CHAPTER FOUR
THE AUSCHWITZ TRIAL
Legal Proceedings as a Source of Material for Historians: Fact and Fiction
WHEN THE EVIDENCE in the Auschwitz Trial had been presented and the defense and prosecution were delivering their summations, one could glimpse an unavoidable and telling flaw in the none too meticulously fabricated public image of these proceedings as an "ordinary criminal trial."' With ill-concealed smugness, Accessory Prosecutor Henry Ormond declared at the end of his summation:
If the survivors of the hell of Auschwitz could no longer bear witness -- and certain circles are waiting for just that--then Auschwitz would become nothing more than a legend in a short time. Were it not for this trial, in which the truth was heard out of the mouths of the survivors, those who refuse to learn would have continued their attempts to minimize. That this is no longer possible is, next to the punishment of the guilty, the lasting achievement of this exemplary trial.2
This statement amounted to an expose of the Auschwitz Trial. Yet, even at the outset, an impartial observer of these proceedings would have received the impression that they were designed primarily, if not exclusively, for the purpose of giving a judicial stamp of approval, as it were, to a still widely disputed view of an episode in recent history.
Now that a member of the clique behind this travesty of justice was openly proclaiming its main purpose, it does not come as a surprise that the prominent defense attorney Dr. Hans Laternser, in his plea for Dr. Capesius, unequivocally condemned this function of the Auschwitz Trial as beyond the proper authority of a court of law.3 In his summation, delivered on August 6, 1965, Dr. Lateruser even went so far as to speak of these proceedings as a "show trial," a view other members of the defense had apparently expressed earlier.4 However strange this charge may seem within the general context of German jurisprudence, we shall see that in this case it is not so far-fetched.
Accessory Prosecutor Ormond was not the only person to announce the purpose of the Auschwitz Trial. Hermann Langbein, Secretary General [217-218] of the International Auschwitz Committee, who, in addition to serving as a witness, was a constant observer of the trial, and had been instrumental in putting it together, expressed similar views in his two-volume collection of documents on the trial.5
Describing the Auschwitz Trial as a "documentation of Hitler's largest extermination camp against which nobody could have any logical objections," Langbein goes on to claim that it will "serve future historians, and, above all, give the younger generation in Germany food for thought and enable them to orient themselves in the right direction." He concludes with an admission that is remarkable for one of the men behind the Auschwitz Trial:
To serve this purpose to the utmost, the picture of the Auschwitz extermination camp had to be put together under the direction of German jurists.
Likewise, Robert M.W. Kempner, the former Nuremberg Trial prosecutor, cited as the authority for his recent charge that the "extermination of the Jews" was implemented by "planned administrative teamwork on the part of all State and Party agencies" not any independent post-war historical research but "evidence and testimony in German courts," and he specifically mentioned the "Auschwitz trial in Frankfurt."6
Throughout the proceedings, it was quite obvious that their main purpose was to define a period in recent history, and, at present, the desired result has by and large been achieved. In the long run, however, this attempt will prove to have been a failure. Scholars will have the final say about what goes into the history books as definitive historical knowledge. Myths seldom attain to the rank of historical fact, and the picture of Auschwitz that emerged from the Frankfurt Auschwitz Trial was essentially based on a myth, the most important constituents of which we have discussed in previous chapters. Conscientiously truthful scholars will certainly not take it as their point of departure. One day there will be historians who are free of the dogma of our times, and therefore dispassionate and unbiased. No doubt they will shake their heads in astonishment or disgust when they see how unscrupulously "documents" were used and what kind of nonsensical, contradictory "testimony" was admitted in the Auschwitz Trial. Despite the most careful editing, Hermann Langbein failed to eliminate contradictions and discrepancies from the material in his collection of trial documents.
The objectivity that will some day make serious historical scholars question the basis and results of the Auschwitz Trial and similar proceedings is, of course, not to be expected from the "official" historians of our time, especially those who are affiliated with institutions. If they questioned the Auschwitz legend, they would be placing their jobs in jeopardy. At least insofar as this subject is concerned, the right to free speech has its limits. This observation applies not only to German scholars on both sides of the Brandenburg Gate, but even to historians [218-219] in other countries. The French historian Paul Rassinier and, more recently, the American university professor Dr. Arthur R. Butz learned by experience that violating this taboo entails considerable risk.7 Hence the British scholar at the University of London who wrote Did Six Million Really Die? elected to publish his work under the pseudonym "Richard Harwood." The whole situation was nicely summed up by the American historian whose anonymous work was published in 1969 under the title The Myth of the Six Million. In the introduction it was noted that the book had to be published anonymously because the author intended to keep his position as a college professor until he could collect his hardearned pension.8
Thus historians who wish to be "taken seriously" avoid treating the subject of the "extermination of the Jews," or else simply embellish the picture drawn at the Nuremberg Trials, which, in turn, was largely modelled on war propaganda. In the latter case, all they can do is try to lend a bit of plausibility to the old cliches by incorporating into the prescribed design such novel details as can be gleaned from the likes of the Auschwitz Trial. A good example of this approach is Arndt and Scheffler's essay "Organisierter Massenmord an Juden in Nationalsozialistischen Vernichtungslagern" [Organized Mass Murder of Jews in National Socialist Extermination Camps] .9 Although the authors make the very sound observation that "responsible historiography cannot be based solely on judical decisions," they do not adhere to this principle themselves: their treatment of Auschwitz is based largely on the decision of the Frankfurt Assize Court and -- what amounts to the same thing -- on the memoirs Rudolf Höß allegedly wrote while imprisoned in Cracow, which the judges did not hesitate to admit in evidence (along with some equally dubious witness testimony), even though they had seen only photographs of the document.
