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The Wheels of Justice Turn Slowly: The Pretrial Investigations of the Frankfurt Auschwitz Trial 1963–65

Published online by Cambridge University Press:  16 December 2008

Rebecca Elizabeth Wittmann
Rebecca Elizabeth Wittmann
Affiliation:
Marquette University
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Extract

The investigations into the crimes of the Auschwitz perpetrators by the Frankfurt public prosecutor's office began in 1958. The trial opened in 1963. Why did it take five years? In the 1960s, scholars such as Theodor Adorno, Alexander and Margarete Mitscherlich, and Hannah Arendt emphasized West German reticence, indifference, or even unwillingness to confront the Nazi past as explanations for the late start of investigations of Nazi criminals. They argued that the 1950s were dominated by a collective silence about Nazism and crimes against the Jews in Germany. According to them, politically, culturally, and also legally, the new West German state refused to acknowledge the Nazi past of anyone but the highest ranking Nazis, whose trial at Nuremberg marked the Schlussstrich (drawing the line) under the topic of National Socialism and its crimes against humanity. Recent historiography of postwar German trials has also pointed to lingering Nazi beliefs not only on the part of judges and lawyers but in the minds of the public as well.

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Articles
Information
Central European History , Volume 35 , Issue 3 , September 2002 , pp. 345 - 378
Copyright
Copyright © Conference Group for Central European History of the American Historical Association 2002

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References

1. See Adorno, Theodor et al. , The Authoritarian Personality, 2 vols (New York, 1964)Google Scholar; Arendt, Hannah, Eichmann in Jerusalem: A Report on the Banality of Evil (New York, 1964)Google Scholar; Jaspers, Karl, The Question of German Guilt, trans. Ashton, E. B. (New York, 1961)Google Scholar; Alexander, and Mitscherlich, Margarete, The Inability to Mourn: Principles of Collective Behavior (New York, 1984).Google Scholar

2. See Müller, Ingo, Hitler's Justice: The Courts of the Third Reich, trans. Schneider, Deborah Lucas (Cambridge, Mass., 1991), 255Google Scholar. Müller takes an extremely critical view of the courts' judgments of Nazi criminals, and argues that the judges at such trials found ways to diminish convictions and sentences even in the case of the murder of children. His argument does not delve into the limitations of the law and although he examines the statute of limitations debate, he dismisses the strict regulations covering a conviction of murder as an explanation.

Dick De Mildt voices similar sentiments on the part of the general population, pointing to a 1952 survey by the U.S. High Commission for Germany that showed that only one in ten Germans wanted further Nazi war crimes trials, stating that “the main reason for this much debated popular aversion was undoubtedly formed by the deeply rooted unwillingness among the German population at large to face up to the vilest aspects of a political system they had so enthusiastically supported …” De Mildt, Dick, In the Name of the People: Perpetrators of Genocide in the Reflection of their Post-war Prosecution in Germany: The “Euthanasia” and “Aktion Reinhard” Trial Cases (The Hague, 1996), 23.Google Scholar

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8. Ibid., 46. Jeffrey Herf deals with this extensively in examining the Adenauer period (1949–63) in the Federal Republic, when the main policy of the government was to integrate rather than alienate ex-Nazis. According to Herf, memory and justice were not compatible with the development of a new democratic state. Herf, Jeffrey, Divided Memory, 201–66.Google Scholar

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11. De Mildt, , In the Name of the People, 20–21Google Scholar. De Mildt states that many crimes prosecuted were “final phase crimes”: for example, the execution of German soldiers who had deserted or “political denunciation,” i.e., acting as informants to the Gestapo on fellow German citizens. Few trials actually had to do with the Final Solution of the Jews in the death camps and gas chambers.

