Christian Goeschel. Journal of Contemporary History. Volume 45, Issue 3. September 2010.
Soon after the Third Reich’s downfall in 1945, Walter Poller, a Social Democrat and a Buchenwald prisoner from December 1938 until May 1940, published his memoirs of Buchenwald, where he had been working as a prisoner clerk in the medical block. He remembered that prisoners who had supposedly hanged themselves in the camp’s latrine were not given a post-mortem by the camp doctor, who would only look at the corpse for a few seconds before certifying death by suicide. Once, Poller saw a man who had allegedly hanged himself lying on the dissecting table with a noose around his neck. His murderers, SS guards, had put a knot around his neck after he had died. Poller’s memories of the SS practice of covering up the murders of prisoners as suicides highlight the fundamental difficulty of examining and interpreting suicides within Nazi concentration camps.
But why was it that camp officials murdered many prisoners and covered up these deaths as suicides, effectively ‘suiciding’ them? This question’s legal aspects are crucial for a clearer understanding of the changing relationship between extra-legal terror and the judiciary as the Nazi dictatorship evolved in the pre-war years. The concentration camps’ consolidation into a distinct socio-racial means of persecution and control was by no means smooth. In fact, the camps’ expansion was accompanied by ruptures and conflict among various state and party institutions, especially between the SS and the judiciary.
This article reassesses the intricate relationship between Nazi terror and the legal system by studying suicide in the pre-war camps. Lothar Gruchmann, a legal historian, offered the first, albeit cursory, account of the SS practice of ‘suiciding’ camp prisoners in his massive 1988 monograph on the Reich Ministry of Justice, drawing upon official legal documents. Gruchmann argued that the SS covered up the murders of camp prisoners as suicides because it lacked the legal powers to execute inmates until the outbreak of war in 1939. Yet Gruchmann had little to say about the people singled out for ‘suiciding’ by the Nazis. While Gruchmann’s basic interpretation of the cover-up of murders as suicides seems plausible, his overall argument about the relationship between the judiciary and the SS is misleading. Gruchmann takes up a simplified version of Ernst Fraenkel’s 1941 classic interpretation of the Third Reich as a dual state, characterized by a conflict between the ‘good’ judiciary (the normative state) on the one hand and the ‘evil’ SS and the Gestapo on the other (the prerogative state). In Gruchmann’s view, legal officials, motivated by their commitment to due process, tried to combat the SS’s increasingly successful attempts to turn the concentration camps into areas that were off limits for the judiciary. Yet Gruchmann’s account tells us relatively little about the judiciary’s collaboration with the SS. Johannes Tuchel, a German historian of the concentration camps, subscribes to Gruchmann’s views. Tuchel even claims that the SS could run the camps ‘completely at its own discretion’ from late 1935 onwards.
In reality, matters were more complex. The conflict between the SS and the judiciary was above all an institutional rivalry, in which the judiciary tried to assert its jurisdiction over the camps vis-a`-vis the SS. This article builds on Nikolaus Wachsmann’s recent work on legal terror in Nazi Germany and offers a new perspective on the judiciary’s responses to extra-legal terror in the concentration camps. The practice of ‘suiciding’ also reveals the regime’s concerns over ‘atrocity propaganda’ about the camps. Rather than admit the murders of camp prisoners, camp officials, concerned with Germany’s image at home and abroad, preferred to place the blame on the murdered by ‘suiciding’ them.
But murders covered up as suicides were not the only story. This article also considers real suicides for the light they shed on living conditions in the camps. Official documents on suicide, such as investigations, are sparse because the camp authorities, unlike the inmates, had no interest in documenting the misery inside the camps. For the same reason, there are no reliable statistics on suicides in the camps. Other documents on suicides, such as there are, raise some important epistemological issues because of the Nazi cover-up of murders as suicides. Are these documents therefore about real suicides or covered-up killings?
In the wake of the Reichstag fire decree of 28 February 1933, Nazi and state institutions set up concentration camps amidst an unprecedented storm of violence. Especially in the early months of the Third Reich, the Nazis used extreme violence against their political enemies. They beat up and killed many people, especially communists and social democrats, whom the Nazis had long fought during the Weimar Republic. Well over 100,000 people, chiefly communists and social democrats, were held in ‘protective custody’ in more than a hundred early camps in 1933.
Prisoners are generally more likely to commit suicide than others. Recent research shows that in late twentieth-century Britain, for example, penal institutions recorded higher suicide rates than other environments. Inmates, especially in their first week of imprisonment, are often desperate about their lack of freedom and the strict rules and discipline. Many concentration camp prisoners killed themselves, contrary to the claims of existing studies that there were few suicides in the concentration camps. The sociologist Wolfgang Sofsky, for example, suggests that there were relatively few suicide attempts in the concentration camps. The German psychiatrist Thomas Bronisch confirmed this view, arguing that, on the basis of survivors’ memoirs, under extreme lifethreatening conditions, ‘there is a tremendous increase in the self-preservation instinct’. Bronisch also emphasizes the depersonalization of the inmates, which allegedly did not allow them to contemplate suicide. All these accounts overwhelmingly focus on the wartime camps and do not consider any differences in suicide patterns as the camp system evolved.