Brotszat's introductory note to Arndt and Scheffler's treatise also betrays the fact that the authors are merely paying lip service to this idea. He asserts that the Âjudiciary in the Federal Republic, with its large and experienced investigative apparatus, has made a greater contribution to shedding light on National Socialist crimes and criminality, especially in regard to the extermination camps, than any historians could make." But he really gives away the whole show when he remarks later on that he expects the forthcoming publication of the main results of such legal proceedings to refute the findings of the Revisionists "in regard to the extermination camps."10
What a declaration of intellectual bankruptcy! Here the Director of the Institut für Zeitgeschichte, an outfit that specializes in the history of the Third Reich, is admitting the extent to which historians concerned with proving the extermination thesis feel they must depend on the results of judicial proceedings against "Nazi criminals" (the so-called Nazi Crimes of Violence trials). Perhaps the most remarkable thing about this confession [219-220] is that it so boldly contradicts the generally accepted view that determining the facts of history is the business of scholars, not jurists. Even the judges in the "Nazi Crimes of Violence" trials usually called attention to this point, and summoned "experts" to provide the criteria for judging the historical background in the case. For lack of knowledge, they trusted implicitly the presentations of these experts, most of whom were -- as Broszat very well knows -- members of the Institut für Zeitgeschichte. Difficile est satiram non scribere.*11
*"It is hard not to write satire" -- Juvenal.
Since the judiciary has been made into the character witness, as it were, for what is passed off as "knowledge" about the "extermination of the Jews," it is necessary that we examine briefly the dominant epistemological methods of both historical scholarship and penal jurisprudence. Each of these fields has a different working method. Nobody with any common sense could expect jurists in a penal case to be able to arrive at a definitive explanation of a historical event, quite apart from the fact that a trial has other purposes to serve.
The method historical scholars employ to reconstruct events basically consists in researching, comparing, criticizing, and evaluating sources. A synoptic presentation of a historical event that is faithful to reality can result only when the historian has sorted out, appraised, and compared every available source -- written documents, contemporaneous accounts, material remains, and so forth -- taking into account any other relevant information. This task requires much time, and often special expertise. It could never be accomplished by a court in a penal trial.
In the field of recent German history, it is sometimes no easy matter to do the source research that is so obviously indispensable to genuine historiography. After the fall of the Third Reich, the German archives were plundered by the Allies. Even today, most of these captured documents, which the victors used to fabricate the indictments in their show trials against Germans, have not been returned. In many cases, one cannot even determine their whereabouts. No conscientious and responsible historian would undertake a study of such a grave matter as the alleged extermination of the Jews without examining the relevant original documents. Of course, it is precisely those documents which are being withheld today. Up to now, this material has been gone over solely with a view to incriminating Germany. Only by accident have exonerating documents been made public.
As we have said it is incumbent upon the historian to assess, compare, and criticize all relevant source materials he has obtained. One may reproach contemporary historians for not maintaining any real critical distance vis-á-vis their source material. For it is above all in the field of recent history that the researcher is liable to encounter forged material. Thus he can never dispense with critical evaluation of the form and content of his sources. One finds hardly a trace of such critical [220-221] distance in the literature on the "extermination of the Jews," even though--as in the case of the Höß memoirs--some writers create the impression that they have misgivings about the authenticity of certain sources. Leaving aside the forgery problem, most of the known sources on the "extermination of the Jews" admit of varying interpretations. As Dr. Butz has persuasively argued, almost every particular detail of this legend has a dual meaning, that is to say, one can interpret according to the legend things that are quite commonplace and innocuous, if one is so inclined.12
In approaching any source, it is not enough to ask: "Is it really what it purports to be?" Often one must also ask: "Am I reading into it what I should like to believe it says?" To answer these questions requires extensive investigation, comparison, and, sometimes, complex mental operations as well. If one neglects to ask these questions, which apply to every part of a given source, the only possible outcome is deception or error.
A synoptic presentation of a historical event can emerge only from the kind of methodical research of which we have given a very simplified description here. 13 Only after the historian has completed such research and evaluation may he give his personal views, and then only within certain limits. In the "new" Germany, however, historians are accustomed to proceed in exactly the opposite fashion when focusing on the subject of the Third Reich. They subordinate the selection and interpretation of their sources to preconceived ideas, taken over from the "war crimes trials" of the Allied victors. Their approach is simply alien to sound historical scholarship.
Even if they attempted to employ the method described above, judges in a penal trial could not reach any definite conclusions about a historical event. For that they lack both the time and the training. Moreover, their task is fundamentally different from that of the historian. It is simply to determine whether the defendant is innocent or guilty of a legally punishable offense, and, if guilty, impose the sentence prescribed by law. In reaching a verdict, they need consider only facts which are relevant, according to the usually quite strict definitions of penal law, to the case they must adjudicate, and are obliged to follow the principle in dubio pro reo, which means: in case of doubt, decide in favor of the accused. In other words, judges in a penal trial do not have to pronounce on matters that cannot be cleared up on the basis of legally admissible evidence, whereas a historian dealing with some episode in history is obliged to pursue his inquiries until he has arrived at what he believes to be a complete and accurate picture of events. Thus it is utterly absurd to say that the findings of some court represent "secure knowledge of recent history," as do those members of the Institut für Zeitgeschichte who look above all to judicial decisions for confirmation of their views -- something that in itself ought to make one wary of these "contemporary historians."
