The Frankfurt Auschwitz Trial, 1963-1965: Genocide, History and the Limits of the Law

Name: The Frankfurt Auschwitz Trial, 1963-1965: Genocide, History and the Limits of the Law
Author: Devin O Pendas
ISBN: 0521844061

by Devin O Pendas

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Yes, there’s another book that I could have put in, Rebecca Wittmann’s book on the Auschwitz trial, Beyond Justice . Both, in different ways, point up that the West German choice to use the ordinary criminal law definition of murder was totally inappropriate for trying people who had been involved in a genocide. Collective violence is different from individual violence. The West Germans chose to resort to the old German criminal law; they didn’t want to adopt the Nuremberg principles. They didn’t want anything that was retroactive, punishing crimes that weren’t defined at the time. But the problem with the West German definition of murder was that it entailed showing individual intent and excess brutality. This meant, effectively, that if you couldn’t show that an individual was subjectively motivated to kill, they couldn’t be convicted of murder. That meant that in other trials, for example those related to Bełżec (which took place in Munich in the mid-1960s), seven of the eight defendants were acquitted because there were no survivors to prove they’d been individual, sadistic brutes. It meant that you could operate the machinery of genocide by ‘only obeying orders’ and put 300,000 people into the gas chambers and still not be a murderer. It was a shocking misuse of law, I think. Around 8,200 people had been employed at Auschwitz. A few, including former camp commandant Rudolf Höss, had already been sentenced to death in Poland; others had been convicted on an individual basis in Allied trials. In the Frankfurt Auschwitz trial, there were initially 22 defendants, two of whom dropped out due to illness. Ultimately, three were acquitted; one was given a youth sentence; ten received custodial sentences ranging from three and a half to fourteen years; and only six were given life sentences. The overwhelming majority of people who had worked at Auschwitz were never brought to court at all. Not at all. There were more trials of people who’d been involved in Auschwitz in the late 1960s and early 1970s, and there were several other major concentration camp trials in the 1960s and 1970s, going through to the Majdanek trial of 1975-1981 in West Germany. But all of them were bedevilled by this need to show subjective intent and excess brutality. That is one of the things I work through in my book Reckonings , looking at the different major concentration camp trials. Survivor testimony was terribly important because as a witness you had to be able to say, ‘I saw this person actually doing something truly brutal and nasty to somebody else at a specific time on a specific day.’ And of course, as one of the survivors acidly put it, “We had no watches in Auschwitz”. They didn’t know what day it was. They didn’t know what time it was. So it was very difficult to show subjective intent. In Bełżec, which was among the most efficient of the extermination camps, there were only two survivors. One was assassinated in 1946 while he was in the middle of giving evidence. The other, when he came to testify at the trial in the 1960s, couldn’t give definitive evidence, and so seven of the SS guards on trial just simply said, “No, I didn’t want to do it but I had to do it. I was only following orders.” And they were acquitted. It doesn’t make sense to use the individual crime of murder as the basis for prosecution when what you’re dealing with is mass murder, which is part of a system of collective violence. That’s one of the things