12. For an in-depth analysis of the legal theoretical debate surrounding the definition of the murder charge and the distinction between aiding and abetting, see Baumann, Jürgen, “Die Tatherrschaft in der Rechtssprechung des BGH” in NJW 15, no. 9 (1962)Google Scholar; Henkys, Reinhard, Nationalsozialistische Straftaten im Gebiet BRD seit 1945, (Stuttgart, 1964)Google Scholar; and Roxin, Claus, Täterschaft und Tatherrschaft, 6th ed. (Berlin, 1994 [1963]).Google Scholar

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16. Ibid., 64. According to Rückerl this became even more rigid after May 1969, when new laws were passed that state that “an accessory merely acting under orders could only be punished if it was demonstrated that his contribution to the crime sprang from base motives or that he was aware of the cruel or malicious nature of the crime at the time of its commission.”

17. Ibid., 52.

18. Ibid.,54.

19. Steinbach, Peter, Nationalsozialistische Gawaltverbrechen: Die Diskussion in der deutschen Öffentlichkeit nach 1945 (Berlin, 1981), 55.Google Scholar

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21. Called a Schwurgericht, the jury court is the section of the regional or district courts criminal chamber that deals with the most serious criminal offences, particularly murder. Depending on the severity of the crime, a jury trial is often established, as was the case for the Auschwitz trial. Foster, Nigel G., German Law and Legal System (London, 1993), 39.Google Scholar

22. Rögner, Adolf, Pretrial Files of the First Frankfurt Auschwitz Trial, 1 03 1958, The Public Prosecutor's Office at the District Court of Frankfurt am Main, 4Js 444/59 (hereafter 4Js 444/59), 1: 1R, 2.Google Scholar

23. The IAC was a committee made up of survivors of Auschwitz based in Vienna and Warsaw. It was dedicated to finding survivors and gathering information on crimes committed there and on perpetrators who might still be alive. Hermann Langbein was the head of the committee in Vienna.

24. Judicial Officer Wasserlos, Report on the Interrogation of Prisoner Adolf Rögner, 16 Js 1273/58, Hohenasperg, May 6, 1958, in 4Js 444/59, 1: 8.

25. Ibid.

26. Public prosecutor Weber, Memo, Stuttgart, May 15, 1958 in Ibid., 7.

27. Berufsverbrecher was actually a colloquial term taken from the initials B.V. given to certain prisoners. It meant Befristete Verwahrung and applied to repeat offenders.

28. Langbein, Hermann, Der Auschwitz-Prozess: Eine Dokumentation, 2 vols (Frankfurt am Main, 1995), 1: 22–23.Google Scholar

29. The warrant charges Boger under the penal code with murder, (paragraph 211) stating that Boger “is accused of killing a person at Auschwitz in April 1943, out of bloodthirstiness, in that as SS Oberscharführer at the concentration camp, in an ordered execution that he knew to be illegal, he shot a prisoner with his pistol for the pleasure in killing. The accused is urgently suspected in this act and therefore a flight risk.” 16 Js 1273/58, Staatsanwaltschaft bei dem Landgericht Stuttgart, 1 October 1958, in 4Js 444/59, 1: 128–9.

30. Langbein wrote that the prosecution was lucky to find Boger still at home, despite the flight risk, as he had been telephoned and tipped off earlier in the week by the criminal police, who were looking for a Wilhelm Boger of the political department at Auschwitz. Boger stated later, on the first day of proceedings in the trial, that he could easily have fled if he had considered himself guilty. This is another indication that there were conflicting attitudes toward trials of former Nazis at all levels and in all districts. The Stuttgart police department obviously had members who were opposed to these trials. Yet Fritz Bauer's prosecution office was entirely dedicated to the task, affirming my contention that generalizations cannot be made about the motivations of members of the judicial and legal system. Langbein, , Der Auschwitz Prozess, 1: 25.Google Scholar

31. On 14 November 1958, Langbein sent the public prosecutors' office in Stuttgart a list of eighteen other members of the “Political Department” at Auschwitz who were suspected of committing murder between 1940–1945. Among those named were men who later appeared as defendants at the trial in Frankfurt, including Hans Stark, Klaus Dylewski, and Pery Broad. Ibid., 26.

32. Urteil und Urteilsbegründung im Verfahren gegen Liebehenschel und andere (Judgment and Explanation in the Proceedings against Liebehenschel and others), Polish People's Tribunal 5/47, 22 December 1947, in 4Js 444/59, 49: 8291–513.