[221-222]
In a criminal proceeding, the facts of the case are determined by evidence presented to the court in the manner specified in the Rules of Judicial Procedure in Penal Cases (the Strafprozeßordnung, "StPO" for short). Â~ Even if the defendant has pleaded guilty, the court is not bound by his admission of guilt but must continue to examine the evidence. In hearing evidence, the court is concerned only with such facts and proofs as are relevant to the case before it (§244, Para. 2 StPO). Of course, it may sometimes be necessary to clarify the background of a crime, for example, to determine the motive of the culprit -- which is an important factor in passing sentence. But the specific criminal act is always what matters most, not some historical issue. In the "Nazi Crimes of Violence" trials, this principle has frequently been ignored, especially with respect to the hearing of witnesses and consultants. Assertions about a historical event made in a trial must not be regarded as though they were the definitive conclusions of historical scholarship. The time allotted a trial is not usually sufficient to permit a thorough investigation of a historical event, using the method described above, nor do jurists ordinarily possess the requisite training to conduct such an inquiry.15
That is why judges call on experts when it seems necessary to clarify some historical matter. According to the StPO, the depositions of experts are evidence. This judicial practice attests to the fact that the courts have not yet taken over the job of the historians. Nevertheless, our "new" German historians persist in basing their work to a considerable extent on the decisions of the very courts before which they were called to testify as "experts." The notion that German courts have uncovered "definite information" about the implementation and scope of the "extermination of the Jews" in the Third Reich can be traced largely to the claims of these "contemporary historians."
One more point needs to be made here. As Arndt and Scheffler have noted in their essay "Organisierter Massenmord an Juden in nationalsozialistischen Vernichtungslagern" (see page 219 above), the courts do not have at their disposal any material evidence whatever on the alleged extermination of the Jews.16 Although in some of the "Nazi Crimes of Violence" trials, on-the-spot investigations have been undertaken-- as in the Auschwitz Trial -- these visits to the "scene of the crime" contributed nothing to an objective clarification of the legal issues, and, more particularly, nothing to the clarification of the historical background, real or alleged, in any of these cases.
As we have said, court proceedings necessarily fail when it comes to determining historical truth, since trials have another purpose to serve and the judicial modus operandi does not lend itself to historical inquiry. But these are not the only reasons. In such trials, all involved -- the defendant or defendants, the defense counsel, the prosecuting attorneys, and, last but not least, the judges -- have conflicting interests. There is no way all participants could cooperate to arrive at a determination [222-223] of historical truth. If anything, their activity necessarily lends itself to distortion of the facts of history. So far as determining the historical background of a given crime is concerned, the court can at best arrive only at a kind of ad hoc historical verisimilitude, basically relevant to that case alone. From such trials, the historian may, of course, obtain some bits of information, which he must assess very carefully, using other sources as his criterion. Were he to accept offhand as "secure knowledge" the total historical picture constructed in a "Nazi Crimes of Violence" trial, he would be placing his reputation for scholarship in jeopardy. For none of the participants in those trials are really concerned with ascertaining historical facts. They all have their personal interests or professional duties in mind, and those interests can only hinder the quest for historical truth.
Naturally, the defendant in any penal trial is eager to be acquitted, or, at least, to come away with the most lenient sentence possible. If he is guilty, he will seek to attain this end by making denials and false statements. Culprits who feel remorse over their misdeeds and confess to them are a rarity in the history of criminology. Seldom does truth play even a subordinate role in the statements of guilty defendants.
But even if the defendant is actually innocent, he will not always stick to the truth. Particularly when certain pieces of circumstantial evidence speak against him, he may think it necessary to bolster his story with a phoney alibi or other false information.
On the other hand, there are, as everybody with any practical experience in criminal law knows, numerous cases in which a demonstrably innocent person accuses himself of wrongdoing, for any number of reasons .17 Article 54 of the Constitutio Criminalis Carolina of 1532, the very first German penal code, prescribes that the judge shall question the accused about such circumstances of which an innocent person could know nothing.18 Although this provision may owe its existence to the fact that back then confessions were frequently extracted by torture, its inclusion in the Imperial book of law is still highiy significant. Psychological considerations alone prompted Carl Joseph Anton Mittermaier, one of the leading professors of penal jurisprudence of his time, to demand that all confessions be verified. In his book Die Lehre vom Beweise im deutschen Strafprozeß, [The Rules of Evidence in German Criminal Procedure] ,published over 150 years ago, he stated:
In attempting to determine the whole truth by means of rational inquiry, one will seek additional proof of the veracity of the confession. Not only must the facts of the confession be proved independently, but it must also be shown that the person who has made the confession is familiar with circumstances surrounding the crime of which an innocent person could have no knowledge.19
Today it is an undisputed tenet of forensic psychology that confessions are not always rendered with the whole truth in mind. In the "Nazi Crimes of Violence" trials, the judges did not pay much heed to this principle [223-224] As a rule, they accepted at face value every statement of the accused that fit into the prescribed pattern, almost with a sigh of relief, and never gave the question of truth a second thought.
In the "Nazi Crimes of Violence" trials, the defendants' view of the historical background of the case counted for nothing, even if they were found innocent. Thus they had less incentive to insist on the truth -- so far as it was known to them -- than merely to say what was expected of them. (Perhaps such conduct is just an expression of human nature. Some of the defendants in the Allies' post-war trials acted no differently.)20 From the outset, the defendants in the "Nazi Crimes of Violence" trials knew that it was utterly pointless to dispute all or part of the picture of the "mass murder of the Jews" in which they were accused of having taken part, since that picture had been inculcated into the public mind long before the trials began. To the defendants it must have seemed the most expedient course not to dispute that the alleged murders occurred, only that they were involved in them. Particularly if they lacked an airtight alibi, the defendants had to secure the goodwill of the court. In short, they had but one aim in mind: their own acquittal.
