New Evidence: The Aesthetics of International Law

Leiden Journal of International Law

Volumn 18, Issue 2, 2005, Pages 163-177

  Morgan, Ed ^a  

^a UNIVERSITY OF TORONTO   (Canada)

Author keywords

aesthetics; drama; theatre; trial; war crimes

Indexed keywords

EID: 85009546319     PISSN: 09221565     EISSN: 14789698     Source Type: Journal    
DOI: 10.1017/S0922156505002591     Document Type: Article

References (58)

1. For a relatively comprehensive review of cases from international and domestic tribunals, seeW.A. Schabas, Genocide in International Law (2000), 345-446. See also, T. Meron, War Crimes Law Comes of Age (1998); G. Best,War and Law Since 1945 (1997); M. Cherif Bassiouni, Crimes Against Humanity in International Criminal Law (1992); T. L. H. McCormack and G. J. Simpson (eds.), The Law of War Crimes: National and International Approaches (1997).
2. Much has been written on the relationship between law and theatre, although the focus of much of the scholarship has been on courtroom dramas played out on stage or screen. The distinction between ‘law in theatre’ and ‘law as theatre’ roughly follows the similar distinction found in the ‘law and literature’ scholarship. See I.Ward, Law and Literature: Possibilities and Perspectives 3 (1995) (explicating the distinction between ‘law in literature’ and ‘law as literature'). For more theoretical reflections on law and legal process as a form of theatrical communication, see J. E. Simonett, ‘The Trial as One of the Performing Arts’, (1966) 52 Am. Bar Assoc. Journal 1145; M. S. Ball, ‘The Play's the Thing: An Unscientific Reflection on Courts Under Studies in Law and Lit. 217; D. Seymour, ‘Letter from Shylock: Reflections on my Case’, (1997) 8 Law and Critique 215.
3. On the law of evidence as theatrical convention, see J. Cornett, ‘The Treachery of Perception: Evidence and Experience in Clarissa’, (1994) 63 U. Cin. Law Rev. 165; J. Mnookin and N. West, ‘Theatres of Proof: Visual Evidence and the Law in Call Northside 777’, (2001) 13 Yale J. L. & Hum. 329.
4. On war crimes cases as theatre with a consistent symbolic message, see E. Morgan, ‘Retributory Theatre’, (1988) 3 American U. J. Int. Law and Policy 1.
5. See, most prominently,O. Fiss, S. Fish,R.Cover, and R. H.Weisberg, ‘LegalModes of Interpretation: Principled, Political or Nihilistic?’, Panel on Law and Humanities, 1984 AALS AnnualMeeting. San Francisco, 7 January 1984; S. Fish, ‘Interpretation and the Pluralist Vision’, (1982) 60 Texas Law Review; O. Fiss, ‘Objectivity and Interpretation’, (1982) 34 Stanford Law Review;W. J. T.Mitchell (ed.), The Politics of Interpretation (1983).
6. M. Greenwald, R. D. Pomo, R. Schultz, and A. M.Welsh, The Longman Anthology of Modern and Contemporary Drama: A Global Perspective, Appendix B, ‘Styles and Conventions’ (2004).
7. L. A. Brown, ‘The Theatrical Experience’, David Lipscomb University, online: http://larryavisbrown. homestead.com/files/IntroTheatre/THEATRICAL EXPERIENCE.htm; see generally, R.Cohen, Theatre (2003), ch. 8 ('Theatre of the FourthWall Removed').
8. Brown, ‘The Theatrical Experience’.
9. ‘The Theatrical Experience’. See generally, J. J. White, Bertolt Brecht's Dramatic Theory (2004); M. Carlson, Theories of the Theatre: A Historical and Critical Survey from the Greeks to the Present (2004).
10. C. A. Heijbroek, ‘Theatrical Styles’, online: http://www.heijbroek.com/projectfolder/english 1essay.html ('Ibsen employs realistic characters to allow his audience to connect emotionally with them and consequently his thesis. At the other end of the spectrum Brecht employs sets traditional to epic theatre that estrange the audience for the purpose of conveying his opinions on capitalism through symbolism.'); R. Williams, Drama from Ibsen to Brecht (1987).
