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Agata Fijalkowski, "Law, Visual Culture, and the Show Trial" (Routledge, 2023)
01:11:59
An interview with Agata Fijalkowski
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- [00:01]
Agatha Fialkowski
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Alex Batesmith
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- [00:17]
Agatha Fialkowski
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- [00:25]
Alex Batesmith
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- [01:08]
Agatha Fialkowski
It's accompanied by his natural ally, Doug.
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Alex Batesmith
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Agatha Fialkowski
Massachusetts welcome to the New Books Network.
- [01:29]
Alex Batesmith
Hello everybody and welcome back to New Books in Law, a podcast channel on the New Books Network. I'm your host Alex Batesmith, and today I'm delighted that we'll be talking to Agatha Fialkowski about her recent book Visual Culture and the show Trial. Agatha is a reader in law in the School of Law at Leeds Becket University here in the city of Leeds, uk. Her teaching and research explores, among other subjects, international criminal law, with a particular current interest in in Post World War II justice in Central, Eastern and Southeastern Europe, especially from the perspective of visual culture and legal propaganda. Agatha is also an Associate Fellow at the Institute for Advanced Legal Studies in London and has been an IRH Honorary Fellow at the Institute for Research in the Humanities at the University of Wisconsin, Madison, and has also been awarded the Ehri Connie Kristol Fellowship at the Netherlands Institute of War, Holocaust and Genocide Studies. And Agatha, welcome to New Books in Law.
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Agatha Fialkowski
Thank you. I'm so happy to be here. Thank you for the invite, Alex.
- [02:34]
Alex Batesmith
Agatha, I've given you a very brief bio, but I wonder if you would begin by telling us a little more. What was your journey into academia and to researching the area that led you to writing this book?
- [02:46]
Agatha Fialkowski
So I'm originally from Chicago and I finished all my studies, BA and MA in Chicago at the University of Illinois at Chicago. And I had intended on a different sort of career path at that time, working in criminal justice and translation work. I have a degree in Spanish alongside criminal justice studies. And the opportunity came to apply for a Fulbright grant. I went out to Poland and I haven't really looked back since, actually, in terms of looking at what was occurring there with respect to the legal system in transition. I then was awarded a scholarship to do my PhD at the University of London. I did it at Queen Mary and what was then Westfield College on the rule of law in Poland, with some comparative aspects to what was then the former Czechoslovakia in Hungary. And I think my favorite chapter in my PhD was the one that dealt with developments in the Second World War that to do with Stalinist justice. And I always felt there's so much more to say there. And it's taken me some time, so many years later. I mean, I did my PhD some time ago in terms of exploring what was occurring there more broadly within a framework of transitional justice, and especially in terms of the, if I can say, the administration, the maladministration of justice. In terms of this book, it was a surprise, actually. I was working in the archives, the Albanian archives, on trials, post World War II trials that were being held there under the Enver Hoxha regime. And in the course of it, I came across a photograph. And this is the photograph of one of the protagonists that I discuss in my book. And it was a photograph that haunted me. And I didn't really learn about who Mussina Coccolati was until much later, through some pretty, not very good exhibitions, actually. I mean, the exhibitions were there, but in terms of the information that was conveyed about her, it still didn't really complete the story in terms of who she was. And then I just by coincidence came across her trial transcript with the research assistant that was helping me at that time at the Ministry of Interior. And I think from there I decided, okay, I think I need to write about Mussina. And in the course of things, I came across other photographs with respect to my other two case studies.
- [05:41]
Alex Batesmith
Great, thanks. We'll come on to Mussina Coccolari a little while later in the interview. But before we get into that detail, a little bit more about the focus of the book. In your introduction to the book, you explain how your be looking at the visual image and you talk about the importance of interdisciplinarity. So my question is this, to begin with, why is art in this case, photography. An important lens through which to study the law. Do you say in your book?
- [06:10]
Agatha Fialkowski
So I think that law and art have an inherent relationship anyway. And by that I mean that law is performative. And, you know, the way that it's performed in court, for example, the way it's performed by the legal officials. That are taking part in the performance of the law. Whether it is by way of litigation, whether it is by way of even testimonies, for example. There's something very much a dynamic there that works very well with performance. There's been very good scholarship that's been written about law as being performance. In relation to the photograph. I think that an interdisciplinary approach perhaps shakes up the way that we see the laws being linear and it's not linear. And I also think that there is a lot of gray area that surrounds the law. Because law is all around us. We come across law, we perform legal acts not knowing about it. It's very much something that doesn't work in a constrained way. That's my view of the law. And I think that many actually legal officials, I mean, and I hasten to add. Whether it's from common law or civil law system. Understand this as well. In particular when you are in a courtroom engaged in litigation, for example. And I think that the photograph captures a particular moment. That can offer a sort of remedy, if you like, or space to also engage with limits of the law. And this is with respect to particular moments of repression. Like the period that I discuss in terms of Stalinist justice. Where we have more to tell in terms of the particular story that isn't necessarily conveyed. Whether it's in a trial transcript. Whether it's something that's necessarily written about these periods of history and these stories. And here we're talking about defendants, but also legal officials are ongoing. I think that the use of a photograph, for example. Within the framework of understanding the law is performative and has a relationship with art, broadly speaking, can inform us about that particular moment in time. The particular people's stories that also resonate with questions that we are challenged with in present day.