Without doubt, they were simply acting in accordance with the advice of their attorneys, who, of course, were interested in basically the same thing as the defendants. Every defense attorney naturally strives to secure an acquittal for his client, or, at least, to obtain for him the lightest possible sentence. To do so he must not only present whatever facts may exonerate the accused, but also win the favor of the judges and even to some extent of the prosecution. Above all, he tries to avoid doing anything that might antagonize these decision makers of the judicial system. According to Dr. Laternser, at least one defense attorney in the Auschwitz Trial induced his client, against his own better judgement, to make a partial admission of guilt in order to "meet the court halfway."21 This attorney's action was an utterly inexcusable dereliction of duty, and it may even have been a violation of professional ethics. The only possible explanation for such conduct is that the attorney himself must have been secretly convinced of his client's guilt. It goes without saying that no defense attorney can, for the reasons previously stated, fundamentally challenge the alleged historical background in a "Nazi Crimes of Violence" trial. What is more, some of the defense attorneys in these cases are actually believers in the extermination legend. They plan their courtroom strategy accordingly, and try to get their clients to go along with it. There are exceptions to this attitude and approach, of course, but, as always, the exception merely serves to confirm the general rule.
On the whole, the defense attorneys in the "Nazi Crimes of Violence" trials have never shown the slightest interest in establishing historical truth. Indeed, they are under no obligation to help elucidate even the historical background of the specific crimes of which their clients have [224-225] been accused. They may and therefore do limit themselves simply to presenting whatever facts they believe are most beneficial and least detrimental to their case. Any evidence presented in court they will consider exclusively from this standpoint. It is a matter of complete indifference to them what relation historical events may actually have to the alleged crime so long as they can cast enough doubt on the personal involvement of their clients to get them acquitted according to the judicial principle in dubio pro reo. Although this approach only serves to obscure the historical facts, taking the path of least resistance is often the most effective defense strategy in these cases. It is certainly the most common.
Likewise, the prosecution has interests of its own. Naturally, it should be concerned first and foremost with arriving at the truth, just as the court is supposed to be, and this is indeed what German penal law requires. Our prosecuting attorneys are fond of hearing themselves described as the "most objective officials in the world," and, in fact, under §16O, Para. 2 of the StPO, the prosecution is constrained to inquire not only into those facts and circumstances which tend to incriminate the defendant, but also those which may exonerate him. The popular view that the prosecution aims solely at securing the conviction of the accused is generally incorrect. Of course, "Nazi Crimes of Violence" trials have their own peculiar set of rules, as anyone who has attended such a trial will tell you.
There are several reasons for this state of affairs. For one thing, even prosecuting attorneys are not altogether free of the preconceived ideas regarding recent history that have been drummed into the German public by decades of propaganda. This in itself is sufficient to induce bias against individual defendants in "Nazi Crimes of Violence" trials. For another, one should not overlook the fact that a prosecuting attorney is a civil servant who is subject to orders from his superiors, consequently dependent on the reigning political forces in the state. Their position on these matters requires little comment. They batten on the continuing diabolization of the regime which the Allied occupation allowed them to succeed. The passage of decades has changed nothing in this regard. Quite rightly, many prosecutors in the "Nazi Crimes of Violence" trials are convinced that a promotion could depend on the number of "Nazi criminals" they helped convict. That may be why they have taken so few pains to discover and bring to bear evidence that tends to exonerate the defendants, even though the law requires them to do so. In every one of these politically inspired trials, the version of the historical background that was set down by the men behind the scenes has met with the unqualified acceptance of the prosecution.
This brings us to a feature of the legal system that is peculiar to the "Nazi Crimes of Violence" trials. We are speaking of the Zentrale Stelle der Landesjustizverwaltungen zur Aufklärung nationalsozialistischer [225-226] Verbrechen (Central Office of the Regional Judiciary for the Investigation of National Socialist Crimes -- called the "Central Office" for short). This agency was established in autumn 1958 at Ludwigsburg on the decision of a conference of regional ministers of justice and put in action on December 1, 1958. It is difficult to place the Central Office within the administrative structure of the Federal Republic of Germany. According to the first head of this agency, Chief Prosecuting Attorney Adalbert Riickerl, its task is to conduct comprehensive and systematic investigations of "Nazi Crimes of Violence," i.e., brutalities and murders allegedly committed in the concentration camps and during commando (Einsatzgruppen) operations.22 Created as a resuit of strong political pressures, the Central Office does not rest on any firm legal foundation either with respect to its existence as an institution or its functions.23 The very character of this special office of public prosecutions thus insures that the investigations into these alleged crimes will be pursued in a totally one-sided manner, something that is fairly obvious from Dr. Rückerl's own book, NS-Prozesse.
Here we should note first of all that the "documentary material" from which the staff of the Central Office concocts the "material grounds" for "Nazi Crimes of Violence" indictments comes primarily from archives -- a better term would be forgery factories--in the Eastern Bloc states.24 The Central Office has also developed a "lively working relationship" -- to use Rflckerl's phrase -- with "responsible agencies" of other western countries and "last but not least, Israel." Functionaries of the Central Office have undertaken numerous trips to these countries in their search for incriminating documents.25 It is worth noting, too, that one of these employees smugly boasted that he discovered an "important piece of evidence" right in the city of Ludwigsburg: the 42-volume record of the Nuremberg IMT Trial, copies of which the occupation forces "generously distributed throughout the German judiciary, including the lower courts."26 We have discussed this document several times before in the present volume.
