50 No. 67 JUSTICE procedure. Writing after the Cold War, she gained access to archives and testimonies from Ukraine. As a result, she benefits from the advantage of new, scientific technologies, forensic archeology, digitation and big data technologies. Using the photo as belated material evidence, Lower addresses the failures of various legal systems. Lower succeeds in identifying the German and Ukrainian individuals in the photo and transcribes excerpts from the legal proceedings against some of those pictured. We learn that Kurt Hoffmann, a German customs officer, reported a crime in Germany, in 1969, against two of his fellow custom officials, Erich Kuska and Hans Vogt, during the war, but only one was ever located (in Bremen, Germany). The case was closed in 1970 because the suspect denied having ever killed another human being, and no corroborating evidence could be found. Lower claims that this photo could have been used to conclusively refute the statements of the accused. She also notes that the German prosecution did not attempt to locate Jewish survivors, nor bring them forward as witnesses, since the court assumed that all had been murdered. The Soviet authorities in Ukraine, on the other hand, conducted two investigations into the murders at the ravine. The first, in 1944, amounted to vigilante justice by the Red Army, as being a member of the collaborating police was enough to sentence one to long-term imprisonment or summary execution. However, a second investigation was opened in 1986, based on forensic inquiry of the grounds in Miropol and the collection of eyewitness testimonies. We learn that the absence of this photo in the trial was not obstructive, since there were enough testimonies by local people, including by the sole Jewish survivor of the massacre, to allow for a conviction. The trial, however, did not concern the Holocaust, as the charges were for collaboration with the Fascist forces and treason of the Soviet Union, and no one spoke openly of the Nazi genocide of the Jews.6 Thus, we see that the Soviet trials also drew a blanket of silence over the Jewish victims, and the story of the “Holocaust by bullets” remained untold. Lower is aware of the controversy that exists when it comes to over-reliance on photos, given that most were taken by Nazi perpetrators as“trophy photographs.”By contrast, lawyers have long treated such photos as incriminating documents produced by the perpetrators themselves, which have the potential to refute their coordinated lies and deceptions. Indeed, the Allied powers that held the International Military Tribunal (IMT) in Nuremberg in 1945 sought to introduce film as an“eyewitness” in the trial. Lower writes that Dwight D. Eisenhower visited liberated concentration camps to make himself an eyewitness, and invited journalists and photographers to document the atrocities that were uncovered after the liberation of the camps. He ordered that visual evidence be collected to guard against forgetting and disbelief.“The photograph,”writes Lower, “was invoked as a force of truth and justice.”7 Accordingly, the IMT sought new procedures that would reflect the magnitude of the crimes, breaking with tradition by bringing a camera into the courtroom, both to film the trial and to overcome the weaknesses of human eyewitnesses by relying on the “objective” camera.8 As it happened, the Americans’ introduction of the film“Nazi Concentration Camps”as evidence in the IMT had mixed results. While prosecutor Robert Jackson9 treated the film as objective evidence that “speaks for itself,” in fact, the film was adjusted to the legal framework of “war crimes” and not “genocide,” a term that entered international law formally only after the 1948 Convention. It was hardly mentioned that the prisoners of war were Jewish.10 The film depicted Jewish victims as mute walking corpses, and the American prosecution preferred to rely on incriminating German documents, refusing to summon any Jewish victim to 6. Supra note 1, p. 165. 7. Supra note 1, p. 167. 8. For an analysis of the trial’s recording, see Christian Delage, “The Place of the Filmed Witness: From Nuremberg to the Khmer Rouge Trial,”31:4 CARDOZO L. REV. 1087-1112 (2010). 9. In his opening speech Jackson said: “We will show you these concentration camps in motion pictures, just as the Allied armies found them when they arrived… Our proof will be disgusting, and you will say I have robbed you of your sleep … I am one who received during this war most atrocities tales with suspicion and skepticism. But the proof here will be so overwhelming that I venture to predict not one word I have spoken will be denied.” 2 International Military Tribunal,“Trial of the Major War Criminals Before the International Military Tribunal,” 130 (Nuremberg: International Military Tribunal, 1947). 10. Lawrence Douglas, “Film as Witness: Screening Nazi Concentration Camps Before the Nuremberg Tribunal,” 453YALE L. J. 105 (1995).
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