Caught on Camera

9780812245561: Hardback
Release Date: 5th December 2013

77 illus.

Dimensions: 152 x 229

Number of Pages: 352

Series Critical Authors and Issues

University of Pennsylvania Press, Inc.

Caught on Camera

Film in the Courtroom from the Nuremberg Trials to the Trials of the Khmer Rouge

Written by
Christian Delage
Edited and translated by
Ralph Schoolcraft
Translated by
Mary Byrd Kelly

Combining the practical knowledge of a renowned director with the perspective of a historian and media specialist, Christian Delage explores the conditions and consequences of using film for the purposes of justice and memory by examining archival footage from war crime trials from Nuremberg to the present.

Hardback / £56.00

When the Allied forces of World War II formed an international tribunal to prosecute Nazi war crimes, they introduced two major innovations to court procedure. The prosecution projected film footage and newsreels shot by British, Soviet, and American soldiers as they discovered Nazi camps. These images, presented as human testimony and material evidence, were instrumental in naming and prosecuting war crimes. At the same time, the Nuremberg tribunal was filmed so that the memory of "the greatest trial in history" would remain strong in future generations. In the decades that followed, the use of film in the courtroom greatly influenced the conduct of the Eichmann trial—and subsequently the trials of Klaus Barbie, Paul Touvier, and Maurice Papon in France, as well as the proceedings against Slobodan Milošević and the Khmer Rouge Kang Kek lew.

Combining the practical knowledge of a renowned director with the perspective of a historian and media specialist, Christian Delage examines archival footage from these trials and explores the conditions and consequences of using film for the purposes of justice and memory. Revised and expanded from the original French publication, Caught on Camera retraces the steps by which the United States pioneered jurisprudence that sanctioned the introduction of film as evidence and then established the precedent of preserving an audiovisual record of those proceedings. From the Nuremberg trials to the current Khmer Rouge trials, Delage considers how national attitudes toward the introduction of filmic evidence in court vary widely, and how different countries have sought to use film as a recordkeeping medium. Caught on Camera demonstrates how reproduced images, as evidence, testimony, and archival documentation, have influenced the writing of modern history.

Editor's Note

Chapter 1. The Filmmaker, the Judge, and the Evidence
Chapter 2. The Camera: An Impartial Witness of Social Relations?
Chapter 3. Learning to Read Enemy Films
Chapter 4. Face to Face with Nazi Atrocities

Chapter 5. "Establishing Incredible Events by Means of Credible Evidence"
Chapter 6. Getting Film into the Courtroom
Chapter 7. Catching the Enemy with Its Own Pictures

Chapter 8. The Un-United Nations and the Ideal of a Universal Justice
Chapter 9. Documentary Archives and Fictional Film Narratives

Chapter 10. Trials of the Present or the Past?
Chapter 11. Hearings on Film, Film in Hearings
Chapter 12. The Face of History
Chapter 13. The Spectator's Place
Chapter 14. Court Settings and Movie Stagings: From Nuremberg to the Khmer Rouge Trial




Spring 1945. Although President Truman had just given Robert H. Jackson the responsibility of setting up the judicial body sought by the Allies for bringing the main Nazi criminals to justice, Justice Jackson simultaneously took two entirely original initiatives: presenting motion pictures as evidence in court, and filming the trial to make it an historical archive. Faced already with the novelty of an international tribunal, the exercise of justice would also discover that the fleeting nature of oral courtroom debate was altered considerably. The conditions, the unfolding and the consequences of these experimentations lie at the heart of the research whose results we present here.

This double jurisprudence born of the Nuremberg trial (using film in the courtroom, filming the trial), which falls within the context of immediate treatments of the World War II, is of singular concern to historians. In this exceptional situation, it is not the historian who first and foremost institutes the historicity of the collected archives (be they written or audiovisual) and determines their truth value. Rather, it is in a public venue, the court, whose authority would be critical to the citizenry of the nations represented by the judges.

Today this question is inscribed in the framework of a rapidly growing historiography centered on, among other issues, the role of the judicial hearing and film at the conclusion of wars, the terminology for qualifying mass violence, and the memory of World War II and of the genocide of the Jews of Europe.

How was Jackson, a magistrate trained in the culture of the written word, led to place so much importance on film? It might seem only natural in the country that was home to Hollywood, the most powerful movie industry in the world, that motion pictures should benefit in all quarters from an unequalled socialization. The United States certainly fed on fictions produced by the big studios to celebrate national pride and seize upon countries' mythologies. But as for news and documentaries, it was often in the contact with the future allies of their country (Russia and England in particular) that the young directors called by Roosevelt's administration to participate in mobilizing the New Deal learned their trade in the 1930s. Thanks to the German artists and intellectuals who had sought refuge in New York or California, this reflection on the social and political role of film was then carried out on the motion pictures produced by the Third Reich and the means of counteracting their influence. These two realms, fiction and documentary, constantly enriched by the contributions of new immigrants, came together at the historic moment of the allied landing in Europe. From distant observers of "Nazi atrocities," Americans were now transformed into witnesses. Cameramen from the army and intelligence service, directed by John Ford, constructed an initial account of the end of Nazism and discovery of the camps. They did so as professionals, respecting the terms and conditions necessary for the eventual validation of their films as evidence.