In its search for incriminating material, the Central Office relies almost entirely on those forces which are ideologically and financially interested in pinning on the German people as many crimes as possible against other nations, particularly Jewry. The Central Office acknowledges that the published work of the Jewish Historical Institute in Warsaw and the Yad Vashem Museum and Library in Jerusalem have been of great help to it.27 Thus it shouid come as no surprise that Riickerl attempts to justify the Nuremberg Trials in his book NSProzesse.28 In line with this attitude, the Central Office basically operates according to the methods developed by the prosecution in the old Allied "war crimes trials." Just as back then the occupation forces carried out the greatest manhunt in history as a result of charges made in war propaganda,29 so the prosecutors of the Central Office began [226-227] their inquiries by searching through the relevant published works. They then conducted a systematic investigation of all surviving former members of the Reich agencies mentioned in connection with "crimes" in these works.30 By 1965, the Central Office had about 200 investigators at its disposal for this manhunt. They were assigned to the task on a fulltime basis, and assembled in a special office.31 (In the meantime, more sleuths have doubtless been assigned to the Central Office. With such a waste of law enforcement personnel, no wonder the number of unsolved crimes is on the rise!) After "clarification of the essential facts," the case is handed over to prosecutors within the proper jurisdiction, and they naturally feel obligated to respect the findings of the preliminary investigation. That is to say, as far as the Central Office is concerned, legal jurisdiction is a secondary matter in the proceedings it initiates.32 For someone to come under suspicion of having committed a "Nazi Crime of Violence" it is quite enough that he once belonged to an organization or governmental agency mentioned in some piece of atrocity literature. Once a person has been named as a "Nazi Criminal," "witnesses" can always be found who will swear under oath they are "positively certain" that he was responsible for the murder of at least a few thousand Jews. If necessary, the investigators will show the "witnesses" photographs of the suspect to refresh their memories, which are, however, almost invariably immune to the ravages of time.33
In his book NS-Prozesse, Rückerl repeatedly expresses the idea that it was absolutely necessary for the prosecutors of the Central Office to devote themselves to the study of contemporary history, since "particularly in evaluating a Nazi crime ... the deed ... must be viewed in its historical context."34 The kind of thing to which this leads becomes evident when one reads the article Chief Prosecutor Manfred Blank contributed to Rückerl's volume. Among other things, Blank relates a description of the "gas chambers of Treblinka" from the verdict of the Dfisseldorf Assizes. According to this description, which apparently goes back to the "findings" of the Central Office, there were "6 to 10 rooms" of this kind, "each measuring approximately 8 x 4 x 2 meters" and each with a "capacity of 400 to 700 persons.35 The startling "exactness" of this description is itself a cause for suspicion. Of course, it is so mathematically improbable that one imagines the Central Office functionaries who made it -- and the judges who copied them -- must have flunked grammar school arithmetic. If one squeezed even the minimum of 400 persons into a room that had a surface area of 32 square meters and was 2 meters high, there would be about 13 people to each square meter -- an utter impossibility. Here we could cite similar instances of nonsensical and erroneous conclusions in the work of the Central Office, but let us leave it at this.
Considering the modus operandi and ideological orientation of the investigative bureau which supplies the prosecution in individual "Nazi [227-228] Crimes of Violence" trials with the "material grounds" to support their accusations, it would be simply unrealistic to assume that prosecuting attorneys in such a trial could make a worthwhile or even relevant contribution to elucidating the historical background of the case. And as we noted above, these attorneys, subject to orders from their superiors as they are, would hardly feel themselves impelled to do so. They are quite content to rely exclusively on the material with which the Central Office has supplied them.
The task of the judges in "Nazi Crimes of Violence" trials is -- or should be -- solely to establish whether the deed of which the defendant is accused bears the earmarks of a legally punishable offense, and, if he is found guilty, to mete out the prescribed sentence. It is definitely not their task to investigate and establish the whole historical background of a case. As we examine the Auschwitz Trial more closely, we shall see that judges do not always observe this rule. But again, it would be unrealistic to suppose that the judges in these trials, despite their constitutionally guaranteed independence, could simply cast aside the version of "historical truth" ordained by the Central Office and supported by scores of "experts" and "witnesses." After all, judges are only human. As a group, members of the judiciary are just as reluctant as other people to risk their jobs and chances for promotion on a matter of principle. What is more, they are just as likely to be wearing intellectual blinders. Members of the judiciary have not been immune to forty years of propaganda designed to bring a whole epoch in German history into disrepute.
From everything we have noted here it should be obvious that penal trials are by their very nature unsuited for determining the facts of historical incidents and events, least of all such politically oriented proceedings as the "Nazi Crimes of Violence" trials. In those trials, the prosecution, subject to orders from above as it is, cannot concern itself with historical truth, but must uphold a "political truth," which the defense and the accused, if they have any instinct for self-preservation, will refrain from challenging. Moreover, the judges are, for a variety of reasons, "pre-programmed" to accept only one view of recent history, though they are usually careful to keep within the bounds of correct judicial procedure. Consequently, one cannot expect any conclusions about historical issues that would be of value to scholars to emerge from such trials. On the contrary, the "historical background" and the probable validity of the charges against the defendants have been decided long before the beginning of the trial -- in no small measure through the efforts of the mass media.36 To the extent that "Nazi Crimes of Violence" trials really are "ordinary criminal trials," this "historical background" merely serves to emphasize the exceptional moral depravity of the alleged crimes of the accused. At bottom, however, these are politically inspired proceedings held largely for the purpose of presenting an "official" view of recent history to a still doubting public, and, perhaps, [228-229] too, of providing "contemporary historians" with "evidence" they would be unable to come up with on their own. As such, they come very close to being "show trials," in which the defendants are simply a means to an end.
