lot to choose between Schlegelberger and Rothaug. From this perspective, the invention of the remorseful Janning in Judgment at Nuremberg appears profoundly dishonest. Yet it reflects one of the key demands of transitional justice. In the film, the fictive Janning speaks to the demand for an admission of wrongdoing in the field. Janning recognizes that he should be judged; he recognizes the court. All the complexity and nuance and contradiction of justice in the Third Reich is bifurcated as the repentant Janning and the unrepentant Hahn. The absence of contrition aside, however, we find that this dichotomy echoes the real judgment of the court in the Justice Trial. The Justice Trial judges concluded that Schlegelberger ‘loathed the evil that he did’ and that his real commitment was to the ‘life of an intellect, the work of the scholar.’37 If this was true, it bears repeating that this scholar who loathed the evil he did was able to make his peace with the work of the Wannsee Conference, where the ‘final solution’ was formalized. His final statement during the Justice Trial was characterized by overweening self-pity rather than remorse: ‘I … in imprisonment, could not overcome the bitterness of being rewarded for my hard struggle for justice by this period of shame and misery.’38 Yet, the court made a clear distinction between Schlegelberger and Rothaug, who ‘was and is a sadistic and evil man.’39 In other words, the film both reflects and accentuates a Hollywoodization of justice in which actus reus becomes less significant than the question of whether the defendant was ‘evil’ or not. All the complex political and sociological questions posed by the Third Reich are reduced to a calculus of evil. This lets law and lawyers off the hook. We lose sight of the possibility that justice in the Third Reich took the form that it did because of, rather than despite, so many leading Nazis being lawyers. Genocide in a ‘Legal Manner’ At this point, our engagement with the Nuremberg films begins to suggest that the Third Reich was an affirmation rather than a negation of the rule of law. In truth, the Nazis fetishized the ‘legality’ of their actions from the 1933 Enabling Act onwards. The Wannsee Conference minutes record the policy succinctly: ‘The aim of all this was to cleanse German living space of Jews in a legal manner.’40 This was not simply an abstract commitment to legality; lawyers were also disproportionately represented across power and influence in the Third Reich. Of the 15 architects of genocide who attended the Wannsee Conference, eight were trained as lawyers. Disproportionate numbers of leading Nazis and defendants at the IMT and other trials were lawyers, including one-third of the IMT accused: Hans Frank, Wilhelm Frick, Walter Funk, Ernst Kaltenbrunner, Wilhelm Keitel,41 Konstantin von Neurath and Arthur Seyss-Inquart. In particular, Frank as head of the National Socialist Jurists Association and president of the Academy of German Law, and Frick as minister of the interior who framed the Nuremberg laws, made abundantly clear the intimacy of this connection between the law and Nazism. This points towards a profound and troubling conclusion. It was law (rather than ‘evil’) that made anything possible in Nazi Germany. The rule of law was a necessary condition for genocide and all the other horrors encapsulated by the Nuremberg notion of crimes against humanity. Once the ‘legality’ of this ‘cleansing’ had been established, anything could be done towards this end. Genocide within a framework of legality became possible, along with any number of additional horrors from lampshades to soap factories. It is lawyers – not ‘evil’ or ‘barbarism’ – that ensured there would be no legal limit on what could be done. One of the IMT evidence films, the silent Atrocities against Jews, offers the nearest filmic evidence of what this really meant.42 The film – chaotic, impressionistic, laden with menace and dread – was made by the Schutzstaffel (SS). It is about as far removed from the tentative optimism that concludes Judgment at Nuremberg and Nuremberg as it is possible to get. It highlights the gulf between Hollywood and reality. This film reminds us that justice – transitional or otherwise – is neither easy nor inevitable nor uncomplicated. By way of a tentative conclusion, we might present the juxtaposition of this tiny film inside the grand narrative of Wannsee. If ‘cleansing the German living space of Jews in a legal manner’ was the theory, the acts documented – or, more accurately, ‘undocumented’ – in Atrocities against Jews was the practice. This must suffice as our mise en abyme on Nuremberg and film. The distinctive horror in this particular heart of darkness was the commitment to doing things in a legal manner. In light of the evidence in Atrocities against Jews, the burning question for transitional justice is whether the Nuremberg Trials transformed this reality. Broadly, the answer is that Nuremberg was much stronger on what it was transitioning from than what it was transitioning to. There was unanimity across the juror states regarding what was wrong with Nazi justice (all of the IMT evidence films confirm this). However, there was no consensus on what justice could and should look like in the postwar world. In this sense it falls far short of the ‘reconsecration of the temple of justice.’ It is debatable whether the complex and profound question of whether Nuremberg embodied transitional justice can ever be represented adequately on film. Certainly, engagement with the Nuremberg films moves the viewer very quickly from Spencer Tracy’s avuncular Judge Haywood towards a tail-spinning deconstruction of a series of truths that most of us have held to be self-evident. Amid the scepticism, however, we find another moral anchor, something that is implicit in all of these films and which reconnects profoundly to the transitional justice project: we have to find some way to judge. However puny seems the sanction for many of those who stood trial, it remains important that they were judged. Not least, it is important that there is a record. We can return to the evidence files and the transcripts. Amid all the other terrible and damning evidence, we find that Schlegelberger, ‘the last of the German jurists,’ could – in stark contrast to his fictive counterpart Janning – proclaim his innocence with the ‘undaunted pride of a clear conscience.’43 The dry court record hints at the ‘real’ denouement at Nuremberg, and it should provide the starting point for any assessment of whether the Nuremberg Trials were transitional. Besides those who were charged at the IMT and in subsequent trials, a legion of lawyers practiced in the Third Reich with consciences as clear as Schlegelberger’s – from the philosophical heights of Carl Schmitt to the thousands of ‘ordinary’ members of the National Socialist League of German Jurists. Unlike Schlegelberger, however, these lawyers, who played their part in ‘cleansing German living space of Jews in a legal manner,’ remain unjudged. Most of them survived the war and reemerged unrepentant on the other side of genocide to play their parts in rebuilding a new ‘democratic’ Germany. One of these lawyers, Gerhard Klopfer, died in 1987, the last surviving attendee of the Wannsee Conference. Klopfer, who was Martin Bormann’s deputy and the head of Constitutional Law Section III of the Nazi Party Chancellery, was investigated for war crimes but released for ‘lack of evidence.’ He retrieved his admission to the bar in 1956 to practice as a lawyer, five years before Judgment at Nuremberg appeared. To be fair, Judgment at Nuremberg signs off with an acknowledgement of the nexus between lawyers and genocide. As Judge Haywood observes to Janning in the denouement, ‘it “came to that” the first time you sentenced a man to death you knew to be innocent.’ This précis of Nazi jurisprudence reminds us why transitional justice was necessary as a response to the Third Reich. In combination, the Nuremberg films make the need for transition shamefully clear. But the converse of judging the innocent – not judging the guilty – should not be a signifier of transition. Nuremberg left too much ‘dirty water’ in its wake. This may have been inevitable in the realpolitik of postwar Europe but, as Judge Haywood observes, ‘nothing on God’s earth could ever make it right.’ In that sense we must look elsewhere, beyond ‘Nuremberg,’ for a metonym of transitional justice. Footnotes 1 Primo Levi, The Periodic Table, trans. Raymond Rosenthal (London: Penguin Classics, 2000), 183. 2 Phillipe Sands, East West Street: On the Origins of ‘Genocide’ and ‘Crimes against Humanity’ (London: Weidenfeld and Nicolson, 2016), xxiii. 3 The United States of America, the French Republic, the United Kingdom of Great Britain and Northern Ireland, and the Union of Soviet Socialist Republics v. Hermann Wilhelm Goring et al. 4 Ruti G. Teitel, ‘Transitional Justice Genealogy,’ Harvard Human Rights Journal 16 (2003): 70. 5 Kim C. Priemel and Alexa Stiller, eds., Reassessing the Nuremberg Military Tribunals: Transitional Justice, Trial Narratives, and Historiography (New York: Berghahn, 2012); Brianne McGonigle Leyh, ‘Nuremberg’s Legacy within Transitional Justice: Prosecutions Are Here to Stay,’ Washington University Global Studies Law Review 15(4) (2016): 559–574. 6 See, e.g., International Center for Transitional Justice, ‘Justice after Nuremberg,’ https://www.ictj.org/news/justice-after-nuremberg (accessed 30 November 2017). 7 Ulrike Weckel, ‘The Power of Images: Real and Fictional Roles of Atrocity Film Footage at Nuremberg,’ in Priemel and Stiller, supra n 5. 8 There are numerous other films in many different languages that might be added to this list of ‘Nuremberg films,’ but they are beyond the scope of this short essay. 9 Christiane Wilke, ‘Reconsecrating the Temple of Justice: Invocations of Civilization and Humanity in the Nuremberg Justice Case,’ Canadian Journal of Law and Society 24(2) (2009): 181-201. 10 The defence lawyer, ‘Hans Rolfe’ characterizes the trial thus in Judgment at Nuremberg. The phrase was coined by chief prosecutor Telford Taylor in his opening statement at the Justice Trial, see Wilke, supra n 9 at 182. 11 Weckel, supra n 7 at 221-222. 12 Nuremberg Trials Museum, ‘Courtroom 600,’ https://museums.nuernberg.de/memorium-nuremberg-trials/permanent-exhibition/courtroom-600/site-of-the-nuremberg-trials/ (accessed 30 November 2017). 