Judgement in the Grey Zone: The Third Auschwitz (Kapo) Trial in Frankfurt 1968

René Wolf. Journal of Genocide Research. Volume 9, Issue 4. December 2007.

When is a victim a perpetrator? In the case of prisoner-functionaries in Nazi concentration camps, this question is difficult to answer. Primo Levi, writing in The Grey Zone, certainly exculpates the Sonderkommandos in the crematoria and gas chambers: “Therefore, I ask that we meditate on the story of ‘the crematorium ravens’ with pity and rigour, but that a judgement of them be suspended.” But on the status of the Kapos, the prisoner-functionaries selected by the SS to carry out supervisory tasks within the concentration camps, Levi is less clear: they are the “potential collaborators, common criminals, ‘broken’ political prisoners, the morally debilitated.”

One of the earliest descriptions of Kapos comes from Eugen Kogon, in this 1950 publication The Theory and Practice of Hell: The German Concentration Camps and the System Behind Them. “What they [the SS] were after, […] were burly fellows, chiefly convicts, former [SA] Storm Troopers of Foreign Legionaries—men who new how to wield a club.” There are many witness statements and publications—some cited below—which support the portrayal of Kapos as brutal sadists, and just as many, which praise their courage and humanity in the face of adversity and danger.

So how should a concentration camp Kapo be viewed, and more to the point, how should their actions be judged in a court of justice? The following article will examine the “Third Auschwitz Trial,” a trial of two Auschwitz Kapos, by looking at the complexities of the Kapo issue, the difficulties in finding a coherent legal framework for such prosecutions as well as a more detailed study of the trial itself. The judgement, and responses to the court proceedings, as well as comparisons to other trials, will be used to assess the significance of this trial both in the climate of the Cold War of the 1960s and today, nearly four decades later.

The so-called “Third Auschwitz Trial” took place from August 30, 1967, to June 14, 1968, in Frankfurt amid very little publicity and hardly any public interest, and was a prosecution against two of the concentration camp inmates, Josef Windeck and Bernhard Bonitz, who were Kapos in Auschwitz. These two German small-time criminals had been moved to the concentration camp after the completion of their prison sentence, into “protective custody” (Schutzhaft), and were given favoured positions, in charge of a group of prisoners or work detail, fulfilling some guard and/or SS duties, in return for food, alcohol, cigarettes and other privileges. The precarious position of Kapo was just one of the many functions in the carefully worked-out hierarchy of the so-called “prisoner self-administration” (Häftlingsselbstverwaltung), used by the SS to “divide and rule” the concentration camp population. Heinrich Himmler, Reichsführer SS, offered this definition of the functions of the Kapos (from the view of the SS) to the generals of the Wehrmacht in Sonthofen, on June 21, 1944:

Okay, so one man is the responsible supervisor, I mean to say chief, with power over 30, 40, over 100 other prisoners. Once he becomes Kapo, he no longer sleeps together with them. It’s his responsibility to see that they reach the performance target, that there are no acts of sabotage, that the men are clean, and their beds made according to regulations […]. A fresh recruit in a military barracks can’t be any neater and more thorough than what is expected here. And the Kapo has responsibility for this. So he has to push his men. The moment we’re not satisfied with him, he’s no longer a Kapo, and he goes back to sleep with his men. But he knows full well that he’ll be murdered by them the first night.

The highly complex “prisoner self-administration” had been set up in the concentration camps to minimize resistance, to save on SS personnel and to ensure order. The chief (or camp) Kapo was usually responsible for Kapos in charge of the work details (Kommandos), themselves divided between head-Kapo and sub-Kapos. Within the camp the camp elder (Lagerälteste) held most power, within one barrack (or “block”) or living quarter it was the block elder (Blockältester). All these competing positions were appointed by the SS, but some other minor, but nevertheless important privileged positions, such as the room-scribe (Stubenschreiber), could be selected by the Kapo or Blockältester. After 1936, with the introduction of “protective custody” for prisoners who had served their sentence, prisoner-functionary roles were usually allocated to “professional criminals” (Berufsverbrecher or BV), identifiable by their green triangle. The power of the Kapos was enormous. Levi writes:

But the power of which the functionaries of whom we are speaking disposed, even if they were low-ranking such as the Kapos of work-squads, was, in substance, unlimited; or, more accurately put, a lower limit on their violence, in the sense that they were punished or deposed if they did not prove to be sufficiently harsh, but there was no upper limit. In other words, they were free to commit the worst atrocities on their subjects for any transgressions, or even without any motive whatsoever. Until the end of 1943 it was not unusual for a prisoner [in Auschwitz] to be beaten to death by a Kapo, without the latter having any fear of sanctions.

Yet the prisoners understood the precarious situation the Kapos found themselves in, as Dr Tadeusz Paczula, former inmate and witness in all three Auschwitz trials, explained in a radio interview:

You have to distinguish here that the SS man was in a situation which you would call voluntary—the prisoner, even when a professional criminal, was in a predicament here. He was locked up. He was, after all, a prisoner. But among the professional criminals there were some very primitive persons, primitive characters and maybe also people who were mentally not very talented. And they, very willingly, maybe to save or keep their own life, or to improve it, accommodated the orders of the SS.