Suicide was a widespread phenomenon in Nazi Germany amongst those politically and racially persecuted by the regime. It is not surprising, therefore, that many concentration camp prisoners committed suicide in sheer despair over their brutal treatment by the Nazis. Uncertainty as to whether they would ever be released was a common cause of despair amongst prisoners. Suicides were overwhelmingly male, reflecting the fact that the vast majority of concentration camp prisoners were men. In the Saxon Hohnstein camp, set in a castle on a rock overlooking the Elbe valley, several inmates who were unable to bear torture, humiliation and punishments are said to have jumped to their deaths in 1933. Sachsenburg, another Saxon camp, witnessed at least 35 suicide attempts between August 1934 and late 1935, according to a survivor’s estimate.
Other camps too displayed very high suicide levels. In the Kemna camp, set up by the SA in a suburb of Wuppertal in the Ruhr Valley in the summer of 1933, there were at least 25 suicide attempts before the camp’s dissolution in January 1934, according to the Wuppertal state prosecutor’s investigation of Kemna atrocities carried out in 1934. Real numbers must have been higher still. But did these people really try to kill themselves, or did the Nazis attempt to ‘suicide’ them? Kemna prisoners were subjected to constant beatings and a particularly cruel form of torture: SA guards forced detainees to eat salty herrings covered with castor oil, which came to be known as ‘Kemna sandwiches’ (Kemnaschnitten). Karl Ibach, a former Kemna prisoner, later remembered in an eyewitness account, published after the 1948 trial of Kemna camp officials: ‘The tormented were tortured in such a way that they preferred to take their lives to more torture.’ According to Ibach, there were so many suicide attempts that the camp authorities confiscated all bread knives and razor blades. Kemna guards also encouraged inmates to kill themselves, but Ibach doubted whether the guards’ requests to inmates to commit suicide were serious. When prisoners accepted rope from the guards to hang themselves, the guards shouted: ‘‘‘This would be easy for you. You won’t have it that easy. We’ll kill you piece by piece!’’ And the tortures began again.’
There was no general SS policy on inmate suicide. Yet the SS increasingly tried to prevent inmates from committing suicide to maintain their total control over the lives of inmates. This was the case in Sachsenhausen. Upon his arrival at the Sachsenhausen camp in November 1936, the communist Harry Naujoks saw a failed suicide by an alleged habitual criminal, lying in a small room next to the camp doctor’s surgery. He had tried to hang himself. The camp doctor refused to treat him, so he died shortly thereafter. Naujoks later discovered that the Sachsenhausen camp SS punished suicide attempts with 25 lashes and harsh arrest. Given that failed suicides did not receive any medical treatment, this came close to a death sentence. However, SS policy on inmate suicide was overall arbitrary at this time.
According to reports of agents of the SPD in exile, there were between six and seven suicide attempts per week in 1937 in Dachau. These figures suggest that there were over 300 suicide attempts per year in Dachau alone. Not all of these attempts were ‘successful’, because fellow prisoners and SS guards often stopped suicidal inmates from killing themselves. A former communist Reichstag deputy’s brother, in Dachau since 1933, expected to be released from Dachau shortly before Christmas 1936 after camp guards’ promises. He was not released, and in early 1937, he tried to break his skull with a hoe. He was stopped by an SS guard. Just an hour later, he attempted to hang himself with his braces. This time a fellow prisoner stopped him. Finally, he slit his wrists with a scrap of metal. He was found lying dead in a pool of his own blood.
As the camps’ populations increased in 1937–8, with the arrests of criminals, so-called asocials and Jews, suicide levels must have increased too. Some historians even suggest that suicide levels in Sachsenhausen rose from seven a month in 1937 to 33 a month by 1938, although these numbers are not reliable because the SS covered up murders as suicides. Still, Sachsenhausen’s suicide rates were lower than Dachau’s because of the Sachsenhausen camp SS’s brutal policy of punishing suicide attempts.
The wave of mass arrests in the wake of Kristallnacht saw many suicides within the camps, probably at least a hundred. In the pogrom’s immediate aftermath, the Gestapo arrested up to 26,000 Jewish men across Germany and sent them to concentration camps. Conditions were chaotic, as the camp authorities were not prepared for so many new inmates and there was not enough food or accommodation for them. Also, guards treated the Jews extremely brutally. Most Jewish inmates, including those who had seen active service in the first world war, were shocked by the sudden arrests and the terrible conditions. The pogrom and the mass arrests clearly confirmed that Jewish life would no longer be possible in Nazi Germany. In this bleak context, many Jewish inmates committed suicide. In Buchenwald, many inmates ran into the barbed wire or exposed themselves to the guards firing at them, as one survivor later remembered. The many suicides created extra administrative work for the SS personnel, prompting the roll call officer to issue the following order over the camp’s tannoy: ‘If more Jews string themselves up, will they kindly put a slip of paper with their name in their pocket, so that we know who it is.’ In Dachau, camp commandant Hans Loritz issued an order shortly after Kristallnacht: ‘If a prisoner tries to kill himself’, he insisted, ‘it is prohibited on pain of punishment to stop him.’ Not everyone obeyed Loritz’s order. Inmates often tried to save suicidal fellow prisoners. And some guards, for whatever reason, also prevented prisoners from committing suicide. In late 1939, a desperate Dachau Jewish prisoner walked towards the electrified perimeter fence, hoping that guards would shoot him. According to a Jewish inmate’s testimony, collected by agents of the exiled Social Democratic Party in July 1939, an SS shouted at him to turn around. The man survived.