11. See, e.g., J.W. Strong et al.,McCormick on Evidence (1992), s. 185, Art. 389 (distinction between direct evidence andcircumstantialevidenceinunearthingthetruth);O.G.Wellborn,'TheDefinitionofHearsay intheFederal Rules of Evidence’, (1982) 61 Texas L. Rev. 49; J. H. Wigmore, Evidence (1974), s. 1367 (cross-examination as ‘the greatest legal engine ever invented for the discovery of the truth.'); R. Friedman, ‘Truth and Its Rivals in the Law of Hearsay and Confrontation’, (1998) 49 Hastings L. J. 545.
12. Greenwald, McCormick on Evidence note 8.
13. H. Ibsen, ‘Speech to the Norwegian Students, September 10, 1874’, Speeches and New Letters (tr. A. Kildal). (Boston. Richard G. Badger, 1910), p. 49 ('But no poet lives through anything in isolation. What he lives through all of his countrymen live through with him.'); E. Goldman, The Social Significance ofModern Drama (1914) ('Uncompromising demolisher of all false idols and dynamiter of all social shams and hypocrisy, Ibsen consistently strove to uproot every stone of our social structure.'); E. Trumbull, ‘Realism’, in Introduction to the Theatre, online: http://novaonline.nv.cc.va.us/eli/spd130et/realism.htm ('His plays attacked society's values and dealt with unconventional subjects within the form of the well-made play (causally related)').
14. M. F. Bellinger, A Short History of Drama (1927), 320 ('The action is still for the most part concerned with men's deeds and outward lives, in connection with society and the world; and his themes have largely to do with themoral and ethical relations of man withman.').
15. B. Hemmer, The Dramatist Henrik Ibsen, Ministry of Foreign Affairs (Norway), February 1996, online: http://odin.dep.no/odin/engelsk/norway/history/032005-990396 ('Ibsen's demands to dramatic art: it should as realistically as possible unify three elements: the psychological, the ideological and the social.'); Henrik Ibsen (1828-1906), online: http://faculty.marymt.edu/hopper/TMMU101/ThHistory.htm ('Ordinary people populate Ibsen's realistic world, and the issues addressed in these dramas affect ordinary husband-wife, mother-son, and brother-brother relationships and are played out in the interiors of ordinary homes.').
16. H. A. E. Zwart, ‘The Birth of a Research Animal: Ibsen's The Wild Duck and the Origin of a New Animal Science’, (2000) 9 Environmental Values 91 ('Ibsen's play [TheWild Duck] stages the clash between a scientific and a romantic understanding of animals. ).
17. M. A. Orthofer, ‘The scientist on the stage: A survey’, (2002) 27 Interdisciplinary Science Rev. 173 ('The society Ibsen portrays is amodern, democratic, and seemingly enlightened one. ').
18. G. Bouchard, ‘Ibsen Gets Upset in Studio Theatre Season Launch’, Express News, University of Alberta (2004), online: http://www.expressnews.ualberta.ca/expressnews/articles/news.cfm?p ID=6082&s=a (Ibsen ‘was quite distressed at the layers of artifice that both men and women laboured with.'); A. Moore, Studying Bertold Brecht, online: http://www.universalteacher.org.uk/drama/brecht.htm ('[Brecht] believes that the audience should be made not to feel, but to think.').
19. See United States v. Abbott, Case No. 97-6199, 97-6206 (10th Cir.), citing J.Wigmore, Evidence (1976), § 1871, at 644 (order of presentation of evidence at discretion of counsel). See also, Geders v. United States, 425 US 80 (1976) (order of evidence is considered an abuse and subject to change by trial judge only if presentation is done to confuse jury).
20. W. Martin, The ‘New Age’ Under Orage (1967), 81 ('The discussions of the new drama appearing in The New Age show that it traced its origin to Ibsen.').
21. Brown, The ‘New Age’ Under Orage note 10.
22. B. Brecht, ‘Theatre for Learning’, (tr. E. Anderson), in C.Martin and H. Bial (eds.), Brecht Sourcebook (2000), 24 (new epic or didactic theatre creates distance between audience and events on stage).
23. ‘Theatre for Learning’. ('[Theatrical] presentation expose[s] the subject matter and the happenings to a process of defamiliarization.').
