Film as witness: screening 'Nazi Concentration Camps' before the Nuremberg Tribunal.

• Author: Douglas, Lawrence

Introduction: Film as Witness and

The Problem of Representation

November 20, 1995 marks the fiftieth anniversary of the beginning of the most unusual judicial proceedings of the century, the Nuremberg war crimes trials. After a day devoted to entering die indictment and the pleas, Robert H. Jackson, a sitting Justice of the U.S. Supreme Court and the chief counsel for the Allied prosecution, opened his address to the Tribunal with the words, "The wrongs which we seek to condemn and punish have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored, because it cannot survive their being repeated."(2) A week later, on the afternoon of November 29, 1945, Sydney Alderman, associate trial counsel, prepared the Tribunal for the presentation of the prosecution's most dramatic evidence of the Nazis' malignancy: "At this point it is planned by our staff to show a motion picture, and it will take some few minutes to make the physical arrangements in the courtroom, so that if the Court should feel like recessing, those arrangements could be made."(3)

After the short recess, Thomas Dodd, executive counsel to the American prosecutorial team, described the purpose of the screening: "[T]his film which we offer represents in a brief and unforgettable form an explanation of what the words `concentration camp' imply."(4) Jackson himself had mentioned the film during his opening statement, as he offered the first description of the evidence that would introduce Nazi genocide to the law's ken:

We will show you these concentration camps in motion pictures, just as the Allied armies found them when they arrived .... Our proof will be disgusting and you will say I have robbed you of your sleep.... I am one who received during this war most atrocity tales with suspicion and scepticism. But the proof here will be so overwhelming that I venture to predict not one word I have spoken will be denied.(5)

News of the camps, of course, had been broken months before the trial: British and American newspaper reports from Buchenwald and Belsen in late April and early May of 1945 had created a sensation.(6) "It is my duty,'" one British journalist had begun his dispatch, "`to describe something beyond the imagination of mankind.'"(7) Generals Patton and Eisenhower, as was well publicized, had ordered every soldier not committed to the front line to visit the camps.(8) Eisenhower himself had issued a terse statement, now etched into slabs of gray granite at the entrance to the U.S. Holocaust Memorial Museum in Washington, D.C.: "The things I saw beggar description .... I made the visit deliberately, in order to be in a position to give first-hand evidence of these things if ever, in the future, there develops a tendency to charge these allegations merely to `propaganda.'"(9)

But rather than call Eisenhower to the stand, or any of the other thousands of soldiers who had been commanded to bear witness to Nazi atrocities, the prosecution turned instead to a novel witness - a documentary film.(10) This use of film in a juridical setting was unprecedented.(11) Crime scene photography was well established in Anglo-American courts; and while the turn to film proof was perhaps a logical extension of available technology, it nevertheless marked a wholly new method of documenting criminality. Though motion pictures had been submitted as trial evidence as early as 1915,(12) prior to Nuremberg, one can find no records of any court using graphic film of atrocities as proof of criminal wrongdoing. The use of film was necessitated, so the prosecution argued, by the nature of the crimes the Allies had assumed the burden of proving.

The Nazis themselves had recognized that the incredible nature of their atrocities would cast long shadows of doubt upon any allegedly eyewitness reports. Primo Levi describes how inmates at concentration camps heard the frequent taunt from their captors that should they survive, their stories would not be believed: "And even if some proof should remain and some of you survive, people will say that the events you describe are too monstrous to be believed: they will say that they are the exaggerations of Allied propaganda and will believe us, who will deny everything, and not you."(3)

The concern that allegations of atrocities would be dismissed as propaganda troubled the prosecution as well. Serious evidentiary questions, after all, had plagued the war crimes trials convened after World War I. While French, British, and American newspapers covering the Great War had routinely reported rumors of German acts of civilian slaughter, rape, and infanticide, most such stories were later exposed to be the prevarications of propagandists.(14) The failure of the complaining parties (the French and British agitated to prosecute German war criminals over American objections) to support their allegations with credible evidence eroded the legitimacy of judicial proceedings anchored upon uncertain legal and jurisdictional principles.(15) Concerned about this precedent, Jackson, in a report sent to the President in June 1945, wrote, "We must establish incredible events by credible evidence."(16)