Suicide by exposing oneself to guard fire or by electrocution at the perimeter fence was common in other camps too. Forty-year-old Hans Berger, arrested in Buchenwald after Kristallnacht, witnessed many such suicides:
Entering the area of death [i.e. the area of the electrified fence and the barbed wire] is suicide and is also seen as such by the camp commanders. Many have made use of it, and when one heard two or three shots of the submachine guns at nights, one could be sure to find a corpse in the area of death the next morning.
Yet, despite the tendency to punish individual suicide attempts, SS attitudes towards inmate suicide seem to have been largely arbitrary before the war. Once the war had started, the SS punished all suicide attempts, because suicide was an expression of self-determination that ran counter to the Nazis’ total claim over the lives and bodies of the inmates. But there was another aspect of suicide in the concentration camps to which we must now come: the ‘suiciding’ of prisoners.
In the early months of the Third Reich, camp guards often encouraged prisoners to kill themselves, even bringing them rope with which to do it. In Germany, death by hanging was a dishonourable execution, traditionally reserved for criminals, so giving prisoners rope with which to hang themselves was an act of humiliation and mental torture.
At Dachau, the first SS-run concentration camp, set up near Munich in March 1933, Hans Steinbrenner, a SS guard, encouraged several prisoners to commit suicide. He and the Dachau SS were determined to kill Hans Beimler, a leading Bavarian communist and former Reichstag deputy. According to Beimler’s own account, first published in Moscow in 1933 and therefore probably rounded up for effect, the SS threatened to kill him if he did not commit suicide. Upon his arrival at Dachau in April 1933, Beimler, like the other prisoners, underwent the brutal admissions procedures, which included beatings and humiliation by SS guards. The guards, many of whom were from Dachau and its vicinity, had long known Beimler and harboured a particularly strong animosity against him. Unlike the other new prisoners, Beimler was not assigned to a barrack with other prisoners, but immediately put into solitary confinement in the bunker. Here Steinbrenner and other SS guards beat him unconscious several times. Beimler claimed that a guard gave him ‘a six-foot rope as thick as my finger, and told me to hang it on the little turncock of the water pipe.’ Beimler refused to kill himself, although he was terrified by the prospect of being murdered by the SS. Steinbrenner and Hilmar Wackerle, the camp commandant, repeatedly urged him to commit suicide, giving him a bread-knife and tying a noose for him. Beimler knew that if he killed himself, the Nazis would deny responsibility for his death and brand him a weakling who was too cowardly to stand up for his communist activities. In the end, Beimler escaped unnoticed by the SS guards. For many communists, the refusal to commit suicide under SS pressure was an act of strength, reflecting their commitment to resisting the Nazis. Moreover, many communists, particularly in the Nazi regime’s early phase in 1933, expected that the Nazi regime would not last long. Beimler’s case was not an isolated one. On 25 January 1934, The Times’s Munich correspondent confirmed rumours ‘that in the cells of certain prisoners at Dachau ropes and sharpened knives had been placed in order to induce the prisoners to commit suicide.’
In the early camps, established in 1933 and 1934, hundreds of inmates were killed or died from Nazi torture. The Nazis could not simply kill prisoners without risking legal prosecution, which would have revealed the savage brutality of camp guards to a wider public in Germany and abroad. In many cases, therefore, senior camp officials covered up the killings of prisoners as suicides or claimed that inmates had ‘been shot while trying to escape’ (auf der Flucht erschossen) to deny responsibility and prevent judicial investigations.
Another reason for camp officials to cover up murders as suicides was the Nazi concern for public opinion. Many law-abiding Germans welcomed the Nazi clampdown on communists, but probably not on the social democrats, who still had wide support: they had received seven million votes in the March 1933 Reichstag elections, despite the Nazi onslaught against the Left. The support of law-abiding Germans, concerned with due legal process and maintaining law and order, was important for the regime in its first months in power, between Hitler’s appointment as Chancellor on 20 January 1933 and President Hindenburg’s death in August 1934, which marked the consolidation of Nazi rule. Terror alone would not win over the majority of law-abiding Germans. The Nazis were not hesitant to admit their unprecedented wave of terror, though. As Joseph Goebbels said in his first press conference as Reich propaganda minister on 15 March 1933, just days after the Reichstag elections where the Nazis and the nationalconservative German National People’s Party (DNVP) had received just under 52 per cent of the vote, the Nazi regime would ‘not be content with 52 per cent behind it and with terrorizing the remaining 48 per cent’.
But why did the judiciary investigate camp guards for the ‘suiciding’ of prisoners? The overwhelming majority of judicial officials had already been in office in the Weimar Republic, where most of them had been sympathetic to the right and sometimes even to the Nazis. They hoped that the Nazi regime would back them in their efforts to implement authoritarian law and restore the state’s authority, which had purportedly been undermined by the various Weimar governments. The judiciary therefore happily co-operated with the Nazis in the process of undermining the rule of law, for example in the amnesties of March 1933 and July 1934 which exonerated Nazis from prosecution.
