The Auschwitz Files Why the Last SS Guards Will Go Unpunished

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Part 2: A Considerable Lack of Empathy


The most famous case was that of the longstanding, brutal camp commandant Rudolf Höss, who was found hiding on a farm near Flensburg in northern Germany. A team of British investigators is said to have threatened his wife Hedwig with turning over her eldest son to the Soviets. She promptly betrayed her husband. Höss was sentenced to death in Warsaw and hanged in front of the house where he had lived as commandant.

Polish judges held about 700 SS members from Auschwitz accountable and, according to historian Aleksandr Lasik, did not allow themselves to be "guided by revenge." Some of the sentences were astonishingly mild. On the other hand, courts in Krakow, Katowice and Wadowice sentenced some of the accused to several years in prison just by virtue of their having been members of an SS unit at a camp.

Initially, German courts were only allowed to punish those crimes that Germans had committed against other Germans. But this too proved to be difficult, as Edith Raim of the Institute of Contemporary History discovered. In bombed-out postwar Germany, there was a shortage of courtrooms, coal for heating, telephones and typewriters. In some cities, court proceedings had to be discontinued at nightfall due to a lack of light bulbs. For a time, a paper shortage in Hamburg meant that rulings could not be issued in writing.

Many roads and railway lines had been destroyed and the country was divided into occupation zones. Those traveling between zones needed permission from the Allies. When a prosecutor from southern Germany wanted to question a witness in the northern city of Hamburg, it took six weeks just to send correspondence by mail.

Yet no one can claim that the prosecution of Nazi crimes failed because of a shortage of light bulbs. Unlike other Nazi crimes, the Holocaust encountered little public interest from the start. When the Americans conducted an opinion poll in their occupation zone in October 1945, 20 percent of respondents stated that they agreed "with Hitler on the treatment of the Jews." Another 19 percent found his policies toward the Jews excessive, but fundamentally correct.

'Hidden Opportunism'

Although experts estimate that several tens of thousands of Auschwitz victims came from Germany, less than half a dozen SS members from Auschwitz had been put on trial by the time the Federal Republic was established in 1949. When the Allies handed over the prosecution of all Nazi crimes to the West German courts, little changed at first.

In the first few cases, there was evidence of a considerable lack of empathy, even when there were convictions. The Nuremberg-Fürth Regional Court, for instance, described the inmates at an Auschwitz satellite camp as "poorly educable Polish Jews" who had lacked "concentration camp experience."

Two years later, the Wiesbaden Regional Court acquitted Gerhard Peters. He was the managing director of Degesch, the company that had supplied Zyklon B to the SS -- the chemical frequently used in the gas chambers. Peters' contact at the SS had testified that he had used the chemical for disinfection purposes only. The court concluded that Peters had been "unsuccessfully complicit."

It is possible that prosecutors and judges with a Nazi past were reluctant to prosecute Nazi crimes. They constituted 80 percent of all prosecutors and judges in the states of Lower Saxony and North Rhine-Westphalia. The numbers were similarly high at the Federal Supreme Court.

On the other hand, historian Ulrich Herbert has written of the "hidden opportunism" of former Nazis who lacked the confidence to openly oppose the system. In any event, not a single case has come to light of a prosecutor or judge who actively sought to thwart the punishment of crimes committed at Auschwitz.

It was much easier to do nothing. "Peace was made with the perpetrators on the backs of the victims," writes Hamburg law professor Ingo Müller in the new edition of his famous reckoning with his own profession ("Horrible Jurists").

Ten Minutes Per Murdered Jew

And when a case was occasionally brought to trial, even jurists with no former ties to the Nazis exhibited great creativity. An especially popular strategy was to classify perpetrators as accessories, which significantly reduced sentences. One after another, high-ranking members of the SS who had served in the extermination camps were let off with minor punishments. Frustrated investigators came up with the cynical calculation that perpetrators received 10 minutes of jail time for each murdered Jew.

