14 Dec Justice as Message Symposium: What We See When We See Law … Through the Eyes of Dame Laura Knight
[Diane Marie Amann is the Emily & Ernest Woodruff Chair in International Law and Faculty Co-Director of the Dean Rusk International Law Center at the University of Georgia School of Law.]
The eye cannot help but be drawn to the cover of Justice as Message, the new analysis by Carsten Stahn of, to quote the subtitle, Expressivist Foundations of International Criminal Justice. On the high-gloss paper jacket we see a tableau of blacks and browns and olive drab, accented only by the purple of a lawyer’s robe and the teal of a dossier perched on the bar behind him. In front, we see that the bench is buried in paper – paper that turns to ashes as the back wall gives way to a vision of buildings in ruin and, in the far distance, a raging fire.
What Stahn has chosen for us to see is the International Military Tribunal at Nuremberg as painted by an artist in attendance at that 1945-1946 trial. His own Oxford University Press book ventures far beyond Nuremberg, in time as well as place, as it must if it is to fulfill the promise of its subtitle.
In 2002, I wrote: “Expressive theories may prove especially illuminating in international criminal justice, though scholarship in that field has not paid them much heed.” (p. 121) Inquiry into the function of law – of any type of law – as a communicator of society’s values seemed then to be a relatively new phenomenon. But soon, for international criminal law, such inquiry indeed proved its worth. Scholars plumbed what it meant to label certain acts crimes of an international character, even as they explored the expressive components of international prosecutors’ charging decisions, international lawyers’ arguments, and international judges’ decisions, before and during trial and at the moment of conviction or acquittal, sentencing or release. Their studies revealed that “expressivism,” as Stahn writes, “is an invitation to rethink the way in which we see law.” (p. 415)
Stahn’s own scope is encyclopedic, so that Justice as Message now is a definitive resource for anyone asking how international criminal law may operate as an object of, or vehicle for, communication. Origins for expressivism are found in century-old writings of French sociologist Émile Durkheim, then traced through the writings of many theorists, from many legal and social science disciplines, spanning many taxonomies and typologies of speech, performance, and storytelling. Expressivist applications are identified in the work of justice mechanisms as varied as the Inter-American Court of Human Rights established in 1979 and the International Criminal Court that opened its doors in 2002.
Yet the post-World War II era remains a touchstone. “As early as the first trial at Nürnberg,” my own 2002 article stated, “participants in international criminal proceedings placed value on the expressive component of their endeavor.” (p. 121) In his Justice as Message, Stahn agrees. We both point to the opening speech by Chief U.S. Prosecutor Robert H. Jackson as prime evidence that, as Stahn writes, the tribunal “did not hide its symbolic value” but rather “relied on moral outrage,” so that the trial “was shaped by expressivist vocabulary.” (p. 45)
Elsewhere Stahn examines Nuremberg’s expressivist conundrums; for example, whether the IMT was “‘international enough’” (p. 203) and whether criminally punishing humans might somehow lead to preventing the crimes from occurring at all (p. 153). How to find meaning in the IMT judgment’s articulation of some “findings that did not carry immediate consequences for defendants” (p. 45) is another puzzle, one that my 2002 article likewise addressed:
It detailed prewar attacks on German Jews that ‘must not be forgotten’, even as it ruled that the attacks fell outside its jurisdiction. It refused to declare the German High Command a criminal organization, yet branded the officers’ conduct ‘a mockery’ and ‘a disgrace’. In a coda full of expressive import, the tribunal wrote, ‘This must be said’. (p. 121)
Stahn devotes well-deserved attention to the IMT trial’s decentering of the Holocaust (p. 171), even as IMT prosecutors deployed the screenings of gruesome camp films as “part of a broader public relations strategy, identified before the trial, which included recordings of hearings, radio transmissions, and press releases” (p. 240).