Yet, despite all their enthusiasm for the Nazis, the judiciary were keen to retain legal formalism and, above all, due legal process. Legal officials insisted on their right to investigate dubious cases of death in the pre-war camps, including alleged suicides, not because they opposed the Nazis, but rather because they wanted to maintain their own power of jurisdiction over the SS and the concentration camps. State prosecutors remained formally in charge of investigating crimes perpetrated by camp guards. In early 1933, Munich state prosecutors Carl Wintersberger and Josef Hartinger, concerned with due legal process and the judiciary’s powers, investigated dubious deaths at Dachau. After earlier investigations (three men had been shot while allegedly trying to escape in April 1933), the Munich state prosecutor received the news on 16 May 1933 that the businessman Louis Schloss, a Jew, had hanged himself with his braces. The prosecutor immediately ordered Schloss’s autopsy. It revealed that Schloss had been brutally beaten to death. The murderers, SS guards, had put a noose around his neck after his death to cover up this murder. The camp doctor and the camp’s leadership classified Schloss’ death as suicide. A suspicious Hartinger charged Wackerle, the camp doctor and the camp administrator with being accessories to the murder of prisoners on 1 June 1933.
In the meantime, another dubious death was reported. On the night of 25 May 1933, Dachau guards found the Munich businessman Sebastian Nefzger dead, lying in a pool of his own blood. Nefzger, an ex-Nazi, had been discharged from the party on accusations of treason, so the SS guards strongly resented him. The camp administration waited two days before they reported his death to the Dachau court and the Munich state prosecutor, claiming that an autopsy was unnecessary, given that the camp doctor had certified suicide. The state prosecutor, suspicious of this verdict, ordered a post-mortem, revealing that Nefzger had been strangled. After Nefzger’s death, SS guards had cut Nefzger’s wrists to conceal the murder. Wintersberger passed on these investigations to the Bavarian Ministry of Justice, run by Hans Frank, Hitler’s former lawyer. Wintersberger also forwarded to Frank a copy of the May 1933 Dachau camp regulations. According to these regulations, a camp court, consisting of the camp commandant and other SS officers, had the power to sentence any prisoner to death who disobeyed these draconian rules. These regulations were illegal, because only the judiciary had the authority to pass death sentences. Frank, a Nazi concerned with maintaining due legal process and his own position vis-a-vis the SS, insisted that these ‘suicides’ and the camp regulations must be discussed at the Bavarian cabinet’s next meeting. But Frank was rebuffed by the Bavarian Interior Minister Adolf Wagner, nominally Heinrich Himmler’s superior. Himmler, Reich Leader of the SS and ultimately in charge of the SS-run Dachau camp, was at the same time Munich Police President, as well as head of the Bavarian Political Police and thereby part of the Bavarian executive. Because of his dual role, it was not difficult for Himmler to block the investigations. Without the police’s support, the judiciary was powerless to investigate the Dachau killings. Himmler wanted to avoid an open confrontation with the judiciary. Before the SS purge of the SA leadership in the summer of 1934, it was nominally still subordinate to the SA, so the SS’s position was not yet consolidated. Himmler therefore sacked Wackerle. No camp official was ever sentenced for the murders, although it was clear that SS guards had killed these inmates.
It would be some time until the power struggle between the judiciary and the SS over the jurisdiction of the camps was resolved. In Dachau, the practice of ‘suiciding’ prisoners continued. On the night of 17/18 October 1933, Wilhelm Franz, a communist, and Dr Delvin Katz were found hanged in their isolation cells. Fellow inmates later reported that the SS guards particularly hated them, especially Katz. Not only was Katz Jewish; he was a medical doctor who had also secretly treated inmates who had been tortured by the SS. The SS accused Franz and Dr Katz of smuggling out information (Kassiberschmuggel), a capital offence under the new camp regulations enacted by Theodor Eicke, Dachau’s new commandant, on 1 October 1933. Katz and Franz were detained in isolation cells, where the SS killed them. Predictably, the camp authorities classified these deaths as suicides. The SS claimed that Franz had hanged himself with his belt and Katz with his braces. State prosecutor Wintersberger, not prepared to accept these illegal SS executions, immediately started an investigation. When he viewed the cells, the corpses had already been removed to a shed and the belt and braces with which Franz and Katz had allegedly killed themselves had disappeared. A post-mortem revealed that Franz and Katz had been strangled, probably by SS guards. Himmler insisted that the investigations must be stopped, expressing concern that the SS’s public image would suffer otherwise. Bavarian Minister of Justice Frank pursued the case further. But Himmler referred the investigation team to Ernst Rohm, Chief of the SA, and at that time still in charge of Himmler and the SS. Rohm did not even bother to speak to the investigation team. He told Himmler to pass on a message to the investigation team and Frank. In it, Rohm, concerned with the public impact of legal investigations into SS terror within the Dachau camp, forbade legal officials to carry out investigations inside Dachau, a ‘camp for prisoners in protective custody who are detained for political reasons’. Rohm promised that he would ask Hitler to reach a final verdict about the legal investigations.
