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

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The Frankfurt Auschwitz trial was the largest, most public, and most important trial of Holocaust perpetrators conducted in West German courts. Drawing on a wide range of archival sources, Devin O. Pendas provides a comprehensive history of this momentous event. Situating the trial in a thorough analysis of West German criminal law, the book argues that in confronting systematic, state-sponsored genocide, the Frankfurt court ran up against the limits of law. This book provides a compelling account of the divided response to the trial among the West German public.

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Editorial Reviews

From the Publisher
"In his book, Devin O. Pendas meticulously examines every phase of the trial. He provides an in-depth account of the complex, lengthy legal and political machinations that preceded the trial, moves on to an exhaustive analysis of the actual courtroom proceedings and concludes with an assessment of German public reactions. The extremely detailed narrative will certainly satisfy readers who prefer encyclopedic rigor, although others might consider the book's reconstruction of the procedural maneuvers during the trial to be denser than necessary, despite the author's formidable lucidity. The impressive archival research on which the book is based is well reflected in its extensive citations, which Cambridge University Press admirably continues to print at the bottom of the page."
- Alan E. Steinweis, University of Nebraska-Lincoln, H-NET

"He has written an important, elegantly argued, and meticulously researched book that enriches our understanding of a crucial legal event."
-Lawrence Douglas, American Historical Review

"...provides a meticulously detailed and comprehensive analysis: from the pretrial history to its public repercussions; from the courtroom proceedings to their wider political and legal contexts (the Cold war, the politics of the past in the Federal Republic, German criminal law, and so on)."
-Journal of Genocide Research

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Product Details

  • ISBN-13: 9780521844062
  • Publisher: Cambridge University Press
  • Publication date: 12/31/2005
  • Edition description: New Edition
  • Pages: 360
  • Product dimensions: 5.98 (w) x 8.98 (h) x 1.10 (d)

Meet the Author

Devin O. Pendas is Associate Professor of History at Boston College. He received his Ph.D. from the University of Chicago and is the recipient of grants from the German Academic Exchange Service and the MacArthur Foundation. His articles have appeared in the Yale Journal of Law and the Humanities and Traverse: Zeitschift für Geschichte/Revue d'histore, as well as in a number of edited volumes.

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Cambridge University Press
0521844061 - The Frankfurt Auschwitz Trial, 1963-1965 - Genocide, History, and the Limits of the Law - by Devin O. Pendas


This book is a history of the Frankfurt Auschwitz Trial (1963-65), the largest, most public, and most important Nazi trial to take place in West German courts after 1945. It was the most dramatic and politically resonant of the more than 6,000 such trials that took place in between 1945 and 1980.1 Yet if the Auschwitz Trial was unusual among such trials in its drama and significance, in two other important respects it was quite typical. First, like all West German Nazi trials after the Federal Republic regained full legal autonomy in the early 1950s, the Auschwitz Trial was conducted under ordinary statutory (as opposed to international) law. Second, like most such trials after the late 1950s, the Auschwitz Trial was a Holocaust trial, concerned at its core with the Nazi genocide of the Jews.2 This book is thus an examination of how the Federal Republic of Germany tried to grapple with genocide by means of ordinary criminal law. How did this effort work in detail? What were its strengths and weaknesses, its limits and boundaries? What were the legal, political, and cultural ramifications of using domestic law to prosecute one's own genocidal history?

This book chooses to address these questions by means of a detailed history of a single trial. Twenty-two defendants stood in the dock at the start of the Auschwitz Trial; twenty remained at the end.3 Of these, seven were convicted of murder, and ten of accessory to murder, and three were acquitted. Sentences ranged from three and one-quarter years to life in prison. Over the course of twenty months and 183 trial sessions, over 350 witnesses testified, including 211 survivors of Auschwitz. Dozens of attorneys, representing the prosecution, the defense, and civil plaintiffs from around the world, argued about the nature and meaning of mass murder, torture, and genocide. In its final judgment - both oral and written - the court attempted to render justice for the crimes of Auschwitz within the limits allowed by the law.4 And the West German public watched it all with a curious blend of macabre fascination, hostile indifference, and heartfelt shame and remorse.

