Rebecca Elizabeth Wittmann. Central European History. Volume 35, Issue 3. Cambridge University Press / UK. 2002.
The investigations into the crimes of the Auschwitz perpetrators by the Frankfurt public prosecutor’s office began in 1958. The trial opened in 1963. Why did it take five years? In the 1960s, scholars such as Theodor Adorno, Alexander and Margarete Mitscherlich, and Hannah Arendt emphasized West German reticence, indifference, or even unwillingness to confront the Nazi past as explanations for the late start of investigations of Nazi criminals. They argued that the 1950s were dominated by a collective silence about Nazism and crimes against the Jews in Germany. According to them, politically, culturally, and also legally, the new West German state refused to acknowledge the Nazi past of anyone but the highest ranking Nazis, whose trial at Nuremberg marked the Schlussstrich (drawing the line) under the topic of National Socialism and its crimes against humanity. Recent historiography of postwar German trials has also pointed to lingering Nazi beliefs not only on the part of judges and lawyers but in the minds of the public as well. But other scholars like Jeffrey Herf and Robert Moeller have found that rather than silence there was a kind of “selective remembering” of the Nazi past in the immediate postwar era, in which the Adenauer government kept political or judicial action against Nazi criminals to a minimum in order to focus on building a new democratic West German identity. I argue that this discourse of selective remembering applies to Nazi trials as well. New archival research demonstrates that some public prosecutor’s offices were actively pursuing pretrial investigation into Nazi crimes in the 1950s, and that the problem with prosecuting Nazi crimes in postwar Germany did not necessarily lie with the motives of the lawyers and judges involved in the trials, but with the law itself.
The pretrial files of the Frankfurt Auschwitz investigation by the public prosecutors in the state of Hesse—gathered between 1958 and 1963—and the restrictive law under which the investigation had to function, demonstrate a very different reality from that posited in the general discourse that emphasizes judicial inaction. In the most famous account of a Nazi trial, Eichmann in Jerusalem, Hannah Arendt writes that the slow progress of Nazi trials in West Germany was the result of extreme reluctance on the parts of the government, the Ministry of Justice, local courts, and the German public to try the “murderers in their midst,” who were not considered a threat outside of the concentration camp setting. Arendt places the blame for the delays in prosecution squarely on the courts, contending that “the reluctance of the local courts to prosecute these crimes showed itself in the fantastically lenient sentences meted out to the accused.” This argument may hold true for certain districts, but in the case of the Frankfurt Auschwitz trial, it is unsatisfactory and does injustice to the efforts of the Frankfurt prosecutors.
By examining the process by which Nazi cases were developed in West Germany and the limitations of the West German penal code (the code that had been in effect since 1871), by elucidating the goals of the public prosecution—and particularly Attorney General Fritz Bauer—and by narrating the pretrial phase through key pieces of witness testimony, I will demonstrate that the public prosecutors in Hesse were in fact eager to conduct a thorough and rigorous investigation of the former Auschwitz henchmen. A rapid trial was hindered not because of their reluctance to conduct one but because of legal constraints and the extensive amounts of evidence that the prosecutors had to collect and evaluate in order to meet the criteria dictated by the law. In order to explain the time lapse between the first arrest and the opening of the Frankfurt Auschwitz trial, this paper will focus on the limitations of the West German penal code, and the pretrial proceedings, tracking the development of the case from the first charges filed against the initial defendant to the final version of the indictment announced on 16 April 1963.
The Auschwitz trial of twenty Auschwitz perpetrators, representing a cross section of offenders who participated in the atrocities at the camp between 1940 and 1945, took place in Frankfurt am Main, West Germany, between December 1963 and August 1965. It was conducted by the Public Prosecutor’s Office at the District Court of Frankfurt am Main, State of Hesse, using the West German Penal Code. It lasted over one hundred and eighty days, involved approximately four hundred witnesses and produced thirty thousand pages of files, not including the trial record itself, which is now being transcribed from audiotape. The trial was not the first criminal proceeding against Nazi perpetrators (and one prisoner “capo”) in Germany. After the Nuremberg trials of the 1940s, West German public prosecutor’s offices throughout the country initiated investigations into Nazi crimes beginning in 1950. But the use of the penal code created three basic problems and accounted for numerous delays: first, the definition that made up the distinction between perpetrator and accomplice (paragraphs 47-49); second, the limitations of the murder law itself (paragraph 211); third and finally, the “debate on the Statute of Limitations” which took place during the 1960s. I will discuss these issues before turning to the pretrial files of the Auschwitz case.
A Brief Introduction to the West German Penal Code and the Limitations of the Law
Why did West German jurists decide to use the West German criminal code? Why did the courts not adopt the international criminal code, as the Israelis had for the Eichmann Trial? With hindsight, it will become clear that the German penal code was often unsuitable for the prosecution of Nazi crimes, and because of its limitations fell woefully short in providing guidelines for these particular crimes. At the very least, the international criminal code included a charge (crimes against humanity) that dealt with the elimination of national groups based on racial ideology. The German code had a strict ban on retroactivity and therefore nothing within its confines prohibiting genocide (which became illegal only in a 1954 statute). So what decisions led to the use of the 1871 penal code for the trials of former Nazis?
The period between 1945-1950 marked a slow transition from Allied control of the entire German justice system to an independent German judiciary, and the exclusive use of the German code in Nazi trials was orchestrated by German jurists who exerted pressure on the Allies to prevent any possibility that national or district courts might be allowed to use Control Council Law No. 10 (the four criminal charges used in the Nuremberg trial which included “war crimes” and “crimes against humanity”). The Allied Control Council Laws, which were designed to reconstruct the German state, included a law “on the Reorganization of the German Judicial System” that specifically excluded German courts from trying any crimes committed against the Allies, including the Jews. These laws also stipulated clearly that the German courts could only try crimes “committed by persons of German citizenship or nationality against other persons of German citizenship or nationality, or stateless persons.” According to historian Adalbert Rückerl, this is exactly what the German public wanted after the experience of Nuremberg. Germans were tired or war and of war crimes as a category, and they were preoccupied with food, shelter, and reconstruction. In many ways, the German public saw the Allied judicial proceedings as political revenge rather than criminal justice, and the only viable adaptation to this situation for the German prosecutors was to create purely criminal proceedings that bypassed the Allied Control Council system. This was also a way for the newly independent, democratic West German government to demonstrate that it was entirely capable of coping internally with Nazi crimes. By using the long-standing code—and pointing to the fact that the murder statute had never gone out of effect—the Federal Republic could show that Nazism’s murderous policies had also been illegal in Germany between 1933 and 1945.
Very few sentences against Nazi defendants were handed down between 1951 and 1955. Most sentences were extremely light (less than five years imprisonment), and most acts of what would normally be considered perpetration of murder were judged as aiding and abetting murder because of the restriction inherent in the definition (which I will further explain). In addition, many Nazi criminals had been tried, convicted, or released both by the Allies and in Eastern European courts, and German officials did not wish to pursue them further during this period of reconstruction. Young prosecutors did not have much information about the Holocaust at their disposal and often did not know where to begin to gather the information; they therefore did not always recognize the possibilities for legal proceedings (especially since the majority of crimes had been committed outside of Germany). And certainly, some older prosecutors were less than eager to investigate Nazi crimes because many of them had been members of the Nazi Party. The Allies were also winding down denazification proceedings and in many ways, it was thought that the “goal of coming to terms with the past had now been reached.” Finally, in 1955, the “Transition Agreement” between the U.S., Great Britain, France, and West Germany stipulated that German courts could not investigate or prosecute anyone who already had been investigated by the occupying powers. Although this may appear to have been a restriction, it was welcomed in Germany.
The latter half of the 1950s saw an increase in trials of former Nazis in the Federal Republic of Germany. This was often the result of individuals, usually survivors, recognizing camp guards or other Nazi officials on their streets and pressing charges against them (as was the case with the commencement of the Auschwitz investigation). This occurred more and more often as former Nazis were released from the East and made their way back to Germany. For example, the 1958 Ulm trial of ten members of an Einsatzgruppe Commando was also the result of a survivor’s recognition, thirteen years later, of the leader of the commando that conducted mass killings in Lithuania in 1941.