Rohm and Himmler did indeed consult Hitler over this matter, but Hitler did not give them clear instructions on how to proceed. Hitler knew too well that the SS would eventually prevail over the judiciary. For Hitler and Himmler, the judiciary was ineffective and completely inadequate for the implementation of the Third Reich’s racial and social agenda because it was based upon oldfashioned laws and due legal process. Once again, Himmler’s Bavarian Political Police refused to co-operate with the legal investigations, so the state prosecutor had to close the case in September 1934. This Nazi victory over the judiciary was a significant step towards the official recognition of the extra-legal SS system of unlimited terror.
The SS also covered up murders as suicide in other camps. Take the incidents in the Hamburg-Fuhlsbuttel camp, situated on the site of a penitentiary. Here, SS-Sturmfuhrer Willi Dusenschon ordered SA and SS men savagely to mistreat inmates. Prisoners were beaten with whips, ox-goads and legs of chairs, and sometimes even fettered for days to iron grills. Fritz Solmitz, a journalist and social democratic activist from Lubeck, was found hanged on 19 September 1933 in a Fuhlsbuttel isolation cell. The SS claimed that Solmitz, a Jew, committed suicide by hanging. A suicide note was found in his cell, apparently faked by SS guards. A prolific writer, even under Nazi torture, Solmitz jotted down his experiences of his time in the isolation cell until the day before his death. Probably aware that the camp guards would murder him, he wrote these remarkable notes on cigarette paper. He hid the notes in his pocket watch, which was handed over to his widow after his death. On his first day in solitary confinement, Solmitz was repeatedly flogged by guards, on the commandant’s orders. He did not receive any food and was denied medical treatment. On the night before his death, a detachment of guards entered his cell, announcing that he would be beaten again on the following day. One guard threatened: ‘Hang yourself! Then you won’t receive any beatings.’ One witness at a 1961 trial against Dusenschon claimed that the official autopsy of Solmitz’s body, ordered by the state prosecutor in 1933, had revealed that Solmitz had died from exsanguinations following the severe beatings he received. Solmitz was clearly murdered.
After the Rohm purge on 30 June 1934, when top Nazis, led by Hitler, purged the SA and members of the conservative elite, the regime, backed by the judiciary, passed the Amnesty Law of 7 August 1934, clearing Nazis, including camp officials, who had killed or maltreated supposed enemies of the state, of any charges. Legal investigations against Nazi thugs were stopped and Nazis already sentenced were exonerated. Some cases were explicitly exempt from this amnesty due to the efforts of Reich Minister of Justice Franz Gurtner, a national conservative. He was concerned that cases of sadistic torture and murder in concentration camps would reflect badly on the regime. Both the judiciary and the Nazis wanted to maintain the myth that they had restored order, trying to appeal to law-abiding Germans.
In some cases judges sentenced camp officials for abusing and killing prisoners. In May 1935, a Dresden court sentenced the commandant and 22 guards of the Saxon Hohnstein camp to prison terms for torturing inmates. Nazi officials, including the Saxon Gauleiter Martin Mutschmann, demanded their immediate release and acquittal, bullying the court. The case also reached Hitler’s desk. He decided in late 1935 that the guards must be freed and amnestied, a decision reflecting Hitler’s disregard for the judiciary and his fundamental belief that he and the regime stood above the law. In another case, judicial officials did not put concentration camp guards on trial. The Wuppertal state prosecutor began to investigate Kemna’s director and six guards in March 1934 for the systematic abuse of prisoners. Neither of the accused was ever put on trial because of direct Nazi pressure. In August 1934 Rudolf Hess, Hitler’s deputy, concerned about the impact of this case on public opinion, cashiered the guards from the Nazi party. Eventually, the NSDAP’s supreme party court overturned Hess’s decision and merely issued a warning to five guards, including the camp director, because they had been overzealous in their service for the Nazi cause.
Two guards were completely acquitted. The Nazi party supreme court dismissed the Wuppertal court proceedings because they were allegedly based upon ‘completely exaggerated and partly dubious testimony’ of communist activists, whose resistance had to be crushed lest they attack the Nazi regime. Eventually, the judiciary had to accept this verdict and the fact that it had been overturned once again by the Nazis.
Yet the SS continued to ‘suicide’ prisoners in the ongoing power struggle between the judiciary and the SS. Ferdinand B., a metalworker, was taken to the Fuhlsbuttel camp on 13 September 1934. Upon arrival, B. was immediately taken into ‘strictest solitary confinement’ and, according to a police record, handcuffed with his hands behind him because he was allegedly suicidal. The next morning, a guard handcuffed B. in front of his body so that he could have breakfast. An hour later a guard found B. dead. Fuhlsbuttel officials reported to the Hamburg Gestapo that B. had hanged himself with a handkerchief which he had attached to a ventilation shaft. This version was suspicious, not least because B. was still handcuffed when he hanged himself. In a memorandum of 14 September, a Hamburg Gestapo official noted that B. had been beaten up during an interrogation and that B.’s corpse must be cremated immediately to prevent his relatives or the state prosecutor from looking at the torture marks. This practice was the result of a secret agreement between the Hamburg Gestapo, under Himmler’s control since November 1933, and Hamburg Justice Senator Curt Rothenberger, later to become state secretary in the Reich Ministry of Justice. According to this agreement, corpses of Fuhlsbuttel inmates who had allegedly committed suicide in ‘protective custody’ were to be cremated immediately. This practice was illegal, as it was in breach of paragraph 159 of the code of criminal procedure (Strafprozeßordnung), which prescribed that the state prosecutor investigate dubious cases of death. This agreement indicates that the SS and the judiciary often collaborated very closely, contrary to Gruchmann’s claim that the relationship between the SS and the judiciary is best understood in terms of conflict and tension.