A "show trial" may be defined as a judicial proceeding which is intended to have some politically demonstrative effect on the public at large. Ordinarily, this term is used in connection with the political purges in the Soviet Union during the 1920's and 1930's. But it would be a mistake to assume that such trials occur exclusively under the Communist system, as is often done. Nor is the elimination of persons who have fallen out of favor with the r6gime the only purpose a show trial can serve. An additional purpose -- even the main purpose -- of a show trial may be to intimidate the population or influence its thinking in a particular direction. Very often, though not always, the "confessions" of the defendants bear every sign of having been extracted by torture or brainwashing. However, the essential characteristic of a show trial is that political objectives quite alien to law and justice are being pursued by means of a highiy publicized judicial proceeding that has the semblance of legitimacy. Such trials have occurred from time immemorial and under every kind of governmental system. The "war crimes trials" the Western Allies held in conquered Germany are proof that "democratic" governments are no slouches when it comes to staging show trials ~
The statements quoted at the beginning of this chapter would seem to confirm the suspicion that the Frankfurt Auschwitz Trial was conceived from the start as nothing but a show trial. There is not much point in debating whether the judges and prosecutors were secretly aware that it was a show trial or sincerely believed that it was an "ordinary criminal trial." In fact, it is quite possible that they were unknowingly used to serve illegitimate ends. Be that as it may, the crucial question remains: Did the Auschwitz Trial have the characteristics and effects of a show trial? If the answer to it is affirmative, the "Nazi Crimes of Violence" trials in general, and the Auschwitz Trial in particular, are utterly worthless as sources of historical information.
In the next section, we shall examine more closely the conduct of this trial and draw some conclusions from it.
The Auschwitz Trial -- A Show Trial?
The Background
The almost uniquely significant judicial proceeding known as the Auschwitz Trial began with an incident that borders on the trivial. On March 1, 1958, a onetime Auschwitz inmate named Adolf Rögner, who was then incarcerated in Bruchsal Prison, filed charges against the former SS-Oberscharführer Friedrich Wilhelm Boger for allegedly committing [229-230] "crimes against humanity" at the Auschwitz concentration camp. According to Bernd Naumann's account, Rögner was being held in pretrial custody. Angry that prison authorities had confiscated a shipment of medication prescribed for him, Rögner sent a complaint to the Public Prosecutor's Office in Stuttgart, and along with it his denunciation of Boger.38 Langbein, however, describes the informer as a "convict" rather than simply a prisoner, in his "documentary" volume Der Auschwitz-Prozeß. He does not mention exactly how the charges against Boger came to be made; he merely states that the Auschwitz Trial began purely "by chance."39
Both stories are quite implausible. In point of fact, Rögner's denunciation of Boger, which was destined to have consequences extending far beyond the Auschwitz Trial itself, did not result from Rögner's annoyance over the confiscation of his drugs, nor was this curtain-raising episode "pure chance." There is reason to believe that Rögner's action was a gambit devised by behind-the-scenes forces which, for a variety of reasons, had a vested interest in continuing and expanding the prosecution of "Nazi Crimes of Violence."
From Rögner's denunciation -- as described by Langbein -- it is obvious that organized interests were behind this whole affair. The denunciation Rögner made contains information that a single person, let alone somebody locked up in jail, would be hard pressed to collect. For example, Rögner claims that in 1946 Boger escaped from a "convoy" of prisoners assembled at "War Crimes Camp 29, Dachau," for "extradition to Poland," and hid out at Unterrath near Schwäbisch Hall until 1948. He even gives Boger's current residence and place of work. And, perhaps in an attempt to explain why he was filing charges so late in the game, Rögner opens his denunciation with the statement: "Ich habe nunmehr folgendes in Erfahrung gebracht" ("I have just learned the following.").
This statement, in particular, confirms the suspicion that Rögner had backers who induced him to file charges. A prisoner, whether being held for questioning or serving out a sentence, would hardly be in a position to make inquiries about the background and present whereabouts of another person, even if he did not have other things to worry about.
The possible identity of these backers is also evident from Rögner's denunciation. As sources of proof for his charges he mentions the International Auschwitz Committee in Vienna, the Central Board of Jews in Dèuuml;sseldorf-Benrath, and, finally, the Auschwitz Museum Archives in Poland. It is unlikely that this petty criminal would ever have heard of any of these groups unless they contacted him first, either singly or together. In all probability, "Secretary General" Langbein -- that is how Rögner refers to him -- of the International Auschwitz Committee was most instrumental in this affair. We do know that Langbein soon emerged as one of the leading strategists in the preparations for, as well as the staging of, the Auschwitz Trial. At any rate, Rögner sent a copy of [230-231] his formal allegations to the International Auschwitz Committee.40 That the three groups mentioned above were acting under the direction of some higher Jewish organization is, by the way, entirely within the realm of possibility. International Jewry has many arms.41
Thus Rögner was simply being used by behind-the-scenes forces which were trying to revive the persecution of former National Socialists, a witchhunt that had steadily been losing momentum in the 1950's.42 He cannot possibly have acted on his own initiative. For one thing, his denunciation of Boger, taken as a whole, shows that he had no knowledge of any other particular crimes committed at Auschwitz, where he was allegedly imprisoned from May 6, 1941 to January 16, 1945, presumably as a habitual criminal. His accusations against Boger are themselves totally vague and wholly unsubstantiated. That may be why Rögner-- who is mentioned in Langbein's volume, by the way, only under the initials "A.R."--is not cited in any of the literature on Auschwitz or the Frankfurt Auschwitz Trial as a witness to any specific crimes at the camp.