13 The United States of America v. Josef Altstötter et al. 14 These explicitly referenced different thematic ‘bundles’ of crimes associated with the Third Reich: Doctors' Trial; Milch Trial (Luftwaffe torture and experiments); Justice Trial; Pohl Trial (concentration camp administrators); Flick Trial (industrialists, ‘slave labour’); IG Farben Trial (industrialists, ‘slave labour and Zyklon B’); Hostages Trial (Balkans Campaign); RuSHA Trial (racial cleansing); Einsatzgruppen Trial; Krupp Trial (industrialists, ‘slave labour’); Ministries Trial; and High Command Trial. 15 Alex von Tunzelmann, ‘Judgment at Nuremberg – Poetic Justice for Holocaust Perpetrators,’ The Guardian, 30 January 2013. 16 The title Nuremberg Trials was presumably particularly galling to the US since the film only covered the IMT – and emphasised the Soviet role with it – while avoiding the US-specific Subsequent Nuremberg Trials. 17 IMDb, ‘Nuremberg Trials: Release Info,’ http://www.imdb.com/title/tt0244109/releaseinfo?ref_=ttfc_ql_2 (accessed 30 November 2017). 18 Also shown at the Pohl Trial. 19 Justice Trial Doc. 1019, Exhibit 129. 20 IMT Doc. USSR-81. This is a Soviet documentary film. 21 Lawrence Douglas, ‘The Shrunken Head of Buchenwald: Icons of Atrocity at Nuremberg,’ Representations 63 (1998): 39-64. 22 IMDb, ‘Nazi Concentration and Prison Camps: Connections,’ http://www.imdb.com/title/tt0247568/movieconnections/?tab=mc&ref_=tt_trv_cnn (accessed 30 November 2017). 23 André Gide, Journals: 1889–1913, trans. Justin O’Brien (Urbana, IL: University of Illinois Press, 2000), 29-30. 24 Richard A. Cardwell, ‘Beyond the Mirror and the Lamp: Symbolist Frames and Spaces,’ Romance Quarterly 36(3) (1989): 271. 25 BBC Newsnight, ‘The Twins of Auschwitz,’ published on 28 January 2015, https://www.youtube.com/watch?v=-8_oWrDk4Hs (accessed 30 November 2017). 26 Netflix, ‘Five Came Back,’ https://www.netflix.com/gb/title/80049928 (accessed 30 November 2017); Mark Harris, Five Came Back: A Story of Hollywood and the Second World War (London: Penguin Press, 2013). 27 Marilyn Ann Moss, Giant: George Stevens, a Life on Film (Madison, WI: Terrace Books, 2015), 83. 28 The Avalon Project, ‘Nuremberg Trial Proceedings Volume 2,’ http://avalon.law.yale.edu/imt/11-29-45.asp (accessed 30 November 2017). 29 Originally aired on 16 April 1959. 30 Weckel, supra n 7 at 235. 31 See, e.g., the Nuremberg Trials Project, an open-access initiative to create and present digitized images or full-text versions of the library's Nuremberg documents. Harvard Law School Library, ‘Nuremberg Trials Project,’ http://nuremberg.law.harvard.edu (accessed 30 November 2017) 32 Julie Salamon, ‘Humanized, but Not Whitewashed, at Nuremberg,’ New York Times, 14 July 2000. 33 Schlegelberger was the highest-ranking defendant at the Justice Trial. During the Third Reich, he was the state secretary in the Ministry of Justice and served as the acting justice minister. He was also a legal scholar and judge who taught law at the University of Berlin. Rothaug was a director of the Nazi ‘Special Courts’ in Nuremberg. He presided over the ‘racial defilement’ trial of Leo Katzenberger and ordered his execution. He subsequently served in Berlin as a member of the Nazi ‘People’s Court.’ 34 Katzenberger was accused of violating Article 2 of the Law for the Protection of German Blood prohibiting sexual intercourse between Jews and ‘German nationals.’ 35 Harvard Law School Library, ‘Nuremberg Trials Project: Transcript for NMT 3 – Justice Case,’ http://nuremberg.law.harvard.edu/transcripts/3-transcript-for-nmt-3-justice-case?seq=1025&q=defendant:%22Josef+Altstoetter%22 (accessed 30 November 2017). 36 ‘Man schüttet kein schmutziges Wasser weg, solange man kein sauberes hat.’ 37 This was the judgment of the court: ‘Schlegelberger is a tragic character. He loved the life of an intellect [sic], the work of the scholar. We believe that he loathed the evil that he did, but he sold that intellect and that scholarship to Hitler for a mess of political pottage and for the vain hope of personal security. He is guilty.’ Nuernberg Military Tribunals, Trials of War Criminals before the Nuernberg Military Tribunals: The Justice Case, vol. III (Washington, DC: United States Government Printing Office, 1951), 1087. 38 Ibid., 941. 39 Ibid., 1156. 40 The Avalon Project, ‘Wannsee Protocol, January 20, 1942,’ http://avalon.law.yale.edu/imt/wannsee.asp (accessed 30 November 2017). 41 Keitel was not trained as a lawyer, but he sat on the Wehrmacht ‘Court of Honour’ that transferred many German Army officers involved in the 20 July 1944 plot against Hitler to Roland Freisler's ‘People's Court.’ 42 Available to view at United States Holocaust Memorial Museum, ‘Lvov Pogrom, Jews Rounded Up, Beatings,’ https://www.ushmm.org/online/film/display/detail.php?file_num=2110 (accessed 30 November 2017). 43 Nuernberg Military Tribunals, supra n 37 at 941. © The Author(s) (2018). Published by Oxford University Press. All rights reserved. For Permissions, please email firstname.lastname@example.org
International Journal of Transitional Justice – Oxford University Press
Published: Mar 1, 2018
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