The prisoner-functionaries were often brutal, but there were always notable exceptions. Kogon singles out a number of courageous individuals who stood out “in sharp contrast to the horde of brutes” as “shining examples of integrity, humanity and personal courage.” But the predominance of “green” (professional criminals) Kapos in Auschwitz can cast doubt on the possibility of exceptions from the rule there. Buchenwald, where Kogon had been incarcerated, was one of the few camps where political prisoners (bearing a red triangle) had been in Kapo positions, and certainly the only concentration camp which many of the inmates were KPD members and had managed to form clandestine committees and underground organizations. By the time the Americans arrived at Buchenwald, the camp was completely in prisoner hands, the SS having fled or having been overpowered and were now guarded by the tightly disciplined camp inmates. The initial report of the US investigation commission, led by Egon W. Fleck and Edward A. Tenenbaum, noted the following on April 14, 1945—a week after liberation:

This report is sensational in many ways. It tells of a concentration camp within a concentration camp, of a terror machine within a terror machine, of a Communist dictatorship in a Nazi extermination centre.

Although this sentence was later removed from the published version of the Buchenwald Report, the role of Kapos in concentration camps became symptomatic of the ideologically laden interpretations of the Nazi dictatorship in general, and of the NS trials specifically, during the 1960s.

During the liberation of the camps, such as Auschwitz and Bergen Belsen, many Kapos were summarily executed or lynched. In many ways they were deemed beneath contempt, dangerous and “untrustworthy by definition: they betrayed once and they can betray again.” Nevertheless, trials of Kapos in the immediate post-war era were rare. Niethammer cites 149 prominent Buchenwald inmates, among them 29 Kapos, of whom three were prosecuted.

In Israel a series of Kapo trials occurred between 1951 and 1964, which were conducted under the Israeli Nazi and Nazi Collaborators Punishment Law (1950), with about 30-40 prosecutions. Details are vague on the trials as the files have been sealed by a 1995 order for 70 years from the date the judgements were rendered. From the little information that is available about these court proceedings, it can be gathered that sentences were lenient: in 26 (out of 38) trials there were 11 acquittals and 15 sentences of imprisonment. The judges’ uneasiness to use the law to its full extent (which includes the death sentence), indeed the judges’ “discomfort with, even dislike of and often alienation from these ‘grey cases’,” resulted in mild sentences and guarantees of anonymity. It appears that in Israel, at least, the Kapo issue, which posses “an incredibly complicated internal structure and contains within itself enough to confuse our need to judge” (Levi), was dealt with using due care and consideration.

The criminality of the Kapos‘ actions in Buchenwald had very little to do with the nature of the enquiries which were taking place in the GDR after the war. “Doing away with” (abfertigen) was quite readily admitted by the members of the Buchenwald Central Committee (of former communist inmates), as well as influencing selections and phenol injections. “Discipline” was ruthlessly enforced by the “red” Kapos and the “camp police” (Lagerschutz—manned by inmates) in Buchenwald and most “liquidations” carried out by Kapos were decisions reached by the clandestine “Central Committee.” The charges which sent the Kapos Busse and Reschke to the Gulag were more concerned with their “political reliability,” the treatment of Soviet POWs in Buchenwald and visits to the camp brothel. The subsequent rehabilitation of both men in 1956 (Busse died 1952) can be viewed as evidence that their convictions were politically conditioned in the era of high Stalinism.

In West Germany the legal complications of prosecuting Nazi crimes were bound up with the complexities of the judicial system having to operate under the close scrutiny of the Western Allies, Cold War priorities as well as an unwilling judiciary, but there is no evidence to suggest that courts in the Federal Republic dealt with the crimes of Kapos any differently than with other National Socialist crimes. Guilt had to be established for individual deeds committed by individuals at a specific time and place. The context of the Third Auschwitz Trial has to be viewed within these prosecutions, their origins dating back to the end of the war.

The Allies had decided on the investigation and prosecution of German war crimes as early as October 1943, when Churchill, Roosevelt and Stalin issued the “Declaration on German Atrocities,” stating that, unlike 1918, when German courts dealt with war crimes, the issue of punishment and retribution had to remain firmly in the hands of “the three Allied Powers who will pursue them to the uttermost ends of the earth and will deliver them to the accusers in order that justice may be done.” Fully aware of the legal difficulties this would entail, the “sovereign legislative power” of the Allies rested upon the fact that an article of Germany’s (and Japan’s) unconditional surrender was the submission to the jurisdiction of Allied war crimes tribunals. The resulting International Military Tribunal (IMT) in Nuremberg set new legal precedents in 1945 by defining and prosecuting crimes such as genocide and crimes against humanity, trying them ex post facto. But in order to minimize legal protests and objections a prosecution which violated the principle of nulla poena sine lege (no punishment without law), the Nuremberg IMT managed to rely on a wide-ranging universal consensus that a high-profile public trial would set a more effective precedent than military or summary executions. Justice Jackson, chief prosecutor at the Nuremberg Trial, claimed that with the decision to “stay the hand of vengeance” the trial represented “one of the most significant tributes that Power has ever paid to Reason.” While the IMT dealt with the Nazi leadership under its own charter, all other prosecutions were dealt with in their respective zones by the military authorities and newly convened German courts under Control Council Law No. 10 (“Punishments of Persons Guilty of War Crimes, Crimes against Peace and Crimes against Humanity”). This law, as well as Control Council Directive No. 38 (“The Arrest and Punishment of War Criminals, Nazis and Militarists and the Internment, Control, and Surveillance of Potentially Dangerous Germans”), aimed to “establish a common legal basis” and a “common policy” in the punishment of war crimes, embodying the ideas of the fledgling United Nations and what in 1948 became known as the UN Universal Declaration of Human Rights.

