Exploring Cold War history through ‘the visual’: The Polish Story

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.

 

FOTO2. Royal Castle, Warsaw 1945 @Cyprian, commons.wikipedia.org

FOTO3. War, Warsaw 1949 @Cyprian, pl.wikipedia.org

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,

FOTO4. 1315-2-1, Leon Chajn speaking at a meeting of meeting of judges in Wrocław 1946)

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.

FOTO5. 1315-33-2, Wrocław

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

FOTO6. Majdanek Trials, 1944 @IPN

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.

The Red Guillotine

Agata Fijalkowski

This is the second in a series of blogs that explores the relationship between law and the visual. It starts with the premise that the relationship between law and art has been long established. The practice of law contains deeply performative elements, best exemplified by the concept of the trial. In East Germany, political trials presented a valuable propaganda opportunity, and state-employed photographers covered such events in depth. The resulting images were then published in the main broadsheets of the day.

This post provides a snapshot of my investigation into East German justice, with the image of the East German judge Hilde Benjamin—or ‘Bloody Hilde’ as she became known—serving as the starting point. As in my Albanian case study about the writer and political dissident Musine Kokalari , this exploration also begins with a captivating photograph.

Fig 1. Hilde Benjamin, state prosecutor. From Berliner Zeitung (1945) @Bundesarchiv. Bild 183-15600-0005

Hilde Benjamin (1902-1989) played an integral role in the construction of the East German legal system. In the post-WWII period, she first worked as a prosecutor [Fig.1], then as a judge on the High Court (1949-1953), then as Minister of Justice (1953-1967). Benjamin modelled herself on the Soviet jurist and Attorney General Andrei Vyshinsky (1883-1954); it was Vyshinsky who developed Lenin’s idea that law was a political weapon, which proved vital during the Stalinist period. Benjamin is mainly known for her unwavering commitment to communism, and during the 1950s as High Court judge she rendered judgments in cases that resulted in the capital sentence, which earned her the nickname ‘Bloody Hilde’ or ‘The Red Guillotine’.

Benjamin presided over all of the decisions in political cases. By learning more about this figure we are able to uncover diverging narratives that serve to broaden our understanding of the context of dispensing justice in East Germany, where the visual played a pivotal role in the process. This material aspect of the image is intertwined with its affectivity. In other words, for some of us the eye is drawn to certain features in the image that result in an affective response.[2] We relive the captured moment at each viewing. Our understanding of the key legal actors and the dispensation of justice is made richer by the personal accounts and legal processes that were at play at that captured moment.

Fig. 2. Berlin, High Court. 1952. Freiheitliche Juristen  trial. @Bundesarchiv Koblenz Collection. Bild 183-15600-0005

As in the Albanian case the images are captivating and the viewer is drawn to a certain aesthetic in the photograph. They are also powerful because of their courtroom setting: spacious theatre venues that provided room for a large audience. Finally, they are compelling because of the subject matter that also includes us as the audience in the spectacle. The driving force underpinning the law’s ability to speak legally in the East German case study points to the performance of education and ‘throttling’[3] [Fig.2 and Fig.4] during the trial proceedings, but also to Benjamin’s ambiguous positioning within East Germany.[4] I intend to challenge the viewer by testing the parameters of Benjamin’s accountability within the GDR’s apparatus of repression.

Fig 3. Berlin, High Court. Hilde Benjamin and Kurt Schumann @Bundesarchiv Koblenz Collection. Bild 183-S94973

Who was Hilde Benjamin? Why do we need to dig deeper behind her photograph? Her philosophy was ‘you laugh with your friends; you hate your enemies’,[5] a perspective rooted in Benjamin’s past. This past was one of discrimination and persecution: first, because of her gender, second, as a mistaken minority, third, as a member of a culturally leaning family and finally as a communist. After surviving the war, Benjamin decided to offer her legal qualifications to the service of the East German communist state.