The reason that those who were interested in prolonging the "Nazi" witchhunt took this course of action is fairly obvious. After the occupation forces were done with their "war crimes trials," which at least in part were carried out with the most inhuman methods, the German people soon lost interest in charges about the alleged "Nazi" atrocities. Most Germans really did not believe in them, anyhow. At the very least, they were skeptical about the purported extent of the "extermination of the Jews." Revelations of the cruelties perpetrated against Germans interned in Allied camps, the barbaric "punishments" imposed for "crimes" that had never been proved, and, last but not least, the "denazification" tribunals over which "Germans" presided and which reached into almost every German home -- all these things produced a high degree of bitterness among the population at large, even awakened sympathy for the victims of the rancorous "justice" of the Allies.43 As time went on, "antinazi" witchhunting became more and more unpopular. People had seen and heard enough. They were simply fed up with the whole business. By the end of the 1950's, when it turned out that the "gas chambers" the Allies exhibited after the war never existed in Germany during the Third Reich, at Dachau or any other camp, people began to voice their opposition to Chancellor Adenauer's program of financial "reparations" to Israel.44
It must have this latter circumstance, above all, which alarmed those who were profiting, and wanted to continue profiting, from our national prostration and the myth of the six million. It looked as though the German people could not be politically and financially blackmailed much longer. New methods had to be devised to keep the racket going. No doubt enemies of Germany, above all international Jewry, knew they had to take prompt. action. [231-232]
Given the almost proverbial German respect for authority, an obvious solution was to use the German judicial system in a massive effort to revive our national guilt complex. In the past, German authorities had not found much occasion to initiate prosecution of "Nazi crimes." The courts handied mostly cases in which individuals preferred charges against individuals. These trials generally received no more and no less publicity than any other criminal proceedings.45 Moreover, so long as the Allied occupation forces took it upon themselves to hold "war crimes trials," the jurisdiction of German courts was restricted to offenses that occurred within the territory of the former Reich.46 After it became obvious that no "Nazi crimes" worth mentioning were committed there, those who had a vested interest in using "war crimes" allegations to keep the German people subservient realized they must try to focus public attention on atrocities Germans supposedly committed in Eastern Europe and Russia during the war. Also, they had come to realize that the usual atrocity propaganda, which had largely been exposed as fraudulent, was no longer sufficient for their purposes. But the judgements of German courts, for which the mass of Germans had unlimited respect -- so they shrewdly calculated -- would penetrate deeply into the national mind. Judicial decisions along the same lines as their atrocity propaganda could be used to banish, once and for all, the lingering doubts about whether the "gassing" of the Jews and similar inhumanities actually occurred.
Nor could it have been "pure chance" that the judicial machinery was geared up for this purpose in 1958. For it was exactly around this time that the grounds of the former concentration camp at Auschwitz were being opened for visitors, the very camp that was now to become the focal point of the extermination legend. At this time, too, the Institut für Zeitgeschichte brought out its "scholarly edition" of the memoirs Rudolf Höß allegedly wrote in a Cracow prison. This volume was particularly helpful in creating bias among German judges and prosecutors, who, with their modest knowledge of recent history, dared not question the credibility of the Institut für Zeitgeschichte, many of whose members held the rank of full professor. Thus the stage was set for a new witchhunt.
One question remains to be answered. Why did the stage managers of this show choose for their curtain raiser a man who had repeatedly been convicted of crimes and to whose accusations the authorities presumably would pay little attention? Surely, they could have found a more "credible" accuser, or even have filed the charges themselves. As one would expect, the matter was at first treated with great caution by the Public Prosecutor's Office, and hardly anything came of it.
But it seems that was part of the plan. To understand why, one merely has to picture what would have happened had the Public Prosecutor's Office taken Rögner's charges seriously from the outset. The result would have been an ordinary criminal trial before a court within [232-233] the proper jurisdiction, if upon further investigation his charges had been found to be valid. Perhaps Boger would have been convicted of mistreating or even killing a few Auschwitz prisoners. But the trial would have received hardly more than local publicity. Undoubtedly, nothing like the huge Frankfurt Auschwitz Trial, with its worldwide impact and all its far-reaching implications, would ever have come to pass. And what the promoters of the revived witchhunt were apparently seeking was an extensive, centrally directed, and highiy publicized "Nazi Crimes of Violence" trial that would lead to a series of "extermination camp" trials. That alone could serve the purpose of hammering into the minds of the largest possible number of Germans, of every social stratum, the notion that the German nation was guilty of uniquely monstrous atrocities, and thus enable the foreign blackmailers to continue, perhaps even expand, their political and financial extortion racket. Had they picked an intrinsically credible accuser, his charges might have received only the usual treatment, and that is exactly why they avoided doing so. They had much larger objectives in mind.
For similar reasons, they rejected the course of taking legal action that would put the Auschwitz camp collectively, as it were, on trial, as they could have done by having some outfit like the International Auschwitz Committee make charges. That might have resulted in the enormous trial they were seeking, but the stage-managers would also have drawn the attention of the public to themselves, and, one may assume, would have provoked a defensive reaction on the part of the German people. Such a trial would have had much less credibility than one the German authorities had apparently initiated on their own.
