Agata Fijalkowski
This is the final instalment in my series of blogs on the relationship between the law and the visual in Albania, East Germany, and Poland. The Polish dispensation of justice underwent a dramatic change towards the end of the Second World War. At this time, the Polish eastern territories (now under the control of pro-Soviet forces) began to re-shape the legal system according to the demands of the new ideological framework. The Polish Committee of National Liberation (PKWN) passed a series of decrees that established special criminal courts that had jurisdiction over war criminals and individuals who collaborated with the Nazis – or to use the terminology of that time, ‘fascist-nazi criminals’.[1]
To look at the Polish dispensation of justice more closely, my research analyses the photographs of Polish proceedings and of specific lawyers, such as Tadeusz Cyprian [FOTO1]. Photographs can be used alongside other data to explore the ‘lives of the judiciary’ from two perspectives: the judiciary as an institution and the life accounts of individual judges operating within it.[2] Some legal scholars correctly argue that visual images are not treated as an important source of data.[3] Yet, visual representations of those individuals who occupied positions of authority could serve to reinforce the legitimacy of Communist rule. Photography also helped to underline power relations within society. Judicial visual images are a vital component in legal propaganda, in particular during periods of recruitment to the judiciary, which would also require ideological commitment to the Party, which was at the forefront of the minds of the Polish authorities.
Tadeusz Cyprian was born in the Zablotów, or Zabolotiv, now in Ukraine, in 1898, and served as an aviation officer in the French Air Force during the First World War. In 1922, in a newly established Polish Republic, he graduated from the Faculty of Law at the Jagiellonian University. From 1925, Cyprian worked as a judge at the town court in Poznań until his appointment as prosecutor of the Supreme Court in Warsaw in 1938. His legal writings were disseminated widely, and he was on his way to forging an illustrious legal career before the outbreak of war.
After the war Cyprian represented the newly formed Polish communist government at the 1945 Bergen-Belsen trial. Notably, Cyprian was at the Nuremberg trial as a member of the Polish delegation. He then returned to work as a prosecutor at the Supreme Court and taught at the newly created Central School of Law that was set up to educate a new Polish legal cadre in Stalinist justice. By this time, the political climate was very different from the one in which he studied and trained. Despite this, Cyprian amassed a broad range of experience as head of the criminal law department at the Adam Mickiewicz University in Poznań, as part of the 1947-48 legal team dealing with war crimes trials, and as a professor at the Faculty of Law at the Maria Curie-Skłodowska University in Lublin.[4]
Despite these many professional duties, Cyprian pursued his passion as a photographer. His portfolio includes powerful documentation of the devastation and atrocities carried out during the Second World War in Poland [FOTOS 2 and 3], as well as sightseeing photographs from the eastern Carpathian region in present day Ukraine. From 1931 he was a member of various national photography clubs. Alongside his legal writings, Cyprian published his photography and in 1965 was awarded the title of Honorary Excellence by the International Federation of Photographic Art.
It is important to consider Cyprian’s passion for photography alongside his professional, legal career, which began to see a change in the dispensation of justice towards the end of the war and during the post-war period. This transformation was led by Leon Chajn,
who was the chief architect of the post-war Polish legal system. Under his leadership (in the PKWN in 1944 and from 1945-1949 as Undersecretary of State in the Ministry of Justice) a close eye was kept on the judiciary. The scale of justice is particularly prominent in FOTO5, It seems to convey an air of watchfulness. The statue towers over the audience, behind the speaker (Leon Chajn), reinforcing his message about the dispensation of justice and warning judges to keep in line with the objectives underpinning post-war Poland’s new legal framework.
At this time all judicial personnel had to be screened carefully as new courts were created in the recaptured regions and eventually in a post-war Poland. One of the vetting processes developed was for judicial personnel to re-apply for their positions. This process required individuals to disclose their work experience, and placed particular emphasis on their activities during the German occupation. This paved the way for the sentencing to death of many individuals, including judges, for ‘collaboration with the Nazi regime’.
This policy of purging was based on false accusations: the underlying aim was to serve the Communist authorities’ goal to remove political opponents and to promote their own ‘social revolution’. Most of the legislation which was passed between 1944 and 1945 did not rely on normal legislative techniques, such as statutes and decrees. Instead, many critical matters were decided unofficially, not always by authorised officials, and often unpublished. It was clear that the enactments passed during this period were meant to accelerate the consolidation of Communist power.
Chajn bitterly complained about the attitudes of pre-war judges.[5] There was such deep mistrust of the pre-war judicial pool that a vigorous campaign of indoctrination in Marxism-Leninism-Stalinism was initiated. The purpose of the ‘war over the judiciary’ was twofold: to destroy all pre-war tendencies in the decision-making process and to enhance the prestige of the judicial profession.[6] The authorities set out to accomplish this by appointing judicial candidates who had not satisfied the basic requirements foreseen by the law up to that point and by creating special schools under the auspices of the Ministry of Justice, which would train the new judges on aspects of people’s justice.
