Fractional justice
by Devin O. Pendas
The Frankfurt Auschwitz trial
The Frankfurt Auschwitz trial of 1963–65 was the largest, most public, and most important Nazi trial to take place in a West German court after 1945. Twenty-two defendants stood in the dock at the start; 20 remained at the end. They ranged in rank from major to private and represented nearly every significant administrative unit at the Auschwitz “protective custody” camps (Auschwitz I, Auschwitz II/Birkenau, and Monowitz)—from executive administration to the overseers of individual barracks to the “political section” (Gestapo) that addressed breaches of discipline. They included doctors who both treated SS officers and directed “ramp selection,” where Jews arriving on deportation trains were separated into those capable of work and those to be gassed immediately; and they included a lone kapo, an inmate who had assisted the SS and was charged with beating inmates to death. Over 20 months and 183 sessions, as the West German public watched closely, more than 350 witnesses testified, including 211 Auschwitz survivors.
The Frankfurt Auschwitz trial was the most dramatic of the more than 6,000 Nazi trials that took place in German courts between 1945 and 1980, yet in two important respects it was also quite typical. First, like all West German Nazi trials after the Federal Republic regained full legal autonomy in the early 1950s, it was conducted under ordinary statutory (as opposed to international) law. Second, it was a Holocaust trial, concerned at its core with the Nazi genocide of the Jews. The trial served as an example writ large of how the Federal Republic of Germany tried, without complete success, to grapple with genocide by means of ordinary criminal law.
On December 14, 1964, Judge Walter Hotz, accompanied by three prosecutors, numerous civil counsel, 11 defense attorneys, a translator, and a police photographer, arrived at Auschwitz for a three-day visit. Only one defendant, a member of the camps’ medical service named Dr. Franz Lucas, had agreed to accompany the court. Two observers from the West German government also came along. And the director of the Auschwitz museum was on hand, as an official “information provider.” Nearly a hundred journalists trailed at a discrete distance. Clearly, the court’s visit was one of the most photogenic moments of the trial. As Gerhard Mauz of the newsmagazine Der Spiegel put it, despite more than 250 witness testimonies to date, “it was diagrams, photos, and words” that thus far had represented the “reality” of the camp. “So Auschwitz and its adjunct camps remained in half-darkness, against which one’s self-consciousness could rebel, against which the defendants could defend themselves with words against words.”
From the court’s perspective, the main function of the visit was to ascertain beyond a reasonable doubt certain physical facts. How far was it from the pits where bodies were burned to the train tracks? Exactly 5.4 meters. “In the right-hand room of Block 20 in front of Block 11, the entry-steps (main entrance) of Block 11 were clearly visible from the windows in the front and the right front walls.” The “new laundry” “completely blocks the view of the ‘Black Wall’” from the windows on the first floor of Block 28. And so it went.
For the sake of juridical precision, the court was forced to play out scenes at once absurd and grotesque. On the afternoon of December 15, the visitors checked the veracity of testimony given by Georg Severa, a camp survivor, to the effect that he had been able to hear an inmate named Herbert in one of the standing cells in Block 11 sing popular songs. Severa had testified that Herbert, a German artist, told him from the standing cell that the defendant Bruno Schlage, of the political section, had locked him in there and announced that he would die there. In the meantime, Herbert sang songs to stay sane; eventually, he died of hunger. To verify this testimony, a bailiff crawled through the small opening at the base of a standing cell and stood inside. The boulevard magazine Quick reported, “One heard the old folk song, which he must have remembered from kindergarten: ‘Sah ein Knab ein Röslein stehen‘—and the court determined that the witness had been correct. Just as it turned out during the investigation of Auschwitz that the statements by witnesses who had been here as inmates were in almost every case correct.”
There was something more than a little macabre about conducting this kind of detailed forensic investigation at Auschwitz, 20 years after more than a million human beings had been exterminated there. Even the reporter for Quick noticed this. “At the bottom of the ditch lie yellow-gray lumps, sunk in fine, dark sand. ‘The ashes of burnt people. The lumps are cinders that were not completely burned-up. There—that is a charred bone.’ It all sounds like the spiel of a tour guide. . . . One member of the group protests, ‘That may be. But we should still have an expert examine the ashes.’” It is difficult to imagine a more glaring example of the tension between the emotional, experiential truth of Auschwitz—so central to historical truth—and the quest for irrefutable factual truth that lay at the heart of the juridical proceedings. The notion that it would be appropriate to have human ash, the sole remains of tens of thousands of human lives, scientifically verified is grotesque from the one perspective, yet perfectly reasonable from the other. In the Auschwitz trial, these perspectives were not reconciled, nor could they have been. Nowhere does this irreconcilability emerge more clearly than in the following exchange. Judge Hotz, in discussing the draft protocol of the visit, mentioned the ditch where the bodies were burned. He was interrupted by one of the defense attorneys: “‘allegedly, were allegedly burned.’” Hotz agreed: “‘were allegedly burned, please write, allegedly.’”
With its final judgments the court attempted to render justice for the crimes of Auschwitz. Among the accused, seven were convicted of murder and 10 of being accessories to murder, and three who were charged with those offenses were acquitted. Sentences ranged from three-and-a-quarter years to life in prison.
West German law had come up against the limits of its capacity to deal adequately with systematic genocide. The state’s criminal law had been designed to deal primarily with ordinary crimes, committed for the most part by individuals or small groups, driven by personal motives. Yet the legal categories developed to differentiate defendants according to their subjective relationship to the crime—murderer, accessory to murder—became at best misleading when applied to a crime whose implementation did not depend wholly on the motivation of any one of its numerous perpetrators. The Holocaust had been bureaucratically organized and state-directed. The personal motives of any of the thousands of perpetrators were subsidiary to a process of mass murder that extended well beyond any one of them. Though Auschwitz would not have been possible without the willing participation of perpetrators such as those on trial in Frankfurt, its terrible reality could not be explained simply as a composite of individual crimes committed for individual reasons. The whole was greater than the sum of its parts.
It is precisely this exponential character of Nazi genocide that the judges and lawyers in the Auschwitz trial found difficult to encompass within the terms of German law. The efficient functioning of the apparatus of murder in the camps did not centrally depend on sadists like Staff Sergeant Wilhelm Boger of the political section, for example, of whom it could be proven beyond a reasonable doubt that in five instances at least he had tortured inmates to death. The apparatus of murder could function equally well with the help of “good Germans” such as Dr. Lucas, who was convicted as an accomplice to murder on four counts for his role in “ramp selection,” each involving more than 1,000 victims. For his willful brutality, Boger received five life sentences; for his less visibly extreme part in vastly more murders, Lucas received a total of three years and three months, time he never served since his conviction was overturned on appeal.
To acknowledge the role played in genocide by “ordinary” Germans would have been, in the context of a German court, to give expression to the intimate relationship between the present reality of Germany and the nation’s past reality at Auschwitz. It was easier by far—legally, psychologically, and politically—to focus on Wilhelm Boger and his whips and his brutal physiognomy. In adhering to the letter of the law, the Auschwitz court unintentionally but also unavoidably engendered a degree of historical distortion: the repression of the centrality of genocide to the Nazi past and the substitution of a more conventional image of sadism and barbarism.
Devin O. Pendas is an associate professor of history. His essay is drawn from his book The Frankfurt Auschwitz Trial, 1963–1965: Genocide, History, and the Limits of the Law (© 2006 by Devin O. Pendas), by permission of Cambridge University Press.
Summer 2007