West German courts did not prosecute under Control Council Law 10, mainly to limit the prosecutions of Nazi crimes after 1950, particularly after the removal of Allied authority in 1955, and the use of the CCL was phased out by 1954. Prosecution of Nazi crimes from thereon was conducted under the Criminal Legal Code (Strafgesetzbuch, StGB), and the crimes prosecuted, particularly murder, depended on the “inner attitude” of the perpetrator, whether the deed could be considered “his (or her) own” and on subjective motivations such as maliciousness, base motives or (blood) lust. While these prosecutions proved to be difficult, they were nevertheless possible, but their success rested not only on the willingness of the judiciary and legal professions to take up the cases but also private allegations (Anzeige erstatten), which the authorities might (or might not) take further by instigating legal proceedings. Thus, unsurprisingly, prosecutions of Nazi crimes dropped sharply in the 1950s; the “dirty work” of “fouling the nest” by prosecuting “one’s own” fell after 1951, both in the GDR and the FRG: in the West proceedings dropped from 2,495 in 1950 to a mere 238 in 1957, resulting in 809 and 43 convictions, respectively. In the GDR there were 331 convictions in 1951, 23 in 1955 and none in 1956.

Ulrich-Dieter Oppitz comments on the West German verdicts and subsequent gaol terms of the 1950s: by 1958 the percentage of former concentration camp inmates among those convicted to life imprisonment is relatively high (four out of 59-8%); but higher still is the percentage of those still imprisoned in 1973 (two out of 6-33%). “The only remaining former inmate still incarcerated in 1976 had by this point spent 27 years in prison and as such was the longest serving prisoner of all Nazi criminals.”

The sentencing policies of West German courts for violent crimes committed during the Third Reich were uneven and extremely lenient. Whereas no general amnesty ever occurred, many imprisoned perpetrators could hope for an early release, and Cold War tensions allowed German POWs sentenced by Soviet courts for war crimes to return to the FRG without fear of further prosecutions after 1955.

Under West German (Roman) law, some crimes carry a statute of limitations (Verjährung), after which they cannot be prosecuted any more, such as assault after ten years and manslaughter 15. This limited the scope of prosecutions, and certainly the statute of limitations for assault created little public debate.

In the late 1950s, several prominent NS trials were being held, starting with the Schörner trial in the autumn of 1957. This trial revealed, in accordance with the law of Germans committing crimes against other Germans, that the Wehrmacht not only committed mass executions of civilians in the occupied territories, but also shot their own troops. In the following year, proceedings against the Kommandant of the Buchenwald concentration camp, Martin Sommer, revealed the true horror and unbound violence of the camp system. The trial of members of Einsatzgruppe A running concurrently in Ulm was revealing hundreds of hitherto un-prosecuted individuals, who were guilty of massacres in Lithuania and the Baltic states. The Ulm trial was the first investigation carried out by chief public prosecutor Erwin Schüle, who had spent months in the archives in order to research the activities of the Einsatzgruppen, as the former director of police, Bernard Fischer-Schwerder, had hampered his original enquiries. Schüle and the Stuttgart state prosecutor Erich Nellmann decided to intensify their efforts after realizing the extent and magnitude of the crimes committed, and also in response to a seeming apathy, not to say antipathy, towards to their investigations. Judiciary and politicians alike appeared to be waiting for the statue of limitations for manslaughter and accessory to murder to take effect—particularly in the Ulm trial. Outraged by this, Nellmann proposed, in an article in the Stuttgarter Zeitung, wide-ranging powers for the new authority, the Central Office of Regional Justice Administrations for the Investigation of National Socialist Crimes (Zentrale Stelle der Landesjustizverwaltungen zur Aufklärung von nationalsozialistischen Gewaltverbrechen), in order to deal with a wide range of crimes committed beyond German soil. However, the efforts of the Zentrale Stelle were often undermined by an unwilling judiciary, which had remained thoroughly un-de-Nazified; a fact that was often pointed to by “revelations” from the GDR’s campaign against former Nazi hanging judges.

