Clyde Snow, a cigar-sucking Texan anthropologist, once remarked that "bones make good witnesses . . . they never lie and they never forget." Snow rose to something like prominence in the mid-1980s when two South American exhumations linked the morbid skills of forensic anthropology to the increasing prestige of international human rights. In the wake of Argentina's 1982 defeat in the Falklands War, human rights activists opened the graves of several desaparecidos—men and women "disappeared" by the military governments that had ruled the country from 1973 to 1983. A year later, Brazilian authorities acting on West German tips unearthed the alleged skeleton of Josef Mengele, Auschwitz's mad scientist and the last of the big-name Nazis still on the lam. While identifying the bones of the desaparecidos would enable Argentine courts to convict former military rulers of homicide and other human rights violations, identifying Mengele would close one more chapter in the epic search for justice after the Holocaust. Beginning n 1984, Snow, with a host of other American and European scientists, traveled south to bring the finality of science and law to this strange swirl of skulls.
In Mengele's Skull: The Advent of Forensic Aesthetics, literary theorist Thomas Keenan and architect Eyal Weizman argue that these South American exhumations marked an important shift in the history of international criminal law. While earlier prosecutions relied on documentary evidence or the testimony of survivors, the scientific analysis of inanimate objects would now take center stage in vindicating the victims and punishing the perpetrators of crimes against humanity. In order to grasp the significance of this turn, Keenan and Weizman meditate on the other-worldly images of a skull alleged to be Mengele's, overlaid with the grimacing Nazi's face. It was these composite photographs that were used to prove that Mengele's flesh had once clung to the Brazilian bones. A highly readable history of this forensic adventure already exists—Christopher Joyce and Eric Stover's Witnesses from the Grave—but Mengele's Skull aims to make more theoretical contributions. First, its authors place skeletal identification in a longer history of international justice, one in which the emergence of new kinds of evidence has affected the meaning of justice itself. Second, they argue that this relationship between evidence and international justice should be understood in terms of "political aesthetics."
According to Keenan and Weizman, international crime prosecution has gone through three evidentiary-cum-aesthetic ages. In the first age, marked by the trial of Nazi officials at Nuremberg, the "document" reigned. Because prosecutors "worried about the bias and faulty memories of survivors," they mainly relied on "thousands of Third Reich documents." Fifteen years later, the trial of Adolf Eichmann in Jerusalem inaugurated what literary theorist Shoshanna Felman called the "age of testimony." Here, the "first-person narrative of suffering or trauma" displaced the documentary era, as Eichmann's victims took the stand to issue mumbling, fainting, forgetful indictments of Nazi rule. As Felman famously argued, the "silence, distortion, confusion, or outright error" of survivor-witnesses took on an ironic sort of legal credibility, testifying to the "catastrophic character of certain events." Mengele's Skull heralds the third age of testimony—the "birth of a forensic approach to understanding war crimes and crimes against humanity." Keenan and Weizman date the onset of this third age to "the period coinciding with the discovery of Mengele's skeleton," when "scientists began to appear in human rights cases as expert witnesses, called to interpret and speak on behalf of things—often bones and human remains."
There is no doubt that, from Rwanda to the Balkans, forensic anthropologists have contributed to the growth of international human rights law. One can, however, quibble with Keenan and Wiezman's chronology. The legal historian Lawrence Douglas has detailed the important role that spectacular physical evidence—a shrunken skull, a tattooed ribbon of flesh—played at the Nuremberg trials, which Keenan and Weizman relegate to the staid era of the "document." Quite to the contrary, Douglas reconstructs how prosecutors used the relics of Nazi atrocity to lend legitimacy to the notion of a "crime against humanity." Another historian, Thomas Laqueur, points to an earlier and even more disturbing precedent—the Nazis' own use of forensic science in 1943 to prove that Soviet soldiers had committed war crimes at Katyn, the site of a Polish mass grave.