- [09:08]
Alex Batesmith
Great. Thank you. That's really interesting. One of the things that I was interested in at the very beginning in the title, of course, is as well as the interrelationship between law and visual culture. Your book focuses on the concept of the show trial. Can you tell us what we should understand by those words, show trial, and why you've chosen to focus on this concept in your research? I mean, I suppose it's representative of what we consider what we might consider as endemic in Stalinist justice. But tell us a little bit more of what you understand by show trial, what you found in that concept.
- [09:45]
Agatha Fialkowski
So there has been a lot written about show trial itself. There has been actually, you know, excellent books that have been written about the sho trial under Stalin is justice, for example, in particular in Soviet Russia. And I don't want to. It wasn't my intention to engage in a debate about the definition of a show trial, but because, arguably, because law is performative and of the nature of a trial, you could argue that all trials are, to a certain respect, a show trial. For me, the show trial here in these case studies is really about what we would call either a kangaroo court or the maladministration of justice, where you have the presentation of the trial that follows a particular script that we see as ticking all the boxes with respect to legitimacy. What I mean by that is due process. There's a court, you know, there. There's an audience of spectators, there's a transcript that's followed. There's a prosecutor, there's a defense attorney or defense counsel, and there's the, you know, the enactment of this. But it's meant to lead public opinion. And more often than not, you're looking here as the maladministration because of the repressive sentence and manipulation of the whole trial itself to achieve the particular verdict that was already decided before the case came before the court.
- [11:24]
Alex Batesmith
That's really interesting. I think we're going to pick up on some of those questions later on some of the issues in relation to the didactic element of show trials. Now I want to start with chapter one. Moving on to that chapter where you look at Stalinist justice in Post World War II Europe in the round. Could you say a little about how communist countries used or instrumentalized justice? What role, in fact, did justice play in a communist dictatorship?
- [11:55]
Agatha Fialkowski
Okay, so, I mean, I think these introductory chapters are very difficult because of the particular generalizations that we make. But I do think certain generalizations can be made with a view that we can clarify certain peculiarities that arise. And that's sort of also what I had in mind with respect to the three case studies. What you have here in terms of the commonalities with these particular case studies is a shift in the Post World War II period to use the law as a weapon. And the use of the law as a weapon in the case study of Albania and East Germany and Poland was an ideological tool. And it was essentially not only as a way of Rooting out what was questioned in terms of, you know, let's say in the Post World War II period about any German war criminals or fascist collaborators and in society. But the relevant laws that were put in place were expressed in such a open ended kind of a way that it could actually and was meant to capture actually any sort of opposition to the authorities or so in the, in the wings, the communist authorities that were consolidating their power. In some instances it took a little bit longer than, than others. That's sort of like the, the script of that particular time. And I think in all of these three instances it was apparent that there was an appreciation with respect to the performativity of the law and how important capturing that and using that performativity was essential to consolidate that power. And so that would come form of, for example, making sure that there were pictures that were disseminated of those show trials from that particular period to the wider public to make sure that the message came through with respect to the way that the authorities dealt with the enemies of the state as a way of. As a very important control mechanism. Very important control mechanism, but also very important message in relation to justice. What I think is also important is how the message was sort of aligned with what was occurring in, if you like, the blueprint was the Soviet model. There were many teachers that came to, if we can say in inverted commas, help and assist with this process. But for like the Albanian end, there was a lot of assistance that came from a very short period of time from former Yugoslavia in this respect.
- [14:48]
Alex Batesmith
So.
- [14:51]
Agatha Fialkowski
These were the commonalities, if you like, in order to root it out, in order to make sure that perhaps not all of these proceedings were public, but that a select few were public and that sometimes also attracted the attention of an international audience.
- [15:07]
Alex Batesmith
You mentioned in your answer there the concept of the enemy and how you write in your book about how that has been developed in post World War II communist countries and how in particular the criminal trial engaged with this figure of the enemy. I wonder if you could tell us a little bit more about that as a figure and how it was used in the formativity of justice and how you've described that in your book.
- [15:33]
Agatha Fialkowski
I think that the whole concept of an enemy and in particular within criminal law is a very powerful method of control. I think it's something that it has resonated prior to this particular period in time that I discuss and it continues to resonate. Beyond that, there's a very fine line between who is the enemy and who is a Hero, if we can use that particular dichotomy, that has always fascinated me, and also that's why it attracted me to these particular case studies, because it's not meant to provide also a simple explanation, but also an invitation to think about how actually complex it is to go from enemy to hero or hero to enemy within a split second with respect to who is in charge of defining the law at the particular moment in time. I think that as a concept itself, one must be wary of then what is available to the enemy or the hero by way of some sort of remedy to what's occurring at that particular, you know, that moment in time in relation to the trial, in terms of defense, in terms of answering calls. Because, you know, in these particular cases, in terms of who the enemy is, you're dealing here with some very broad, Arbitrary, if you like, positions in relation to who is ticking the box or fulfilling or the criteria for that particular enemy. And that is, for example, being in opposition of a state. So silencing a critical voice is first and foremost, always the first step, if you like, in any sort of authoritarian regime. And then it gets, you know, more repressive as you go. As you go on, you know. So actually, the whole idea, the power of the expression that also comes forward in a photograph, if you like, works both ways as a way of silencing. It's what's occurring there that's being silenced, but also what's being spoken from that that we need to always question and challenge here.