It was with this legacy in mind that Justice Jackson determined the role of motion pictures in the gathering of evidence and the construction of the charges against the Nazis. His desire, however, was "to establish incredible events with credible evidence" by putting together a trial in which the "documents" would be the deciding factors in proving the guilt of the accused. In fact, the massive and unprecedented character of the crimes committed and their authors' attempt to cover them up made it necessary to go beyond mere attestation of their reality and to make them the object of a confrontation inside the courtroom. This is how we must interpret the role of the inaugural projection, barely nine days into the trial, of a compilation of images filmed by the Allies in the camps in the West. One of the goals was to subject the defendants to viewing these crimes, but also to promote public awareness of their scale and gravity. The effect was gripping. The Soviets, who in turn presented in February 1946 a film devoted mostly to the Majdanek and Auschwitz-Birkenau camps, made a lesser impression, due to the lack of care taken to evoke what had been their daily backdrop throughout the war: mass death.

To maintain the standard of a "fair" trial even though it was a justice emanating from the victors, Jackson also asked that the images the Nazis had filmed and shown throughout occupied Europe be collected in Germany. The Nazi Plan, a four-hour documentary montage, would allow people in the courtroom to hear the words uttered, in the exercise of their power, by those now on trial.

It was logical that in continuity with the screenings organized in the courtroom, the lessons of Nuremberg should take a cinematographic form. We will consider in detail the difficulties of the American party in the writing, making and distribution of their film on the International Military Tribunal (IMT). In fact, to the premises of the Cold War were added the disputes over jurisdiction between Washington and the American military government in Berlin. The Soviets took advantage of this quibbling to produce their own documentary on the trial, which they presented in New York with a particularly offensive advertising slogan. In Hollywood, the big studios were content to let the "independent" directors deal with the stakes of the IMT. Even before the Nuremberg trial was held, Orson Welles thus had the idea of presenting the power of projecting archival pictures of the Nazi camps in a movie entitled The Stranger (1946). Samuel Fuller, rich with his experience as a soldier in the famous artillery unit, the "Big Red One," worked instead on the role played by film in Germany's de-Nazification. Finally, Stanley Kramer reconstituted the day at Nuremberg of November 29, 1945, during which Nazi Concentration Camps was presented.

The IMT is the impetus for the recent formation of tribunals for judging crimes committed in Rwanda (IPTR) and in the former Yugoslavia (ICTY), as well as a permanent International Criminal Court. In a final, more diachronic part of this book, we will raise the question of the cinegenic character of these trials, in the double mediation ensured by the projection of films in the courtroom and the audiovisual recording of court sessions. In the latter case, film directors, who were urged to respect often constrictive terms and conditions, were the first ones to perceive the tensions between historical time and courtroom narrative. In Jerusalem, the Israeli State was particularly preoccupied by the immediacy of the publicity of the court sessions of the Eichmann trial. In France, it was in anticipation of constituting an historical archive and by force of a law that the trials of Klaus Barbie, Paul Touvier, and Maurice Papon became the objects of audiovisual recording and even of abridged television broadcasts some time later. Jurists and historians wondered then about the effects produced by the elimination of statutory limitations on crimes against humanity when it creates a contemporaneousness that is twice removed with respect to the facts being judged: in addition to the trials being held at forty years' distance, the present saw the televisual narration organized as a daily soap opera. For their part, with the concept of "open court," Americans have since the 1980s been following up the experiments begun in Nuremberg by extending them to ordinary courtrooms, civil or criminal.

Through the examples of depositions filmed in Nuremberg (Marie-Claude Vaillant-Couturier), Jerusalem (Holocaust survivors) and Lyon (parents and educators of the Izieu children), we will revisit the role of "witnesses" and the importance of the face of history that they embody in the courtroom and even more on the screen. It is often with respect to them (and the jurors if need be) that judges' reservations concerning cameras are the strongest. Moreover, is it necessary to impose on the defendant the lasting recording of his image and allow public consultation of it, at the risk of freezing forever what belongs only to a moment in an individual history?