In one of his first great public trials, Dr Fritz Bauer, then public prosecutor in Braunschweig, found himself at the centre of media attention during the so-called “Remer Trial” in 1952. Otto Ernst Remer (1912-97), deputy chairman of the neo-Nazi Sozialistische Reichspartei (SRP), publicly and repeatedly denounced the conspirators of July 20, 1944 as traitors in the pay of foreign agents. Survivors and the families of the perished started legal proceedings against him, but were advised to drop the charges. But Bauer saw his chance here and took up the case. His conception of the Third Reich as an “unlawful state” (Unrechts-Staat) naturally saw resistance as a legal, if not a necessary activity, and therefore not an act of treason. The trial, amidst much publicity, was won by Bauer, and Remer was sentenced to three months in prison. But Bauer’s aim was more than just the rehabilitation of the men of the 20 July. By proving the legal basis of the Nazi state to have been unlawful he hoped to establish an understanding that the civil right to resistance and the civic duty to resist tyranny are essential to democracy.

Despite this success, his efforts in Braunschweig were limited by a hostile Lower Saxony Ministry of Justice. Bauer’s 1956 move to the “red” Bundesland Hesse proved a fruitful move. Already deeply involved in the NS investigations, Bauer had become disillusioned with the lack of successful prosecution and hoped that together with the Minister for Justice for Hesse, Georg August Zinn (SPD), concerted efforts could be undertaken in Frankfurt to bring Nazi criminals to trial. This collaboration with Zinn was to have far-reaching implications: it was around this time that Bauer first received information on the whereabouts of Adolf Eichmann, which he passed on to the head of the Israeli Intelligence Service (Mossad), Isser Harel.

The setting up of the Zentrale Stelle and a timely coincidence enabled Bauer to start collecting evidence against Wilhelm Boger of the Auschwitz camp Gestapo, and others, including the last commandant of Auschwitz, Richard Baer. Ever watchful of the statute of limitation for murder in 1965, Bauer managed to instigate a series of Nazi crimes trials that took place in Frankfurt/Main between 1963 and 1968, which are commonly referred to as the Auschwitz Trials, the first Auschwitz Trial of 1963-65 (“Proceedings against Mulka and others”) being the best known. Fritz Bauer had attempted to expose and put on trial the whole “Auschwitz Complex,” prosecuting a relatively large number of individuals and in the process unearthing the structures, motivations and networks that produced and sustained the concentration and death camp Auschwitz. This included investigating the responsible authorities in Berlin at the time (the Reichssicherheitshauptamt or RSHA), the SS hierarchy, the camp personnel as well as beneficiaries and private investors there, such as the petrochemical conglomerate I. G. Farben.

Therefore, the collating of a “complex” prosecution as envisaged by Dr Bauer had to be built up through a series of trials, in which the evidence given by experts, historians and statements from numerous witnesses became absolutely essential to secure convictions, as well as the sequence in which these trials were conducted. Fritz Bauer described this attempt as establishing a “legal system with respect for humanity” (Die Humanität der Rechtsordnung).

The public and media interest in the upcoming Auschwitz Trial was considerable, but distinctly different from the Eichmann Trial. Regina Schmidt and Egon Becker’s 1967 publication Reactions to Political Events (Reaktionen auf Politische Vorgänge) notes that 66% of respondents, when asked about their reaction to the trials, replied that there should be an end (Schlußstrich) to these prosecutions as “the others [the Allies] had committed war crimes as well and they were not being prosecuted.” This equivalence of perpetration—Allied and German—is a pronounced feature of the unmastered German past before the Auschwitz Trials. It is to Bauer’s credit that the Auschwitz Trials, and the First Auschwitz Trial in particular, managed to confront the past unequivocally with legal proceedings and public debate. Many commentators of the Auschwitz Trials duly noted their significance. Gerhard Werle wrote that the Auschwitz Trial judicially established the criminality of the Third Reich, and particularly of the destruction of the European Jews. For Germans, only through this trial did “Auschwitz” become the “central metaphor of evil in our time.”

Pendas, among others, comments that one aspect of the Auschwitz Trial was its invariable “overlay of Cold War politics on the general narrative of subjective responsibility.” The East German leadership had decided, under the auspices of Albert Norden, KPD founder member, resistance fighter and SED functionary, to start an ideological offensive against the “re-Nazified” Federal Republic in 1960. The department HA IX/11 of the Ministry for State Security (Stasi) was in the possession of countless files of the past of many prominent West Germans, and by selective leaks the information trickled over to the West German press, first in the form of leaflets naming individuals, later in the form of the “Brown Book” (Braunbuch), with lists of names with a Nazi past. Its revelations were broadcast on the GDR’s Deutschlandsender to coincide with political events, including around the Auschwitz Trials. Slanderous (and unverified) comments on the integrity of Judge Hofmeyer, trial judge in the first Auschwitz Trial, were broadcast shortly before the trial began, in November 1963. During the early stages of the trial the revelations of the GDR economist Jürgen Kuczynski led to an international outcry against the bestowing of a civil honour to a German industrialist, which had to be recalled. But perhaps the biggest coup of the GDR’s Westbüro during the Auschwitz Trial, on February 5, 1964, was the revelation that Erwin Schüle, head of the Zentrale Stelle, had been a member of the NSDAP and the SA. After initial denials Schüle was moved on to the Appeal Court (Bundesgerichtshof) and was replaced by Adalbert Rückerl.