Benjamin’s life account is less than well known in the English language (and not widely studied in German legal discourses). She was brought up in petit bourgeois family in West Berlin. Her personal relationships, perhaps most notably that with Georg Benjamin (brother of the philosopher, Walter), who would later become a victim of the Nazi regime, informed her politically. She was discriminated against by her compatriots who thought she was either Roma or Jewish (though she was neither). These components resulted in her decision to pursue a legal career and to commit herself ideologically to the GDR.[6] Benjamin skyrocketed in her legal career and intentionally used the law as a political weapon against her enemies, remoulding Vyshinsky’s approach to her own.

Fig. 4. Hilde Benjamin (center). Waldheim Trials (1950). @Bundesarchiv Koblenz Collection. Bild 183-S98280

At the same time Benjamin actively sought the inclusion of more women in the legal profession and tried to address the contradiction she saw in socialism – its gender divide. She thus became involved in the reform of family law, and also played a significant role in the prosecution of war crimes and crimes against humanity. As Minister of Justice, Benjamin was at the forefront of these developments. In 1967, she was eventually forced to relocate by Walter Ulbricht, East Germany’s leader and Chairman, when her ‘political fanaticism’ fell out of favour. The wider implications of this part of the project raise important questions about Benjamin’s location in legal historical discourses, such as in Germany in the post-1991 unification period.

Benjamin, the judge, was at the heart of meting out punishment against substantial numbers of people accused of anti-state activities in the post-war period. But to stop short at this point would be to provide a superficial reading of the case study, especially where Benjamin is concerned.[7] Engaging with her images and accompanying conflicting narratives of her upbringing and political views forces us to ask where Benjamin is located in current historical accounts of East German law, and to rethink the GDR’s role in shaping international discourses about the law and justice. Watch this space for a further evaluation of Benjamin in my forthcoming monograph.

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

[1] Austin Sarat, Lawrence Douglas, and Martha Merrill Umphrey, eds., Law and Performance (Amherst: University of Massachusetts Press, 2018) and Desmond Manderson, ed., Law and the Visual: Representations, Technologies, and Critique (Toronto: University of Toronto Press, 2018).

[2] Roland Barthes, Camera Lucida: Reflections on Photography, trans: Richard Howard (London: Vintage, 2000), pp. 21-25.

[3] Here ‘throttling’ refers to the violent dispensation of justice as a means of suppression and control.

[5] Andrea Feth, correspondence with author, 9 July 2017.

[6] Andrea Feth, Hilde Benjamin – Eine Biographie (Berlin: Arno Spitz, 1997)

[7] MDR, Mitteldeutscher Rundfunk produced a television series on Hilde Benjamin in 2013, see https://www.mdr.de/zeitreise/biographie-hilde-benjamin100.html

Re-visiting Musine Kokalari: a lost story of defiance in the face of political oppression

Agata Fijalkowski

 This article was originally published on The Conversation. Read the original article.

My current project about imagery and the law was sparked by a photograph of Musine Kokalari, an Albanian writer and political dissident. Kokalari was imprisoned and suffered the humiliation of a public show trial under a despotic regime which murdered her brothers and kept her under surveillance and in exile most of her life. Her brave story can now be told after secret police files were released that revealed details about a shocking miscarriage of justice which deprived the world of a great writer.

Kokalari was Albania’s first female writer of note from the pre-communist period. She was born in 1917 in Adana, Turkey, where from an early age the young Musine showed a passion for literature and national folklore. The Kokalari family were at the centre of literary and political activity in the area.

They returned to their native Gjirokastra in southern Albania in 1920, and  in 1938 Kokalari left to embark on her university studies in literature at La Sapienza University, Rome. She kept a diary, My University Life, which was eventually published in 2016. In 1941, she published her first book, called As My Grandma Says,  about the daily struggles of a Gjirokastran woman living in a deeply patriarchal society and which can be seen as an early feminist text.

The writer and political dissident

It was during her studies in Rome that Kokalari joined anti-fascist and anti-communist movements. She continued her political activities upon her return to Albania in 1942 where she co-founded the Albanian Social Democratic Party. Her brother’s bookshop

Musine Kokalari. Linda Kokalari/Musine Kokalari Institute, Author provided

became a hub of intellectual activity. As a result the family was kept under close surveillance by the communist authorities (represented by the National Liberation Movement/National Liberation Front). Two of her brothers, Vesim and Muntaz, were executed by the state for their political activities. Kokalari herself was detained and arrested several times in 1945 after openly expressing her views against totalitarianism.