In the Auschwitz Trial, the law came up against the limits of its capacity to deal adequately with systematic genocide. West German criminal law was designed to deal primarily with very different kinds of crimes: 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 became at best misleading when applied to a crime whose implementation did not depend wholly on the specific individual motivation of any one of its numerous perpetrators. The Holocaust was not merely massive in scale but also bureaucratically organized and state-directed. Consequently, the personal motives of any of the thousands of perpetrators became subsidiary factors in a process of mass murder that extended well beyond any one of them. Auschwitz would certainly not have been possible without the willing participation of perpetrators such as those on trial in Frankfurt, but its terrible reality cannot be explained simply as a composite of individual crimes committed for individual reasons. The whole is, as it were, greater than the sum of its parts. Yet it is precisely this exponential character of Nazi genocide that the Auschwitz Trial found so difficult to encompass within the terms of German law.

Furthermore, the Auschwitz Trial has to be understood as a political trial. This is not to claim that it was an illegitimate attempt to use legal forms to pursue extra-legal ends, but rather to point out that rendering justice on Auschwitz necessarily raised important contemporary political questions.5 The Cold War was a constant presence in the courtroom, but so too were questions about the nature of West German democracy and the relationship between the German past and the German present. The trial was a political trial because Auschwitz was as much a contemporary political problem as it was a historical one.

The history of West German Nazi trials has to date been treated by scholars mostly at a quite general level. Broadly speaking, this historiography can be divided into three phases. In the 1960s, there were attempts to address the legal and political nature of contemporaneous Nazi trials.6 Then, beginning in the 1980s, there were efforts at a preliminary overview, often either rather cursory or polemical.7 Finally, in recent years there have been efforts at a more thorough, empirically grounded, and archivally researched analysis of such trials.8 This most recent literature is particularly useful, demonstrating the full complexity - both political and legal - of the history of Nazi trials in the Federal Republic. It points out that one cannot properly speak of "Nazi trials" as a unitary whole but must rather consider them in all their variability and in their proper historical context.

Yet for all its value, what none of this literature does is provide a comprehensive, empirically grounded history of any given trial. If, however, it is necessary to recognize the variability of Nazi trials across time, as well as to situate them in their proper political and legal context, then such detailed individual histories are urgently needed. Because the Auschwitz Trial was both the most prominent Nazi trial in the history of the Federal Republic and also one that was utterly typical of the 1960s in its subject matter and in its application of ordinary law to Nazi crimes, it offers a particularly useful opportunity for such an analysis.

The importance of the trial was immediately recognized by contemporaries. In addition to the massive press coverage of the trial (see chapter 9), several classic books about the trial appeared shortly after its conclusion. Hermann Langbein's two-volume "documentation" of the trial contains brief reflections on the origin of the trial but consists primarily of extensive excerpts from witness testimony, which Langbein took down personally during the trial.9 The book is organized typologically, according to the camp's own organization, thus making plain that the book's true interest is less the Auschwitz Trial than Auschwitz itself. The book is, in effect, a history of the camp as told by eyewitnesses during the trial. Bernd Naumann's Auschwitz: A Report on the Proceedings against Robert Karl Ludwig Mulka and Others before the Court at Frankfurtis a compendium of the author's reportage on the trial for the Frankfurter Allgemeine Zeitung.10 With subtle irony and a novelist's eye for telling detail, Naumann paints a vivid portrait of the trial as a lived experience. What he lacks, however, is a thorough analysis of the legal foundations of the trial, as well as the historian's retroactive ability to glimpse behind the curtain of events to discover the behind-the-scenes actions that drove the public occurrences. Finally, Peter Weiss's play, The Investigation: An Oratorio in 11 Cantos, presents dialogue taken verbatim from the trial in a form deliberately modeled on Greek tragedy.11 As important for the history of twentieth-century drama as his earlier avant-garde work, Marat/Sade, The Investigation is less a history of the Auschwitz Trial than it is a dramatic representation of the tragic character of modernity itself.12