The judicial awakening to the massive number of uninvestigated crimes and suspects resulted in a concerted effort to document investigations in a coherent manner. Whereas individual district (state) courts had until this point been responsible for prosecuting Nazi crimes, in October 1958 they came together to forro the Zentrale Stelle der Landesjustizverwaltung zur Aufklärung nationalsozialistischer Verbrechen (ZdL—Central Agency of the State Judicial Administrations for the Investigation of National Socialist Crimes) in Ludwigsburg. This was an administrative office (established through an agreement of regional judicial administrations and funded by all of the states) dedicated to investigating Nazi crimes (primarily in the East) and collecting information on perpetrators. These files would then be forwarded to the appropriate state public prosecutor’s office for criminal prosecution. The establishment of this office was an indication of a stepped-up effort in the late 1950s to pursue the crimes of Nazism. Where initially most information collected by the ZdL came from previously collected documents and the Nuremberg trial records, new evidence began to appear and accumulate due to public awareness of the existence of the ZdL. In 1959 alone, the ZdL initiated four hundred new investigations into crimes committed in the east by both the Einsatzgruppen and the guards at concentration and death camps. A new era of judicial investigation into Nazi crimes began, and by 1989 the ZdL had launched investigations into at least 13,000 proceedings. Still, many of these had to be closed due to the death or disappearance of the suspects. By 1992, approximately 103,823 German citizens had been investigated for Nazi crimes. Of these, only 6,487 were prosecuted and convicted, and 5,513 (85 percent) of these were for “non-lethal” crimes of National Socialism (generally aiding and abetting murder). Of these investigations, very few actually pertained to the mass murder of Jews, because in the 1871 Penal Code, racial hatred, the identification of the ethnicity of the victims, and the program of racial annihilation were not central elements to a murder conviction. In all, of these some 6,000 convictions, only approximately 7 percent related to the mass murder of Jews. Why? An explanation of the legal constraints, particularly the murder statute, sheds light on some of the obstacles faced by public prosecutors.
In the German Penal Code (Strafgesetzbuch—StGB), the introductory section or “General Part” determines the “Parties to Crime.” This section is central to the Auschwitz trial and is mentioned here because of the division it creates between principle perpetrators of murder (Täter) and general participants who aid and abet murder as accomplices (Gehilfen). Aiding and abetting (Beihilfe) is entirely different and less serious than perpetration, because a defendant who perpetrates murder is a person who willfully and intentionally commits a crime, with individual initiative, whereas the accomplice simply took part in the crime. I stress the importance of the charge of Beihilfe here, and the distinction between aiding and abetting and perpetrating, as the defendants in the Auschwitz trial were generally charged with perpetration and the specific charge of murder, but were, in the majority, convicted only of aiding and abetting murder. Only seven of the twenty defendants were convicted of perpetration of murder, meaning the rest got varying sentences that were no more than fifteen years (but on the average less than ten years).
The law is of course not inanimate and the distinction between perpetrator and accomplice was the subject of much legal theoretical debate during the 1950s and 1960s. Jurists argued about whether a perpetrator should be defined objectively, as “he who pulls the trigger,” or in the more subjective classification, as in “he who wills the trigger to be pulled.” Jurists also argued for a definition that would incorporate both objective and subjective theories, because of the complex hierarchy of responsibility in Nazi crimes. While this debate went on behind the scenes in legal circles, in practice, the subjective theory was applied in most Nazi trials. This meant that a perpetrator was defined as someone who demonstrated individual initiative in his actions. The “inner disposition” of the defendant was crucial, much more so than the overall outer appearance of the crime. A perpetrator was someone who committed an offense “of his own will,” demonstrating the will to perpetrate, where an accomplice simply committed the offense. The “individual initiative” clause that distinguishes between perpetration and aiding and abetting was applied very liberally in trials of Nazi criminals; even if defendants killed with their own hands, they were largely convicted of aiding and abetting murder because a certain degree of “lack of will” could almost always be proven. Or, at least, individual initiative could very rarely be shown for those who did not visibly demonstrate excessive force or violence that had not been ordered from above. Instead, the profile of the defendant as “entangled in National Socialist ideology” or “part of the state power apparatus” very often led to a lesser conviction. In many ways, the prosecution had no way of proving individual initiative if a defendant could not be found to have the subjective, inner desire to kill according to any of the stipulations of the murder statute. Those who acted only on orders and without excessive force or cruelty could always insist that they had no personal malice, no individual antisemitism, and therefore no particular will to murder. If no witness could conclusively and explicitly contradict this defense with exact evidence, it was impossible to show intent. For this reason the prosecutors had to gather very specific and detailed testimony from witnesses in specialized roles who had access to such information. Finding these witnesses, collecting the testimony, and verifying it took time.
The second limitation faced by the prosecutors involved the murder law itself. German Penal Code paragraph 211 defines motive as a subjective inner disposition, including such motivations as “lust for killing, sexual desire, and other base motives.” These definitions considerably narrow the spectrum of criminal behavior that the prosecution can validly try as murder. German lawyer Alfred Bongard closely examined the murder charge as it was defined and the deficiencies in Nazi trials, and determined that much of the charge itself does not apply to Nazi criminals and cannot easily be manipulated or interpreted in ways that would make convicting them of murder even feasible. German legal expert Adalbert Rückerl (who was head of the ZdL in 1958) confirmed this by stating that “it is virtually only the criteria of thirst for blood, base motives, maliciousness, and brutality that arise in connection with the prosecuting of Nazi war crimes.” According to Bongard, the Federal Supreme Court had determined that the clause of “base motives” in the case of Nazi trials would be defined as race hatred and antisemitism, or would apply to anyone who killed Jews because of Nazi Jew-hatred, hoping that the order defense (acting on orders from above) would preclude him from being held criminally responsible for the act. This means that the Federal Supreme Court had made interpretive decisions that allowed antisemitic Nazi ideology to become a valid part of the murder charge. However, the prosecution was rarely able to prove this and as a result, murder convictions grounded in “base motives” were rare.
Adding to the prosecution’s frustrations and to their inability fully to punish the Nazi criminals on trial was the debate on the statute of limitations that took place throughout the 1960s in West Germany. Beginning in 1960, the public and the parliament became aware of the limitations on certain statutes and it soon became obvious that changes had to be made for the special case of Nazi trials. All crimes became statute-barred after a certain period of time had expired. The statute of limitation for crimes liable to a life sentence was twenty years, for criminal acts liable to a term of imprisonment of more than ten years (manslaughter), a period of fifteen years; and for other criminal acts, ten years. This meant that after 1960 defendants could not be charged with manslaughter for crimes committed in the Nazi period. After 1965, murder charges could not be brought.
In the late 1950s and early 1960s members of parliament began to debate the fundamental problem of limitations on Nazi crimes, and the first suggestions of a need for change were drafted officially in March 1960 by the SPD and presented as a draft law. This bill proposed that the limitation on murder be extended by four years, meaning that Nazi murders could be tried up to 1969. The logic for this extension was ingenious: West Germany did not have the facilities to try criminals within its own court system until after the withdrawal of the Allies in 1949, so those four extra years between 1945-49 should not count toward the statute of limitation time span. The SPD pointed to the gravity of the crimes, the disadvantages of a hasty investigation, and also the political responsibility of the generation following National Socialism to take these acts seriously. The Bundestag, however, rejected this proposal. A string of parliamentary and public debates then began on the matter. The debate was at the forefront of the larger issue at this time concerning collective, national, and individual guilt.
One outspoken participant in this debate was the prosecutor in charge of the Auschwitz investigation, the Attorney General of Hesse Fritz Bauer. Bauer was an outspoken legal scholar and a strong advocate of a German legal system that would be flexible enough to deal justly with Nazi criminals. Writing in 1964, Bauer explained the inevitability of a slow legal process by pointing to the chaos created by the looming limitations. He argued that no prosecutor under this constraint would have sufficient time to put together the information that was accumulating rapidly with each new investigation. Bauer listed some of the difficulties faced by prosecutors not only in Berlin but throughout West Germany and particularly in Ludwigsburg, before a trial had even been initiated. For example, there was little time to investigate the claims of family members that particular suspects were dead. If further investigation had been possible, it would surely have shown that many of these characters were hiding outside of Germany or were living in states that were not as determined to investigate and prosecute their Nazi criminals. The Auschwitz trial provided proof of this problem, as time constraints were a large part of the reason that out of eight hundred investigated, only twenty were brought to trial in 1963.