Today it is not only a matter of knowing how the court protects itself from mediatization, but how the court itself is capable of organizing it. In requiring that films of the camps be shown in closed session, the judges at the Eichmann trial failed to appreciate fully the system of mediation set in place in Nuremberg. On the other hand, the public screening at the ICTY on June 1, 2005 of a film showing a Serbian militia executing young Muslims from Srebrenica compelled Serbian authorities to react that very evening and to order the arrest of several suspects identified in the footage.

Does it need to be spelled out? These film images—the ones captured by the people in charge of summary executions in 2005, like those recorded by the first visual witnesses of the situation in the camps in 1945—do not "screen" us from reality, and they are even less of an obstacle to the distanced analysis to which the historian must give priority. This does not mean that simply "reading" them enables one to prove absolutely the sequence of decisions and behaviors that led to the crimes. We share Georges Didi-Huberman's idea that "the image is characterized by not being all. And it is not because the image gives what Walter Benjamin called a flash rather than the substance that we must exclude it from our inadequate means of broaching the terrible history in question."

In the research that led to this book, we have come across several types of archive, many of which had never been consulted until now. It was first a matter of locating the various films presented as evidence in court sessions, then of reconstituting the path that took John Ford's team to Nuremberg. Next, we immersed ourselves in the IMT's archives. It was also fitting to observe from this inside how Justice Jackson lived this venture: we compared the minutes of the meetings of his team with the journal he kept during the preparation of the IMT and the oral interview he gave in the early 1950s. Some new information thus came to light, in particular on the dialogue initiated very early on with representatives of Jewish organizations, usefully putting into perspective the place given in the trial to the extermination of European Jews. The Telford Taylor archives also allowed us to assess the evolution of the thinking of one of the most brilliant prosecutors of the Nuremberg trials.

Among specialized sources, we should mention the archives linked to the activities of the MoMA and in particular of Siegfried Kracauer, as well as those of Leo T. Hurwitz and of Guy Saguez, both unpublished. The corpus of filmed archives of the IMT, which we consulted at the NARA, are now available at the Mémorial de la Shoah's documentation center.

From image to text, from text to image: the movement back and forth among archives, organized with a eye to respecting the specificity of what cinematographic language contributes to the knowledge of history, is in itself already enough to explain the richness of inscribing film into a judicial process.

Christian Delage is a historian and filmmaker based at the University of Paris-VIII, who has been elected the incoming Director of the Institut d'Histoire du Temps Present. He has also taught at the Institut d'Etudes Politiques (IEP) in Paris and the Cardozo Law School in New York. His film Nuremberg: The Nazis Facing Their Crimes, narrated by Christopher Plummer, was released in 2007 and is now available on DVD. He served as a policy advisor on the filming of the Khmer Rouge trials and produced Cameras in the Courtroom, a documentary about the filming of legal trials. Ralph Schoolcraft is Associate Professor of French at Texas AandM University. He is author of Romain Gary: The Man Who Sold His Shadow and translator of The Haunted Past: History, Memory, and Justice in Contemporary France by Henry Rousso, both available from the University of Pennsylvania Press. Mary Byrd Kelly teaches in the Department of French and Italian at the University of Kansas.

"While other scholars have focused on film-as-evidence or trial-as-film, Christian Delage, a historian and documentary filmmaker, addresses both in this meticulously researched book. Tracing the double history of the use of film in legal cases and the filming of court proceedings, Delage reveals how what we see on film in and of human rights trials is a modern construction rooted in the Holocaust and its aftermath. . . . Caught on Camera will be of interest to anyone wanting a historical lens through which to analyze our culture's current obsession with cell phone-generated footage and its potential to transform adjudication for human rights abuse."—American Historical Review

"Meticulously researched and highly topical, Caught on Camera is the first scholarly work to tell the story of the impact of film on advocacy, trials, and legal judgment. Historian, filmmaker, critic and adjunct professor of law, Delage is ideally qualified to uncover the extraordinary narrative of the introduction of film into legal evidence in the Nuremberg trials and its subsequent and expanding role in tribunals and international criminal proceedings to the present day. In a meticulously researched and fluently argued analysis, this book not only exposes the link between visual evidence and war crimes trials but also, and even more surprisingly, shows how film has subtly and persistently impacted the staging, process, performance, and even architecture of law."—Peter Goodrich, Cardozo School of Law

"Caught on Camera provides an invaluable overview of the role films played in the historic international criminal trials that so indelibly marked the second half of the twentieth century. Ranging in scope and rich in reference, this admirable book shows how prosecutors used films as evidence in court and how court sessions were themselves filmed and widely diffused for public audiences. As the international community continues to struggle with the legacies of Cambodia, Bosnia, Rwanda, and Darfur, the original perspectives Christian Delage offers will helpfully inform the ongoing quest for justice."—Stuart Liebman, Professor Emeritus, CUNY Graduate Center