Dr Reuter, an ambitious senior state prosecutor (Oberstaatsanwalt), disclosed this agreement in September 1934 when a Hamburg Gestapo officer, apparently by mistake, requested Reuter’s permission for B.’s cremation. Reuter had close connections to the Nazi party, which expected lawyers like him to act in favour of the Nazi party, thereby carrying out the ‘Fuhrer’s will’. Yet Reuter, annoyed about the fact that he had not been promoted after the Nazi seizure of power, refused to permit the cremation. He was suspicious of the Gestapo’s version of B.’s death. On 17 September, he seized B.’s corpse and the handkerchief with which B. had allegedly hanged himself and ordered an autopsy. The official autopsy arrived promptly, revealing that ‘B. probably died because of hanging’. Anxious to cultivate good relations with the Nazis, the doctor carrying out the post-mortem wrote a fairly inconclusive report which failed to clarify who had hanged B. Reuter, unhappy with this report, commissioned another autopsy, which was carried out by the same doctor. It revealed that B. had killed himself. Reuter opened proceedings against Dusenschon and other Fuhlsbuttel officials for this ‘suicide’ and other killings in the Fuhlsbuttel camp. The Hamburg Reichsstatthalter and Gauleiter, Karl Kaufmann, ultimately in charge of the Hamburg judiciary, suspended Reuter in October 1934. Kaufmann insisted that Dusenschon must not be tried, following Hitler’s Amnesty Law of 7 August 1934. The Hamburg general state prosecutor, Reuter’s superior, shelved the case. An angry Reuter complained about Kaufmann’s decision to Walter Buch, chief of the Nazi party’s supreme court. Buch asked Himmler, Dusenschon’s SS superior, to punish Dusenschon. Yet Himmler maintained that the judiciary had to keep its nose out of the concentration camps and rehabilitated Dusenschon. This prompted a furious Reuter to write to Buch again on 8 February 1935. He hoped Buch would help to reinstall him. In his surprisingly open letter, he highlighted the cover-up of suicides as murders:
When I am taken to a concentration camp and they beat me to death. … then they quickly put a noose around my neck… so that there is a strangulation mark. And my wife receives the message that her husband, apparently aware of his guilt, has finished his life by suicide. The [subordinate] institutions responsible for the beating to death find a physician who, based on his diagnosis of the strangulation mark, issues a death certificate, claiming that the cause of death is apparently suicide by hanging. Those who die in the concentration camp are cremated if suicide has been ‘established’, thus circumventing the legally prescribed autopsy etc. Everything happens with the Reichsstatthalter’s full knowledge and sometimes even at his request and under his pressure who ‘wants’ an amnesty in such cases, thereby being at least complicit. Isn’t that an impossible situation, isn’t that a situation which is not worthy of a Rechtsstaat?
The state prosecutor was not readmitted to his old job and ended up as a judge in Cologne. The Fuhlsbuttel case revealed that the judiciary was unable to investigate illegal killings, covered up as ‘suicides’, within the camps because powerful party officials blocked them – even before the complete centralization of the judicial systems of the individual German states under the Reich Ministry of Justice in 1935. There must have been many similar cases of camp authorities ‘suiciding’ prisoners here and elsewhere in Germany.
Yet the SS continued to cover up murders as suicides, as it still lacked the legal powers to execute inmates, because Hitler and other leading Nazis, concerned with the support of law-abiding Germans, felt unable officially to legalize executions within the concentration camps. Above all, Hitler, Himmler and the SS probably saw no need for this legalization of SS killings in the camps because they did not want their power to be limited by an ineffective law that would soon be overridden by the regime’s progressive radicalization.
In the meantime, the remaining SS concentration camps were put under central SS control. Theodor Eicke, inspector of the concentration camps since the summer of 1934, and other SS officials were concerned that the judiciary still had the power, at least formally, to investigate murder and maltreatment in the camps. In May 1935, Eicke issued a secret decree to all camp commandants: all dubious deaths of camp prisoners must be reported to the Reich leader SS and the Gestapo. With this new regulation in place, Eicke hoped that the judiciary would stop investigating ‘suicides’ of camp inmates. Nevertheless, the SS continued to murder inmates and conceal their deaths as suicides, though not in the high numbers of 1933 and 1934, because inmate numbers had dropped sharply after 1934 when political repression was increasingly transferred from the concentration camps to the state penal system.
And still, tensions remained between the camp administration and the judiciary over ‘suicides’ in the camps. At the same time, the judiciary, including local courts and state prosecutors in charge of dealing with deaths in the camps, increasingly co-operated with the SS. According to a 1935 statistic, three Dachau prisoners and one Sachsenburg prisoner had killed themselves in early May 1935. Local judicial authorities, resigning to the creeping SS undermining of the legal system, simply recorded these cases and permitted the funerals of these prisoners without carrying out further investigations. One of these cases was that of Max Kohn, a Jewish trainee lawyer who had been imprisoned at Dachau since April 1933. On 26 May 1935 the Pariser Tageblatt, a left-wing exile newspaper, reported that the SS had murdered Kohn. This article prompted the Munich State Prosecutor, worried about foreign atrocity propaganda, to contact the Bavarian Political Police to investigate Kohn’s dubious death. The Dachau SS claimed Kohn had hanged himself with his belt. Weeks later, on 15 July, the Bavarian Political Police penned a curt reply to the Munich State Prosecutor, rejecting an investigation and insisting that ‘an objective comment on atrocity lies in Jewish exile newspaper [was] not possible for the Bavarian Political Police.’ The judiciary did not pursue its investigations further. On 16 October 1935, Reich Minister of Justice Gurtner sent a list with details of suspicious deaths in the camps, including ‘suicides’, to Himmler. On 6 November 1935 Himmler wrote to Gurtner that ‘specific measures… were not deemed necessary given the already most conscientious leadership of the concentration camps.’ Himmler had consulted with Hitler who, unsurprisingly, fully supported him, with the result that Gurtner’s subsequent complaints about murder and torture in the concentration camps fell on Hitler’s and Himmler’s deaf ears.
With Hitler’s full support, the Gestapo was statutorily exempted from juridical review in February 1936. Yet the SS still did not have the power to kill inmates, even after Himmler’s appointment as Chief of the German Police in June 1936, which considerably increased the SS’s power and control of both political repression and terror against social outsiders. The SS and the police still had to report cases of unnatural deaths to the judicial authorities which is why they continued deliberately to misreport murders as suicides. In the meantime, many legal officials began to accept that investigating killings and maltreatment of concentration prisoners was not their responsibility. There was increasing collaboration rather than conflict between the SS and the judiciary.
Take the case of Josef B., a 52-year-old alleged habitual criminal who had been imprisoned in various concentration camps since July 1934. On the night of 21-22 February 1939, B. allegedly hanged himself with his vest in a Sachsenhausen arrest cell. B. had been locked up in the arrest block because of a ‘pending investigation’. An SS guard, on duty in the arrest ward, found B. hanging on a radiator. An official autopsy certified that B. had committed suicide. Significantly, the state prosecutor was not present when the SS guard who had found B. dead was interrogated by the camp’s political department. The state prosecutor did not open proceedings.
In another case, the judiciary and the SS even collaborated with each other when they investigated a ‘suicide’ in the Sachsenhausen camp. Friedrich Weissler, a baptized Jew and a former senior judge, was murdered in the Sachsenhausen camp on 19 February 1937 by SS guards. Sacked in the wake of the April 1933 Law for the Restoration of the Professional Civil Service, Weissler was a leading member of the Confessing Church, founded by pastors concerned with the Nazification of Protestant doctrine. From 1937 the regime began to suppress the Confessing Church with particular zeal. Around 700 pastors were arrested, including Martin Niemoller, one of the Confessing Church’s leaders. In May 1936, members of the Confessing Church, including Weissler, had sent a memorandum to Hitler, criticizing Nazi attempts to purge Christianity of its Jewish roots. They also protested against Nazi terror and the concentration camp system. After the memorandum’s publication in foreign newspapers in July 1936, the Confessing Church distanced itself from the memorandum and blamed Weissler for it. He was taken into Gestapo custody and, on 13 February 1937, transferred to Sachsenhausen camp. Weissler was put into an isolation cell, where he was found strangled on 19 February 1937. A former prisoner’s eyewitness statement, written before a postwar trial against Sachsenhausen guards, raises the question of agency. According to this testimony, the Gestapo had instructed the camp SS to kill Weissler. Because the camp SS did not have the formal right to execute Weissler, they left it to guards to ‘suicide’ him. Two SS guards kicked him with their jackboots until he was dead. To cover up this murder, they put a noose around his neck, claiming that he committed suicide. One of the guards, Blockfuhrer Paul Zeidler, then ordered Dr Walter von Schwichow, the camp’s chief paramedic and Kapo of the Jewish barrack, to certify that Weissler had committed suicide. When giving evidence to a Frankfurt court in 1964, Schwichow stated that he had refused to issue a death certificate. Schwichow claimed that he contacted the Berlin state prosecutor via a go-between. A Berlin court opened proceedings against the two SS guards.
The two guards could only be prosecuted because Eicke, worried about the negative impact of this case on public opinion in Germany and abroad, backed the judiciary in the case. He discharged Zeidler and published Zeidler’s sacking in a circular read by all SS camp guards. A Berlin court sentenced Zeidler to one year in prison for grievous bodily harm. Concerned about public opinion and the foreign press’s reaction, the court excluded the public from the trial. According to an ex-prisoner’s testimony given to a Dortmund court in 1961, Weissler’s relatives, anxious about their livelihood, prompted his life insurance company to carry out an autopsy of his corpse. The post-mortem revealed that the two SS guards had indeed kicked him to death.