- [18:08]
Alex Batesmith
That's really interesting. I'd like to revisit that when we talk about some of the specific examples that you give. Now, obviously, in many illegitimate or show trials, we see evidence being presented of a defendant's confession, typically forced, rather than a fair, free and voluntary confession. I wonder if you could just say a few words about the role that confessions played in Stalinist trials, and how did these confessions relate to the idea of the enemy?
- [18:39]
Agatha Fialkowski
The one individual that has a common theme running through this is Stalin's top jurist, Andrzejinski. Now, Wyszynski himself has a very interesting biography that is outside the remit of this. I'm just flagging this up. But what you have here in the three cases, either very overtly so or not, is a dedication to Vishinski's take on law as a weapon of control. Now, you know, arguably we could say that was also Lenin's perspective, but Vyshinsky came on the scene, you know, after, when Stalin came to assume power. But what you have here is also law being used as a weapon. And the flip side of that is education. So the enemy is an example of how the authorities would educate you in terms of coming on board with whatever political project is at play. And if not, the consequence will be that you will be throttled. So there is, you know, throttling to educate and an educator, which I think works really well when we're considering the whole dichotomy in terms of the enemy hero kind of relationship as, as well. And I think that Wyszynski's, if you like, approach to this particular approach to the way that criminal law should be imposed and meted out, if you like, fits in with his model that evidence, the queen of this all, is evidence. And I think that says a lot then in terms of, through this particular mechanism, you will have the defendant admitting guilt or what have you confessing to committing actions that are deemed to be criminal in that particular moment in time. And in some cases without any sort of resistance, but a sort of, you know, whether it, I think it went from different degrees of complete shock to admitting to the crime because of the awful torture that was being, you know, that they were undergoing, what have you, but also as a sense of belief in actually a wider belief perhaps in the political project, that perhaps the guilt, admission of guilt would, you know, would save them from a horrible sentence or fate, what have you. And that is prevalent throughout this idea that there's this evidence and it doesn't matter how the evidence is obtained, because there was no masking that the law was used as a weapon. Yeah. And you had, you know, justices who would admit to that and stand by that and defend that particular, particular point. So the common denominator here in terms of the evidence and the confession was Vishinsky's thought on it. And then it sort of varied to different degrees in terms of how it was meted out with the help of the teachers that were helping the architects with respect to these particular show trials that were occurring during this time period.
- [22:38]
Alex Batesmith
Great, thanks for that. Agatha. One of the fascinating and to me surprising points to come out of the second chapter in your book was your discussion of the importance of legal legitimacy, or at least the appearance of legal legitimacy in those show trials. Can you tell us why legal legitimacy was important for these regimes and what you mean by that in the context of such state controlled justice?
- [23:06]
Agatha Fialkowski
So on this particular point, I just picked up one idea, if you like, from Otto Kirkheimer. Otto Kirkheimer, of course, was part of the Frankfurt school, who, in terms of the experience and the observation of what was occurring at that time in Germany in the interwar period, so between the first and Second World War. I have always been taken by this particular point because of the way, or when I was looking at, for example, trials that were conducted in Poland, whether it was the height of Stalinist justice or even onwards, when one could say that the Polish Communist regime was even more repressive post Stalin's death, what have you. And there is something within the way that the legal systems work that had to show some form of legitimacy, that there was something that was being followed here by way of a legal trial. And I think that. And that there you're relying on the courts to do this. Now, what's interesting within this is I think that you have, therefore, regimes of this nature, some message that you want to send internally, so to the nation, but also externally by way of, you know, this is what's occurring here. And by all means, we are adhering to everything that you would expect to. I mean, in hindsight, you would say due process, right, by way of a particular trial, and likewise to sort of like a domestic audience, if you like. So I think that the mask, if you like, of legitimacy is very important for the authorities to rely on in terms of their own legitimacy. Now, also within that, the question becomes a little bit more complex because I think that it doesn't really matter that much if it's known internally. Internally that it's a farce because of. And I hear, I would go with, you know, Arthur Koestler's Darkness at Noon. There's a sort of self. So it's the propaganda that you have the outside official face, but privately the word is that you don't know what's going to happen to you. And it's all a method of control. It's all a method of control. And the arbitrariness is actually a very good method of control because you actually conform. You're don't do anything in terms of drawing attention to yourself, but yet you're not quite sure in terms of if it might go wrong. Will you get swept up with the. In the net and, and, and, and find yourself, you know, with a knock on the door at midnight and become arrested? Or it's a method of control by way of you looking and controlling others, perhaps reporting on other people. So there's a lot there, I think, in terms of having this facade of legitimacy. There's always this face of what is the problem here. We are adhering to this. Of course, the law is a weapon, but do you have anything you have nothing to hide. You have really nothing to worry about. I like the complexities of this. Of this particular question. Sorry, I could go on forever about it.