33. Sentence of the Soviet Military Courts in the state of Saxony, 25 August 1947, 9352 E–791/61, in 4Js 444/59, 74: 13829–40. The late appearance of this document within the pretrial files — August 1962 — was a result of the difficulties faced by the West German courts in communicating with the East German court systems, which reluctantly and after much silence and procrastinating finally handed over the trial documents. Kaduk's defense lawyer, Dr. Friedrich Jugl, argued in his closing statement that Kaduk's pardon should have been recognized by the West German courts “in the early postwar years… the legal qualifications of all four occupation powers were equal.” This was part of a debate over “transfer agreements,” in which legal decisions in either East or West Germany were to be honored on both sides. Naumann, Bernd, Auschwitz: A Report on the Proceedings Against Robert Karl Ludwig Mulka and Others Before the Court at Frankfurt, trans. Steinberg, Jean (New York, 1966), 400–1.Google Scholar

34. On 13 July 1959, the prosecution in Frankfurt released its first interoffice memorandum regarding various arrest warrants. This memo includes documentation of request for transfer of Dr. Kremer from Münster, and Pery Broad from Ludwisgburg, among others.

35. During the pretrial phase, the prosecutions and courts also gathered numerous Nazi documents, especially relating to the laws of camp conduct and other regulations. They also gathered the testimony of expert witnesses, historians at the Institute for Contemporary History who would publish their findings in the Auschwitz investigation as the important book The Anatomy of the SS State. Finally, they interrogated former SS officers and suspects who worked at Auschwitz, although these testimonies are often riddled with inaccuracies and evasions. However, in the early phases of the investigation the prosecutors were primarily concerned with survivor testimony, which is the 21. main focus of this paper. Krausnick, Helmut, Buchheim, Hans, Broszat, Martin and Jacobsen, Hans-Adolf, The Anatomy of the SS State, trans. Barry, Richard, Jackson, Marian, Long, Dorothy (New York, 1968).Google Scholar

36. “Antrag auf Haftbefehle”, 3 04 1959, StA Stuttgart, 16 Js 1273/58, in 4Js 444/59, 5: 770.Google Scholar

37. Gnielka, Thomas, Letter of 15 01 1959, in AR-Z 13/59, Zentrale Stelle der Landesjustizverwaltungen, 72Google Scholar. Letter also appears on files of 4Js 444/59.

38. In the “official” death certificates of the hundreds of thousands who were either worked or tortured to death at Auschwitz (this does not include those who were gassed immediately upon arrival, as they were not tattooed), “shot while fleeing” was often given as the standard cause of death for a prisoner, along with various diseases such as heart failure and dysentery.

39. In fact, the federal courts ruled to move the investigation to Frankfurt am Main on 14 April 1959; two months passed before all documents concerning the proceedings arrived in Frankfurt.

40. 4Js 444/59,10: 1490–6.

41. Ibid., 4:574.

42. Bauer, Fritz in Stimme, 568.Google Scholar

43. Ibid.

44. Bauer, Fritz, “Nach den Wurzeln des Bösen fragen,” Die Tat, 7 03 1964.Google Scholar

45. Bauer, Fritz, Just-Dahlmann, Barbara, Mann, Golo, “NS-Verbrechen vor deutschen Gerichten — Versuch einer Zwischenbilanz,” in Diskussion – Zeitschrift für Fragen der Gesellschaft und der Deutsch-Israelischen Beziehungen 14 (Berlin, 05 1964): 4.Google Scholar

46. Ibid.

47. 4Js 444/59, 14: 2272–3.

48. Ibid., 17: 2670–1.

49. 30 November 1959, in ibid., 19: 2967–69.

50. Most famously, Raul Hilberg was and remains convinced of the primary importance of documentation — particularly original primary source Nazi documents — rather than testimony.