24. J. Hatzenbeller, Beckett and Brecht: Keeping the Endgame at a Distance, online: http://www.cord.edu/faculty/ steinwan/nv12 hatzenbeller.htm, ('Brecht's alienation effect was a direct means of evoking this participation-the audience is emotionally distanced from characters to allow objective observation.').
25. See generally, B. N.Weber and H. Heinen, Bertolt Brecht: Political Theory and Literary Practice (1980).
26. J. Dawson, Brecht,Charles SturtUniversity,Australia, online: http://hsc.csu.edu.au/drama/hsc/studies/brecht/ 2758/Brecht.htm ('Brecht's theatre sought, therefore, toalienate or estrange the audiencefromeveryday reality so that it could be reinterpreted in a new light.').
27. See J. Michaels, ‘Bertolt Brecht,’ in F. N. Magill (ed.), Critical Survey of Drama: Foreign Language Series, Vol. 1 (1986), 241 (describing devices employed by Brecht to create sense of alienation).
28. J. Willett, Brecht on Theatre: The Development of an Aesthetic (1964), 142-7 (chapter entitled ‘Notes on a Description of a New Technique of Acting').
29. Y.Hu, TheModern Theatre (1985), 169 ('Today some techniques in the theatre of the Absurd are influenced by those of the epic theatre.'); E.Wright, Postmodern Brecht-A Re-Presentation (1989).
30. O. Brockett, The Theatre:An Introduction (1974), 365-6 ('Brecht suggested a system of productive participation, in which the spectator actively judges and applies what he sees on stage to conditions outside the theatre’.).
31. On the rules of evidence applicable to the determination of the admissibility of evidence, and on the conduct of motionswithinmid-and pre-trialmotions, see T.K.Maher, Basic Evidence Procedures,North CarolinaOffice of Indigent Defense Services, Defender Training, 1 ('He who hesitates is lost, or at least overruled.').
32. The hearsay rule, for example, is designed to restrict witness statements that might lead to misstatements of a purported truth. See R v. Sharp, [1988] 1WLR 7, at 11 (HL) (hearsay evidence excluded when its object is to establish the truth of what is contained in the statement, but not when its object is to establish by the evidence, not the truth of the statement, but the fact that it wasmade).
33. A. Selby, Pattern BasedReason (1996), ch. 15 ('Objectivity'), online: http://whyslopes.com/volume1a/ch15.html ('The ideal or goal of objectivity is represented in the legal system by the idea of impartiality. Lawyers, juries andjudges interpret evidenceandlaws.Oneaimis toobtain impartial, objective verdicts of guilt or innocence, and assignments of blame, damages and punishments.').
34. See'OurBeliefs’, in:sprung,online:http://www.sprungtheatre.com/index.html('Theatricalmetaphorrequires the imagination of the audience.').
35. See Blanche Dubois in TennesseeWilliams'most ‘realistic’ drama: T.Williams, A Streetcar Named Desire and Other Plays (E.Martin Brown (ed.)) (1959), scene 9, 204 ('I don't want realism.').
36. J. Mortimer, Clinging to theWreckage (1991), 233-4 ('Judge: “Am I not to hear the truth?” Objecting Counsel: “No, Your Lordship is to hear the evidence.”’).
37. The sheer complexity of a war crimes case makes the hybrid a virtual necessity. See S. Waters, ‘The Truth Behind the Facts’, in The Guardian, 11 February 2004, online: http://www.guardian.co.uk/arts/features/ story/0,11710,1145870,00.html ('The resurgence of the theatre of fact is perhaps suggestive of a deeper problem for writers, namely thatmodern life in its unimaginable complexity seems to defy invention itself.').
38. A. Wesker, ‘The Smaller Picture’, in The Guardian, 15 March 2003, online: http://www.guardian.co.uk/ arts/features/story/0,11710,914322,00.html ('The best artists are driven by their experience to reflect that experience. Few artists worth their salt begin work with a theory of art.'). Of course, Brecht's use of artifice suggestsaself-consciousnessabouttheatricsandtheorical theory; the audienceneverthelessmust experience the play rather than the critical musings in order to be simultaneously engaged and disengaged.