- [26:44]
Alex Batesmith
No, not at all. It's absolutely fascinating. And clearly the courts are being used as a political weapon in the hands of the state. And we've already alluded to some of the central purposes of the trial, the educative function, the fact, as Lenin would say, that you write about, that the role of the court was to instill terror and to dehumanise the accused. What would you say amongst all of those is the central feature of the trial? Or do you think it's all of those in one go?
- [27:18]
Agatha Fialkowski
So, I. Yeah, I mean, that's a. I like that question. My instinct is that it's all of those in one go. I think there's no one right answer. But what you might have is all of those elements in one go, with particular elements more emphasized in some examples. Examples rather than others. Yeah. But really at the heart of it is some sort of struggle. It's a struggle, isn't it? It's a battle in relation to this, you know, this. This label of are you a hero or are you a villain? Is the law actually right? Because officially you have broken the law. There's some. There's also something there in terms of the whole. I mean, this isn't about positive or natural law by any means, but that question there, in terms of that simple question of what kind of law are we dealing with here? Is also part of that struggle. Yeah. What kind of justice, actually are we dealing with here? Which is why, again, I think the visual is so important, because it, if you, like, discloses the limits of the law. And I don't mean law here in a cynical way, because I think that there's some meta law and justice that works, but ultimately you have to address the limits of the law and the abuse of it.
- [28:51]
Alex Batesmith
I think that sets things up really nicely. We've been spending the last 20 minutes or so talking about how Stalinist justice operated and some of the core themes. But. So let's talk now about the first of your three case studies, and the first of which in the book, chapter three, is Albania. It's here where we really get to the heart of the book when it comes to the interaction between law and visual culture and the images of the protagonists. And the first of those is Mussina Coccolari, a writer who turned to politics after two of her three brothers were charged with treason and executed by the authorities. Could you Introduce Mussina Coccolari, the person for us. Who was she? Why did you choose to feature her in the book? You've already mentioned about coming across her image, but tell us a little bit more about Mussina Coccolari.
- [29:45]
Agatha Fialkowski
So Mussina Coccolari was born in February 1917 in Turkey. Interestingly enough, her father was a high court judge, which is why the family was there. But at some point the family decided to move back to southern Albania, to their family seat, if you like, as it were, the city of Giocastra or Giocastar. And it was there that Musina grew up in a very progressive, enlightened family for that time. You're dealing here with societies patriarchal. And they were progressive because they sent their children, including Messina, to study, to read as much as they could. And she went on to do a literary degree at the University of La Sapienza in Rome. And she loved to write. So I think from what I've read about her and in interviews with family members, you're looking here at an individual who raised not to be afraid, and that includes writing. So she dedicated a lot of her works, much of which still have to be translated into the English language, about her folklore, using the southern Albanian dialect, talking about the place of women in the patriarchal society. She was very, very switched on to all of that. And she was also very switched on in discussions with her brothers and the wider, if you like, literary circles in terms of what future Albania should look like. And you know, you're looking here at individuals who had ties and wrote to other like minded individuals outside of Albania. But her first love, if I'm not mistaken, was writing. And it was really the turn to politics, like more fully, with the risk of being arrested, is when the loss of her brothers, that broke her, that broke her heart. And I think that she was very brave to do so. I think she was a very complex individual. That's something that, you know, in talking to Albanian colleagues that write about her and in particular analyzed her diaries during her Rome period, show very complex individuals, very troubled by many things that were going politically, I should say she was anti fascist, she was anti nationalist. Yeah. Her vision in terms of what she wanted to do was like, I just want free elections here. I want a country that is able to experience, if by choice, what I have experienced in, in my, in my life, by way of education, as much, very much progressive, very much social, just minded, very much for free association, free elections. That was her strong message. And that's what she campaigned for probably, I would say, even quietly until her death in 1983.
- [33:11]
Alex Batesmith
And tell us what happened to her. Tell us how she came to be put on trial.