She was then involved in the Democratic Coalition, a political movement that supported the postponement of elections, and called for multi-party elections. The writer hoped that representatives from the United Kingdom and the United States would monitor the elections. But all 37 members of the coalition were arrested and deemed traitors of the Albanian nation. Neither the US nor the UK intervened.

Hair torn from her head

In 1946, following these arrests, Kokalari stood before the military court in the Albanian capital, Tirana. She was threatened, intimidated and coerced. Archival memos refer to her hair being torn out of her head by bystanders. Her trial was transmitted live via loud speakers to the crowds outside. Her stoic stance is illustrated in a photograph taken by the Albanian Telegraphic Agency. In defiance she wore a mourning veil in memory of her executed brothers. Her powerful image made the front page of the broadsheets in Albania two days running.

This trial was the second in a run of six trials organised by the authorities in that period

Kokalari with her brother Vesim. Linda Kokalari/Musine Kokalari Institute., Author provided

that effectively eliminated “enemies of the state”. It was dubbed the “political dissidents trial” and it sent a message about the direction that the regime was taking towards free speech. It did not deter Kokalari, who used the trial to stand up for her rights. Witness accounts speak of her declaring: “I do not need to be a communist to love my country”. Despite her bravery, she would have endured severe, prolonged torture during her detention and trial. The court refused to let her speak for any length of time.

Kokalari was sentenced to 20 years imprisonment, of which she served 16. She spent a further period of exile in northern Albania, where she worked as a manual labourer. She joked that she was a “mortar specialist”, as her work involved heavy, arduous construction. On her days off she would visit the library and sit in a public place reading a book under the watchful eye of the secret police. Despite the fact that she was forbidden to write, she secretly completed a manuscript about the founding of the Social Democratic Movement. Kokalari died in 1983 – two years before the decline of the dictatorship – after being refused treatment for cancer by the Albanian government.

The fragile rule of law

The near full isolation imposed on her by the communist authorities denied Albanian society and the wider world her powerful voice and writings. Kokalari’s writing tapped into local custom and language, using local dialects in a lucid way, as she wrote about the challenges facing her generation of women. Her broader outlook about her country’s future as a democracy is far from outdated. At its core, the protection of free speech as a key to participating in, and contributing to civil society should serve to remind us how democracies are always works in progress. Her trial and the trials of her contemporaries show how fragile the rule of law can be.

In April 2015 the Albanian parliament passed a law permitting individuals to access their secret police or Sigurimi files. In 2017 the Kokalari family was presented with the file that the Sigurimi kept on her. Within it they found the powerful and defiant photograph of the writer standing alone in front a crowd of people as she was put on trial for her beliefs (fig.1). Kokalari is evidence of a political dissident voice in a country with little experience with democracy and which existed in near isolation for most of the 20th century. It continues to struggle with its authoritarian past.

It is a timely moment to reflect on the contribution that this remarkable woman made to Albania’s cultural and political life. Her life story is a poignant tale of achievement and ambition, of hope in the face of repression and also inspiration – for Albanians and non-Albanians alike.

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’. The powerful image of the Albanian writer and political dissident Musine Kokalari discussed in this article resulted in an exhibition at the National Science and Media Museum in Bradford that also included a short, ‘arty’ film An Unsung Hero: Musine Kokalari (2017). 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

The Institutionalization of Injustice: The Emperor’s New Clothes?

By Sagar Deva

Despite unspeakable horrors that were routinely carried out against indigenous populations across the globe during the Colonial era, it was rare for colonisers to present their repression of native peoples in anything other than morally positive language. The justification for withholding basic rights from native populations was couched in the language of civilisation, where the native and ‘coloured’ populations were portrayed as insufficiently civilised, and too subhuman to enjoy the basic human rights and dignity that were the prerogative of the white, Christian man.