Further and potentially more damaging “leaks” from East Germany were feared by the West German authorities. Nerves were on edge, particularly during the second “Auschwitz Trial” (December 4, 1965, to September 16, 1966), which had looked at the complicity of business conglomerates through the prosecution of camp personnel who had been in charge of obtaining the Zyklon B gas used in the gas chambers. In the course of the proceedings in Frankfurt, the GDR had been conducting its “own” Auschwitz Trial in Leipzig against the former Auschwitz doctor Horst Fischer. The show trial taking place in the GDR promised many new “revelations” from a very candid and open Dr Fischer regarding the mass murder, medical experimentation and German industry’s involvement at Auschwitz. The GDR’s adjunct prosecutor in Frankfurt, Dr Friedrich Kaul, announced to the West German press that the arrest and trial of Fischer would finally “break through the wall of silence around the initiators of genocide.” But the court refused to be drawn into arguments of “collective responsibility” and complicity of the I. G. Farben industrial conglomerate, despite overwhelming evidence.

Buoyed on by this public relations success, the third trial was also being followed in the GDR, where these prosecutions had provided ample opportunity to embarrass the “re-Nazified” Federal Republic. Within this context, the Committee of Anti-fascist Resistance Fighters in the GDR (Komitee der antifaschistischen Widerstandskämpfer in der DDR) and the National Council of the National Front for the democratic Germany (Nationalrat der Nationalen Front des demokratischen Deutschland) issued a pamphlet in 1968 entitled “Auschwitz cautions” (Auschwitz mahnt)—with the subtitle “Statement on the trial against Windeck and Bonitz in Frankfurt/Main by former political prisoners of the concentration camp Auschwitz in the GDR.” This publication, aimed at a West German audience and published towards the end of the trial (possibly May 1968), combines the standard GDR political propaganda argumentation of monopoly capitalism being the cause of fascism and the Nazi terror with fairly dubious Photostat copies of correspondence between industrialists and SS and explanations of the camp system. It nevertheless asks some pertinent, if not necessarily relevant, questions surrounding this trial:

In as much as the prisoners were, on the whole, at the mercy of the SS camp leadership, within the form of these functions [of Kapos] there nevertheless existed many an opportunity to alleviate the terror, by a just distribution of food rations, of footwear and clothing or by improving standards of hygiene. In some camps these positions were even used to organise escapes for some of the prisoners or even the liberation of the whole camp.

The brochure does not detract from the crimes of the accused. The 189 cases of murder Bonitz and Windeck are indicted of are, in the view of the authors, an underestimation. But it points to the problems of the legal restrictions which the West German court had to operate under, namely, that since the abandoning of Kontrollratsgesetz Nr. 10 in 1955 and a recent statute of limitations for manslaughter, a prosecution of the “real” culprits, that is to say, the organizations and corporate bodies which set up the concentration camp system and enabled it to function, was beyond the reach of the law. It states:

In the reporting—particularly in the West German press, there is talk of the “3rd Auschwitz Trial.” We deem this description as misleading. It attempts to create the impression that this [trial] is the logical continuation of the two previous Auschwitz Trials which took place earlier, here in Frankfurt. We would like to point out that in the first two Auschwitz Trials the GDR resident and representative of the adjunct prosecution (Nebenkläger) Prof. Dr. Kaul had presented proof that the accused did not break the law in the conventional way but were guilty of crimes against humanity. They belonged to an intricately networked gang of murderers and knowingly and willingly put themselves at the disposal of the Nazi extermination machine.

Knowingly and willingly they took part in the mass murder of Soviet prisoners of war, of civilians of the occupied countries, in the industrial scale complete annihilation of whole sections of the population of various nations, especially Jews. Their actions contravened the most basic principles of human existence; they committed genocide.

Windeck and Bonitz were, so the pamphlet states, only the last links in the chain of command which enabled this genocide, and the “intellectual initiators and desk-murderers” (Schreibtischmörder) and particularly their accomplices in industry, the civil service and high society, are back, unpunished, in their prominent positions in today’s West Germany. But upon an examination of the relationship between the crimes committed and the attitude of the criminals towards their deeds this claim of political victimhood did not stand up in court. The individual acts of murder, which could, with the aid of witnesses and other material, be ascribed directly to them, were gruesome and callous.

The trial was a prosecution against two concentration camp inmates, Josef Windeck and Bernhard Bonitz. The two men were indicted of 189 murders and found guilty, and sentenced to life imprisonment. The prosecution of Kapos was, in West Germany at the time, unusual and potentially controversial, as the perpetrators could easily be deemed victims as well. But this particular prosecution and envisaged conviction was deemed relatively straightforward by the prosecuting team, following on from the previous, much more complex two trials in Frankfurt.

This trial aroused very little publicity and practically no public interest. Nevertheless, it embodied many of the aims of Fritz Bauer and the Zentrale Stelle of educating the German public on the horrors of the Holocaust and strengthening liberal-democratic understanding, and should serve as an example that, in the words of the trial judge, the “few guiding principles of humanity” should remain, even in the most inhumane of circumstances.

