The Auschwitz Files: Why the Last SS Guards Will Go Unpunished
In February, German prosecutors conducted a wave of raids targeting former SS concentration camp guards. It was hoped the proceedings could help make up for decades of inaction. Instead, they will likely mark the latest chapter in the German judiciary's shameful approach to the Holocaust.
It was a carefully coordinated campaign. Criminal investigators from the German states of North Rhine-Westphalia, Bavaria, Hesse and Baden-Württemberg all struck at the same time, at 9 a.m. on Feb. 19 of this year. The investigators, driving civilian vehicles, drove up to residences in 12 locations and presented the suspects with search warrants. The officials had previously determined whether their targets had firearm or explosives licenses.
The suspects, of course, were not expected to put up any resistance. The youngest was 88 and the oldest almost 100. Nevertheless, three of the accused -- in Wiernsheim, Gerlingen and Freiburg -- were temporarily taken into custody.
The next day, prosecutors in each locality issued a press release titled: "Searches conducted of presumed former SS members at the Auschwitz concentration camp."
The sentence contained three key phrases: "search," "SS members" and "Auschwitz." The impact was immense. From the Los Angeles Times to Le Figaro and El País, media organizations worldwide reported on what the German newspaper Die Welt called the "biggest concerted campaign against presumed Nazi criminals in decades."
Almost 70 years after its liberation, Auschwitz continues to trigger strong emotions, more so even than the other sites that played a key role in the Nazis' machinery of death. Among the six million victims of the Holocaust, at least 1.1 million Jews were killed in the largest extermination camp of the Third Reich, along with tens of thousands of non-Jewish Poles, Soviet prisoners of war and Sinti and Roma. The victims came from almost all European countries, and most were sent to the gas chambers immediately after their arrival at Auschwitz-Birkenau.
The SS ground up the bones of the corpses and sold the meal to a fertilizer company in the vicinity. The ashes of the incinerated bodies were used in road construction, the hair of the women was spun into yarn and processed into felt, and gold tooth fillings were removed and melted, formed into bars and turned over to the Reichsbank, Germany's central bank during the Nazi era.
Low on the Chain of Command
The police raid on Feb. 19 was part of a bigger operation in 11 German states, initially directed against 30 former members of the SS who had worked at this human extermination factory. The cumbersomely named Central Office of State Judiciary Administrations for the Investigation of National Socialist Crimes, in the southwestern city of Ludwigsburg, had identified the cases.
The list included 24 men and six women, all low-ranking former SS privates and lance corporals. They had worked in Auschwitz as bookkeepers, medics, teletypewriters and -- the majority -- as guards. Many of them were serving at the concentration camp when a transport that included 15-year-old Anne Frank, perhaps the most famous Holocaust victim, arrived in 1944.
The fact that the accused were low on the chain of command in no way diminishes the importance of the new proceedings. As part of the Nazi machinery of murder, they were all suspected of complicity in many thousands of cases.
The concerted operation that began in Ludwigsburg did not miss its mark. The public noted with respect that the German judiciary had tried, once again, to amend what is probably the most shameful record in its history.
The judiciary's pursuit of those involved in the Holocaust stood in sharp contrast to the scope of the crime. According to historian Andreas Eichmüller, of the 6,500 members of the SS who served in Auschwitz and survived the war, only 29 were convicted in West Germany and reunified Germany, while about 20 were convicted in East Germany.
The failure of the German judiciary has long been viewed as part of the "second guilt" for which writer and Holocaust survivor Ralph Giordano reproached the Germans in 1987. It stems, he wrote, from the fact that Germans repressed the Hitler years for too long and denied their own guilt.
More than half a year has now passed since the February police raids. And it has become clear that the assumption was erroneous that German prosecutors could at least partially atone for Auschwitz with a last attempt to bring some of the perpetrators to justice. The new cases are being abandoned almost weekly and the reasons are varied. A few of the former SS members have died in the meantime and many are too frail to stand trial. In one case, the suspect had already been punished by a Polish court in the postwar years.
A History of Failure
The former SS members arrested in Baden-Württemberg and Mecklenburg-Western Pomerania have since returned home. So were the actions of the public prosecutor's office "completely excessive," as Peter-Michael Diestel says critically? Diestel, who served as the last East German interior minister and now works as a criminal defense attorney, represents Hubert Z., a former SS Unterscharführer, or sergeant.
Prosecutors are only seriously pursuing charges in eight cases today, suggesting that an especially ignoble chapter in German postwar history is coming to a fitting end. Some suspect that the prosecutors were merely trying to collect PR points by booking a few gray-hairs with a Nazi past.
Either way, the episode seems as though it will do nothing to improve the history of failure that has characterized the German judiciary's approach to Auschwitz. Many explanations for that failure have been offered over the years.
Can the failings be found primarily in the era of Konrad Adenauer, the first postwar chancellor of West Germany, as Christoph Safferling claims? Safferling, a law professor, is a member of a committee of historians who have been commissioned by the Federal Ministry of Justice to examine its treatment of the Nazi era. Safferling says it was later no longer possible to correct the failings of lawmakers and judges in the initial postwar years.
Or did the German judiciary lack an overall strategy, as his Cologne colleague Cornelius Nestler puts it?
Did it have something to do with the many Nazis who continued their careers in the judicial service after the war had ended? But in that case, why wasn't there a wave of new trials after this generation had gone into retirement in the 1980s? The last summary trial of an Auschwitz-related case ended more than 20 years ago.
Lack of Interest
Perhaps German criminal law is fundamentally unsuited to "render judgment on systematic, bureaucratically organized, state-sponsored mass murder," as US historian Devin O. Pendas writes. Or perhaps the answer can be found at Konrad-Adenauer-Strasse 20 in Frankfurt, the location of the public prosecutor's office that conducted -- and, in most cases, suspended -- the majority of Auschwitz-related prosecutions.
In reporting this piece, SPIEGEL examined numerous archived documents from judicial inquiries. The magazine spoke with historians and legal scholars along with prosecutors and judges involved in Auschwitz cases. We also interviewed defense attorneys of former SS members and spoke to one Auschwitz survivor.
The punishment of crimes committed at Auschwitz did not fail because a few politicians or judges tried to thwart such efforts. It failed because too few people were interested in decisively convicting and punishing the perpetrators. Many Germans were indifferent to the mass murder at Auschwitz after 1945 -- and thereafter.
Even before the war ended, the Allies suspected that it would be difficult to punish the misdeeds of the Nazis, because of the large number of perpetrators and the difficult legal terrain. Did the Allies have the right to prosecute what Hitler had done to Jewish and other Germans? That right was questionable under international law, as then British Foreign Secretary Anthony Eden conceded during a cabinet meeting in 1942, saying that unfortunately such acts could not be viewed as crimes.
To avoid the entanglements of legal procedures, British Prime Minister Winston Churchill proposed having the top Nazis executed by firing squad without trial. He later signed the famous Moscow Declaration of 1943, under which the victorious powers reserved the right to prosecute the "major criminals." Otherwise, those responsible for "atrocities, massacres and executions" were to be tried in the countries in which the crimes had been committed.
During the war, the part of the Silesia region where Auschwitz is located belonged to the Third Reich. The region was returned to Poland after 1945. As a result, the Western power extradited the members of the SS they managed to capture in military raids or in POW camps to the government in Warsaw.
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