The coloniser, cloaked in righteous whiteness was divinely ordained to rule over the lesser peoples for their own good, his authority shrouded in benevolence and wisdom. In this way, the rapacious exploitation of entire peoples and nations could be portrayed as a glorious and noble endeavour to ‘elevate’ repressed people closer to the level of the white man through forcible processes of ‘civilisation.’

After the end of the Second World War and the global movement towards self-determination, colonial powers which had previously possessed vast empires were no longer able to directly exploit other nations through the use of military force and direct rule. However, this did not mean that the factors which initially drove these nations to colonise vast swathes of the globe disappeared overnight. Unrestrained greed and a ruthless economic mentality were still prevalent amongst many important states, and were particularly apparent within the emerging global presence of the USA, which had rapidly emerged as the worlds dominant power.

In addition, racial and cultural attitudes which perceived white, western civilisation as fundamentally superior to civilisations in the developing world had not entirely disappeared and were still prevalent amongst certain governments and populations within this dominant diaspora.

Nonetheless, the fact that powerful states could no longer dominate other nations militarily necessitated innovative solutions for entrenching their hegemony in the international system. Military multipolarity, and particularly the existence of nuclear weapons, had substantially reduced the ability of powerful states to impose their authority on the global order. A new approach was thus required to impose the authority of developed, northern powers on the autonomy of developing countries in the Global South and to ensure maximum dominance within the international system.

To this end, the core international economic constitutions were created, which comprised of the GATT (which later became the World Trade Organisation) and the ‘Bretton Woods’ institutions, which included the World Bank and International Monetary Fund (IMF). Ostensibly, the purpose of these organisations was to provide a fairer economic playing field by promoting ‘free trade’ and opening up markets to ‘fair competition’, as well as, in the case of the IMF, providing emergency loans to countries with questionable liquidity to ensure the financial stability of the international system.

The ‘Gold Room’ at Bretton Woods, where the establishment of the World Bank and IMF was first agreed. Source: Wikimedia Commons

Much of the rhetoric of the US led coalition who were key in the creation of these organisations has been distinctly utopian, referring to the ‘egalitarian’ nature of a global free market and consistently emphasising the supposed ‘fairness’ of the organisation. Thus, the rhetoric and language used by dominant powers has sought to normalize the intensive process of market liberalization engendered by these organisations by positing them as an objective normative good and promoting them as the only way in which ‘good’ global governance might be achieved, a process which will supposedly benefit the entire global system.

However, this attempt to normalize, even constitutionalise, practices of intense, global, market liberalization has in many ways, simply been a way to entrench the economic hegemony of the developed world over the underdeveloped South. In a world where power is increasingly expressed economically rather than militarily, powerful states and associated multinational corporations have utilised the rhetoric of market liberalization and free trade to exert control over other states and entities to the benefit of themselves and the detriment of others.

Many examples of this paradigm exist but two immediately spring to mind. The first of them refers to the process of ‘structural adjustment’ practiced by the IMF, an organisation dominated by powerful developed countries as voting power is directly tied to fiscal contribution.  Structural adjustment was a process whereby IMF loans were only given to countries if they reformed their markets according to IMF guidelines, which invariably demanded as a key condition market liberalization.

These conditions included opening markets to foreign competition and the creation of ‘fiscal discipline’, particularly with regard to reducing government spending on welfare budgets. This strategy was particularly used in the Latin American Debt Crisis of the 1980’s.

However, the only beneficiaries of these processes were multinational corporations, almost invariably based in the developed world, which now had access to enormous new markets. The effects of structural adjustment on Latin American economies were disastrous, lowering real GDP substantially, creating mass unemployment and driving many local, previously government protected businesses into bankruptcy in favour of multinational corporations backed by powerful developed countries. Despite this disaster, the IMF and World Bank continued to utilise slightly amended processes of structural adjustment well after the end of this crisis, often resulting in substantial damage to the host nation.