In response to this dilemma, the prosecution turned to documentary film. As the prosecution readied the Army's documentary for the Nuremberg Tribunal, James Donovan, an assistant trial counsel, expressed the idea succinctly. "[T]hese motion pictures," he announced, "speak for themselves in evidencing life and death in Nazi concentration camps...."(17) The filmic witness could offer pictures where speech failed; it could produce visual knowledge of atrocities that resisted summary in the words of eyewitness testimonials. Such a view echoed an understanding that both saw documentary film as capable of offering a more complete and transparent window upon the "real,"(18) and anticipated the crisis of representation that has come to characterize efforts to find an idiom capable of capturing the Holocaust's central horror.

The representational problems raised by Nazi genocide are familiar to Holocaust scholars. As Anton Kaes has observed, "The insistence on the impossibility of adequately comprehending and describing the Final Solution has by now become a topos of Holocaust research."(9) Lawrence Langer, to take one important example, has argued that the conventions of nineteenth-century literature rendered it "inadequate for the representation or evocation of the physical, moral, or psychological chaos" of the Holocaust.(20) Langer's examination of literature's engagement with the Holocaust finds its analog in the works of scholars such as Lucy Dawidowicz(21) and Zygmunt Bauman,(22) who have studied the struggles of historical and sociological discourses to find a form and grammar appropriate to the task of expressing the Holocaust experience.

The Nuremberg prosecution's turn to the filmic witness can thus be understood as an attempt to secure an adequate representation of "an order of reality which the human mind had never confronted before."(23) This straightforward ambition, however, yielded less than straightforward results. The film Nazi Concentration Camps, as we shall see, was anything but an unambiguous document, and its use by the prosecution exemplifies how imperfectly evidence of Nazi genocide was presented and digested at Nuremberg. To appreciate this, it is important to consider the unique challenge that Nazi genocide presented to the law. Distinct from history, literature, and those disciplines burdened with finding an appropriate manner of representing the Holocaust, the law had to locate an adequate idiom of both representation and judgment. The Nuremberg prosecution could not simply gesture toward evidence of unspeakable atrocities by darkening a courtroom and showing a film; it had to present proof that would support the pronouncement of a legal judgment.

Yet as an examination of the documentary Nazi Concentration Camps and the legal case in which it was enlisted as proof reveals, the task of shaping an adequate idiom of both representation and judgment often pulled the prosecution in opposite directions. While the film offered visual proof of astonishing atrocities, the very unprecedented nature of the crimes to which it bore witness complicated attempts at assigning blame and seemed to undermine the jurisprudential theories upon which the Allied prosecution was based. For the horror of the Nazis' crimes lay not only in their concrete detail, but also in their symbolic content. By challenging the capacity of the Nuremberg Tribunal to comprehend the practice of genocide in terms of conventional violations of ordered legality, Nazi practices threatened to expose law's limits.

A study of the prosecution's response to this challenge - its attempt to reconcile the task of representation with the burden of judgment - will highlight the power of legal discourse to frame our understanding of visual images. It will also, however, reveal how the extraordinary effort to accommodate Nazi genocide to prior conceptions of legality and criminality resulted in a failure to grasp the nature and meaning of the effort to exterminate Europe's Jewish population. Ultimately, this failure can be seen as the predictable, if not inevitable, consequence of an attempt to comprehend an unprecedented evil through an idiom whose authority is anchored in the concept of precedent - and in the belief that all crimes can and must be judged according to familiar principles filtered through past practice.

Yet the very failure of the Nuremberg prosecution to represent adequately the nature and meaning of Nazi genocide also constituted a juridical success. By translating evidence of unprecedented atrocity into crimes of war, the Nuremberg prosecution was able to create a coherent and judicially manageable narrative about crimes so radically alien that they seemed to defy rational and juridical explanation.

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