51. Novick, Peter, The Holocaust in American Life (Boston, 1999), 275.Google Scholar

52. An excellent example of this is the contradictory testimony of the survivor Leon Czekalski, one of the prosecution's most important witnesses. His testimony in the pretrial files described a massacre of ninety-four men and eight women, which he claimed to have seen from an attic window. In the trial itself, he changed his story and reported to have seen only part of the massacre from the first floor, claiming that the women were already dead, and much of what he knew came from a conversation with Rottenführer Barre and not from eyewitness experience. Strafsache gegen Mulka und andere, 4Ks 2/63. First Frankfurt Auschwitz trial, 20 December 1963–8 August 1965, Jury trial at the District Court, Frankfurt am Main (hereafter APO), 8 May 1964, Tape # 8B.

53. Gutman, Yisrael, “Auschwitz — An Overview” in Anatomy of the Auschwitz Death Camp, ed. Gutman, Yisrael & Berenbaum, Michael (Bloomington, 1994), 11.Google Scholar

54. Wolken, Otto, Chronik des Lagers Auschwitz II (B II s), 1945, in 4Js 444/59, 33: 5648a–59.Google Scholar

55. Prosecutor's interrogation of Otto Wolken, in ibid., 14 November 1960, 40: 6948.

56. Tadeusz Paczula, letter to 4Js 444/59, 1959, in ibid., 4: 623.

57. Tadeusz Paczula, official witness interrogation for the head prosecutor in Frankfurt, 22 October 1959, in ibid., 16: 2549.

58. Ibid.

59. Ibid., 2555.

60. Tadeusz Paczula, official witness interrogation for the head prosecutor, Frankfurt, 23 November 1960, in ibid., 40: 7064.

61. Ibid., 7064–65.

62. Ibid., 7065.

63. Ibid., 7066.

64. Paczula, in ibid., 16:2551.

65. Ibid., 2552.

66. Ibid., 2573. This was in fact the defendant Emil Hantl.

67. Stanislaw Glowa, 21 November 1960, in ibid., 40: 7057.

68. Ibid.

69. For example, see the new five-volume series, Dlugoborski, Waclaw, Piper, Franciszek, eds., Auschwitz, 1940–1945, trans. Brand, William (Oœwičcim, 2000)Google Scholar. Particularly, vol. V: “Central Issues in the History of the Camp,” contributors Danuta Czech, Stanisław Kłodziñski, Aleksander Lasik, Andrej Strzelecki.

70. Stanisław Kłodzinski, Prosecution-conducted pretrial interrogation, 26 October 1959, in Ibid., 16: 2589. Kłodzinski's report of this incident shows some lapses in memory, as he stated that there were only twenty to thirty boys to be executed, and this event took place in 1942. Further investigation by the prosecution would show that the accounts of Glowa and Paczula were more accurate.

71. Langbein, in ibid., 68: 12711.

72. Hofmeyer, Hans, in APO tape #4A, 03 6, 1964.Google Scholar

73. “The Opinion of the Court,” oral judgment, in Naumann, , Auschwitz, 416–17.Google Scholar

74. Arendt, , Eichmann in Jerusalem, 14.Google Scholar

75. There is some debate about the possibility of teaching historical lessons through trials: most recently, Mark Osiel argued that the Auschwitz trial did teach lasting lessons and that the German public consumed the information they received about the trial with great interest and introspection. He argues that in fact, the Auschwitz trial and other large, public trials caused Germans to change forever their attitude toward the past. I contend, however, that while the Auschwitz trial certainly did expose the German public to information about Auschwitz that had never been brought to light, the lessons they learned about the Nazi past were distorted by the legal limitations; in the end, the mild sentences that most of the defendants received indicated to Germans that the majority of guards at Auschwitz were decent men and reluctant killers, and only those who behaved sadistically and carried out murder on their own initiative were punished as perpetrators. Germans condemned the actions of the few sadistic “excess perpetrators,” praised the judgment in which those particular defendants were convicted of perpetrating murder, and distanced themselves from the monsters on the stand. The rest, the ordinary men who had much more resemblance to the general populace and did not pose any threat outside of the camp setting, were slapped on the wrist with mild sentences and quickly reintegrated into society. See my article “Indicting Auschwitz? The Paradox of the Frankfurt Auschwitz Trial,” in German History, forthcoming; also, Osiel, Mark, Mass Atrocity, Collective Memory, and the Law (New Brunswick NJ, 1997), 192–96.Google Scholar