39. Understanding, however, is not the same as full appreciation.The point ismade ina study of EduoardManet's painting ‘The Execution ofMaximillian’, inM. Battin, A. Silvers, J. Fisher, and R.Moore, Puzzles about Art: An Aesthetics Casebook (1989), 64-5. The painting is based not on the artist's first-hand witnessing of Emperor Maximillian's execution in Mexico in 1867 but rather on third party accounts of the event as reported in the contemporary press. The authors ask whether the cognitive value ofManet's paintingwould diminish if the newspaper reports that informed him were false. One could equally ask whether the evocative accounts of political turmoil surroundingMaximillian's demise would diminish ifManet's accompanying rendition were a poor one.
40. There is, of course, a traditional cleavage between those engaged in the study of aesthetics and those who engage in artistic expression.Much has been written about teaching theory to artists; less has been done to introduce theorists to art. See D. Arrell, Teaching Aesthetics to Artists, American Society for Aesthetics, online: http://www.aesthetics-online.org/ideas/arrell.html ('Give a group of artists a copy of the latest issue of the Journal of Aesthetics and Art Criticism, and their response is likely to be that it simply doesn't interest them, that the issues discussed are not ones that they face as artists, and that it seems to consist mainly of academic nit-picking and hair-splitting which has little to do with the real worlds of art.')
41. See, e.g., Government of Canada, Commission of Inquiry onWar Criminals Report (J. Deschç nes, commissioner) (1986); D. Matas, Justice Delayed: NaziWar Criminals in Canada (1987);War Crimes: Report of theWar Crimes Inquiry (T. Hetherington andW. Chalmers,members) (1988); L. S.Wexler, ‘The Interpretation of the Nuremberg Principles by the French Court of Cassation: From Touvier to Barbie and Back Again’, (1994) 32 Colum. J. Transnat'l L. 289; M. Lippman, ‘Nuremberg: Forty-Five Years Later’, (1991) 7 Conn. J. Int'l L. 1; M. C. Bassiouni, ‘Nuremberg Forty Years After: An Introduction’, (1986) 18 Case W. Res. J. Int'l L. 261; ‘Forty Years After the Nuremberg and Tokyo Tribunals: The Impact of theWar Crimes Trials on International and National Law’, April 1986, Proceedings of the Eightieth Annual Meeting of the American Society of International Law; E. Steiner, ‘ProsecutingWar Crimes in England and France’, (1991)Crim. L. Rev. 180; M. Zaid, ‘Will or Should theUnited States Ever ProsecuteWar Criminals?: A Need for Greater Expansion in the Areas of Both Civil and Criminal Liability’, (2001) 35 New Eng. L. R. 447.
42. See G. Triggs, ‘Australia'sWar Crimes Trials: AMoral Necessity or a Legal Minefield?’, (1987) 16Monash U. L. Rev. 382.
43. War Crimes Act 1945 (Cth) (as amended by the War Crimes Amendment Act 1988), 1989 Aus. Acts 926 (Act No. 3 of 1989, assented to 25 Jan. 1989). See generally, 119 Parl. Debate, S. 497 (1987), 157 Parl. Debate, H. R. 1613 (1987).
44. War Crimes Act 1945 (Cth) (as amended by the War Crimes Amendment Act 1988)., s. 9.
45. For the preliminary challenge to the constitutionality of the war crimes legislation, see Polyukhovich v. Commonwealth of Australia, 172 Cth Law Rep. 501 (1991) (Aus. HC).
46. Director of Public Prosecutions v. Polyukhovich (No. 2),No. S 4067 (S.Ct. SouthAustralia). For a journalist's account of the investigation and trial, seeD. Bevan, A Case to Answer: The Story of Australia's First EuropeanWar Crimes Prosecution (1994).
47. Polyukhovich, Director of Public Prosecutions v. Polyukhovich., 3March (per Cox, J.).
48. This essay posits the unity, or wholeness of the truthful/dramatic process that is the war crimes trial as part of its essence, much as the Greek concept of symmetria posited conceptual unity as an essential ingredient in beauty. For a discussion of Greek aesthetics, see J. J. Pollitt, The Ancient View of Greek Art: Criticism, History, and Terminology (1974); esp. at 162 ('symmetria'means ‘commensurability of parts’, not ‘symmetry’ in its English sense).