In 1960, Johann Kremer, a former SS concentration camp doctor, walked out of the Münster Regional Court a free man, even though he had ordered the killing of sick and exhausted inmates. Kremer, who needed organs for his medical research, noted in his diary on Oct. 10, 1942: "Extracted and fixed fresh live material from liver, spleen and pancreas."

But the court ruled that because the former SS Obersturmführer had lacked a "personal interest in the crime," he was merely an accessory and not a perpetrator. When Kremer received a 10-year prison sentence instead of a life sentence, it was probably not a coincidence that this was precisely the amount of time he had already served in Poland.

The so-called accessory construct was based on the wishful thinking that only Hitler and his entourage had been responsible for the Holocaust. All others, the legendary Hessian chief prosecutor Fritz Bauer said derisively, viewed themselves as "raped, terrorized followers or depersonalized and dehumanized creatures compelled to do things that were completely alien to their nature."

In the era of former Chancellor Willy Brandt, there was still a prevailing view of the Germans as Hitler's victims. Even established opponents of the Nazis, like former Chancellor Adenauer, believed that it was necessary to accommodate the desire to draw a line under the past, even if it meant violating the principles of law. One of the most astonishing documents to have come to light in recent years is the protocol of a conversation between Adenauer and an Israeli diplomat in 1963. Israel was pushing for the resumption of diplomatic relations and Adenauer hinted that he could accommodate this desire -- if Israel, in return, accepted that West Germany cease its prosecution of Nazi war criminals, which he called "intolerable for Germany's standing in the world."

The big Frankfurt Auschwitz trial in the early 1960s would probably not have materialized if Chief Prosecutor Fritz Bauer had not devoted himself to the issue. A Social Democrat from the southern Swabia region, Bauer was an outsider in many ways: a former concentration camp inmate, immigrant, Jew and homosexual. In addition to justice for the victims, he wanted the "determination and, if possible, widespread acknowledgement of the truth." Bauer planned to put an end to the collective silence with a major Auschwitz trial.

Fortunate Circumstances

A series of fortunate circumstances played into Bauer's hands. A journalist with the Frankfurter Rundschau newspaper gave him documents that he had received from an Auschwitz survivor. They were letters in which the camp administration appealed to an SS and police court in Wroclaw in 1942 to abandon a judicial inquiry against 37 named SS members who had shot inmates. Such judicial inquiries were part of the pseudo-legal façade of the extermination camp.

The names of the marksman provided Bauer with leverage. He obtained a judgment from the Federal Supreme Court to transfer the "criminal matter against the former members of the commandant's office of the Auschwitz concentration camp" to the Frankfurt Regional Court. This placed the case in the hands of the prosecuting authority under Bauer's supervision.

Then Bauer assigned the investigations to a few prosecutors with no former Nazi ties. The young men proceeded to demonstrate how easy it was to advance the Auschwitz cause -- as long as there was the will to do so. They asked Jewish organizations for help, used newspapers to find witnesses and reviewed documents in Auschwitz. Within a few months, the prosecutors had identified roughly 600 SS members, as Bauer biographer Ronen Steinke notes.

Then a systematic search was conducted, partly through the media. This led to the exposure of Richard Baer, the last Auschwitz commandant, who had assumed a false name and was working at the Bismarck family estate in the Sachsenwald forest near Hamburg.

Bauer instructed the prosecutors to put a "cross-section of the camp" on trial. He didn't want to pass judgment on the perpetrators in individual trials, in which prosecutors would try the "murders of A by X, B by Y or C by Z," as he put it. Such an atomized approach to conducting the cases would have obfuscated why the Holocaust was so horribly efficient: because the Nazi human extermination factory was based on the division of labor.

The Reich Security Head Office, the headquarters of SS terror in Berlin, would announce the arrival of a train carrying Jews by sending a radio message or telex. The commandant's office then notified the relevant departments. The shift schedule determined who was on duty at the train platform. The SS members then went to the platform, which was on a sidetrack at the Auschwitz freight yard, on foot, by bicycle or by motorcycle.

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