A second example of where dominant economic powers have sought to normalize unfair trade practices with potentially damaging and dangerous consequences was in the creation of the Agreement on Trade Related Aspect of Intellectual Property Rights’ or TRIPS agreement. This agreement allows for the almost universal enforcement of global intellectual property rights over almost all products including medicines. Under the guise of ‘free trade’ and ‘fairness’, TRIPS has been accused of creating ‘artificial scarcity’ for important medical products by preventing domestic producers from producing generic drugs.

As a result of this, the price of multiple necessary and lifesaving drugs has been increased considerably, with developing countries highlighting the unfairness of the agreement as well the potential loss of life caused by unaffordable medicines. Once again, the key beneficiaries of this agreement were powerful multinational pharmaceutical countries who possessed enormous lobbying power within dominant developed states.

In the past, colonial powers used the language of racial, cultural, or civilizational superiority to justify dominance and exploitation over other, less powerful nations. Nowadays, powerful states instead seek to normalize their dominance through the language of market liberalisation and free trade which unfairly advantage them over less developed states, allowing for their exploitation. Instead of simply accepting the dominant narrative of the global economic institutions, it is instead imperative to understand the impact that such language can have on imposing injustice and disparity in the world today.

Sagar Deva is a doctoral candidate in the University of Sheffield Department of Law. His research focuses on the relationship between international legal theory and global politics.

The Soviet Court as a Propaganda Instrument II: The Semenchuk Case, 1936

By Anna Lukina

As one of the most publicized and mysterious —yet surprisingly obscured— Soviet criminal cases, the Semenchuk case (1936) provides one of the most striking examples of the use of the Soviet court as an instrument of propaganda.[1] The Semenchuk case was, in many ways, a “rehearsal” for the subsequent infamous Moscow Show Trials; it focused on the supposed banditry of Konstantin Semenchuk, the head of a polar station on the Wrangel Island, and Stepan Startsev, his associate. They were accused of sabotage, mistreating the local population, destroying the winterers’ morale, and, finally, murdering Dr Nikolai Wulfson, who threatened to report their crimes to the higher authorities.

So far, the “plot” of the case does not seem extraordinary; unlike subsequent trials, there was no ‘plot’ to overthrow the Soviet state, just a minor local official abusing his position. Still, the case attracted a lot of attention at the time. The prosecutor was Andrey Vyshinsky, later on famous for his role in the Moscow Trials. The defence attorneys, Nikolai Komodov and Sergey Kaznacheev, were also some of the best and most prominent at the time. The trial was widely reported in the press (including Time magazine), cited in works of legal scholarship (such as Vyshinsky’s “The Theory of Soviet Evidence Law”), and even put into prose by Lev Sheinin, a criminal investigator and detective-writer. The case report (i.e., a transcript of all proceedings) was widely circulated among academics and professionals.

The trial of Semenchuk and Startsev (1936)

Why then did this case attract so much attention? There are two possible explanations. The first is that Semenchuk and Startsev were, essentially, scapegoats for deeper problems common to all Soviet polar stations. Historical records show that drunkenness and disorder were commonplace in these locations, as well as “imperialist” attitudes towards indigenous people. Whilst the government promoted their exploration missions, these ultimately failed. This was mostly due to the missions attracting the “politically illiterate” and others generally ill-suited to the role.

Exposing this failure would, however, be detrimental to the population’s morale, and so the state decided to follow its usual playbook and blame the structural failures on individual “wreckers” like Semenchuk and Startsev. The second objective was that by bringing the case to the public eye, the “Soviet legal narrative” could be used to solidify the perception the Soviet state and its agents wanted to create.

One of them was, as in previous cases, an appeal to the character rather than facts. Luckily for the prosecution, Semenchuk and Startsev seemed to fill almost “fairytale” archetypes. Semenchuk was presented as a self-centered, power-hungry mastermind of the whole conspiracy, while Startsev was his cowardly associate. Interestingly enough, the defence tried to absolve Startsev of his crimes by adding to the negative characteristics; apparently, Startsev was a “half-barbarian” and lacked individual agency, thus rendering him incapable of taking part in the conspiracy.