49. French painter Paul Cé zannewrote to fellowartist Emile Bernard on 23October 1905: ‘I owe you the truth in painting and Iwill tell it to you.’, quoted in J.Derrida, ‘Passe-Partout’, in The Truth in Painting (tr. G. Bennington and I.Mcleod) (1987), 2.
50. The identification of art in truth is paradoxical. On one hand, it undermines the notion of a singular rational meaning to legal ‘truth’, opening meaning to subjective judgement. On the other hand, it injects into the critique the problem of politics in art, opening critique itself to the imposed and pseudo-objective politics of the critic. See T. Eagleton, The Ideology of the Aesthetic (1991), 281 ('The aesthetic, then, is from the beginning a contradictory, double-edged subject. On the one hand, it figures as a genuinely emancipatory force-as a community of subjects now linked by sensuous impulse and fellow-feeling rather than by heteronomous law. On the other hand, the aesthetic signifies what Max Horkheimer has called a kind of “internalized repression”, inserting social power more deeply into the very bodies of those it subjugates. ').
51. It is therefore a form of demonstrative evidence of its own point about evidence. Swan Carburetor Co. v. Chrysler Corp., 149 F.2d 476 (6th Cir. 1945) (holding that drawings, charts and physical models, and by analogy animation and video models, all share the common purpose of being demonstrative evidence).
52. There has been some recent writing on evidence in war crimes trials. See, e.g., P. M. Wald, ‘Dealing with witnesses in war crime trials: lessons from the Yugoslav Tribunal’, (2002) 5 Yale Hum. Rts. & Dev. L.J. 217-39; G. Boas, ‘Developments in the law of procedure and evidence at the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Court’, (2001) 12Crim. L. F. 167-83.
53. In Stanley Fish's terms, Part I is a performative speech act-i.e. a promise or creation of a debt. Whether Part II is a constative speech act-i.e. the fulfilment of that promise-is for the reader. S. Fish, Is There a Text in This Class? The Authority of Interpretive Communities (1980), 198 (describing the distinction between performative utterances and constative utterances). See also, J. Searle, Speech Acts: An Essay in the Philosophy of Language (1969).
54. Stargazer, ‘Dramatization of a Drama’, in Spyder's Poetry Empire, online: http://www.spydersempire. com/forum/poetry/messages8/30416.htm ('A casualty/a prisoner of war. Held captive in an unfamiliar place/that seems yet so familiar/to the parts of me that suffered wounds/inflicted during previous wars.').
55. The two most prominent examples that come to mind are from Canada and Israel, respectively. R v. Finta, [1994] 1 SCR 701; Demjanjuk v. State of Israel, [1993] 47(4) Isr. SC 221.
56. M. Rojansky, ‘Obstruction and Delay: The Hunt for Nazi War Criminals’, 22 Harv. Int'l Rev. (Winter 2000), online: http://hir.harvard.edu/index.html?issue=47('[T]he first person ever tried for war crimes in Australia, Ukrainian-born IvanPolyukhovich,was acquittedonMay18, 1993. “Polyukhovichwalkedoutof theAdelaide courtroom a free man,” [Nazi hunter Ephraim] Zuroff warned, “and dozens, if not hundreds, of Nazi war criminals living in Australia breathed a sigh of relief.”’).
57. The narrative that follows is based on courtroom testimony and witness interviews conducted in Adelaide, South Australia inMarch 1992 and February-March 1993.
58. PassoverHaggadah (1973), 23 ('In every generation one must look upon himself as if he personally had come out from Egypt'); see also,Morgan, ‘Retributory Theater’, The narrative that follows is based on courtroom testimony and witness interviews conducted in Adelaide note 4 (analogizingwar crimes cases to annual ritual celebrating freedom from oppression).