Finally, the prosecutors faced one further difficulty in conducting an investigation of this scope within West Germany: according to the Strafprozessordnung, or standard federal criminal procedure (StPO), public prosecutors and courts were only responsible for crimes committed within their respective jurisdictions. The crimes of Auschwitz were of course committed in Poland. To make matters more complicated, while the Polish courts had responsibility for the crimes, those who committed them were no longer in Poland, nor were most of them Polish citizens. This left the hands of both countries’ legal systems tied, each with only one half of the needed jurisdiction. The constraints of jurisdiction were relaxed in the early 1950s when the German supreme court amended the StPO, making it possible for German prosecutors to arrest suspects as long as they were born in that jurisdiction or had at some time lived there. This made possible the arrest in all the states of West Germany of many of the suspects who would later be tried at Frankfurt.
The explanation of the various technical and legal exigencies provided above already demonstrates the difficulties faced by public prosecutors in Frankfurt before and during the proceeding against the Auschwitz perpetrators. Throughout the pretrial period the prosecution was constantly aware of the need for detailed, specific eyewitness evidence if it was to prove that the defendants had perpetrated murder. With this in mind, they set about gathering as much testimony from as many sources as possible, verifying to the best of their limited resources the credibility of each witness. Often, the unreliability of a source became clear only during the trial, and even then it was not certain if a witness statement was actually mendacious or if it was clouded by failing memory or trauma. Even worse, testimony that was probably reliable often had to be discarded because of squabbling between rival national groups in the camp and in the trial, particularly between Poles and Ukrainians. In the pretrial phase, however, the prosecution was occupied with the process of gathering evidence, and all forms of witness testimony had to be seriously considered for the strongest possible case. The curious commencement of the Auschwitz investigation attests to this.
The Investigation Begins
On 1 March 1958, Adolf Rögner, a prisoner in the Bruchsal penitentiary convicted of fraud and serving a two year sentence imposed by the jury court at Stuttgart, wrote a letter to the prosecutor’s office in Stuttgart “regarding the distribution of medication” and referring to Wilhelm Boger, a camp guard at Auschwitz whom survivors described as a terrible sadist. In a letter that began with a plea for heart medication that had supposedly been promised to him, Rögner continued:
Urgent: In addition, I ask you to pass this on to the responsible prosecutors: In 1946, former SS-Oberscharführer Boger escaped from an extradition transport and fled to Poland … Boger is most gravely incriminated by the Crimes Against Humanity he committed at Auschwitz (mass murder, selections, manslaughter, forced confessions with and without the use of the Boger Swing, etc.). A Boger supposedly hid in Unterrath near Schwäbisch Hall until 1948. He then resurfaced. He is married and now lives in Weil im Dorf. Since approximately 1956 he has, supposedly, been working at “Heinkel,” an engine factory for cars, in Zuffenhausen. Insofar as this is the same Boger, I hereby today press charges against him for mass murder. I will immediately provide proof and witnesses; similarly, the International Auschwitz Committee (IAC) … and the Central Council of German Jews in Düsseldorf, can certainly provide ample evidence …
As a result of this seemingly commonplace letter requesting medication, the public prosecutors in Stuttgart found themselves with a serious criminal charge against someone in its jurisdiction, made by a criminal whose credibility was in doubt (due in part to his repeated filing of trumped up charges against the Hohenaspern penitentiary where he had previously served time) but whose accusations, because of their seriousness, could not be ignored. Rögner contended that he had been a prisoner at Auschwitz and had personal knowledge that Boger had interrogated and murdered many on his “Boger-swing”—a torture device on which prisoners were beaten to death. His mention of Hermann Langbein of the International Auschwitz Committee (IAC), who was conducting investigations of his own concerning Boger and other former Auschwitz guards, also made Rögner’s assertions more credible. For these reasons, the prosecution decided to pursue the case. What followed was an extensive series of investigations into the character of Rögner by both the junior judicial officer of Stuttgart and the main police detective, in order to determine whether or not Rögner should be called as a witness and interrogated officially by prosecution lawyers.
Again and again the officials who questioned Rögner characterized him as an unreliable witness. The judicial officer reported that while at first he made the impression of a calm, thoughtful man, he became extremely agitated when viewing a picture of Boger. Rögner began to accuse the public prosecutors themselves of being implicated, stating that the officials treated him just like the guards had done at the prison; they used “Gestapo and camp methods and wouldn’t let him speak, because they (the prosecution) sympathized with these people that he had a lot to complain about.” The judicial officer reported a peculiar aspect of Rögner’s testimony: he knew certain facts, numbers, and details with astounding accuracy, but was unable to come up with a chronological narrative for the activities he reported. The judicial officer concluded that “his comprehensive and detailed knowledge of the occurrences at Auschwitz can possibly be explained by the fact that he had large amounts of material at hand with which he was obsessed during his time in prison.” The judicial officer reported that the guards at the prison had stopped supplying Rögner with material on the camps and war crimes trials, as his accusations and attempts to press charges against former SS officers became so insistent that it could only be assumed he got his information from his readings and not from personal experience.
The judicial officer concluded that Rögner was an irrational, untrustworthy man who got pleasure from derailing the prosecutors by busying them with false charges and accusations. The officer’s statements were corroborated by a report from the Bruchsal penitentiary regarding Rögner’s requests to be moved from Bruchsal to Munich and his threat to press charges against the prison. The head of the prison in Bruchsal also portrayed Rögner as a troublemaker.
Rögner’s reliability was highly questionable, then, because of his background as someone convicted of fraud, his relentless focus on the happenings at Auschwitz, and his continuous legal complaints against the prisons and medical workers where he served his time. His communist leanings also made him “untrustworthy.” Nevertheless, two months after Rögner filed the charges, the prosecutors decided to hear him in an official interrogation, signaling the opening of the case against Boger. A memo by a prosecutor dated 13 May 1958, showed his ambivalence:
The interrogation conducted by judicial officer Wasserlos (as per my instructions) was necessary, because on one hand, the clear evidence of the previous charges he has filed show the plaintiff (Rögner) to be an attention-seeking psychopath; on the other hand, the serious nature of his charges against Boger cannot be discounted, but demand scrupulous investigation.
One can assume that the prosecutors decided to pursue the investigation of Boger based on the fact that Rögner had indeed been a prisoner at Auschwitz as a so-called professional criminal (Berufsverbrecher). In addition, correspondence with Hermann Langbein and the IAC corroborated the charge that Boger was suspected of murder and torture at Auschwitz between 1942-45. The above example helps to demonstrate that the stalling and hedging of the German court system often had much less to do with a will to keep the past in the past and much more with legal issues such as the need to establish the credibility of a witness. For despite the prosecution’s obvious distrust of the plaintiff and his political leanings, his charges were eventually taken seriously and eventually led to the largest trial of Auschwitz perpetrators ever.
From Stuttgart to Frankfurt am Main: April 1958 to June 1959
Following Rögner’s complaint, six months passed during which ostensibly little was done to investigate Boger. Langbein, as head of IAC, was already aware of Boger’s activities at Auschwitz through the recollections of survivors who had worked in the Political Department, the administrative center of the camp where books were kept and interrogations were conducted and where Boger and other defendants (Hans Stark, Pery Broad, Klaus Dylewski, and Johann Schobert) had worked. Langbein began putting pressure on the prosecution, expressing great dissatisfaction with Stuttgart’s slow response to his requests that Boger be arrested. After what he called a “dawdling correspondence” between the prosecutor’s office and the IAC, Langbein wrote to Stuttgart in September of 1958:
After my short discussion with prosecutor Weber on the ninth of September, I am under the impression that so far, you still have not exhausted all possibilities in order to gain approval for the arrest of Wilhelm Boger. In relation to this, I should like to remind you that in a letter of May 9, 1958, our committee already called attention to the fact that Boger committed serious crimes at Auschwitz … In a letter of August 30, we named five witnesses to the public prosecutor’s office who could give testimony about Boger’s crimes … On the 3rd of September we provided two more witnesses. But in our conversation of September 9, I established that none of these witnesses had yet been interrogated, not even the three from West Germany … We realize, Sir, that before arresting someone all necessary and sufficient materials must be collected; however, we also realize that the public prosecutor’s office has not shown any initiative in getting these materials.
It is difficult to establish whether or not Langbein was justified in complaining of foot dragging on the part of prosecutors in Stuttgart. It is certainly possible that some involved in the investigation feared the public reaction to the arrest of someone who had lived there peacefully, under his own name, for ten years. Prosecutors might also have feared public outrage at such Nestbeschmutzung, (dirtying one’s own nest), in this case the state attacking and besmudging its own people and their past. However, there is little in the actual pretrial fries to demonstrate that the prosecution did not take the accusations of Röguer and the IAC seriously. Whatever the case, Langbein was quite certain that after his letter of September 1958 the prosecution would act, and indeed due to this pressure they filed a “proposal for an arrest warrant” for Wilhelm Boger on 1 October 1958. The warrant was issued (by the district court) the next day.
The police brought Wilhelm Boger into investigative detention on 8 October 1958. This six-day delay also created frustration on the part of the IAC who felt that speedier action was necessary. The arrest of Boger and the ensuing investigation spawned a series of further inquiries. In the next six months the IAC received a flood of letters from survivors they had contacted regarding the Boger investigation; former Auschwitz prisoners accused many others of committing crimes at the camp, and relayed remarkable details. The IAC then passed this material along to the public prosecutor’s office.
The prosecution’s case grew rapidly as other defendants surfaced after major trials in Eastern Europe in which some top officials at Auschwitz had been tried and executed. However, such information only slowly and through various channels trickled down to West German prosecutors—either from survivors who had testified at these trials and came forward again during the Auschwitz investigation, or through difficult and frustrating communications with the hospital tile Communist countries. It was then the job of the German prosecutors to find out what had happened to each of the defendants at the Communist trials, to locate those defendants who had been exonerated, if they were in West Germany at all, and arrest them again under the West German criminal procedure. For example, in Krakow, in December 1947, Arthur Liebehenschel, former commandant of Auschwitz, Maximillian Grabner, former head of the Political Department there, Hans Aumeier, also of the Political Department, and Artur Breitwieser, “disinfector,” were all sentenced to death in a trial of some forty Auschwitz perpetrators. Sentences were often reduced, however, for reasons of illness, good behavior, or through appeals. Breitwieser’s death sentence was commuted to life in prison and then to time served, which left him free to return to West Germany. After the prosecutors received this information, and because of the large amount of testimony from former Auschwitz prisoners about Breitwieser’s activities, he was rearrested in December 1960 in connection with the Frankfurt Auschwitz investigation in Germany. Oswald Kaduk, one of the most brutal killers at Auschwitz who was eventually convicted of murder at the Auschwitz trial, had also been previously tried for crimes committed at Auschwitz (against Soviet prisoners of war) and sentenced to twenty-five years in prison by a Soviet military court in Bautzen, East Germany, in 1947. He too was pardoned in 1958 and worked as a nurse in a hospital in Berlin until 1959, when he was arrested on the order of the West German courts. By the time of the move to Frankfurt, four suspects had been arrested; after this point, all those arrested were transported from various prisons to Frankfurt, and the arrest warrants became the responsibility of the state of Hesse.
Coincidence and luck were also important factors in the early phases of the Auschwitz investigation. They were crucial to the case and to the dedication with which the prosecutors would pursue it in Frankfurt. First, the opening of the ZdL expedited the investigation process. Between December 1958 and February 1959, there was constant contact between the ZdL and the IAC in Vienna, which revealed the names of many others suspected of participating in genocide at Auschwitz. Due to the recollections and reconstruction of events by (mainly Polish) survivors, Langbein was able to inform the ZdL of the existence of various Auschwitz doctors, dentists, block leaders, even the main camp pharmacist, and often their whereabouts within and outside of Germany. The survivors who contacted Langbein upon hearing about the investigation became pivotal figures in the trial itself and provided the courts and the public with the most important information we have about life in Auschwitz. Former prisoners surfaced everywhere within Europe and North America (both solicited and unsolicited) throughout the five years leading up to the trial. By April 1959 survivors had brought enough evidence to the IAC, and in turn to the ZdL, for the public prosecutor’s office in Stuttgart to issue arrest warrants for three more suspects (Hans Stark, Klaus Dylewski, and Pery Broad) and to file further charges against Boger.
Second, the move of the pretrial investigation to Frankfurt in June of 1959 was precipitated by a fortuitous discovery that landed on Fritz Bauer’s desk. In January Bauer was contacted by a man named Thomas Gnielka, who claimed to have some documents that might be of historical or legal interest to the prosecution. His decision to pass these documents on to Bauer was only a logistical one (he lived in Wiesbaden, the capital of the state of Hesse). Gnielka had little knowledge of the activities of Bauer or of the fact that he had previously been involved in prosecuting Nazi crimes, particularly in the Eichmann case. On 15 January he wrote a letter to Bauer:
These documents were given to me personally, in confidence, by Mr. Emil Wulkan … on 14 January 1959 … Mr. Wulkan, former camp prisoner, today a member of the Frankfurt Jewish Council, was temporarily in Breslau with other prisoners directly after his liberation and took these papers, as a “souvenir,” from the burning police court of Breslau. It did not occur to him until today that this material could be of legal significance.
The documents enclosed with the letter to Bauer included correspondence from August 1942 between the administration at Auschwitz and the police headquarters in Breslau regarding the “Shooting of Fleeing Prisoners.” Accompanying list of names of dead prisoners and their tattoo numbers was a list of those SS officers suspected of shooting these prisoners (including soon to be defendant Stefan Baretski); these documents appear to have been investigative reports to the SS and police court in Breslau of “corrupt” SS officers. Such a report may have been written in order to document the activities of SS officers who were considered corrupt by transgressing the hierarchical chain of the camp and murdering prisoners without an official order. The Nazi courts frequently investigated SS men and women who acted on their own initiative. In addition, it was standard Nazi bureaucratic procedure to document the death of inmates in order to keep track of the work force and to determine how many new workers were needed. Therefore, the murder of “fleeing” prisoners was also recorded in an effort to keep track of available manpower. In general, however, there are countless baffling examples of the use of protocol and painstaking bureaucratic policy in the everyday world of Auschwitz. Mania for record keeping characterized all of Nazi policy.
In January of 1959 these original documents landed on the desk of Fritz Bauer. He in turn passed them along to the ZdL in Ludwigsburg, as was customary with suspected Nazi crimes. The ZdL saw the potential for a large-scale legal proceeding, and the matter was turned over to the Federal Supreme Court for a ruling. With the cooperation of the ZdL, the public prosecutor’s office in Stuttgart (where the investigation had begun), and Fritz Bauer, the Supreme Court ruled to move the “Auschwitz investigation” to Frankfurt am Main, where evidence would be gathered for a trial exclusively pertaining to crimes committed at Auschwitz. The ZdL from that stage on forwarded all of the information it received or collected regarding Nazi crimes at Auschwitz to the public prosecutor’s office in Frankfurt. This included investigations of at least thirty criminals from Auschwitz—former prisoners as well as SS officers—conducted by the IAC and by various public prosecutors’ offices throughout West Germany, including Munich, Stuttgart, Frankfurt, Darmstadt, Hamburg, Berlin, Hanover, and Braunschweig. Two weeks later the public prosecutor’s office in Frankfurt submitted a request for transfer to Frankfurt of three suspects already in detention (Boger, Stark, and Broad) and further called for the arrest of Oswald Kaduk, Franz Hofmann, and Heinrich Bischoff. One week later, on July 21, all three men were arrested.
Attorney General Fritz Bauer and the Motivation of the Prosecution Office in Hesse
Fritz Bauer was the decisive force that shaped the trial. Bauer, a German Jew who had lived in exile during the Nazi period and who became the chief public prosecutor in Frankfurt after the war, made it his lifelong mission to bring the perpetrators of the Nazi genocide to justice. In this respect he was an exception in the legal system, as his intentions were not strictly judicial but moral and political as well. Quite explicitly, beyond his concern with individual cases, Bauer wanted to take to task a whole era and its ideology. He saw this trial as something quite different from a normal criminal trial. Indeed, it would have been most difficult for anyone following the pretrial investigations and the proceedings themselves to view this trial as typical, for sitting on the defendants’ bench were twenty men involved in mass murder and genocide, in state-sanctioned and ordered systematic killing at a death camp. Bauer saw the trial as an opportunity for Germany to confront its past and to examine its relationship to the Nazi period. He felt that the trial was important not only to punish the criminals and to expose the facts, but to teach a lesson. Namely, that,
in Germany we must all recognize that there are limits that everyone sees and feels. Watch out for your fellow men, such things cannot happen again, you must not go along with it! … And if something is to be learned from this trial, then it is the meaning of the fight for equality, which must be taken seriously, the meaning of tolerance, care, and recognition, and the understanding that hate … leads to such things as Auschwitz.”
According to Bauer’s approach to the meaning of this trial, the goal was very simple: it came down to his understanding of the basic tenets of the Bible, upon which the West German state was supposedly based. For Bauer, most important was the dictum that “thou shalt not kill,” and for him any “order” to the contrary was illegitimate. He called upon each individual to be attentive to human equality and therefore to understand that any orders or laws negating this equality were illegal. This meant that anyone who had voluntarily subscribed to Nazi ideology and helped to realize its goals was also a suspect. Immediately prior to the trial’s opening, when asked how he would judge the defendants on the stand, as murderers or simply accomplices, Bauer replied:
This was no strange or foreign crime, the perpetrators were largely people who were at that time convinced they were doing the right thing, namely driving their National Socialist worldview to victory. In my eyes, those men are simply perpetrators, together with Hitler, committed with Hitler to the “Final Solution of the Jewish Question,” that they believed to be right … For me, they are all implicated.
Bauer’s sense of a universal morality called for Germans to police themselves. He was especially critical of the “alte Kämpfer” (old fighters), those convinced Nazis who believed in the “Final Solution.” In discussing the “superior order defense” used by lower ranking Nazis to excuse their participation in mass murder, Bauer stated unequivocally that “there is no question, at least not for myself or for the prosecutors in the Federal Republic, that there was a long list of people who did not act only on orders, but who acted as they did out of real conviction that what they were doing was right.”
Bauer was well aware that the public prosecutors were bound by the StPO and obligated to begin an investigation when punishable behavior was suspected; however, the Auschwitz trial was also intended to serve as a sort of “political enlightenment.” By this, he meant that such a trial had to “ask the question ‘why,’ because without the ‘why’ being answered, without questioning the roots of evil and the roots of disease, there can be no healing.” Bauer even viewed the rather late date of the Auschwitz trial as a positive development, for he believed that the trial could serve as a much better lesson in the 1960s than it would have directly after capitulation, when Germans were focused on securing lost material necessities rather than confronting the atrocities of Nazism. According to Bauer, then, trials of Nazi criminals in West Germany, which began again in the late 1950s and gained momentum throughout the 1960s, had to teach lessons. Before this period, understandably, Germans were little inclined to “beat their own breasts in search of the historical, political, sociological and psychological roots of the worst criminality of the years of the illegal state.” Bauer urged Germans to understand their own responsibility and not to take the easy way out, to practice and teach tolerance, and to see the trials of former Nazi perpetrators not as an assault on newly democratic German society or as “nest dirtying,” but as an attempt once and for all to “clean the nest.”
Such were the motivations and intentions that drove Fritz Bauer and the prosecution in Frankfurt; such were the guidelines he set for the attorneys he put on the case—Dr. Hans Grossmann, Joachim Kügler, Georg Friedrich Vogel, and Gerhard Wiese, to name the major players—all young, dedicated lawyers whose professional careers had begun after 1945 and who had not been tainted by the corruption of Nazism. Was the noble goal of “cleaning the nest” and putting Auschwitz on trial possible in light of the legal system which bound the prosecutors? Could the trial really serve as a lesson and a thorough cleaning-up? The answers to such questions become clearer through an investigation of the evolution of the trial and the problems faced by the prosecutors in achieving this goal.
Developing the Case in Frankfurt: 1959-1963
How did the prosecution determine which witnesses were most reliable, had the most accurate memories, and had justice and truth as their motivations rather than revenge? How did the prosecution decide which investigations to pursue, which to postpone, which to drop? More than four hundred survivors and former SS officers were interrogated, and with each new statement came a new suspect to be located, summoned, interrogated, and investigated. At one point the investigation covered an unmanageable eight hundred suspects. The prosecution had to create the strongest case possible, which meant dropping witnesses who were unable to give accurate, specific information. For example, the charges and testimony of Adolf Rögner did not appear in the indictment, largely because other overwhelming evidence against Boger had since been gathered and many witnesses with far more detailed and accurate accounts of Boger’s activities—witnesses without criminal records and therefore credibility problems—had come forward. However, Rögner did testify briefly at the trial.
Beginning in October 1959, the prosecution in Frankfurt cast its net all over the world, looking for survivors to testify. A form letter was sent to a wide variety of newspapers throughout the world, requesting that witnesses come forward. This call, along with the efforts of the IAC and various other survivor and human rights organizations, had an enormous effect; survivors living in Canada, France, Israel, Argentina, and a host of other countries wrote to Frankfurt offering themselves as witnesses. A letter of 26 October 1959 from the German based organization, the Vereinigung der Verfolgten des Naziregimes (Association of the Persecuted of the Nazi Regime) aided the prosecution immensely by referring to seventeen former Auschwitz guards who “move freely about the Federal Republic of Germany.” This letter led to the immediate issuing of arrest warrants for a further four suspects, including Victor Capesius, the camp pharmacist. Such pieces of information, along with the testimony of survivors and large quantities of documents, were patched together by the prosecution. A general pattern was established in which the most heavily incriminated suspects kept reappearing. Rarely did suspects help in any way to incriminate other camp guards, and therefore most information was gained through a process of elimination by the prosecution. By and large their depositions are repetitive in their predictable insistence on total ignorance about the true magnitude of murder at Auschwitz. Some former SS officers were called as witnesses by the prosecution, and they did provide them with insight into actions of the defendants (particularly former SS judge Konrad Morgen, who was on a commission that investigated corruption in Auschwitz in 1943 and had also testified at various Nuremberg trials). However, I will concentrate here on the testimony of key survivor witnesses in order to give insight into the contribution survivors made to the prosecution’s case. They provided, after all, the bulk of the evidence, as over four hundred were interrogated in the pretrial phase and over two hundred and fifty appeared on the stand in the courtroom.
Before looking at the testimony itself, it is important to consider the credibility of survivor statements. The usefulness of such testimony has been the subject of much debate, and was surely a question on the minds of the prosecutors as they attempted to find testimony that came closest to the “truth” or was at least the most believable. Early scholarship on the Holocaust had a tendency to negate the value of survivors’ narration of their experiences. Documents and textual evidence took precedence over the recollections and the at times questionable memories of victims of the Nazis. There is still debate today about the usefulness of such testimony. Peter Novick, in his book The Holocaust in American Life, states that “it is held that survivors’ memories are an indispensable historical source that must be preserved, and elaborate projects are underway to collect them. In fact, those memories are not a very useful historical source … [which] is not to say that they haven’t been, or won’t continue to be, important in evoking the Holocaust experience.” Novick calls upon the writings of Primo Levi, foremost philosopher of the Holocaust, to solidify his argument that survivor’s memories are broken and blurred at best. Testimony is seen as a valuable emotional experience, evoking the horrendous pain and cruelty of Nazi persecution, but lacking in substantive historical information and often obscuring accurate evidence rather than illuminating it. I contend that survivor testimony is an essential historical source that has shaped the narrative of the Holocaust and provided historians with much of the basis of our knowledge of the events of the “Final Solution.” This is most obvious in the abundance of historical information, especially about the concentration and death camps, that came from the survivor testimony at the Auschwitz trial; specifically, from meticulously recounted, painstakingly detailed pretrial and trial interrogations of survivors. The survivor testimony has value that far exceeds merely evoking a visceral reaction. It creates the basis for our understanding of life in Auschwitz. It certainly created the basis for the entire case against the Auschwitz suspects.
Survivor witnesses made an essential contribution to the prosecution at the Auschwitz trial by recounting some twenty years after the fact the horrors of Auschwitz and reconstructing the actions of the accused in the camp with painstaking accuracy. Necessarily, the state gathered the evidence of survivors who had played important roles in the camp and worked closely under the SS. The survivors could provide the court with extraordinary details of the activities of the camp guards. Most of the survivors who testified and appear here were Polish or Ukrainian political prisoners or German criminal prisoners, as Jews did not work very closely with the SS guards, and therefore did not have much eyewitness evidence. They were generally either immediately sent to the gas chambers or assigned to hard labor, a fate which few survived.
It is difficult to convey the grisliness and brutality of the accounts given by the survivors of the camp; it is even more astounding to read such accounts and the precision of the recollections of these witnesses considering not only the amount of time that had passed but also the horrifying nature of what they had experienced. However, the prosecutors and the court had to be certain that they were receiving the most accurate testimony possible. For this reason, most witnesses were interrogated twice in the pretrial stage—once by the prosecution and once by the court. Such testimonies ranged from two to twenty pages. Generally, the interrogators permitted each witness to speak freely and without frequent breaks. Sometimes an interpreter wrote the testimonies, meaning they were not always recorded verbatim and therefore might not have exactly reflected the witnesses’ true experiences. Often the testimonies were translated into German. Such details merit mention because of the importance they later came to have at the trial; for example, in the trial setting the judge or attorneys often interrupted the witness and asked for more specific information on each detail or terrifying experience from twenty years before. This led to discrepancies between pretrial and trial interrogations and generated confusion as to the actions of each defendant. In addition, problems arose as a result of the translation of certain testimonies, in which witnesses often insisted in court that their pretrial interrogations had been misinterpreted by the transcriber. Such difficulties generally did not surface until the trial itself, and in the pretrial phase the prosecutors and the court therefore included as much testimony as possible. The prosecution was inclined to believe the stories of witnesses who had either carefully recorded their experiences, testified at previous trials (many appeared in the earlier Nuremberg trials), or whose testimony could be corroborated by other witnesses. Prosecutors made painstaking efforts to find exact information about what each witness saw, and then compared these results with documents that they were gathering from the Nuremberg trials, the curators of the Auschwitz museum, geographical and topographical evidence about the camp itself, and other witness testimony. Largely, the discrepancies and inaccuracies of some witness statements were only unearthed during the trial itself through rigorous cross-examination and through the revelations that occurred on a daily basis about rivalries between prisoners, untrustworthy characters, and lapses of memory. In the pretrial phase, the prosecution was inclined to enter into evidence any testimony that was relevant, detailed, and corroborated.
Many identifiable survivor groups emerge from these pretrial files. For the purposes of this essay, I will examine the prisoners employed as caregivers and doctors in the Häftlingskrankenbau (HKB) or Prisoner’s Hospital (Blocks 19-21), and its subsidiaries—the experimentation block (Block 10), and the Ambulanz or emergency block (Block 28). Their testimonies are only a small example of the crucial testimony given about all of the defendants, but they provide invaluable accounts of the everyday workings of the Auschwitz camp because they had good knowledge of different sections and administrative departments and retained their positions for fairly lengthy periods. These witness groups can function as a focus for the pretrial testimonies in general and their pivotal role in illuminating the crimes committed at Auschwitz.
The first witness to take the stand in the trial, on Day 19, after the interrogations of all the defendants and the testimony of the expert historians, was a soft-spoken Austrian Jewish doctor named Otto Wolken. He arrived in Auschwitz on 9 July 1943 and was tattooed with prisoner number 128,828. He was initially brought to Auschwitz I, but very soon thereafter he was transferred along with eight hundred other prisoners to Auschwitz II. Also known as Birkenau, this second part of Auschwitz was constructed in 1941. It had barracks for prisoners, mostly Jews, and after 1942 came to house the women’s sector, the Theresienstadt camp, Gypsy camp and medical experiments barracks. Birkenau’s main function was as a death camp, with four permanent and two provisional gas chambers. Wolken escaped the frequent selections for death in the gas chambers due to his profession and due to an acquaintance with the Blockälteste (Block-elder) who had connections to the Political Department and persuaded the administrators that Wolken could be useful in the hospital. Wolken worked in various sections of Birkenau until the liberation of Auschwitz in January 1945.
After approximately two months in the work camp at Birkenau, where he witnessed the incoming transport and execution of Greek Jews from Salonika and survived a selection in which four thousand Jews were taken and gassed overnight at the end of August, Wolken was transferred to the emergency block in the men’s quarantine section of Birkenau to work as a doctor. It was in this section that Wolken witnessed the worst crimes of the various doctors on duty there and the generally horrendous conditions of the camp. From this position he witnessed defendant Baretski performing his favorite ritual, a “rabbit hunt,” in which prisoners at the roll call were ordered to take their hats off, and those who reacted too slowly were beaten and murdered on the electrical fence. Wolken’s testimony on such matters was particularly valuable to the court because of his meticulous recording of these events directly after they occurred. He had begun to write a chronicle while still in Auschwitz after liberation in February 1945, for the use of the Polish courts and the international tribunal at Nuremberg. This testimony was first used in Krakow in June of 1945 by Jan Sehn, the investigative judge for the “Commission for Investigating German Crimes in Poland” for the Krakow courts. Wolken later sent this report to the IAC and Langbein, who passed it on to Frankfurt. Wolken’s written chronicle of his experiences at Auschwitz and his spoken testimony at the trial were among the groundbreaking initial accounts of daily life at Auschwitz. For this reason he was given almost two hours before being interrupted and questioned by the judge in his first court appearance.
Wolken served not only as a witness to specific crimes, but also as an expert witness of sorts whose recollections were to form the basis of some of our current knowledge of the atrocities perpetrated in Birkenau. He could state with certainty that, for example, one such action took place on 10 April 1943, in which prisoners on a transport from Lvov were slaughtered by SS men Baretski, Weiss, Kurpanik, and Dargelis. Despite the fact that twenty years had passed and many memories were inevitably suppressed, Wolken could turn to his written reports and state with accuracy what he had seen. The courts were lenient with Wolken and gave him ample time to describe events, circumstances, and impressions that went far beyond the necessary testimony required to convict specific defendants of specific crimes. His usefulness to the Auschwitz trial was twofold: not only did he serve to give accurate testimony about defendant Baretski and help to convict him of murder through his pretrial interrogation, but he helped to illuminate the nature of the everyday crimes in the camp through his written report. Wolken’s role in the trial was unique, and demonstrates one instance in which Bauer’s goal of putting the whole Auschwitz system on trial came to fruition.
Dr. Tadeusz Paczula, a Polish surgeon, was a witness whose testimony was more typical, and sheds light on the pretrial investigative process. He was one of the first survivors to come forward to the IAC. Paczula came to Auschwitz as a political prisoner in one of the first transports to the camp, in December 1940, and became prisoner # 7725. He remained there until September 1944 and was employed first in the Schreibstube (documentation office) of the HKB and then as the main Rapportschreiber (report-writer) in the HKB of Auschwitz I. Paczula’s testimony came entirely through pretrial interrogations and his own recollection of events twenty years later, in contrast to the detailed, contemporaneously written, account of Dr. Wolken. In the first months of 1959 Paczula wrote to Frankfurt and declared himself “prepared to give exact details of the crimes of the SS men before the German courts.” Rather than being interrogated in Poland with German prosecutors present, Paczula went to Frankfurt in October of 1959 and was questioned there by public prosecutor Vogel. He gave over twenty-five pages of description, starting with his arrival at Auschwitz before the selection process had been implemented. After two years in a work unit, Paczula contracted a lung disease and was sent to the HKB, in Block 21. He was determined to use his medical skills to his advantage, and soon after arriving began to conduct the “fever curves”—graphs documenting the levels of fever in the patients. The Nazi doctors and orderlies in the HKB noticed his work, and he was allowed to remain and work in the office of the HKB.
Paczula had the unique opportunity to observe not only the atrocities that went on in the HKB and experimentation blocks, but also to scrutinize the actions of the Political Department. It was his duty constantly to update the Totenbücher (death books) of the HKB. He did so during the capture and execution of the Russian prisoners of war in the summer of 1942, documenting the name, number, date, hour, and cause of death, of those who perished. As always, the cause of death was falsified and listed as an ailment—Paczula recorded the deaths of approximately fifteen thousand Russians, who had been shot to death as “heart attacks” and “strokes.” Paczula directed the prosecution at this time to the existence of these death rolls at the Auschwitz museum, where they were stored after being smuggled out by fellow report-taker and witness Jan Pilecki. They were later obtained by the courts and used as important evidence in the trial. The logic behind the meticulous documentation of the illegal slaughter of Russian prisoners is again difficult to grasp; however, as Paczula states, it was absolutely mandatory:
It was out of the question for even one dead prisoner to be left out of the book. One thing always had to be correct in the camp: the prisoner number. It is totally impossible that I received false data about the number of dead prisoners. It may have happened once or twice that an incorrect prisoner number was documented; but this was already considered a “crime” in Auschwitz.
Paczula made it his mission to document the true cause of death for all the prisoners he entered into the death books, and did so with various secret symbols representing either gassing, phenol injections, shooting, or hanging. Unfortunately, not all of the death books could be recovered and these entries were therefore not available to the courts.
Paczula’s role in the office of Block 21 allowed him extraordinary insight into the gruesome crimes committed at the “Black Wall” between Blocks 10 and 11, as he could see directly into this courtyard from the second floor window of Block 21. His descriptions of the type of window, the forty-five-meter distance to the “Black Wall,” and his ability to see such events, were all corroborated by an on-site examination of Auschwitz, which took place during the trial. This visit to Auschwitz was highly irregular for a German criminal trial, and it was extremely important in corroborating witness testimony. His testimony on this matter is particularly convincing because of his detailed descriptions of the room itself from which he made his observations. He described it as the treatment room in which a small surgery unit was installed, with a three-story bunk bed from which he could look out the window. It was from this location that on 19 March 1942, Paczula observed the execution of three hundred women, whom he understood to be French Jews. They were shot at the wall because the facilities for mass gassings were not yet completed. His testimony included an exact depiction of how this execution took place. He stated:
All the women were brought into the bunker, where they had to undress completely. They had arrived at the camp around noon, in buses. The shootings began at approximately 2:00 P.M. and were completed in around three hours. The women were led in groups of two by the Bunker-kalfaktor (caretaker) to the “Black Wall,” where SS-Oberscharführer Gehring shot them with a small-caliber gun. For the period that I was watching, Gehring was all alone. I myself couldn’t watch the execution to the end, because an SS-orderly came into the room and I had to disappear … While I was at the window about twenty to twenty five women were shot to death. I can’t say whether Gehring shot all the women by himself; generally the SS-men would relieve each other or shoot two at a time. The corpses of the women were thrown into the left corner of the courtyard by the “corpse carriers.” The women all went very quietly and without any delays to the Black Wall, although the next two in line always had to see the bodies of the two executed before them. All shootings were conducted by Genickschuss (neck-shot). After the evening roll call the corpses of the women were taken by truck to the crematorium and burned.
While such details did not incriminate any of the defendants, they nevertheless demonstrated the extent of Paczula’s credibility and were corroborated by the testimony of others and by on-site, inspections. In the early phases of the investigation of Auschwitz, they served to complete an accurate, detailed and credible picture of camp atrocities. Only in the trial was witness testimony heavily dissected, examined, and sometimes discredited.
In the spring of 1944 Paczula became the report-writer for the entire HKB, entering the daily patient numbers for Blocks 9, 19, 20, 21 and 28. Here he was in constant contact with the Leichenkapo (head of the corpse-carrying unit) and his “corpse-carriers,” as they had to give him the list not only of prisoners shot at the Black Wall but all who were taken into the “corpse cellar.” Paczula was often in the cellar in Block 28 and therefore also saw the bodies of the executed. It was there that he witnessed the results of the most heinous crimes committed by defendant Josef Klehr, the orderly in charge of injecting prisoners with phenol. In a second interrogation conducted by the public prosecutors in Frankfurt approximately one year later, Paczula gave a detailed characterization of Klehr—his personality type, his favorite sadistic activities, and more specific accounts of crimes he committed. Paczula described Klehr as a “typical, primitive, despot-type, who had to show everyone what kind of a ‘personality’ he was.” Klehr especially liked to assert himself when his superior, the camp doctor, was absent, and assume the role of the main medical authority in the HKB. On such occasions Klehr would order a few prisoners to attend to his “needs”—one would wash his motorcycle, another would take off his boots and wash his feet, and at the same time yet another would polish his fingernails. While smoking his pipe and being tended to, he would order eight or so other prisoners to dance for him; as Paczula said, “he behaved just like a Pascha.”
Klehr’s impostor syndrome also extended to performing the abspritzen, or lethal injections himself. He would walk through the HKB proclaiming, “today I am the camp doctor and the Krankenmeldungen (notices of illness) will be presented to me.” He then performed selections of newly admitted patients on whom he administered lethal injections himself, although this was not his duty. He was also not required to mistreat prisoners and kick them in the groin as they walked, but many witnesses claimed that this too was one of his favorite activities, and it showed Klehr to act with malicious intent.
It is important to note here the emphasis Paczula placed on Klehr’s insistence on doing jobs not within his jurisdiction or authority. This was crucial for the prosecution’s case in determining and proving perpetrator motivation. It was Paczula’s depiction of Klehr as a sadist and a lustful killer who acted with individual initiative and in fact against the regulations of the camp that led to a conviction of perpetration of murder rather than simply of aiding and abetting. Particularly, one incident described by Paczula and corroborated by other witnesses demonstrated Klehr’s willingness to act on his own and kill without direct orders, making him a most suitable candidate for a murder conviction according to West German law. The incident is worth recounting. Paczula stated:
I would like to describe a selection that remains fixed in my memory due to its particular emotional cruelty. It was Christmas Eve—December 24, 1942—when Klehr appeared around noon in the HKB, selected approximately two hundred prisoners and injected them immediately. As the camp doctor had already made his rounds in the morning at around 8 or 9, we felt certain, in fact we knew, that he had thereafter left for the Christmas holiday. Everything was already in the Christmas spirit and everyone had somehow prepared himself for this day and wanted to have a little Christmas celebration. In this atmosphere Klehr burst in and murdered the prisoners. I don’t think I need to describe what kind of poverty of feeling and coldness is needed in order to carry out this activity on such a day.
This testimony was to be repeated by various other witnesses throughout the pretrial period and in the trial itself, and provided the courtroom with one of its most chilling and upsetting moments. These details, although seemingly almost trivial in the face of such large-scale murder and cruelty, often struck most deeply at the hearts of the judge, jury, and audience because of the dissonant connection that all could recognize—murder on the Christmas holiday. Klehr’s insistence on committing an act of particular brutality in this manner demonstrated his sadistic impulse.
An entirely different example of the importance of Paczula’s testimony is evident in his assessment of the testimony of a fellow prisoner and survivor, Walter Scheerer. This incident is interesting in that the courts found themselves addressing a case of perjury of a peculiar kind. Scheerer was by no means a denier or a revisionist insisting on the innocence of any of the defendants. Instead, he gave distorted accounts and falsely reported incidents that would seemingly make little difference to the case itself. The prosecution noted Scheerer’s inconsistencies in the discrepancy between his description of the camp set-up itself and that of the other survivors of the HKB.
Scheerer, who testified in September 1959, reported that he was sent to Auschwitz in April 1943 as a political prisoner (a German Communist), and in May 1943 became an orderly in the HKB at the request of the then main camp doctor, Dr. Entress. Most of Scheerer’s testimony recounted the activities of Klehr and his crimes involving phenol injection. However, when the testimony was shown to Paczula (and other survivors of the HKB) it became clear that Scheerer was falsifying his account. As Paczula observed, “First of all, the block numbers given by the witness are completely wrong … I was also working in the HKB at the time the witness Scheerer was supposedly active there. In my opinion he was, at the most, a janitor … It is out of the question that he was the head orderly and boss to all other caregivers.” This information was corroborated by fellow orderly Stanislaw K*odziñski, indicating that Scheerer was attempting to pass himself off as a man of higher importance in the prisoner hierarchy than he actually had been.
Paczula’s refutation of Scheerer’s testimony continued, showing more bizarre falsehoods and holes in his account. Scheerer reported that Klehr injected his victims with Evipan, a tranquilizer to induce sleep, before killing them with phenol. Paczula claimed that this was incorrect. In addition, Scheerer reported that victims were injected on an operating table; according to Paczula and Klodziñski, this was rarely the case. Rather, victims were made to sit on a chair and hold their left arm above their head. Scheerer’s accounts of witnessing executions at the Black Wall through a window in the wash barrack were also untenable, according to Paczula, for, “unless he stood on the chimney, the wash barrack was only one floor and there was a wall between Blocks 10 and 11 of almost four meters in height.”
Such details needed to be assessed in meticulous detail in order for the prosecution to present a valid, factual case of the actions of each defendant. Scheerer exemplified a peculiar type of witness; a survivor who would falsify stories and tell tales that resembled the truth and seemed to incriminate the defendants. In actuality, his testimony worked against the prosecution. Whether Scheerer intended to help or hinder the case is difficult to determine, but this example shows the problems in establishing accurate and reliable testimony and building such a large case. It also explains why it took so long for the trial to begin: the prosecution had to spend a large amount of time examining Scheerer’s testimony, determining its validity, and carefully deciding which of his statements were unreliable and what made them unusable. In the end, his testimony was thrown out already in the pretrial phase.
Another interesting example is the case of defendant Herbert Scherpe, a Sanitätsdienstgrad or medical orderly (SDG) in the HKB who often worked as Klehr’s representative. Almost all witnesses who testified about the activities of the defendants in the HKB testified that Scherpe had taken part in the injecting of prisoners; some knew this through hearsay and some through more concrete experience. One incident, however, is important in that it both implicated and exonerated Scherpe. As Paczula described it, in 1943 Scherpe took over the injecting of prisoners when Klehr was absent. Two transports came in from the Polish region of Zamosc carrying young boys, approximately ages 13 to 15. Scherpe killed the first group of about sixty on the first day; however, on the second day, according to Paczula, “Scherpe almost had a breakdown and could not go on. The ‘injections’ were then carried out by another SDG whose name I no longer remember.”
Another witness at the trial, Stanislaw Glowa, prisoner # 20017, described with chilling detail the day on which the first group of boys were murdered. Glowa was in Auschwitz from August 1941 to August 1944, became ill with diarrhea in October 1941 and was brought to Block 20, where he remained afterward as a caregiver of sorts. According to Glowa, “on the first day there was a panic among the children, because they noticed that those boys who were brought behind the curtain in the hall never came back. They therefore had to be brought with force into the treatment room.” Glowa could recount this because he was ordered by the guards to help bring the boys into the room to be murdered. Glowa remarked after this testimony: “I have to make it known right now, that as a prisoner one could not refuse to do such a job, because one would then also have been injected.”
The witness Dr. Stanislaw K*odziński also recalled this event. K*odziński, a Polish prisoner brought to Auschwitz in August 1941, worked first as an orderly and then as a doctor in the HKB until its evacuation. He was also a witness for some of the subsequent Nuremberg trials and has made important contributions to research and documentation of the history of Auschwitz. He was a member of the international underground resistance in the camp, acting as the liaison between the movement in the camp and the underground in Krakow. Because of his political motivation he was especially concerned with observing and documenting the crimes committed in the HKB. As a doctor he became aware of Klehr’s activities with the phenol injections, and it was clear to him that healthy prisoners were also being murdered in this fashion, not just the inmates of the HKB. As an example he cited the incident of the Polish boys from Zamosc, and stated that “I want to note that SS-SDG Scherpe refused to undertake these injections.” Finally, Hermann Langbein provided some of the most important corroboration to this case by the sheer weight and credibility of his personality, stating that he remembered with certainty that Scherpe had declined and was excused from his duties during the time when the boys were murdered, which were then taken over by the defendant Hantl.
This incident and the witness reports describing it demonstrate a crucial issue for the prosecution’s case. On the one hand, the testimony of several witnesses showed that in all likelihood Scherpe had indeed participated in the injections. On the other hand, the testimony also showed a certain reticence on the defendant’s part which could be used by the defense to show that Scherpe did not have murderous intent or sadistic motivation, and he most certainly did not demonstrate individual initiative in this action as Klehr had in the earlier reported incident at Christmas 1942. Therefore, the prosecution would have much difficulty finding sufficient grounds to charge Scherpe with murder. The simple goal of putting the entire Auschwitz complex on trial and prosecuting the people who worked there became more and more problematic as the West German criminal justice system seemed to be totally inadequate to handle a case such as Auschwitz.
The pretrial interrogations demonstrate the dilemma faced by the court in its attempt to get the “whole picture” of the activities of the defendants at Auschwitz and Birkenau. They also show, however, the extraordinarily delicate nature of witness testimony. The notion of clear-cut, straightforward testimonies about the specific actions of each individual defendant was extinguished long before the trial began. Due to the stipulations of the murder laws, imprecise accounts were often not enough. Determining where to draw the line between invalid testimony and important evidence in the trial itself was very often up to the judge. For example, when a defense attorney accused a witness of hearsay, presiding Judge Hofmeyer rebutted: “we must ask many people for hearsay, in order to create a picture of the circumstances as they were there … because the dead can no longer speak.” That the judge would take such a liberty demonstrated the difficulties he faced in reconciling the rigidity of the law with the extraordinary nature of the trial. He had to determine which testimony was most credible and reliable in order to show individual initiative or one of the subjective motivational elements defined in the murder statute. In such cases where it was necessary because there were so few survivors or witnesses to a specific crime, the judge did allow hearsay to be introduced and he used it in weighing the judgment.
In retrospect, does the period between 1945 and 1963 represent a shameful period of silence in the West German criminal justice system? Is Hannah Arendt accurate in her contention? One could argue that the scant amount of information and scholarship surfacing in Germany during this period had to do with a general public focus on reconstruction and obtaining simple necessities as well as a lack of documentary information. Many public prosecutor’s offices throughout the country had other priorities that included implementing an unbending, just and democratic justice system that was the antithesis of the Nazi system, where arbitrary changes to the law were constantly made. Prosecutors had not yet fully recognized the scope of the crime structure and the possibilities for prosecution in their own districts. Additionally, during and immediately after the Nuremberg trials, the Allies did not permit the West German courts to try Nazi criminals, and the new Ministry of Justice chose not to adopt international criminal codes.
Perhaps most importantly, the limitations of the German criminal code—the distinction between perpetrating and aiding and abetting murder, as well as the subjective motivation definitions in the murder statute—made prosecution most difficult and required the prosecutors to make painstaking efforts to gather huge amounts of specific evidence against each possible suspect. This in turn led to another delay in prosecution, whereby logistics and evidence gathering, along with a rapidly expanding perpetrator list, extended the pretrial time period immeasurably. Hannah Arendt contended that the dismal record of investigation of Nazi criminals was the direct result of indifference and even distaste for such prosecutions, and only the Eichmann capture in 1960 acted as an impetus to turn the wheels of justice in Germany (and for all the wrong reasons). This interpretation reflects a certain level of ignorance of the largely confidential investigations already going on in Germany long before the Eichmann trial. A particularly good example of this is the case of Richard Baer, arrested coincidentally after the beginning of the Eichmann prosecution. Arendt saw this as a clear indication that “Eichmann’s capture would trigger the first serious effort(s) made by Germany to bring to trial at least those who were directly implicated in murder.” It may be correct that the Eichmann investigation uncovered new evidence about uninvestigated perpetrators who belonged to Eichmann’s commando, of which Baer was a member. It may also be true that there were indeed many local courts uninterested in moving quickly to prosecute and punish Nazi criminals, as many judges and lawyers worried about their own culpability as former members of the Nazi Party. However, the argument that the entire West German justice system was infected with a malaise regarding Nazi crimes is too simplistic. Generalizations about all Nazi trials are impossible as they were run by individual district courts and priorities and motivations varied from state to state.
The dedication and thoroughness of the public prosecutor’s office of Hesse in the Auschwitz trial attests to this. In order to understand the outcome of the trial and the rather disappointing results of most German trials involving Holocaust defendants, we must understand and emphasize the limitations of the criminal code of 1871—and that way that the law were interpreted—as the main barrier to effective justice. The prosecution not only had to investigate the accused themselves but they also had to determine the reliability of the sources bringing complaints. Furthermore, they also wanted to conduct a manageable trial without too many defendants, so that the proceedings would not become disjointed. This meant that the prosecution often had to relegate suspects to separate files in order to be tried at a later date. The prosecution wanted to have defendants on the stand who could most easily be convicted. And finally, many suspects could not be found, had already been tried and sometimes executed, or had died of natural causes. I asked earlier in this article if Fritz Bauer’s noble goals were tenable in this courtroom setting. I believe that Bauer’s hope to “teach lessons” and create a warning for the future was and is impossible in a trial, insofar as the emphasis in the courtroom could only be on crimes committed without an order from above, and the judgment reflected this with light sentences for all but the most sadistic killers. The national penal laws as they were defined at the time did not make room for larger questions and issues of greater significance, most especially state-ordered genocide. The legal representatives in the courtroom were bound by the criminal code and all of its exigencies. These obstacles faced by Fritz Bauer and his team were the main causes of delay in setting the Auschwitz trial into motion. As an historical document, however, and as a testament to the dedication and perseverance of the prosecutors in Hesse, the pretrial investigations of the Auschwitz trial are an invaluable source for understanding the complex process involved in trying Nazi crimes in postwar West Germany under the national penal code, and ultimately, for teaching future lessons about the difficulties of confronting the Nazi past through the judicial system.