This discussion of the Allies’ deliberate effort to shape global society’s Nuremberg memory caught my eye, for my current research on IMT women revisits that collective memory. And one of those women, Dame Laura Knight, is the creator of the painting on the cover of Justice as Message.
By 1946, it had been a full decade since Knight’s English Impressionist works made her the first woman elected to Britain’s Royal Academy of Arts in more than 150 years. World War II had found her painting propaganda posters extolling women’s work – in defense factories, at airfields, and as Land Army Girls – for her government’s War Artists’ Advisory Committee. After the war, at her urging, that committee sent her to Nuremberg.
She arrived in early January and stayed till early April, months marked by presentations by each of the 4 prosecution teams as well as direct and cross-examinations of many of the 21 defendants. Day after day the 68-year-old Knight, wrapped in a blanket against the courtroom cold, watched, sketched, painted. “If I had an arm three times as long,” she told BBC listeners in February, “I could touch the prisoners from the window of the press box where I work right above them; when I can remember to do so, I feel a brute to be concentrated on aesthetics while twenty men sit below me on trial for their lives.”
Knight’s message, which a transcript at the Nottinghamshire Archives indicates was recorded on a “telediphone” and broadcast back home, depicted scenes both of the “rubbish heap” that then was bombed-out Nuremberg and of the “tragic orchestra” playing out in Courtroom 600. “It has been my privilege to meet many of the justices in private life,” she confided. “With such men in charge as I have found these to be, one can be assured, whatever the outcome, justice will be done.” Knight’s words thus aided Allied efforts to shape understanding no less than her ultimate creation.
Her creation, in the end, was an imposing oil, filling a 5-foot by 6-foot canvas. In it we see the law of Nuremberg as Knight saw it: grey-toned tedium shocked by fire and devastation. Standing in contrast to the many slouching figures is a wall of military guards, straight stares beneath white helmets. In Knight’s eyes their presence foreshadowed the inevitability of the trial’s outcome: “Against the dark panelling,” she said on the BBC, “their helmets are menacing – like deaths-heads.”
Knight’s painting thus illustrates what Stahn contends the Allies sought to convey; to quote Justice as Message, that “‘the conscience of the world’” compelled the conclusion “that ‘resort to a war of aggression is not merely illegal, but is criminal’” (p. 113), and that the proceedings at Nuremberg were necessary “counterperformances to the ‘evils’ of the Second World War.” (p. 112)
Theirs was a masculine staging, a yearlong trial that tended to render women visibly invisible. A straining eye might detect several women scattered about in panoramic courtroom photographs. But with the exception of a couple witnesses, among them Marie-Claude Vaillant-Couturier, simultaneous interpreters were the only women whose voices were heard. As I noted in a just-published chapter (p. 119), not one of the few women lawyers there ever was allowed to address the judges. (As late as 2016, even Nuremberg expert Philippe Sands seemed unaware of these lawyers’ presence.) Given that so many of Knight’s prior works had featured women, it is curious that her Nuremberg painting supports this male framing. Or perhaps it doesn’t, for close examination reveals, just at the point where one of the prosecution tables is consumed by fire, something visible yet invisible: sleeve-sheathed elbows and hands, placed at the seat that sometimes was occupied by Dr. Aline Chalufour, the only woman attorney on the French trial team.
It is said that after the painting’s unveiling, trial participants applauded Knight’s creation. Critics, not so much. Reporting on a May 1946 exhibition in Britain’s capital, the Times of London wrote that “round and about the Nuremberg prisoners are visionary glimpses of the crimes of which they are accused,” then scoffed that this depiction was “at once obvious and scarcely compatible with satisfactory pictorial treatment.”
Laura Knight’s “Nuremberg Trial” has moved about since then, eventually finding a home at the Imperial War Museum London website; at least at the time of my last IWM visit in 2018, the actual work was hidden in a storage unit. Readers of Stahn’s excellent new book no doubt will see expressive import in that fact.
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