- [33:15]
Agatha Fialkowski
So she. So in the course of the 1940s, so you had. The communists wanted to consolidate their power in the country, and with Enver Hodga, who, I have to say, also came from Geocaster, so the families knew each other very closely, you know, were observing potential opposition. So you had the, if you like, the communists in the wings watching the particular party group, the political group that she was involved in. And so she was arrested once, then released, but then it was really with. When she made contact with the allies. So she wrote to, if you like, the allies in the uk, Americans in relation for help to monitor elections within the country, that then she was picked up by the authorities and taken into custody and detained. And the picture that haunted me was the one before the microphone where she's wearing a black. She's dressed in black and wearing a black veil. She had already undergone quite severe torture for two weeks. And what strikes me about that particular stance in the picture and the way it's captured by the photographer was some strength that was emanating from that. And the strength that was emanating from that was the fact that she was able to still stand after what she endured, wear a veil that was meant to be a morning veil and almost like a protest, because it was assigned to the court that she knew the fate of her two brothers and that they were murdered. And so this was 1946. And, you know, she started to read her statement. She was one of 37 defendants, by the way. She started to read her statement, and the court essentially told her to shut up. And they called her, you know, among other things, a diabolical soul. They also asked her, you know, what does she think about the shouts coming from the audience in relation to string her up? And she steadfastly stood there and said, you know, they're going to say the same for you too, your honor. And this really angered the court. But she wasn't sentenced to death. And it's again, the example of the arbitrariness of this kind of punishment where you're not quite sure what's going to happen to you. And in Albania, you have a system of where you were not only sentenced, but you were. After you complete your sentence, you are exiled in your own country. So she was sent to northern Albania to a very. One of the most repressive prisons in the country at that time. And then after she finished her sentence, she was exiled up there, so she could never return to the capital. She was told she couldn't undertake any sort of writing, which she did in secret anyway, but. And she was. So she was no longer able to practice writing as a profession. She was instead having to work in. With mortar, or. I'm not saying a cleaner, but something to that effect in terms of construction. And so she always joked, according to her great niece, that she was a mortar specialist. But she would always go in this particular part of the city that she was exiled to in her dressed as. Dressed, you know, dressed well, elegantly. She would go to the park and she would sit there with a book reading, because she was always under surveillance. And there was something, that message that she was sending there also silently being on that. On that particular park bench for the rest of her life, you know, so, quite amazing person, actually, Musina Coccolari. Quite an amazing message that has been, of course, picked up on in the post communist discourse in Albania.
- [37:39]
Alex Batesmith
She's certainly a fascinating character, and for me, I guess, for many readers of this book, her image is the key image of the whole book. You already described it. She's standing to address the judges at her trial for crimes against the Albanian state. It's extremely striking. She's all dressed in black, as you've described, a black headscarf standing in front of this huge microphone, her eyes raised to the judges who are out of shot, with the audience in rows behind her in the shadows. It's an extraordinary, powerful image with only her sort of neck and her face standing out pale against the shadows. What do you hope or what do you think this image tells us about justice in Albania at the time.
- [38:25]
Agatha Fialkowski
Time. So I would like to look at Musina's image also within the context of. There were others like Musina who, you know, experienced and suffered the same plight. So she is representative of this repressive. The repressive nature, if you like, of the Albanian regime during this particular period of time. I would also like to look at Musina to say that there's so much more to say about Musina herself in relation to the kind of individual, kind of person she was in terms of writing, but also in terms of the way that she is currently being discussed, if you like, in a. How do we reflect on a. You know, the reckoning, if you like, that these. That Albania and other post communist states still continue to grapple with in terms of what occurred during that time and in terms of accountability for that period. And that hasn't occurred. I would be very critical in relation to how her narrative is actually included within a public discourse in relation to, but not only a reckoning of the communist past in terms of how her name is used for streets or for schools. Whether actually, do we really know who Musina was? That needs to go beyond a picture of her before this microphone. Yeah, this is a shift from looking at Musina as an object, but a shift in terms of really engaging with a narrative here that has so much more to say in terms of why haven't the individuals who took part in the her show trial, her 36 other defendants and the other show trials from that particular period been held into account? And how being included in a book or in an exhibition is actually not enough by way of what one would want to see and hope for from the law. I think that, you know, it's very interesting how she's called a martyr. I keep going back to still how she is in that before the microphone and the hero, villain kind of dichotomy, which I want to break, you know, and I want to sort of take. I want to free her from this image. I want to free her from the image because there's something so much more that we can offer by way of who she was that helps, I think, by way of engagement with the law in the kind of way that we want to engage with the law.
- [41:19]
Alex Batesmith
And you talk about in chapter three, the dangers of instrumentalizing, expropriating and oversimplifying this picture of Messina Coccolari. You talk about how it's important to engage, as you've just said, as well, engage with the story as a whole. And to bear in mind that this is a repeated story, one of promise and tragedy, that you say, why do you think this perspective is important when we're examining what you describe as the politics of visualizing justice?
- [41:50]
Agatha Fialkowski
I think it reinforces, well, because I think of what's at stake if we don't do it. I think if we don't engage with the whole picture here, or free Mucina, we don't see actually the potential of law or recognize the way law works around us in ways that. That we want to address, identify, capture, including concepts like the enemy, including the way that we have agency in the way that we deal with, you know, the politics of, if you like, a post dictatorial or post, you know, authoritarian period. And I do think a picture is an important start of that, that sort of shift in understanding in order to, you know, all we have to do is just ever so slightly engage with one aspect of that, to realize that there's so much more at stake here. By way of what I think would Musina would like, because it's about polity, it's about how we're engaging in a wider societal exercise of, you know, freedom, you know, of, you know, these kinds of important goals that we should be having by way of whether it's political or social justice, you know, what kind of state do we want to live in if not having these basic criteria there? So I think there's something liberating if we're able to go with what is at the very minimal, a moment that's captured in an image that is emotional, that has a sense to it and that we allow ourselves because it's about reliving it and you want to relive this again, you know, and also understanding, you know, that's the sort of like, okay, I talk about Walter, you know, Benjamin. But there is something really important about also recognizing that a lot of places like Albania have a very rich history that also had connections and certain relations outside of its own. So it's not so black and white, for lack of a better expression, to say that it was isolated, it had nothing more, you know, there's nothing more to say about or give credit to by way of experience or having some sort of vision for a better way where, you know, where there is a. Where law has an important role to play, where it's not being manipulated, etc. What have you. And I think that's what's important here about freeing Musina's image? I hope that makes sense.