In recent years, the trial has begun to attract growing scholarly interest as well. The efforts of the Fritz Bauer Institute in Frankfurt am Main have been particularly significant in fostering this new attention.13 In addition to its archival work, the institute organized a major public exhibition on the history of the trial in 2004 and has published two collections of articles on the trial.14 Among those working on the trial, Irmtrud Wojak, assistant director of the Fritz Bauer Institute; Werner Renz, its archivist, and Canadian historian Rebecca Wittmann particularly stand out. All have produced significant insights into the nature and history of the trial.15 Wojak has examined the central role played by Hessian Attorney General Fritz Bauer and has pointed out the significance of the trial for the political culture of the Federal Republic in the 1960s, though with perhaps too little attention to the ambiguity of that impact.16 Renz has done more than any previous scholar to trace in exacting and precise detail the internal trajectory of the trial based on the original documents.17 Wittmann has highlighted what she considers to be the central paradox of the Auschwitz Trial: namely, that the prosecution had to rely on Nazi norms and regulations to demonstrate that the defendants had exceeded these norms in the commission of their crimes.18 While she is certainly right that the issue of individual initiative was crucial for the trial, I would argue that the prosecution's use of Nazi regulations and norms was perhaps less paradoxical than Wittmann claims, since the defendants were indicted (and convicted) both for exceeding and for obeying criminal orders. I would argue that the true paradox of the trial lies less in the attempt to indict Nazi crimes according to Nazi norms than in the fact that German law was oriented toward a radically different understanding of crime and human agency than that revealed in the Holocaust. Wittmann has also argued quite rightly for the centrality of survivor testimony for the trial. This was, as she points out, the overwhelming source of evidence in the trial.19 She perhaps underestimates, however, the difficulties, both psychological and epistemological, confronting the witnesses in creating a coherent narrative of Auschwitz as a place of systematic mass murder. Nonetheless, these works, when taken together, enable us to begin to piece together the history of the Frankfurt Auschwitz Trial and its significance for postwar West German history. What remains necessary above all, however, is to begin to embed these insights into a more comprehensive understanding of the nature of German law and of the Federal Republic in the 1960s.20

To understand the Auschwitz Trial properly, one must also understand the role of Nazi trials in the Federal Republic more generally. The history of the Federal Republic of Germany in the first decades after the Second World War has been variously described as one of "democratization," "modernization," or "westernization."21 Despite their differences in method and emphasis, what all of these approaches agree on is that until well into the 1960s democracy and liberalism had found at best a somewhat precarious home in West Germany. While the risk of a full-fledged neo-fascist restoration may have been less than some contemporaries feared, the legacy of Nazism - institutional, political, intellectual, and personal - still weighed heavily on the fledgling democracy.22 So too did older authoritarian traditions stretching back to the nineteenth century.23 The early decades of the Federal Republic were marked not only by a rupture with the German past, but also by continuity. Democracy in West Germany, thus, has to be understood not as a fact, accomplished institutionally with the passage of the Grundgesetz (Basic Law) in 1949 but, in the words of Ulrich Herbert, as a "learning process."24 One key question for this learning process was what to do about the continuities of German history, specifically, what to do about the legacy of Nazism. That criminal trials would become, especially from the late 1950s, one of the central responses to this problem was by no means a forgone conclusion from the perspective of 1949 or even 1955.

The notion that Nazi atrocities represented not just unavoidable horrors of war but rather "crimes" in the full sense of that term originated during World War II and became a centerpiece of Allied policy toward Germany.25 Beginning with the founding of the United Nations War Crimes Commission (UNWCC) in October 1942 and culminating with the Moscow Declaration in November 1943, the Allies made clear their intention to prosecute criminally those responsible after the war.26 Implicitly excluding crimes against German citizens or stateless persons, the Moscow Declaration distinguished two categories of Nazi crimes: those committed in a specific locale and those committed by "principle criminals" whose crimes had no precise geographic boundaries. In the former case, the perpetrators were to be returned to the site of their crimes to stand trial under local jurisdiction; the fate of the latter was to be determined at war's end by a "joint decision of the Governments of the Allies."27 Yet despite the promise of a joint decision on major war criminals, there remained considerable disagreement among the Allied leaders for the remainder of the war as to how exactly such principle criminals should be handled, whether through criminal trials or via summary executions.28