that Pendas makes quite clear. Only in West Germany did they refuse to adopt Nuremburg principles. In East Germany, they adopted a much broader definition which had to do with the fact that somebody was dead at the end of a process. In East Germany, former Nazis were six or seven times more likely to be prosecuted and convicted as in West Germany. Austria is also a very significant comparison. There, it wasn’t the law that was a problem, it was the public culture. The law would have permitted prosecutions and convictions in a much broader way than in West Germany. The problem was that juries tended to acquit former Nazis and it was becoming embarrassing even to put them on trial, so they simply ceased prosecuting after too many embarrassing acquittals. At the same time, the political parties in Austria were concerned to rehabilitate and integrate former Nazis. A lot of political pressure was put on judges, prosecutors and defence attorneys to ensure acquittals. From 1955 onwards, there were very few cases indeed in Austria. Those that were brought tended to end in acquittals; then from the mid-1970s the trials simply dried up entirely. Yes, it’s a good read. I think it’s an important read. What it also brings out well is the public reactions to, and the wider significance of, the Auschwitz trial. We’ve made a big deal of it and that’s in part because there was massive media coverage, largely because of the way Fritz Bauer mounted the trial. Bauer was determined to ensure there was media coverage. He was determined to ensure that victims and survivors were brought from all around the world to give evidence, a bit like the Eichmann trial in Jerusalem. He also organized for members of the court to make a site visit to Auschwitz itself, which was quite unusual in the mid-1960s at the height of the Cold War, to go behind the Iron Curtain to look at the site of the crime. That made an immense impact because journalists went as well, and reported back and showed the watchtowers and the barbed wire. People could imagine it for the first time in a way that they couldn’t before. Pendas also shows that the way the press reported the trial interacted with a wider ambivalence among the public. You had these younger journalists who thought they were mounting this great crusade to bring Auschwitz to public attention, and a wider public who were unsettled by this and didn’t like it. But the highest percentage of those opposed to the trial were people who were young adults in the Third Reich who’d actually been mobilized to fight for Hitler, who’d been participants in the war. That’s very interesting. A lot of the West German public didn’t follow the trial at all, and even those who followed it were pretty hostile to it. But I think that it was terribly important in bringing the issue so vividly to public attention that it could no longer be ignored. It galvanized a younger generation into feeling that there was a generational fight that they had to take on. It correlates with the student revolts of the 1960s—the beginning of an extra-parliamentary opposition that emerged in the 1960s, fed up with the Adenauer era. Adenauer ceases to be Chancellor in 1963. There’s a lot of student unrest developing in the 1960s; these are people in their 20s, born in the 1940s, suddenly exposed to the full horror of the crimes of their elders (and supposed betters), then galvanized into that generational conflict summarised as “1968”. Of course, it was a bigger phenomenon that went beyond West Germany—Vietnam War protests, the Prague Spring—that’s the wider atmosphere. But I think the Auschwitz trial played a very significant role in the development of the youth rebellion in West Germany. Pendas’ book brings that out well.