The judgement of the trial, a 180-page document, is extremely detailed, consisting of two categories, unequal in length, of eight sections each. Category A deals with the general conditions of the camp, its history, background and the background of the accused; Section B—which is much more substantive—elaborates on the specific accusations, witness statements and the judicial reasoning which led to the convictions. Whereas some of the general remarks in section A are recognizable work from previous cases, and had been compiled by historians, it is noticeable that many of the general findings concerning the camp are augmented by over a hundred witness (and the accused) statements. The details which emerge from the judgement present a valuable insight into the changing attitudes within the West German judiciary, brought about, no doubt, by the continuing engagement of the media (and their international observers). The details of the accused are as follows.

Heinrich Bernard Bonitz was born in 1907, in Chemnitz, where he attended school up to the age of 14. He became an apprentice baker, qualified three years later and worked in his profession and other jobs. In 1926, he moved to Berlin where he married in 1933. By 1936, he had been convicted 12 times for various crimes and misdemeanours ranging from theft to safe-cracking. In March 1937, whilst working on a building site, he was taken into “protective custody” and taken to the concentration camp Sachsenhausen (near Berlin), classified as a “professional criminal” (Berufsverbrecher) and given a green triangle. There he was given responsibilities as block elder and barrack duty.

In May 1940, Bonitz was transferred, together with an additional 29 prisoners, to Auschwitz, the first to arrive there as “foremen,” in charge of the Jewish citizens of Oświęcim (Auschwitz), who were building the camp.

As “privileged prisoners” (Vorzugshäftlinge) these first 30 all had their own rooms and lacked little in the way of home comforts. Bonitz worked in various commandos in various locations in and around the camp, including as Kapo in the building commando of the Birkenau extermination camp and in the tannery and leather factory, where he was chief Kapo. During this time he served two short spells in solitary confinement (in the so-called “Bunker”), once for obtaining toys for a Polish mother and on another occasion for smuggling out gold and currency. During his interrogations by the notorious SS-Untersturmführer (second lieutenant) Max Grabner of the camp Gestapo he was, so he stated, “treated decently.”


By June 1944, Bonitz had volunteered to join the infamous Dirlewanger Waffen SS unit, a notorious and brutal unit made up of desperados, former camp inmates and lower SS ranks. Before the end of the war he left the unit and returned to Berlin, where he worked as a car mechanic and metalworker until his arrest in May 1966.

The crimes Bonitz was charged with ranged from assault to murder. The statute of limitations for assault and manslaughter had to be considered in many of the cases Bonitz and Windeck had been charged with, and even if the court found them guilty, a sentence could not be passed.

Bonitz was indicted of at least 72 counts of murder; for nine of these he was pronounced guilty of having inflicted grievous bodily harm, but could not be sentenced. Only in one instance did the court hear convincing, multiple evidence of a particular killing and Bonitz was found guilty of murder and sentenced to life imprisonment.

In the case against Windeck the following facts emerged: Josef Joachim Windeck was born in 1903, in Rheydt/Rhineland, as one of 17 children. As a child he suffered from TB but otherwise had average schooling. After the age of 14 he left school to accompany his father to work on a building site and from then on remained an unskilled labourer, often unemployed until about 1933. He married in 1927. He had been in and out of prison for various small offences since 1920, and in 1936 was interned in the concentration camp of Esterwegen-Papenhausen. He was released and re-arrested shortly thereafter for the theft, as well as for resisting arrest. At the high court in Mönchen-Gladbach he was sentenced to two years hard labour, but when he was due to be released at the end of his sentence he was taken into police custody in Düsseldorf and transferred to the Sachsenhausen-Oranienburg concentration camp near Berlin. Windeck stayed there until he was transferred to Auschwitz, together with 99 other prisoners, in August 1940. There he was classified as an “anti-social” (Asozialer) and received the black triangle. He was made Kapo of the digging commando and after a short while, camp Kapo. He held this position until March 1941. Proud of his position, according to one witness, he paraded around “as if the son of the camp-owner.” The much-feared Windeck always carried a whip, with which he randomly beat fellow prisoners. Between periods of solitary confinement and other punishments he held positions as Kapo in Auschwitz-Monowitz, where he enjoyed single room accommodation and his own servants (these were mostly children taken from the RSHA transports). Due to further accusations of theft in mid-1943 he was transferred to the Birkenau camp, where he was again installed as Kapo, in the men’s camp B II d. He remained there until August 1944, when he was transferred to the concentration camp Ohrdruf, and from there to Buchenwald. He managed to escape but was captured by (German) military police, became a soldier in the closing months of the war and ended up as a Soviet POW in May 1945. A military court in the USSR sentenced him to 25 years hard labour in 1949 but he was released, along with thousands of other POWs, in 1955. After his return to (West) Germany he continued to work on building sites until his retirement in 1963. Although re-arrested the same year and held on remand, he was released in May 1964, on health grounds.