At the same time the Polish dispensation of justice was contributing to the development of international criminal law that worked against the ‘war against the judiciary’ campaign. During the period 1946-1948 seven trials of high-ranking German war criminals was conducted before the Supreme National Tribunal (Naczelny Sad Najwyższy). Cyprian, who had survived the Stalinisation of the 1940s, became part of the legal team. This team was behind the far-reaching rulings that resulted in the application of international criminal law principles that went beyond what was occurring at the Nuremberg proceedings. For example, Cyprian was part of the prosecution team that adopted the term genocide in relation to Nazi crimes, well before the crime was formally recognised as a crime in 1948]. [7]
The prosecution also argued that cultural genocide was carried out by the Germans; in other words, coordinated efforts were made to destroy Polish culture, language, religion, civil and political institutions.[8] This was a novel (and prescient) move. Genocide was defined by Cyprian’s compatriot, Ralph Lemkin, but the term was not fully employed at Nuremberg. It was not until 1948 that it was codified into a UN Convention. Yet Lemkin’s writings on genocide were at the heart of the Polish legal team’s case already at the first trial in 1946. In fact, almost all the seven trials showed innovation by the judge, prosecution and defence, who argued that Nazis persecution of the Jews – to whom the Poles were connected by culture, tradition, mentality – also constituted crimes against the Polish people.[9]
This was in contrast to other national trials that were occurring in the region. This Polish legal narrative developed alongside the Soviet and Nuremberg trials, as well as the special criminal courts [FOTO 6 Majdanek]. The imagery of the Majdanek trials is
especially powerful, owing to the (unidentified) prosecutor’s curled hand as he delivers his speech, with the defendant weeping next to him. The photograph speaks legally – it points to the performative nature of the trial (link to East German blog). It shows the continuity between Soviet and Polish war crimes trials, where the audience, both national and international, was integral to the dispensation of justice in providing it with a veneer of legitimacy.
The early Majdanek trials dispensed justice quickly, with defendants knowing of the charges 48 hours before the trial and with limited legal advice. The Nuremberg process changed the way that these trials were conducted, at least with respect to evidence regarding war crimes. The next change came in the form of the creation of a Tribunal set up to garner quite a bit of attention. The Tribunal answered the frustration of Polish requests to the Allied powers to participate in the Nuremberg trials in a more meaningful way, given the extent of atrocities on Polish soil.
The Polish legal team at the Tribunal worked in relative independence, in contrast to the special criminal courts, which were more closely monitored by the Polish authorities. By the time the Tribunal was created, the Polish authorities saw the significance of the trials at a broader, international level. The freedom awarded to the legal team came at a price, and its members would have known that their mandate was short lived, given the political climate.[10] Without any warning, the Tribunal was disbanded in 1948.
The example of Cyprian illustrates the importance of visual sources for understanding post-war Poland’s wider legal discourse. Cyprian was surrounded by testimonies in the form of films and diaries, and importantly visual images, at Nuremberg, and in Poland. Moreover, he would have had details about Soviet efforts to document the war crimes trials, in the form of film. For Cyprian, photography was key to laying out a record of the level of destruction in his native country in the form of a visual account – perhaps this was the core of both Cyprian as prosecutor and Cyprian as photographer. Not only did he himself appreciate the materiality of the visual image, but also the visual image and its power for effective justice and setting the visual legal account. These two latter components outlive any dominant political narrative.
The significance of the Polish war crimes trials is slowly being acknowledged and discussed. It was clear that the Polish authorities and wider society had a great interest in seeing these trials realised, especially after failing to get representation at Nuremberg.[11] But, it is a mistake to see these trials as legal propaganda. While the Polish communist authorities had an agenda, this superficial reading risks missing the innovation of the Polish legal team. This necessitates not only archival research, but also a broader methodology that will support a richer analysis that yields results in uncovering deeper hidden interests, such as who is controlling the narrative at the heart of the visual image.
It is much more than a captured moment. Here we see the moment that the image speaks legally, releasing narratives about people, the limits of the law, seeking justice for atrocities and the longevity of the visual record. Cyprian’s account challenges the legal historical discourses about this period. It shines the spotlight on a series of forgotten war crimes trials. The appreciation of visual images and their use in research are not intended to supersede sources of law, but rather to complement them. The consideration of visual images overlap with other sources of law to create a critical narrative, as seen in the case of the post-war Polish judiciary and lawyer Tadeusz Cyprian.
Dr Agata Fijalkowski is a Senior Lecturer in Lancaster University’s Law School, where she is currently working on a monograph on ‘visual law’, which considers photographs of trials from the period 1944-1957 in Albania, Germany and Poland and the way that these photographs ‘speak legally’. More broadly, she is interested in transitional criminal justice, law and the visual and war crimes. In July 2019 she will be joining Leeds Beckett University as Reader in Law. Find her on Twitter at @AgataFijalkow
References
[1] See Agata Fijalkowski, From Old Times to New Europe (Farnham: Asghate, 2010), pp. 90-101.
[2] Leslie J. Moran, ‘Judicial Pictures as Legal Life-writing Data and a Research Method’, Journal of Law and Society (2015), Vol. 42(1), pp. 74-101.
[3] I adopt the position that images are underused and underrepresented sources of law. See Moran, ‘Judicial Pictures’, pp. 74-101.
[4] Agata Fijalkowski, From Old Times to New Europe (Farnham: Ashgate, 2010).
[5] Teresa Torańska, Oni (Them) (Warszawa: Mysl, 1986).
[6] Andrzej Rzepliński, Sądownictwo w Polsce Ludowej: między dyspozycyjnoscią, a niezawisłoscią (The Judiciary in People’s Poland: Between Disposability and Independence) (Warsaw: Oficyna Wydawnicza Pokolenie, 1989).
[7] This development coincided with the UN’s acknowledgement of the crime of genocide in 1946.
[8] Gabriel N. Finder and Alexander V. Prusin, Justice Behind the Iron Curtain (Toronto: University of Toronto Press, 2018); Michael J. Bazyler and Frank M. Tuerkheimer, Forgotten Trials of the Holocaust (New York: New York University Press, 2014).
[9] Finder and Prusin, Justice Behind the Iron Curtain.
[10] Ibid.
[11] Ibid.
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