The conflict between the SS and the judiciary over investigating suicides and the jurisdiction over the camps was only fully resolved after the outbreak of the second world war. The regime, backed by many legal officials, was less and less concerned with maintaining due legal process and the SS, with Hitler’s full support, became more assertive. After October 1939, SS courts alone were in charge of all cases involving SS and police personnel. Thus the judiciary was no longer in charge of investigating crimes perpetrated by SS personnel within the camps. Only inmates’ suicides and cases in which one prisoner had killed another were still to be investigated by the courts. But this rule was soon superseded by the increasingly powerful SS. From early 1940 onwards, SS courts were solely in charge of investigating all deaths of camp inmates, marking their complete independence from the judiciary. This regulation reflected the increasing Nazi disregard for the judiciary and the growing collaboration between the judiciary and the SS. After the outbreak of war, the Nazis and the SS’s contempt for the judiciary meant that due legal process was to be superseded by what the Nazis called ‘healthy popular sentiment’. In their view, the legal system was treating alleged criminals and ‘eugenically worthless’ elements who were undermining the war effort too softly, while young Germans were dying on the front line. At the same time the legal system became more radical during the war, sentencing more and more people to death and, from 1942, even handing over certain prisoners to the police for ‘extermination through labour’ in concentration camps.
The ‘suiciding’ of prisoners in large numbers stopped after the outbreak of war, because the SS now had the power to execute inmates. Statistics from the Sachsenhausen camp illustrate this shift. In 1940, the Sachsenhausen camp authorities recorded 109 suicides. Most cases were probably not suicides, but covered-up murders. In 1941, despite rapidly increasing inmate numbers, the number of reported suicides dropped to 13.
So what does this study of suicide in the pre-war Nazi concentration camps tell us about repression and responses to it in the Third Reich more generally? Well into the late 1930s, camp guards ‘suicided’ prisoners to prevent judicial investigations. Often the ‘suicided’ prisoners were Jewish, reflecting the Nazis’ deepseated antisemitism. The agency of ‘suiciding’ prisoners varied. Sometimes individual guards killed prisoners or tortured them to death on their own initiative; sometimes senior camp officials ordered guards to kill prisoners. In any case, senior camp officials helped cover up the killings as suicides and usually backed individual guards when they faced legal investigations. The judiciary remained in charge of what went on within the camps, at least on paper. It is this legal aspect that helps us better understand the changing relationship between the camp system and the judiciary and the power conflicts within the Nazi regime, which in turn shaped the profile of the emerging concentration camp system. As the Third Reich consolidated its power, the difference between the judiciary on the one hand and the SS on the other became increasingly blurred. The judiciary did not succeed in punishing camp officials who had ‘suicided’ inmates. State prosecutors increasingly surrendered to the power of the SS and often did not even open proceedings against camp guards. Yet before 1934 the public impact of legal investigations concerned the SS. As the SS apparatus became more powerful after the Rohm purge in 1934 and Himmler’s appointment as chief of the German police in 1936, the SS, backed by Hitler, became more confident in its dealings with the judiciary. The judiciary saw itself increasingly outmanoeuvred by the SS. Hitler’s November 1935 amnesty of Hohnstein guards who had been sentenced to prison terms for abusing and killing prisoners was a significant step towards the official recognition of the camps as places beyond the law and of the lawlessness of Nazi terror that knew no limits.
There were many attempts at placing Nazi terror in the camps under bureaucratic control, ranging from Reich Interior Minister Wilhelm Frick’s 1935 initiative to place permanent bureaucratic limits on the use of protective custody to the judiciary’s attempts to maintain its ultimate jurisdiction over the camps. From 1935 the judiciary gradually began to accept that the camps were places beyond its control. At around the same time, Himmler and Hitler decided that the existing camps would be transformed into permanent sites of preventive policing. Yet because of Nazi concerns about public opinion in Germany and abroad, it was not until the outbreak of the war that the SS gained the formal power to execute inmates, transforming the camps into extra-legal places of confinement.
Actual suicides allow us to highlight individual inmates’ reactions to Nazi terror. There were many suicides in the pre-war camps. However, actual statistics are scarce, and even if available, they are hard to interpret because of the SS cover-up of murders as suicides. Despair over the uncertainty of their imprisonment and the unbearable conditions drove many inmates to suicide. Crucially, the cover-up of murders as suicides allowed the Nazis to deny legal responsibility, placing the blame on the inmates themselves. For the SS, suicide was an act of weakness, and inmates who committed suicide were portrayed as cowards. In the early years of the Third Reich, the SS encouraged inmates to commit suicide. Towards the late 1930s, and especially after the beginning of the war, SS attitudes towards inmate suicide gradually underwent a fundamental transformation. No longer did they encourage inmates to kill themselves, because the SS increasingly saw itself as the master over the lives and deaths of inmates in a system of unlimited Nazi terror. What all this suggests is that we need to integrate the history of the Nazi camps into the wider social and political history of the Third Reich and to overcome the recent historiographical trend towards ever more detailed histories of the concentration camps. The recent historiography has, with some notable exceptions, artificially isolated the Nazi concentration camps from the political and social history of the Third Reich. We need to broaden our view of Nazi terror, not narrow it. And we need to locate the concentration camps in a wider web of Nazi terror and combine legal, social and political history to understand the pre-war origins of a system of terror, repression and mass murder on an unprecedented scale.