Josef (“Jupp”) Windeck was charged with 117 counts of murder, all of which he denied. He was found guilty of 105 cases of inflicting grievous bodily harm, but could not be sentenced. In three cases he was found guilty of attempted murder, receiving jail sentences of twice 11 years and once of ten years, running concurrently (which were commuted to a sentence of 15 years, with time spent in a Russian POW camp taken into account). He was acquitted of seven counts of murder but found guilty of two, for which he received two life sentences.

Whilst the court acknowledged that both defendants were prisoners themselves, the judicial reasoning cites several instances where witnesses stated that they, as fellow Kapos, admonished the accused for their brutality towards other prisoners.

The complete denial of any misdoing by both defendants is remarkable. Windeck, in his utter conviction that he had done nothing wrong, even made appeals on West German television to find character witnesses; all he could remember was the pride of having been camp (chief) Kapo, and remained full of self-pity about having to appear in court. In a radio interview, however, Windeck’s Freudian slip leaves the listener wondering about truth of the defendant’s continued insistence of innocence:

I have never killed anybody in my whole life and to this day there is not a single drop of blood on my fingers. And you can assure yourself of it that my wife could not go to her grave knowing that she had a murderer for a husband.

The judge explains this by referring to Windeck’s egocentricity, which “made him suppress and forget much he deemed unpleasant to him.”

The true reason for their deeds was, so argues the court, the knowledge that the mistreatment of fellow prisoners would go unpunished because of their national or racial origin and that their actions were sanctioned by their masters, the SS. Acting out of this motivation is mean, contemptuous and morally despicable.

Decisive for the court were the “few guiding principles of humanity,” which are the indispensable core of the law and are anchored in the general public knowledge of what is right and wrong. In the basic human understanding of justice the killing of innocents out of racial hatred is deeply abhorrent. Despite the conditions in the National Socialist concentration camps and the circumstances which allowed the defendants to view racially motivated killing as an everyday occurrence, the court held that ethical judgement in such cases cannot be withheld, but it remains the moral foundation of all humanity, which forms part of the human conscience. Therefore, both defendants have to be viewed as sole perpetrators, not acting as helpers or assistants as this was their “inner attitude” to these deeds. They were not coerced to commit murder but acted out of their own impulse. For this they quietened their conscience so that no doubts, or moral wrangling or regrets accompanied their actions. On the contrary, they were proud of their accomplishments, which gained them a fearful power.

What becomes apparent from the judgement above is that a certain simple logic could be applied to the prosecution of Bonitz and Windeck. At first glance nothing could really be considered problematic in this case: after all, two vicious murderers were judiciously sentenced, by a huge weight of evidence, to life imprisonment. The problem only arises in connection with other NS trials and the wider considerations of this particular judgement. The prosecution and sentencing of these “last links in the chain of terror” took place in the “complex” trials in Frankfurt, which started in December 1963. It had been the intention of the prosecution to point at corporate culpability and a greater complicity of a wide circle of perpetrators around the Auschwitz concentration and death camp. In the light of Cold War tensions much of the evidence offered in this direction was deemed inadmissible. It was also legally impossible since the abandoning of the statutes in 1955, which would have allowed for such charges. Even in the first and second Auschwitz Trials much of the sentencing appeared to be in inverse relationship to the defendant’s seniority and responsibility. Whereas it is indisputable that Windeck and Bonitz deserved their life sentences, other sentences, of senior SS personnel, in other cases, appear ludicrously light. The issue of the social class of the defendants, and their respective sentences were of note, particularly in the first Auschwitz Trial, where the most senior ranking Adjutant (deputy commandant) of Auschwitz, Mulka, well educated and of bourgeois standing, received a 14 year custodial sentence and spent three years in prison, for complicity to murder of 78,000 persons; whereas Emil Bednarek, an unskilled worker and Kapo in Auschwitz, was sentenced to life imprisonment.

Much of the reasoning of various courts, including the Bundesgerichtshof (the highest appeal court), appears simply incomprehensible by today’s standards, such as the trials of the various euthanasia doctors, such as Dr Faltlhauser in 1949, Dr Leu in 1951, and Dr Borm in 1970, as well as the 1974 trial of former secret field police officer Heinz Gerhard Riedel in Kiel, who were all acquitted.

What hindered convictions and harsher sentencing was not just the generally unfavourable climate of NS prosecutions, but also the fact that the priorities of the Cold War often stood in conflict with an earnest quest for justice as the following case, which had set a precedent through the appeal court (Bundesgerichtshof), illuminates: the 1962 defection of the Soviet agent Stachynskij after he had murdered two Ukrainian dissidents in Munich. This double murder, according to the German court, had to be viewed against the background of mitigating circumstances, as the accused man’s actions could not be deemed his own as he had not enough courage to resist state-sanctioned criminal deeds and his “inner attitude towards the deed” was not malicious. Therefore, the culprit was the KGB chief Chelipyn and not Stachynskij. This case continued to be quoted by many defence councils in NS trials throughout the years to come. The inconsistency of West German courts in the sentencing of Nazi criminals was not only due to a “un-reconstituted” legal profession and Müller argues that it was the judiciary’s assumed obligation to state authority, rather than a search for justice, which hampered these trials.