Recommended by

Mary Fulbrook

"Yes, there’s another book that I could have put in, Rebecca Wittmann’s book on the Auschwitz trial, Beyond Justice . Both, in different ways, point up that the West German choice to use the ordinary criminal law definition of murder was totally inappropriate for trying people who had been involved in a genocide. Collective violence is different from individual violence. The West Germans chose to resort to the old German criminal law; they didn’t want to adopt the Nuremberg principles. They didn’t want anything that was retroactive, punishing crimes that weren’t defined at the time. But the problem with the West German definition of murder was that it entailed showing individual intent and excess brutality. This meant, effectively, that if you couldn’t show that an individual was subjectively motivated to kill, they couldn’t be convicted of murder. That meant that in other trials, for example those related to Bełżec (which took place in Munich in the mid-1960s), seven of the eight defendants were acquitted because there were no survivors to prove they’d been individual, sadistic brutes. It meant that you could operate the machinery of genocide by ‘only obeying orders’ and put 300,000 people into the gas chambers and still not be a murderer. It was a shocking misuse of law, I think. Around 8,200 people had been employed at Auschwitz. A few, including former camp commandant Rudolf Höss, had already been sentenced to death in Poland; others had been convicted on an individual basis in Allied trials. In the Frankfurt Auschwitz trial, there were initially 22 defendants, two of whom dropped out due to illness. Ultimately, three were acquitted; one was given a youth sentence; ten received custodial sentences ranging from three and a half to fourteen years; and only six were given life sentences. The overwhelming majority of people who had worked at Auschwitz were never brought to court at all. Not at all. There were more trials of people who’d been involved in Auschwitz in the late 1960s and early 1970s, and there were several other major concentration camp trials in the 1960s and 1970s, going through to the Majdanek trial of 1975-1981 in West Germany. But all of them were bedevilled by this need to show subjective intent and excess brutality. That is one of the things I work through in my book Reckonings , looking at the different major concentration camp trials. Survivor testimony was terribly important because as a witness you had to be able to say, ‘I saw this person actually doing something truly brutal and nasty to somebody else at a specific time on a specific day.’ And of course, as one of the survivors acidly put it, “We had no watches in Auschwitz”. They didn’t know what day it was. They didn’t know what time it was. So it was very difficult to show subjective intent. In Bełżec, which was among the most efficient of the extermination camps, there were only two survivors. One was assassinated in 1946 while he was in the middle of giving evidence. The other, when he came to testify at the trial in the 1960s, couldn’t give definitive evidence, and so seven of the SS guards on trial just simply said, “No, I didn’t want to do it but I had to do it. I was only following orders.” And they were acquitted. It doesn’t make sense to use the individual crime of murder as the basis for prosecution when what you’re dealing with is mass murder, which is part of a system of collective violence. That’s one of the things that Pendas makes quite clear. Only in West Germany did they refuse to adopt Nuremburg principles. In East Germany, they adopted a much broader definition which had to do with the fact that somebody was dead at the end of a process. In East Germany, former Nazis were six or seven times more likely to be prosecuted and convicted as in West Germany. Austria is also a very significant comparison. There, it wasn’t the law that was a problem, it was the public culture. The law would have permitted prosecutions and convictions in a much broader way than in West Germany. The problem was that juries tended to acquit former Nazis and it was becoming embarrassing even to put them on trial, so they simply ceased prosecuting after too many embarrassing acquittals. At the same time, the political parties in Austria were concerned to rehabilitate and integrate former Nazis. A lot of political pressure was put on judges, prosecutors and defence attorneys to ensure acquittals. From 1955 onwards, there were very few cases indeed in Austria. Those that were brought tended to end in acquittals; then from the mid-1970s the trials simply dried up entirely. Yes, it’s a good read. I think it’s an important read. What it also brings out well is the public reactions to, and the wider significance of, the Auschwitz trial. We’ve made a big deal of it and that’s in part because there was massive media coverage, largely because of the way Fritz Bauer mounted the trial. Bauer was determined to ensure there was media coverage. He was determined to ensure that victims and survivors were brought from all around the world to give evidence, a bit like the Eichmann trial in Jerusalem. He also organized for members of the court to make a site visit to Auschwitz itself, which was quite unusual in the mid-1960s at the height of the Cold War, to go behind the Iron Curtain to look at the site of the crime. That made an immense impact because journalists went as well, and reported back and showed the watchtowers and the barbed wire. People could imagine it for the first time in a way that they couldn’t before. Pendas also shows that the way the press reported the trial interacted with a wider ambivalence among the public. You had these younger journalists who thought they were mounting this great crusade to bring Auschwitz to public attention, and a wider public who were unsettled by this and didn’t like it. But the highest percentage of those opposed to the trial were people who were young adults in the Third Reich who’d actually been mobilized to fight for Hitler, who’d been participants in the war. That’s very interesting. A lot of the West German public didn’t follow the trial at all, and even those who followed it were pretty hostile to it. But I think that it was terribly important in bringing the issue so vividly to public attention that it could no longer be ignored. It galvanized a younger generation into feeling that there was a generational fight that they had to take on. It correlates with the student revolts of the 1960s—the beginning of an extra-parliamentary opposition that emerged in the 1960s, fed up with the Adenauer era. Adenauer ceases to be Chancellor in 1963. There’s a lot of student unrest developing in the 1960s; these are people in their 20s, born in the 1940s, suddenly exposed to the full horror of the crimes of their elders (and supposed betters), then galvanized into that generational conflict summarised as “1968”. Of course, it was a bigger phenomenon that went beyond West Germany—Vietnam War protests, the Prague Spring—that’s the wider atmosphere. But I think the Auschwitz trial played a very significant role in the development of the youth rebellion in West Germany. Pendas’ book brings that out well."

Auschwitz · fivebooks.com