How the Auschwitz Trial failed
by Robert Fulford

(The National Post, 4 June 2005)

When Germans began bringing other Germans to trial for Nazi atrocities, prosecutors found themselves struggling through a thicket of ambiguities, some created by the laws they had to use and some by the equivocal emotions of the German public. Exhibit A in this process remains the trial of 24 Auschwitz guards, held in Frankfurt from 1963 to 1965. Aside from jailing some murderers, this proceeding was intended to educate the German public on how the Holocaust happened and how Germany might understand its recent past.

Fritz Bauer, attorney general of the State of Hesse, wanted to expose the "Auschwitz complex," including all those who routinely supported the killing. As he said, "There were hundreds of thousands ... who carried out the Final Solution not only because they had orders, but because it was their worldview as well, which they willingly admitted."

The trial was a pivotal event in German history but until this week no one has described it in detail. Rebecca Wittmann, a young historian at the University of Toronto, fills the gap with a clear, thorough and highly intelligent book, Beyond Justice: The Auschwitz Trial (Harvard University Press).

As she makes clear, the prosecution had to work within the German legal code written in the 19th century, which meant that guards could be charged with murder only as individuals, if they murdered on their own initiative. Hard as it may be to imagine, these Nazis were convicted for not following orders.

As Wittmann says, this context made killing millions of Jews in the gas chambers a lesser crime than the murder of one person committed without proper direction from superiors. A guard who supervised gassings but never acted brutally toward a particular prisoner was convicted only of aiding and abetting murder. An SS lieutenant, Karl Hocker, supervised the killing of at least 3,000 people. The court emphasized that he was following orders that were certainly immoral and should not have been obeyed. But he had never before broken the law and after the war had gone back to a productive middle-class life. He got seven years.

Because those who broke the Nazi rules were treated more harshly, the effect was to give implied validity to Nazi rule. Former SS judges, who had investigated Auschwitz when word of infractions got back to headquarters, testified at Frankfurt. They helped condemn Wilhelm Boger, who invented "the Boger swing," a trestle structure supporting an iron bar from which prisoners, hands and feet tied, hung upside down as they were beaten to death. Being directly responsible for at least 114 murders, he was sentenced to life plus five years

In the newspapers the convicted murderers seemed not men but monsters, maniacs somehow let loose in the concentration camps. Reading about them created a sense of distance between the public and the crimes. As Martin Walser wrote in a newspaper article, the more horrible the news from the trial, "the more pronounced our distance from Auschwitz becomes. We have nothing to do with these events, with these atrocities." He argued that this helped the citizens feel comfortable: "They got some satisfaction out of condemning the crimes of the SS guards while distancing themselves and considering the subject closed."

If Wittmann's story has a hero he's Bauer (1903-1968), a lawyer who was briefly interned by the Nazis, escaped from Germany to Scandinavia in 1936 and returned in 1949 to help rebuild the justice system. From his perspective, the Auschwitz trial failed. It supported the "wishful fantasy that there were only a few people with responsibility ... and the rest were merely terrorized, violated hangers-on, compelled to do things completely contrary to their true nature."

The trial's outcome implied that Germany had not been obsessed by Nazism; it was more like a country occupied by the enemy. "But this," he said, "had nothing to do with historical reality. There were virulent nationalists, imperialists, anti-Semites and Jew-haters. Without them, Hitler was unthinkable."

The Fritz Bauer Institute, a Frankfurt centre for Holocaust studies, was established in his memory in 1995. (Ironically, it occupies space in what was once the IG Farben corporation, which was implicated in Nazi crimes; now owned by the State of Hesse, the building is part of the Johann Wolfgang Goethe-University.)

The Bauer Institute's statement of purpose currently says: "Remembering the Holocaust and confronting National Socialist crimes has been and is today perhaps more than ever before a problem for German society. Consciousness of the widespread involvement in crimes continues to be suppressed ..."

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