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

Abstract

This adaptation of a doctoral dissertation presented at Chicago takes as its overall theme the efforts of the new Federal Republic to use its domestic criminal law to extend the prosecution of Nazi mass murder beyond the various legal actions mounted in the later 1940s by the victorious Allies at Nuremberg and elsewhere. None of the 6,000 or so West German trials was more central nor more highly publicised than the particular set of proceedings upon which Devin Pendas has chosen largely to focus. These were the hearings that lasted in Frankfurt from December 1963 until August 1965, when judgment was finally passed on twenty defendants who had been charged as significant contributors to the genocidal activities of the Auschwitz complex. Readers of this scrupulously annotated volume will find that the author, even before reaching the courtroom proper, has devoted no fewer than four of his nine main chapters to analysing preliminary issues. this was time well spent on valuable contextualisation, since Dr Pendas has there succeeded in unravelling a challenging series of political, historiographical, and jurisprudential complexities. These include the gulf between the approaches to the trial adopted by prosecutors on one hand and by survivors on the other; the international context of the Cold War (particularly important granted that both the death-camp itself and a number of potentially vital witnesses to its operation were located beyond the ‘iron curtain’); and the more domestic dilemmas faced by a new state struggling for legitimacy and anxious to move forward with the process of Vergangenheitsbewältigung. Not least, there are the problems which stem from the post-war revival of specific and distinctive features of the pre-Nazi German legal tradition with regard to ‘motivation, action, and guilt’, and which therefore influence, for example, the definition of the boundaries operative between murder and manslaughter, or between perpetrators and accomplices. It is, so the author suggests, only by wrangling with such jurisprudential subtleties that we can see how a brand of criminal law grounded on the assumption ‘that individual actions are the sole result of individual decisions’ might prove to be so conceptually and procedurally inadequate when faced with the historical reality of Nazi genocide as the product of ‘systematically, bureaucratically organized, state-sponsored mass murder’. The presence in the dock of at least one of the camp's commandants might have helped to ease the prosecutors’ task, but the first two heads of the Auschwitz hierarchy had already been executed in Poland and the third and final chief, captured only in 1960, had died shortly before the Frankfurt trial itself commenced. When Pendas turns to consider the main hearings themselves, he skilfully emphasises the ways in which the remaining accused sought to exploit their own merely subordinate status: ‘According to their mindset, efficiency was separated, affectively and even casually, from the murderous ends achieved by that efficiency. So it was possible for the defendants, sincerely or cynically as the case may be, to claim to have opposed the ends of Auschwitz while admitting to having aided in the implementation of its means’. The proceedings ended with the three judges (the most senior of whom had himself performed minor magisterial functions under the Third Reich) combining with the six lay jurors, as was customary in ‘mixed’ courts, to issue their verdicts. Only seven of the defendants were found guilty of murder, while ten were deemed to have been accessories and three to be deserving of acquittal. After an essentially fair-minded review of that controversial judgment, the author goes on to analyse the range of public reactions to the progress and outcome of the Frankfurt proceedings. Just as ambivalence is the dominant feature of what he there discerns, so too does it emerge as the prevailing element in his own concluding assessment of the broad balance between the successes and failures of the Frankfurt venture. Pendas accepts that those who conducted the trial managed to reconcile truth and justice as fairly as possible within the constraints of the German legal code. Yet he also insists that the latter fell short of what was ultimately needed—‘a form of law, juridical and representational, that encompassed both individual responsibility and systematic, state-organized collective action’. In sum, this is a book most warmly to be welcomed, both for the quality of the research that underpins it and for the wisdom and verve of the argument that it presents.