The wheels of justice turn slowly: The pretrial investigations of the Frankfurt Auschwitz trial 1963-65

Central European History

Volumn 35, Issue 3, 2002, Pages 345-378

  Wittmann, Rebecca Elizabeth ^a  

^a MARQUETTE UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 61349123630     PISSN: 00089389     EISSN: None     Source Type: Journal    
DOI: 10.1163/15691610260426498     Document Type: Review

References (50)

1. See Theodor Adorno et al., The Authoritarian Personality, 2 vols (New York, 1964);
2. Hannah Arendt, Eichmann in Jerusalem: A Report on the Banality of Evil (New York, 1964);
3. Karl Jaspers, The Question of German Guilt, trans. E.B. Ashton (New York, 1961);
4. Alexander and Margarete Mitscherlich, The Inability to Mourn: Principles of Collective Behavior (New York, 1984).
5. See Ingo Müller, Hitler's Justice: The Courts of the Third Reich, trans. Deborah Lucas Schneider (Cambridge, Mass., 1991), 255. 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 ..." Dick De Mildt, 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.
6. See Norbert Frei, Vergangenheitspolitik: Die Anfänge der Bundesrepublik und die NS-Vergangenhei (Munich, 1996);
7. Ulrich Herbert and Olaf Groehler, Zweierlei Bewältigung: Vier Beiträge über der Umgang mit der NS-Vergangenheit in den beiden deutschen Staaten (Hamburg, 1992);
8. Jeffrey Herf, Divided Memory: The Nazi Past in the Two Germanys (Cambridge, Mass., 1997);
9. and Robert Moeller, War Stories: The Search for a Usable Past in the Federal Republic of Germany (Berkeley, 2001).
10. Arendt, Eichmann in Jerusalem, 14-15.
11. Adalbert Rückerl, The Investigation of Nazi Crimes 1945-1978: A Documentation, trans. Derek Rütter (Heidelberg, 1979), 34.
12. 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. Jeffrey Herf, Divided Memory, 201-66.
13. Rückerl, The Investigation of Nazi Crimes, 53.
14. Adalbert Rückerl, "Nazi Crime Trials," in The Nazi Holocaust, ed. Michael Marrus (Westport, 1989), 9: 627.
15. De Mildt, In the Name of the People, 20-21. 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.
16. 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 Jürgen Baumann, "Die Tatherrschaft in der Rechtssprechung des BGH" in NJW 15, no. 9 (1962);
17. Reinhard Henkys, Nationalsozialistische Straftaten im Gebiet BRD seit 1945, (Stuttgart, 1964);
18. and Claus Roxin, Täterschaft und Tatherrschaft, 6th ed. (Berlin, 1994 [1963]).
19. The Penal Code of the Federal Republic of Germany, trans. Joseph Darby (Littleton, Colorado, 1987), 88.
20. Alfred Bongard, "Der Unterschied zwischen Mord und Totschlag," in Die Justiz und die Nazis: Zur Strafverfolgung von Nazismus und Neonazismus seit 1945," ed. Michael Ratz (Frankfurt am Main, 1979), 83.
21. Peter Steinbach, Nationalsozialistische Gewaltverbrechen: Die Diskussion in der deutschen Öffentlichkeit nach 1945 (Berlin, 1981), 55.
22. Fritz Bauer, "Zu den Naziverbrecher Prozessen," in Stimme der Gemeinde zum kirchlichen Leben, zur Politik, Wirtschaft und Kultur 18 (September 1963): 564.
23. Called a Schwurgericht, the jury court is the section of the regional or district court's 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. Nigel G. Foster, German Law and Legal System (London, 1993), 39.
24. Adolf Rögner, Pretrial Files of the First Frankfurt Auschwitz Trial, 1 March 1958, The Public Prosecutor's Office at the District Court of Frankfurt am Main, 4Js 444/59 (hereafter 4Js 444/59),1: 1R, 2.
25. 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.
26. Public prosecutor Weber, Memo, Stuttgart, May 15, 1958 in ibid., 7.
27. Hermann Langbein, Der Auschwitz-Prozess: Eine Dokumentation, 2 vols (Frankfurt am Main, 1995), 1:22-23.
28. 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.
29. 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.
30. 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 yean ... 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. Bernd Naumann, Auschwitz: A Report on the Proceedings Against Robert Karl Ludwig Mulka and Others Before the Court at Frankfurt, trans. Jean Steinberg (New York, 1966), 400-1.
31. 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 main focus of this paper. Helmut Krausnick, Hans Buchheim, Martin Broszat and Hans-Adolf Jacobsen, The Anatomy of the SS State, trans. Richard Barry, Marian Jackson, Dorothy Long (New York, 1968).
32. "Antrag auf Haftbefehle", 3 April 1959, StA Stuttgart, 16 Js 1273/58, in 4Js 444/59, 5: 770.
33. Thomas Gnielka, Letter of 15 January 1959, in AR-Z 13/59, Zentrale Stelle der Landesjustizverwaltungen, 72. Letter also appears on files of 4Js 444/59.
34. Fritz Bauer, "Nach den Wurzeln des Bösen fragen," Die Tat, 7 March 1964.
35. Fritz Bauer, Barbara Just- Dahlmann, Golo Mann, "NS-Verbrechen vor deutschen Gerichten - Versuch einer Zwischenbilanz," in Diskussion - Zeitschrift für Fragen der Gesellschaft und der Deutsch-Israelischen Beziehungen 14 (Berlin, May 1964): 4.
36. 4Js 444/59, 14: 2272-3.
37. 30 November 1959, in ibid., 19: 2967-69.
38. Peter Novick, The Holocaust in American Life (Boston, 1999), 275.
39. 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.
40. Yisrael Gutman, "Auschwitz - An Overview" in Anatomy of the Auschwitz Death Camp, ed. Yisrael Gutman & Michael Berenbaum (Bloomington, 1994), 11.
41. Otto Wolken, Chronik des Lagers Auschwitz II (B II s), 1945, in 4Js 444/59, 33: 5648a-59.
42. Tadeusz Paczula, letter to 4Js 444/59, 1959, in ibid., 4: 623.
43. Paczula, in ibid., 16: 2551.
44. For example, see the new five-volume series, Wacław Długobonki, Franciszek Piper, eds., Auschwitz, 1940-1945, trans. William Brand (Oœwiêcim, 2000). Particularly, vol. V: "Central Issues in the History of the Camp," contributors Danuta Czech, Stanisław Kłodziñski, Aleksander Lasik, Andrej Strzelecki.
45. 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.
46. Langbein, Stanisław Kłodzinski, Prosecution-conducted pretrial interrogation, in ibid., 68: 12711.
47. Hans Hofmeyer, in APO tape #4A, March 6, 1964.
48. "The Opinion of the Court," oral judgment, in Naumann, Auschwitz, 416-17.
49. 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;
50. also, Mark Osiel, Mass Atrocity, Collective Memory, and the Law (New Brunswick NJ, 1997), 192-96.