That being said, Mengele's Skull is correct to emphasize the relatively recent acceleration of forensic science in the pursuit of international justice. Indeed, the importance of scientific expertise to the 1980s exhumations was indicative of a wider professionalization of human rights activism. As historian Samuel Moyn has shown, in the late 1970s, a new movement of activist intellectuals, international lawyers, and governments willing to back them made human rights—and prosecuting their violation—the royal road to international justice. The gains in forensic anthropology that Keenan and Weizman describe are thus usefully understood as part of a larger pattern of innovation: if international human rights law was going to become as potent as its advocates wished, new forms of knowledge would have to be developed to authorize and shape this power. Not just new courts, but new labs, contributed to this process.
Yet Keenan and Weizman give us only furtive glances of this relationship between forensic knowledge and the power of a new professional class. Although the authors draw upon the sociology of science (a discipline that charts the institutional alliances that create scientific knowledge), they insist upon the primacy of aesthetics for understanding the significance of their proposed evidentiary history. What came of age in the mid-1980s, they explain, was a new kind of aesthetics, a whole new way of looking at crime and its punishment. The "advent of the witness" at the Eichmann trial and the "emergence of the 'thing'" in the Mengele case "did more than introduce new forms of evidence," the authors explain. Each new form of evidence also "inaugurated a new cultural sensibility, an ethics and political aesthetics" that came "to structure the way we understand and relate political conflicts, whether in media, in political debates, in literature, film or the arts." The original, shorter version of Mengele's Skull was published in the art magazine Cabinet, so it may be churlish to fault the work's preference for sensibility over sense. But at times, the book's reliance on aesthetic theory sidelines important political questions. For instance, in comparing scientific attempts to identify Mengele's bones with legal attempts to convict war criminals, the authors note two commonalities. First, both law and science generally work with probabilities, not certainties—terms such as "beyond reasonable doubt" make this clear. Second, both lawyers and scientists must at times step beyond probabilistic weighing of evidence and make a decision. Probability alone does not produce the institutional result, whether punishment or scientific discovery—only a momentous decision can. What considerations are most responsible for this leap from probability to decision? Aesthetics, according to Keenan and Weizman: "Decision relies on aesthetic operations—that is, on the way and the order by which things and events appear to us. . . Aesthetics, as the judgment of the senses, is what rearranges the field of options… and cuts through probability's economy of calculation."
On the one hand, there is nothing controversial about the authors' acknowledgement of the aesthetic dimension of scientific and legal decision-making. Even the most conservative philosophers of science have recognized the importance of aesthetic criteria in reaching the "best" scientific conclusion. Similarly, the relationship between law and rhetoric is as old as law itself; it is a commonplace that judges and juries are motivated as much by their subjective experiences as by any steely consideration of evidence or rule.
On the other hand, how prudent is it to view aesthetic judgment as the crucial bridge between the uncertainty of evidence and the finality of decision? When we accept that the identification of Mengele's skull or the execution of Eichmann emerges from "the way and the order by which things and events appear" to particular scientists, lawyers, or citizens, we risk naturalizing these decisions. It is a mistake to downplay the non-aesthetic factors that influence decision-making, such as the professional self-interest of forensic scientists and international lawyers, or the tactical goals of the organizations and governments that enlist their services. Moreover, too close a focus on the "aesthetics" of a particular legal or scientific decision may obscure earlier, yet equally decisive, political choices: choices about who gets to exercise "aesthetic" judgment in the first place, and whether scarce resources should be devoted to the answering of particular "aesthetic" questions. Who decided that the identification of the desaparacidos was a crucial element in re-building Argentine society after the fall of the junta? It is simply not clear why aesthetics deserves pride of place when it comes to understanding the meaning of forensics for international justice.
Ultimately, the aesthetic dimension may prove a distraction. While the advent of human rights law has given a voice to the victims of abusive regimes, an overly narrow commitment to the forms of international law risks stinting more substantive programs of political reform and resistance. Unfortunately, the aesthetic analysis of law and science tends to encourage rather than dispel this de-politicizing enchantment with formalism. Keenan and Weizman's vivid work draws needed attention to the role that scientists have played in the development of international justice. Yet while it is tempting to focus on the spectacular nature of forensic trials and the horrible crimes they concern, at times it is liberating to look away.
Jeremy Kessler is a JD/PhD candidate at Yale Law School and Yale's Department of History.