The lawyer, the war criminal and the limits of empathy

Courtroom 600 of the Palace of Justice in Nuremberg was the venue for the post-war trials of Nazi leaders, so it is strange to learn that it is still used for the administration of justice. Strange but completely appropriate. Those trials established new principles of international law and the competing concepts of genocide and crimes against humanity. They also showed that what had happened under the Nazi regime was not above the law. The scale or horror of a crime cannot be allowed to take its perpetrator beyond justice, even if it takes them beyond comprehension and perhaps beyond mercy. At the same time, Courtroom 600 is a historic site under the care of the Nuremberg Trials Memorial which works to increase understanding of what happened here.

On 21 November 1945, the American Prosecutor, Robert H. Jackson, began his opening speech by saying

‘That four great nations, flushed with victory and stung with injury stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law is one of the most significant tributes that Power has ever paid to Reason.’

On 21 November 2015, in the presence of four people who had been there 70 years earlier, those words rang again in Courtroom 600. The occasion was not a reenactment but a remarkable performance given at the invitation of the Nuremberg Trials Memorial by the lawyer and academic, Philippe Sands, with actor Katja Riemann, singer Laurent Naouri and pianist Guillaume de Chassy.

‘A Song of Good and Evil’ is based on Sands’ 2016 book about the extraordinary and entangled fates of three lawyers who sat in Courtroom 600 as Jackson spoke. Two – Raphael Lemkin and Hersch Lauterpacht – were Jews who had studied law at the University of Lviv (now in Ukraine). Both had gone on to develop new legal concepts that would be tested in this court: Lemkin that of group destruction or ‘genocide‘ as he termed it, and Lauterpacht that of international protection of individual rights from ‘crimes against humanity‘.

The third lawyer was in the dock. Hans Frank had studied law in Kiel and represented the Nazi Party in thousands of court cases. He had been Governor-General of the occupied Polish territories between 1939 and 1945 and was now on trial for the unprecedented crimes committed under his command. Among the millions who died directly or indirectly on Frank’s orders were almost every member of Lemkin’s and Lauterpacht’s extended families.

The performance in Courtroom 600 was recorded and the film premiered on 14 March 2017, after a talk by Philippe Sands organised by Nottingham University School of Law. ‘A Song of Good and Evil’ combined elements of drama, recital, lecture and trial to create an experience unlike anything I’ve seen. As do trials, it walked the frontier between reason and emotion. Dispassionate exposition, court transcripts and documentary photographs rubbed shoulders with personal narrative, letters and – overwhelmingly – music. Although it was mediated by video, it was impossible not to be conscious that this was happening in the same place as the events it was describing, at a lifetime’s distance. It was also impossible not to respond to it except through the filter of my family history and identity, ensnared as they are in the crimes of that war and their consequences.

One manifestation of that is the crack it has left in the value systems that could be thought to guide human beings before the Nazi ascendancy. The need to invent the new legal concepts of ‘genocide’ and ‘crimes against humanity’ in 1945 is one sign of how inadequate the events of the war had shown those values to be. Because my profession is art, not law, that crack has been most obvious to me in the failure of Enlightenment ideas about art. This is a huge question, rooted in the totalitarian challenge to the humanistic ideal of the individual, which those ideas depend on and defend. In the words of Theodor Adorno:

‘Auschwitz has demonstrated irrefutably that culture has failed. That it could happen in the midst of the philosophical traditions, the arts and the enlightening sciences says more than just that these failed to take hold of and change the people. All culture after Auschwitz, including its urgent critique, is rubbish.’ (Negative Dialectic 360, emphasis added)

Adorno’s anguish came back to me as I listened to Laurent Naouri sing ‘Erbarme dich‘ from Bach’s St Matthew Passion. Here’s the problem. In Nuremberg, in July 1946, Hersch Lauterpacht drafted the closing argument for the British prosecutor, Hartley Shawcross. He had recently learned that his niece alone had survived the passage of Hans Frank, whom he had observed for months in the dock of Courtroom 600. As he worked, he sought solace in a recording of the St Matthew Passion. In his prison cell Hans Frank had the same piece of music in mind. As Sands writes in East West Street:

‘I listened to … the Bach Oratorio, “The Passion of St Matthew,”’ Frank told the American. ‘When I heard the voice of Christ, something seemed to say to me: “What? Face the enemy with a false face? You cannot hide the truth from God!” No, the truth must come out, once and for all.’ Bach’s monumental work was quite frequently evoked by Frank, offering solace with its message of mercy and forgiveness. (Chapter 125)

How can this be? How can two men standing on opposites sides of a mass grave find comfort in the same piece of music?

Erbarme dich,
Mein Gott, um meiner Zähren willen! Schaue hier,
Herz und Auge weint vor dir
Bitterlich

Have mercy,
My God, for my tears’ sake; Look hither,
Heart and eyes weep before thee
Bitterly

In this performance, in the voice of Hans Frank, I heard only self-pity. The beauty of Bach’s music fell apart like ashes.

How can this be? As Adorno implies, we believe that the arts take hold of and change us, make us better, raise us to a higher, nobler spiritual plane. Even people who never listen to classical music often accept its claimed distinction and explain their lack of interest in it as some kind of failing on their part. Elite culture has a way of making those who challenge its authority feel small. No one believes in the transcendental power of art more than those who have felt it. They know how it has changed their life and they want to convince others that it can do as much for them. Their mistake – as is evident by Lauterpacht’s and Frank’s shared appreciation of Bach – is to think that what they found was in the art when it was really in them.

The beleaguered arts and humanities are often defended nowadays on the basis that they inspire empathy in us. Empathy is the capacity to put yourself in someone else’s situation – to imagine how it must feel to be them. It goes further than sympathy, which arises from a common bond with another because it makes the imaginative leap to see things from a very different perspective to your own. The case was made by Peter Bazalgette, the retiring chair of Arts Council England in a lecture at the British Library in January 2017. But this is an old argument, as John Carey discussed in his 2005 book, What Good Are the Arts?, in which he questioned many common assumptions about art:

John Dewey, in Art as Experience, declares that art is ‘a means of entering sympathetically into the deepest elements in the experience of remote and foreign civilizations’, and that consequently it fosters global understanding. ‘Barriers are dissolved, limiting prejudices melt away, when we enter into the spirit of Negro or Polynesian art.’ Dewey does not explain how he knows when he has entered into the deepest elements of a Negro or Polynesian, and the most remarkable thing about his theory is that it could ever have been seriously entertained even for a moment. But it testifies to a deep wish among art-lovers to believe that art makes them better and more understanding of other people. (p. 108)

Hans Frank loved music and collected art. He counted the composer Richard Strauss and the novelist Gerhart Hauptmann as friends. None of these things made him interested in seeing the world through any man’s eyes but his own.

The simplistic idea that the arts strengthen our better selves does not survive the Shoah. It does not survive genocide or crimes against humanity. It does not survive the reality that a great jurist and a mass murderer can, in suffering, take comfort from the same piece of music.

It’s not that art has no truth or deeper value. It does. But you have to want to find it. I think it’s true that art can help us empathise with others: I’ve made that case myself in the past. I also think that art offers endless resources for personal growth and fulfilment. But we only find these things if we look for them. Every artistic experience is a meeting of minds – the artists’s and the audience, creator and re-creator. To imagine that we are passive receptors of some spiritual nourishment is absurd. We wrestle with what we encounter in an artistic experience, sometimes submitting, sometimes bending it to our own desires. We receive it through the filter of our character, experience and situation and we imagine it differently every time. Art is an extraordinary, limitless resource for human development. But it is we who must do the developing.

Adorno didn’t give up on culture after Auschwitz: he gave up on an outdated idea of what it was and what it could mean. As Elaine Martin concludes: