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In this review by Cesarani, I found a bit more explanation of the complicated problem Fritz Bauer and others were up against in attempting to try the participants in the Nazi Holocaust machine. https://muse.jhu.edu/journals/utq/summary/v076/76.1cesarani.html
As Cesarani explains:
The trial of twenty men accused of aiding and abetting murder while serving as guards or kapos in Auschwitz that took place in Frankfurt between December 1963 and August 1965 was a pivotal moment in the process by which West Germans became aware of the crimes committed by the Third Reich. It was given saturation coverage by the media and made it impossible for West Germans to deny knowledge of the atrocities perpetrated by the Nazis.
[This is what is so amazing for someone who was not living at that time to understand. As I mentioned in my earlier post about the movie “Labyrinth of Lies”, it’s just mind-blowing to think that the public largely ignored what happened before that regarding the Nazi extermination system, the camps, the tortures, etc! I can understand better now why the fictional character in the movie is completely surprised when he first hears that Auschwitz was an extermination camp – and why the director+other writer decided to create the character and the story this way.]
However, as Rebecca Wittmann shows, this knowledge was partial and peculiar. It would take decades before Germans came to terms with the extent of popular complicity in racism, atrocity, and genocide during the Third Reich. This was not due to malice in the judiciary or any desire to avoid the truth. Rather, it was the strange result of punctiliously observing legal niceties.
The Auschwitz trial was conducted under the 1871 criminal code. The prosecution did not want to charge the defendants with perpetrating genocide or crimes against humanity because that would have meant invoking retrospective legislation, something that was anathema following Nazi manipulation of the law.
[What a terrible dilemma. It seems to me, had the prosecution tried the genocide trial route, that would have meant failure from the start. At the same time, having to use a legal framework from 1871 (!) completely hampered their efforts and goals.]
But this fastidiousness created numerous dilemmas. Owing to the statute of limitation the defendants had to be charged with murder.
[As an aside note, the notion of statute of limitations for serious crimes is often counter to justice.]
To convict on a count of committing or abetting murder, the prosecution had to attain a high threshold of evidence and, crucially, had to prove ‘base motives.’ If the defendants could convince the court that they were just obeying orders, which meant that they had no motive other than doing what they were told to do, they could be acquitted. So, ironically, the more they were obedient Nazis the less they were at risk of conviction.
Use of the old criminal code created an even worse distortion that warped public understanding of Nazi perpetrators. In order to show that the defendants acted from ‘base motives’ the prosecution had to demonstrate that they showed initiative and exceeded orders. To do this the prosecution invoked the regulations that pertained in the concentration camps and brought forward witnesses, such as the SS judge Konrad Morgan, who investigated alleged ‘excesses.’ This technique inadvertently established the standard brutality of the camps as an acceptable norm. Furthermore, to clinch a conviction the prosecution sought to show that the defendants acted sadistically. In several cases there was plenty of such evidence, but it had unintended consequences.
The West German public became convinced that Nazi perpetrators were not ordinary folk like them, but murderous sociopaths.
[What a convenient way to think! Especially when you are living in a country infested with Nazis, most of whom have been awarded total impunity for every kind of monstrous crime, including genocide.]
Other SS men, even if they were part of the machinery of mass murder, seemed like decent chaps doing their duty. Any sign of compassion or inconsistency could moderate the view taken of a defendant and few men were consistently violent or murderous. Because the prosecution focused on individual instances of vicious behaviour, the daily business of genocide receded into the background. The torture apparatus developed by one of the defendants made more of an impression on the public than the gas chambers.
Fritz Bauer, the attorney-general of the state of Hesse, who had pressed for the trial, hoped that it would expose the systemic racism, quotidian brutality, and genocide practised by Nazi Germany. He was thwarted because, ironically, the law itself militated against the effects he wanted to obtain. Wittmann remarks that ‘in the courtroom, the Holocaust faded almost entirely into the background, as excessive, unauthorized brutality was emphasized by the judges and prosecution.’ Even the worst offenders received relatively mild sentences that bore no relation to their role in a death factory that murdered over one million people. Indeed, the more Nazified they were the more lenient the court had to be because this, rather than personal, venal motives, explained their errant behaviour.
Wittmann’s study is a fine blend of political, cultural, and legal history, drawing on a deep knowledge of the Nazi era and the genocide against the Jews. Although in places her narrative is a trifle repetitive, she writes clearly and elegantly. Her account of the trial’s impact may seem perfunctory compared to the space devoted to exegesis of the proceedings, but this is a minor quibble over what will surely be regarded as a landmark study of a landmark trial.