- [44:57]
Alex Batesmith
It does. Thank you. Let's move on, shall we, to East Germany. And that's the focus of chapter four. And in particular, the rather less obviously sympathetic figure of German Judge Hilda Benjamin, later Minister of justice in the DDR. Can you tell us a bit about her and why you chose to focus on her as a character in Stalinist's Justice?
- [45:21]
Agatha Fialkowski
So, again, I came across Hilda's photograph when I was working in the archives in Berlin, and I was fascinated by the way that she looked. And here I was more focused on the. The braid. She was always known for wearing a trademark, what you would refer to as a Heidi braid. And of course, we come across that in different forms and fashion in present day in terms of what a Heidi braid is. So it's essentially a braid that's tightly wrapped around one's head. And I realized that there were really no photographs of her without this particular Heidi Bright and I had an opportunity to investigate more. Her story was more readily available. I had a chance to interview and have contact with her biographer. And I found that there was something very important to say about a woman, again, a woman who broke through patriarchal structures in order in the. At the particular time. So following First World War, finishing one among the few females who finished a law degree and what is now Humboldt University was then University of Berlin. And then who, you know, showed some really great lawyering skills. I mean, she was, you know, really good lawyer and obviously loved it very much, but also somebody who was committed to it, to the social justice project, the political project in the form of communism. And that came through Georg Benjamin, who was the brother of the philosopher Walter Benjamin. You know, they were married. He was the most important person in her life later than her son. And he was the one actually that introduced her. And if you like, like socialism and the socialist project and then communism, they were quite active in that. And then, you know, unfortunately drew the attention of the authorities. And because Georg was Jewish, he was arrested by authorities and he would later perish at Mount Housing. And after that, after that particular loss, I think that really sealed the choice for Hilda. With that loss, her energy was put into making sure that her son was protected, surviving the remainder of the years of the Third Reich and then, but making sure that when it all finished, that she was on the right side and in her view, the right side was aligning herself with the Soviets and taking part in creating, you know, East Germany.
- [48:23]
Alex Batesmith
What are some of the images of importance for you of Hilda Benjamin that you discuss in the book? And what do you think those images tell us about the post war system of justice in the DDR?
- [48:34]
Agatha Fialkowski
Hilda, I would argue, understood the importance of performativity because of course she would have been a consumer of the propaganda that was being. She was being under the Third Reich in film or also by way of just reading about different court proceedings at that time. And I think the images that inform us in relation to her is where she's on a bench. So she rose very quickly in the ranks. Before she became Minister of Justice, she became, you know, she took over in terms of vice presidency and then presidency of the high court. And that court was motivated by these show trials, if you like, these political trials, various segments of the society. Hilda always was very vocal and expressed her commitment to andrzejinski, for example, in her writing. And also by way of what she saw as education by throttling or throttling by education. And that would come through in the way that she would conduct a particular court proceeding, how she was in terms of her manner and her speech. And I think that the culmination of her career was actually one that was the Herr Wegen Dessau trial, which I referred to in that particular chapter that was held in the city of Dessau. It was held in a theater. It was a lot of effort and money was placed into audience tickets, into attracting the right kind of media attention in way that the evidence, again a hark to Vyschinsky, was presented by a very elaborate board. These were former ministers who worked in the Ministry of Economy who were charged with economic sabotage and crime. And you had all the evidence laid out before them by way of these fancy maps and very constructed in a very complex way. And she was at the heart of all that, driving all of that. And I think this is quite reflective of the way that she conducted herself as a judge, but also later as a minister, the way that she would appear at certain trials. And I do think there's a lot more to say about, about East Germany in relation to the whole discourse on international criminal law by way of reckoning with what happened during the Third Reich and the role of Germans continuing to play a part in public life post World War II and the holding of trials in East German case, many of in absentia in relation to, you know, war criminals or, you know, Germans who were part of the Nazi regime and part of that whole, you know, commission of those particular crimes. That I think is an important part of a discussion that could be revisited present day in relation to, like a wider German discussion about what is occurring with respect to East Germany and the role it played in shaping different norms and principles, what have you. And she was there. She was. There was a certain part that she played there, you know, and she was very. As a final thing, she was very much engaged with making sure in terms of that gender was first and foremost addressed before. Before, if you like, Marxism, if you like, that didn't always work. She was, you know, because of her upbringing and education, she was always viewed by most of her peers with pretty much suspicion. But she did succeed in bringing increased number of women into the legal profession and she did have some role to play in terms of shaping family law in East Germany.
- [52:56]
Alex Batesmith
Germany, I guess, as well. Similar to Mussina Coccolari, you're cautioning the reader in this chapter into oversimplifying Hilda Benjamin as a demonized figure. As you've just mentioned, she was a very strong proponent of gender equality and social justice in communist East Germany. I just wondered, how does this biographical detail influence your thinking on the relationship between law and visual culture?