On June 26, 1945, the British government, in agreement with the United States, convened an Allied conference in London for the purpose of reaching an accord regarding the prosecution of the major war criminals in a court of law. After prolonged and difficult negotiations, marked by serious disagreements due to differences in legal tradition between the Anglo-Americans and their continental colleagues, as well as personal animosity between the chief U.S. and Soviet negotiators, the conference promulgated the so-called London Charter on August 8, 1945.29 This provided the statutory basis for the International Military Tribunal that met at Nuremberg from October 29, 1945, to October 1, 1946, to try twenty-two leading Nazi officials.30 The London Charter also formed the basis for Allied Control Council Law No. 10, issued on December 20, 1945, which provided statutory authority for subsequent Allied trials against Nazi criminals (the twelve so-called successor trials at Nuremberg and others), as well as for trials conducted in German courts during the occupation period. Altogether, according to official statistics compiled by the West German government in 1965, a total of 5,025 Germans were convicted in (Western) Allied courts inside Germany during the occupation period.31

In this context, two things are particularly relevant about the Allied "war crimes program," as it was somewhat inaccurately called.32 The first was its legal innovation in creating the category of "crimes against humanity," one of three crimes defined by the London Charter and extended to subsequent proceedings by CC Law No. 10.33 Crimes against humanity provided legal protection against "murder, extermination, enslavement, deportation, and other inhumane acts" to civilian populations "before or during the war," as well as against "persecutions on political, racial or religious grounds" when committed in connection with other crimes defined by the charter.34

Essentially a derivation from the older category of war crimes, the category of crimes against humanity was distinct in that it extended protection to German citizens and stateless persons, that is, to precisely those victims excluded by the territoriality principle of the Moscow Declaration.35 The true innovation lay in the claim that some acts were so egregious that the traditional immunity provided by the doctrine of national sovereignty to acts of state in the domestic sphere did not apply.36 Although Nazi genocide clearly fell under the definition of crimes against humanity, as a legal category, it was not conceptualized as a law of genocide, but as a more general category applying to a wide variety of state acts including but not limited to mass murder and extermination.37

The second significant aspect of the Nuremberg and other Allied war crimes trials for the subsequent history of West German Nazi trials is the way that the Allies - the Americans, in particular - tried to deploy such criminal trials as part of a broader project to "reorient" German society away from authoritarianism, militarism, and Nazism. Criminal trials formed one pillar, alongside Denazification and formal reeducation programs, of this project.38 It was hoped not only that justice would prevail at Nuremberg but that truth would emerge as well. In 1950, General Lucius D. Clay, former head of the American Military Government in Germany, said of the Nuremberg Trials that by revealing the full extent of Nazi criminality, they "completed the destruction of Nazism in Germany."39 Unfortunately, whatever the successes and failures of the Allied war crimes trials program may have been, Clay's optimistic assessment of their popular impact in Germany cannot be sustained. It may be true, as Donald Bloxham suggests, that "the trial records remained, indelible."40 However, the immediate impact on the German understanding of Nazism was far less than the Allies may have hoped.

In fact, the Nuremberg trials were not generally well received by the Germans, either among professional jurists or among the general populace.41 Even among Germans who felt that Nazi actions were crimes and demanded some form of punishment, there was considerable trepidation at the form taken by the Allied trials. As one German jurist put it at the time: "That the defendants at Nuremberg were held responsible, condemned and punished, will seem to most of us initially as a kind of historical justice. However, no one who takes the question of guilt seriously, above all no responsibly thoughtful jurist, will be content with this sensibility nor should they be allowed to be. Justice is not served when the guilty parties are punished in any old way, even if this seems appropriate with regard to their measure of guilt. Justice is only served when the guilty are punished in a way that carefully and conscientiously considers their criminal errors according to the provisions of valid law under the jurisdiction of a legally appointed judge."42 And it was precisely on these terms that a great many Germans felt that the Allied trials failed.

© Cambridge University Press
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Table of Contents

1. Prelude; 2. The antinomies of German law: motivation, action and guilt; 3. The trial actors; 4. Indictment and order to convene, April–July 1963; 5. Opening moves, 20 December 1963–6 February 1964; 6. Taking evidence, 7 February 1964–May 1965; 7. Closing arguments, 7 May 1965–12 August 1965; 8. Judgment; 9. Public reaction.

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