This shows that the technique utilized by the prosecutors was not to mindlessly tarnish opponents, but to make them fill a specific designated “role”. This also extended to creating “heroes” of the “story”; Wulfson and his wife were presented as loyal, selfless, and ideologically sound characters, as opposed to their assailants. This helped not only to create new role models for the public, but to also sway the court’s decision, given that the evidence was limited to the words of a “bad character” against those of a “good character”.

Similarly, the prosecution centered on the ideological character of Semenchuk’s and Startsev’s crimes. For instance, their treatment of the local population was discussed at length and criticized as “imperialist”. The prosecutor, however, made sure to let the court (and the wider audience) know that these attitudes were “relics of the past” and certainly not commonplace in the Soviet Union, therefore shifting the blame on the individual perpetrators. To a modern reader this, however, is not corroborated by the clichés used to portray the native population as naïve and easily governed; showing that concerns about the “colonialism” of Semenchuk were not genuine and used to deflect attention from the broader problem with the Soviet mode of governance and general attitudes.

Another ideological point considered the past of the perpetrators – Semenchuk and Startsev were found to be involved with anti-Revolutionary activities in the past, Startsev fighting in Kolchak’s army and Semenchuk being convicted of theft in the past. The question of how they were allowed to take on leadership positions afterwards, however, was conveniently ignored: probably to suit the overall trend of blame deflection.

While the defence tried, in some way, to alleviate the fate of Semenchuk and Startsev, they still acted as agents of the state in constructing and developing the narrative. Most of their input was to support the charges, add to the negative characterization of their “clients”, and even congratulate the prosecutor on his findings. One cannot, however, blame Kaznacheev and Komodov for failing to perform their duties as defendants, since this was the dominant model of defence in Soviet academia and legal practice.

Overall, the Semenchuk case is full of fascinating insights into how the Soviet court was used for propagandistic purposes: this is how a mundane criminal case became a cautionary tale for millions of Soviet citizens. The prosecution was tasked with writing “a perfect crime”, and they achieved this – consequently shaping Soviet legal culture for many years afterwards.

Anna Lukina is a 3rd year BA in Jurisprudence student in the University of Oxford. Her research has so far focused on legal narratives in the Soviet criminal case and Soviet conceptions of human rights(1). She plans to combine Soviet legal history, socio-legal studies and legal theory in her work. This blog post is partly based on her article, Anna Lukina, “The Semenchuk Case of 1936: Storytelling and Propaganda above the Law in the Soviet Criminal Trial”, Review of Central and East European Law, Volume 41, Issue 2, 2016, 63-116. http://booksandjournals.brillonline.com/content/journals/10.1163/15730352-04102001

 

[1] For more on how the Soviet Court was deployed as an instrument of propaganda, please see my previous blog.

The Soviet Court as a Propaganda Instrument

By Anna Lukina

“The Soviet court should, above all, persuade, prove and subordinate the public attention to its moral influence and authority.”

Andrei Vyshinskii, “Theory of Evidence in the Soviet Law” (1946)

It is well-known that the Soviet court procedure, especially in the 1930s, can be characterized by its lack of due process, judicial independence, and fair outcomes. It remains unclear, however, why these legal institutions were preserved and, on the surface, respected at all. The core of Marxist-Leninist philosophy was suspicious of legal formalism, with early 1920s legal scholars such as Pashukanis and Krylenko advocating for the ‘withering away’ of the state and hence law.

Yet this position was fundamentally reversed in 1930s. This can be explained by the fact that Stalin saw the courts’ hidden potential as a political tool: not as an explicit source of power (since coercion could be, and was, applied via extralegal procedures), but as a mode of communication with the population.

Even before the 1930s “conservative shift”, Soviet society recognized this hidden meaning of judicial procedures. Some of the 1920s trials such as the Trial of the SRs (1922) and the Shakhty Trial (1928) were more like “trial-lectures” addressed to a wide audience of spectators. In the 1930s, however, this function was enhanced since the state, aided by the Show Trials prosecutor Andrey Vyshinskii as a chief reformer, invested in legal education, legal scholarship, and the reorganization of judiciary and related institutions. This was followed by a “refetishisation of the law” – an explicit acknowledgment of legal order as the cornerstone of socialism and a building force in Soviet society.