- [53:25]
Agatha Fialkowski
I think again, you know, maybe it's not so much freeing, but I would like a slight shift in how we look at Hilda's life account. This is not by any means an excuse because she was known, I think rightly so, as the Red Guillotine, as Bloody Hilda. But I do think we need more stories like Hilda to be addressed and to discuss, to challenge these sort of, if you like, master narratives about the course of law. And here I'm thinking in particular the course of law in West Germany. And then that would lead to like, a wider German discourse in terms of not only international criminal law, of course, and justice, but other features of the East German state that, that I think perhaps are not fully addressed. And her life account is within that, in the sense of the point about choices, the point about the nature of a regime at that moment in, in time that I think is important, you know, and especially because of who she was and what she achieved actually in those circumstances in those particular time periods, starting with Weimar period and then the, the, what occurred under the Third Reich. But also post that you did have certain attitudes that were still prevailing that would have come from Weimar that she would have had to break through. You know, I, I, I'm, I, I would like to see more story like Hilda being put forward and discussed. And I think that the photograph here provides a very good opportunity for that.
- [55:17]
Alex Batesmith
Excellent. Thank you for that. So your final case study is that of Poland in chapter five, and in particular the figure of Zwiecki, who is a very important figure in the history of international criminal law. He was a prosecutor of Nazi crimes in Poland. Can you tell us a bit more about him and again why you selected him as a subject for your research?
- [55:40]
Agatha Fialkowski
So in the course of looking at Polish war crime, the legal team that was involved in the war crimes trials that were held before the supreme national tribunal from 1946 to 1948. I came across Shaviersky because he was one of the lawyers within that particular team who was targeted by the regime and then arrested. And this was in the course of him acting as prosecutor before the Supreme National Tribunal. And he was charged with the same laws he was using to apply it in these war crimes cases. I thought that Cheviesky actually represented very good, this discussion that we been having about the fine line between hero and villain. And he worked really well with what occurred in the Albanian case, in the East German case, and then Here you've got Miecisawski, you know, and what in the world. And also another individual who had a very. Who has a very complex background in terms of being born to a country that didn't exist on a map, in terms of being educated at a time when it must have been very exciting. There was no like one Polish law at this moment in time, time, but also being very closely aligned with key figures in the Pilsudsky regime in the, in the 1930s. And you know, he, he was a very, he was a very good lawyer and he was actually turns out to be a very excellent interpreter of, you know, the legal provisions at play when he had to address in his own defense the charges that were meted out against him by the Polish authorities. That's why I chose Przewierski also, because we don't know about him as well, we don't know about so many of these lesser known lawyers who are working at this particular moment in time that have huge influence in the way that we view how legal principles have life breathed into him. And, you know, before he was arrested, he, you know, was either lead or part of the team in prosecuting the war crimes trials in Poland. And he would have some very important common legal interpretation to say about what constitutes genocide. For example, before genocide was something that was officially recognized and using and reaching out to Polish legal provisions and other legal thinking in a way that mirrored what was occurring at Nuremberg at the time, but also going a little bit more in terms of providing some sort of commentary by way of the nature of the kinds of crimes that we were dealing with. And I do refer to this, you know, in the particular, in the chapter. But I do think with Chaviersky, in the way that he defended himself, he must have had to dig very, very deep. Somehow he survived because I'm sure that there was a day that was coming that he was going to end up being executed. But somehow in terms of things that were outside his control, but also the nature of his particular defense, if you at. Look, look at the way he defended himself, he too asserted. And he, in a way, he continues this theme that started with Musina. I want to participate in building a better country, he said. I never did anything that would have been an affront or an offense against it. I've always said that I'm committed to this political project and I'm happy to do so, you know, and so I think that it must have thrown particular figures within the, you know, the high, the leading the ruling party, if you like. In terms of how to deal with this guy, also because he had a lot of support from hardcore communists, if you like, in terms of, you know, releasing him. And he was a very important face to that mask of legitimacy for the outside world in relation to those war crimes trump trials, you know.
- [60:27]
Alex Batesmith
And how did he, as such a prominent prosecutor of Nazis, end up being prosecuted himself for fascistization by the communist Polish state? What was the process there?
- [60:39]
Agatha Fialkowski
Yeah, I mean, this is this ridiculous provision within the decrees, the relevant decrees that were promulgated at that time that also sought to widen the net and capture those who had anything to do with the. The fascistization. I mean, what does that mean? The fascistization? And he was unfortunately caught up in that because of his activities in the 1930s in terms of who he aligned himself with by. By way of political parties, very much anti communist, for example. And at that particular time, The Polish. So this is the 1930s. The Polish regime was undertaking a sort of purge, if you like. This is the cleaning up, if you like, that was characterized one part of Pisudski's rule during the 1930s that I think already marked him out for later. And that was something that was revealed in later interviews with the Minister of Justice at that time, that Seversky was always going to be a target because of his political sympathies. Yeah, that's why he was swept up.
- [61:55]
Alex Batesmith
Great. Thanks for that. What do you think are the pictures that you were particularly interested in of Przewierski and what do you think they tell us about post war Polish justice?