Considering the generally negative pubic response and in many cases the “tainted” past of judges and public officials, it is remarkable that many of these prosecutions took place at all. Apart from committed jurists such as Fritz Bauer and the investigators at the Zentrale Stelle, the media, and particularly radio, played a significant part in keeping the public informed and in a position to contemplate the Nazi past. Commentators such as the NDR (Norddeutscher Rundfunk) reporter Axel Eggebrecht, veteran radio journalist and trial commentator, held great sway on public opinion, and were tireless campaigners for a continuation of the NS trials and against the statutes of limitations. The Deutsche Welle, the West German international broadcaster, transmitted a programme entitled The Camp (Das Lager) a few months after the conclusion of the Third Auschwitz Trial, in November 1968 (which was an edited version of an earlier programme broadcast by the regional Hessischer Rundfunk). Both versions contain at their core a chance recording between perpetrator and victim, between the defendant and one of his victims, transcribed here:

Narrator: The Kapos remember the camp differently from the prisoners. On the opening day of his trial before the High Court, Windeck said that he and his like had been living the high life in the concentration camp. Asked about this by us in the corridor of the court, he added: Jupp Windeck: Well, so much stuff came with the Jews, and we filched from it, of course we did, because we were Germans, and acting as Kapos, we always got ourselves the best from the [possessions] chamber; as a Kapo, if he was German …, that is …, they had … er, by the by, enough to eat and to drink and yes, valuables which they could swap with the civilian, er, workers from Poland and when … well over there is one of those, er, gentlemen, er, prisoners, you can ask him if this is correct!

N: This man, called up repeatedly as witness by Windeck, the Czechoslovak Karel Minz, was not prepared for an encounter with the former camp Kapo. We recorded the following scene:

Karel Minz: (shouting) I can tell you, I could easily hang you, if I didn’t mind dirtying my hands!

J.W.: (baffled) What [incident] are you talking about?

K.M.: You know!

J.W.: When was this, what, when?

K.M.: In year ′42, when I came from Buchenwald.

Other man with Czech accent in background: Sir, this is the hour of truth!

J.W.: No, no, this is this, this is …

K.M.: You once beat me with whip so much, you know!

J.W.: Yes …

K.M.: … that I don’t know how I got back to the block!

J.W.: Listen, for what reason …?

K.M.: (enraged, shouting) Why?

J.W.: For what reason would I have done such a thing?

K.M.: Why? I will tell you why!

J.W.: … for what reason?

K.M.: You saw me, in the room, that I was smoking, you know …

J.W.: But we were allowed to …

K.M.: Yes, I …

J.W.: But we were allowed to smoke!

K.M.: Yes you were, the SS, but not us.

The intensity of this encounter served as a brilliant piece of radio, and the programme around it gave convincing evidence that West Germany had “put its house in order” and was getting to grips with the prosecution of Nazi criminals. The increasing relevance the media, particularly radio and television, played in not only the dissemination of, but also in evoking empathy with, the victims of the Holocaust is undeniable from the 1960s onwards. Public figures such as Theodor W. Adorno and Fritz Bauer took up the challenge to develop a coherent narrative of the Holocaust in Germany. These “angry old men” and “engaged democrats” fought ceaselessly against the grain of an indifferent and even hostile public. Education about and engagement with the principles of the liberal Enlightenment remained at the core of their efforts.

The Third Auschwitz Trial, the trial of two Kapos, themselves victims, nevertheless managed to come to a clear verdict. But the details surrounding this, and the other “Auschwitz” trials, point to the deeply troubling problems underlying prosecutions of state-sanctioned crimes. As long as the rule of law is upheld, individual responsibility has to remain at the core of court proceedings, and as such the convictions in the Third Auschwitz Trial can be viewed as just and correct. But when compared to the verdicts of other trials, including the two preceding “Auschwitz” trials, West German sentencing policies of the 1960s appear highly suspect.

However, the Auschwitz Trials were the pivotal point in post-war German history which firmly rooted liberal-democratic thinking, much aided by the mass media and, above all, by the efforts of Dr Fritz Bauer. Speaking on a radio programme in 1967, the comments of H. G. Adler, sociologist and former Auschwitz inmate, are instructive:

It’s not about revenge; it’s not even about punishment as these terms have become meaningless with these unimaginable crimes. But it is, as far as humanly possible, about clearing things up and pronouncing guilt. For old camp people and us old Auschwitzers punishment is something that has little interest.

The important issues of the trials, according to Fritz Bauer, are human values which promote understanding:

The aim of these proceedings is not just one of looking back [at the past]. It is the task of these criminal proceedings to establish new values. Out of the ash and ruins of Germany grew a new state and a new economy. And a new human understanding is needed. This has to rise, like Phoenix, from the hell of Auschwitz and has to emerge from our Auschwitz Trial. What we mean is equality, lack of prejudice and tolerance towards everybody. I am here not to hate but to love, says the poet. This should be the lesson of this trial.