A photo from the trial of Semenchuk and Startsev (1936), which was characterised by strict adherence to Soviet legal narrative canons. Here, the defence attorney (who really acted as a ‘second prosecutor’) is addressing the court.

This, in turn, has increased the use of Soviet court for propagandistic purposes, creating what I call a “Soviet legal narrative”. It can be briefly described as a chronological account of the facts of a specific case, which was presented as the primary ‘story’ in the Soviet court. Even though the notion of a legal narrative is not unique to the Soviet legal system, and has been used to describe legal procedures in a variety of jurisdiction, its Soviet form was characterized by a number of distinct features.

Firstly, as mentioned above, the Soviet legal narrative was addressed to an unusually wide audience. While ordinarily a story presented in court is intended to influence the judge and the jury, the Soviet court was officially designated a function of educating wider population. This “education” did not only extend to ideologically neutral values such as respect for law, but covered instillation of more specific Marxist-Leninist values. It was disseminated via the openness of trials themselves, wide reporting in the (state-controlled) media, and even novels and short stories based on real-life trials. It can be partly attributed to the lack of adversarial procedures, which diminished the role of the court in the decision-making: when the outcome is pre-determined, there is no one to persuade.

Secondly, it can be viewed as an official agenda. The Soviet legal doctrine furthered an extremely idiosyncratic role of the court: educating the population as synonymous with establishing an objective truth. However, unlike similar (but more legitimate) concepts in contemporary civil law systems, the latter meant construing impressions as reality using materialistic dialectics – a strong ground for creating a narrative deviating from facts. Therefore, it can be argued that propaganda appeared to be an implied goal of the Soviet court in that period.

Thirdly, the Soviet narrative was characterized by a specific type of content. For instance, it presented the mens rea (the “mental” element of the crime – such as motives and intentions) as more important than the unlawful act itself. Anti-Soviet motives were considered as aggravating factors and therefore actively discouraged when the narrative was disseminated to the legal audience regardless of the objective impact of the defendant’s actions.

A Soviet propaganda poster from 1948. “Bourgeois court is the court of the rich, while the Soviet court is the court of the people!”

Moreover, many distinctly colourful assertions were made about the defendant’s character and their class standing, as well as the victim’s relative characteristics. These “portraits” created a story which was easily digestible by the audience, with clear protagonists and antagonists: a cautionary tale designed to shape the existing social norms. In addition, it represented class struggle, turning the trial not only into a battle of personalities, but a tension between the oppressor and the oppressed. This provided both a justification for coercion and a political lesson for the spectators to learn from.

Finally, the omnipresence of this particular variety of narrative was cultivated by the fact that the Soviet court structure was far from the “storytelling contest” seen in adversarial trials: both the court and the prosecution followed the same line from the very start. Even the defence was not exempt from repeating the official line, as defence attorneys were considered the servants of the state as much as prosecutors, and so were compelled to advance similar goals and ideas. In this sense, the Soviet legal narrative was hardly challenged by any competing stories, which solidified it in the audience’s minds.

Therefore, the Soviet legal narrative phenomenon and the use of the court as a propaganda device can explain many peculiarities of trials in that period. Even though the rule of law would have presented a challenge to the totalitarian leadership, a pretense of the rule of law was, ironically, central to its strengthening.

Anna Lukina is a 3rd year BA in Jurisprudence student in the University of Oxford. Her research has so far focused on legal narratives in the Soviet criminal case and Soviet conceptions of human rights(1). She plans to combine Soviet legal history, socio-legal studies and legal theory in her work. This blog post is partly based on her article:

Anna Lukina, “The Semenchuk Case of 1936: Storytelling and Propaganda above the Law in the Soviet Criminal Trial”, Review of Central and East European Law, Volume 41, Issue 2, 2016, 63-116. http://booksandjournals.brillonline.com/content/journals/10.1163/15730352-04102001