- [62:08]
Agatha Fialkowski
I'm quite struck with Shabiersky and how he looks at. On the stands at the first war crime trial, because I think that represents such an important move for the Polish legal profession at that moment in time. Because I'm pretty sure that Wierski and the wider Polish, his peers, anyway, the closest peers working in that particular legal team, knew that their time was limited and this was their moment to shine. So I think that picture represents so much, not so much now, I'm thinking I should have included this in my book. Not so much the. So it's like there's this Kirkheimer mask of legitimacy, but it's actually evidence of legitimacy that is occurring here by way of a war crimes trial, where, yes, we can say, you can argue it's a show trial, we know what the verdict is going to be, what have you. But that's not the point here. The point is here, here holding for the wider society and in particular providing, you know, a voice to survivors The Jewish survivors, some form of justice and record by way of what occurred during the German occupation and during the. The crimes that were committed on. On Polish soil. And I think that that picture says a. Says a lot to me. And I love the photographs that are of the different trials from that particular period. The audience who's in there, I mean, you know, these audiences were filled with members coming from the Soviet Union to observe this as well. I mean, this meant a lot. So there's something there to say about what occurs by way of a message internally, but also by way of a message that occurs externally. This is a moment in time, I think, that is really at the heart of it. Again, another struggle. But this is a struggle for the Polish legal profession to try and survive and overcome what's coming.
- [64:14]
Alex Batesmith
Fantastic. Thank you. And that really neatly lines up my final question, really drawing things to a close. Something you've already mentioned. It's the concept of performativity. And you say in your book that law and visual culture are partners in an enactment of performativity. I wonder if you could tell us, finally, just to wrap up how you now see this concept of performativity, having looked at these three case studies, having gone through the archives with these really powerful, arresting photographs, and how visual culture such as photography, helps us to understand this concept of performativity.
- [64:54]
Agatha Fialkowski
Okay, so when I think about performativity of the enactment of law, I guess my mind is drawn to the sort of key writers throughout this entire process, you know, and it has to do with. It could do. It could do with the way that we read or do some sort of literacy, if you like, by way of the way we're reading. Reading a photograph. But I think what is occurring, that's important. And I'm not taking sides here, but this is something that I feel that I've come to. And that is the feeling and the emotion that comes from looking at a picture. And so, for example, there is a point in the photograph that's arresting, and that's something that Roland Bartes talks about as being a particular point. I know it's criticized, but I think it's a very important, compelling starting point when we're talking about the affective nature of justice. And then I can't help but be drawn also to what Susan Sontag says in photographs having a sort of lingering effect. And I think that's absolutely correct. These photographs, the ones of my protagonists that we've been talking about, all center on this lingering effect. And also what the photograph is capturing by way of the flash of a moment. And that sort of harks back to Walter Benjamin and what that moment represents by way of an incomplete history. Yeah, that's, I guess, what I mean by freeing the photograph in order for us to sort of engage with these histories that shouldn't be frozen within it. Because there's so much more to tell about the law. There's so much more to tell about the law. And. And I do think. And I like this idea, although I'm not saying it's not disturbing, but I do like this idea of. In all of this, you're reliving this particular moment. Moment, yeah. And in reliving it, there's something to say not only about lingering, but in terms of being challenged by what we're reliving. And I think that's all right. I don't need a all conclusive, happy, complete answer to it. I think that would go against what the work is all about. So I do like that in our engagement with these photographs, we can continue to talk and learn more at each moment in time.
- [67:44]
Alex Batesmith
What a great way to wrap up the book. Agatha, thank you so much. And we've taken up such a lot of your time today. I've got one last question, though. What are you working on right now?
- [67:56]
Agatha Fialkowski
So at this moment in time, there are two things. So the first thing that I'm working on is a project that has to do with defense lawyering. I'm very much interested. So this is. I know you like this, and I look at your work too. I like this idea about defense lawyering. And specifically in relation to this period of time, again, World War II, running up to and after, and the strategies that were undertaken with respect to defense lawyers and what makes for a defense lawyering strategy that perhaps can help us understand defense lawyering strategies today? It's not about procedure. It's really about what a defense lawyer taps into in high profile cases. And, you know, high profile could include war crimes, but other highly, you know, you know, politicized cases, if you like to put it that way, or, you know, widely reported cases, let's say. And the other thing is the Erie Connie Cristelle project, which has me revisiting a case that was already heard by the Dutch courts, but is important to revisit because of what it says about Dutch responses to German war crimes. There's unfinished business there. And this particular case had to do with. With an art collector and his alleged involvement in a massacre in what was what is now Ukraine, but formally in. In Poland. And I think revisiting this case is worthwhile because of it's important now to revisit these questions about, about reckoning. And it's a case that continues to intrigue, not least because of the the art collection end, but also the whole part of the, let's say, judicial response to this, which is very integral to informing ourselves about special courts that have been set up to address the nature of these crimes.
- [70:10]
Alex Batesmith
Agatha, those sound like great projects. We should definitely talk some more about that, and perhaps we can have you back to talk about one or both of them when both of those are out. Thanks so much for being on the show today. I really enjoyed our conversation. Take care. Thanks so much.
- [70:25]
Agatha Fialkowski
Thank you. See you soon.