In order to attain their objectives, they had to proceed in a somewhat roundabout fashion. Obviously, without a concerted effort on the part of interested organizations, it would have been virtually impossible to gear up the German legal apparatus for an extensive, centralized prosecution of "Nazi Crimes of Violence." By using a front man in the initial stage of the operation, these organizations managed to avoid drawing public attention to themselves. Moreover, the natural reluctance of German prosecutors to act on charges made by a convict gave the International Auschwitz Committee and other non-German forces an opportunity to insinuate themselves into the investigative process, unbeknown to the public -- as though "by chance"-- and to expand the investigation of Rögner's charges into the basis for a judicial spectacle. In his book Der Auschwitz-Prozeß, Hermann Langbein, the Secretary General of the International Auschwitz Committee, reveals how adroitly he and his organization managed to do this. Although Langbein's smug and verbose account does not disclose every aspect of this operation, for instance, how political pressure was employed, it tells quite enough.47 One thing is certain: Langbein contributed mightily to the establishment of the "Central Office" in 1958. His efforts to expedite the processing of [233-234] Rögner's charges brought him into contact with various representatives of the German legal system, including officials of the Federal Ministry of Justice, and he used this opportunity to play up the "inefficiency" and "inadequate background" of local prosecutors for their supposed "investigative tasks." Indeed, the most important thing these alien intriguers achieved with the Rögner gambit may be the centralization of pre-trial inquiries into "Nazi Crimes of Violence" and the progressive co-ordination of all such investigative work under the extra-legal Central Office. At any rate, they were satisfied that they had now accomplished what they set out to do. Langbein was exhilarated over the new judicial atmosphere: "Ein anderer Ton, em neuer Geist!" ("A change of tune, a new spirit!")48 Exactly according to the plan of the promoters of this revived witchhunt, the investigation was soon extended to include all of the surviving Auschwitz camp personnel. After Boger was arrested, on October 8, 1958 -- he was never to draw a free breath again -- the "intimate collaboration" between the Central Office and the International Auschwitz Committee resulted in a wave of arrests, starting in April of 1959.49 Rögner had played his part well, and exited the stage.
One tricky problem remained to be solved: How could all the cases involving crimes allegedly committed at Auschwitz be consolidated into a single trial? Separate trials of former SS members, even more or less important ones, for specific crimes before courts having jurisdiction in each particular case would not have had the desired effect on the public. In order to establish Auschwitz in the public mind as the symbol of the extermination of millions of Jews, the "official" version of what happened at the camp had to be presented in a mammoth trial before one court and endorsed in its final verdict. Only thus could the gruesome picture of Auschwitz that these venomous propaganda artists had worked for years to create obtain widespread, uniform publicity and receive the finishing touch of judicial notice, which is what it needed to be accepted as "incontestably true" by the public at large and even groups that had hitherto been skeptical of the extermination thesis. At first, it seemed this would pose some difficulties. The accused had to be indicted by prosecutors and arraigned before courts having jurisdiction over the localities in which they lived. The Central Office was responsible only for the preliminary investigations (see p. 226 above). It had no legal jurisdiction of its own, nor could it serve as the basis of a new judicature.
Once again, "chance" came to the rescue of the initiators of the Auschwitz Trial -- at least, that is what Langbein tells us. It seems that the Chief Public Prosecutor of the State of Hesse, Fritz Bauer, a Jewish émigré who returned to Germany after the war, happened one day upon a "package of signed documents" concerning the "murder" of Auschwitz inmates. He is said to have turned these papers over to the Federal Court of Appeal, which thereupon designated Frankfurt as the place of jurisdiction for all offenses related to Auschwitz. A journalist purportedly [234-235] "discovered" these documents "by chance" in the Frankfurt apartment of a certain Emil Wulkan. Now, that seems pretty odd, but odder still is the story Wulkan served up to the authorities about the origin of the "documents." He explained that these papers, allegedly Auschwitz camp files containing the names of prisoners slain there and those of the SS men who took part in the slayings, came from the Lessing Lodge in Breslau, where a good friend of his found them in early May 1945.50
All this is pretty incredible. Assuming for a moment that the documents are genuine, one searches in vain for an explanation of how they found their way from the files of the Auschwitz camp to a Masonic lodge in Breslan. But we shall let this matter pass. A far more important question is whether the sudden appearance of these Auschwitz "documents" in Frankfurt was really the decisive factor in the Federal Court of Appeal's ruling that the whole Auschwitz case be placed under the jurisdiction of the Frankfurt courts. One could not answer this question definitely without inspecting and verifying these "documents." Of course, the Rules of Judicial Procedure in Penal Cases (the StPO) does contain a provision that cases involving connected offenses may be brought together under common jurisdiction, even in the pre-trial inquiry state. Supposedly, in this "practicality" is the foremost consideration.50 However, leaving aside the question whether such a judicial monstrosity as the Auschwitz Trial was in any way "practical," one may dispute whether the diverse crimes of which the defendants were accused--individual murders committed in various ways, summary executions, "euthanasia" by means of lethal injections ("Abspritzen"), and complicity of whatever kind in the alleged "gas chamber" murders -- constituted "connected offenses" in the sense that term is used in the Rules of Judicial Procedure in Penal Cases. For according to §3 of the StPO, such a connection exists only when either one person is accused of having committed several punishable offenses (known in German legalese as "Tatmehrheit"; plurality of offenses) or when several persons are accused of having committed or been accessory to one punishable offense ("Tiitermehrheit"; plurality of offenders).52 The mere fact that "documents" concerning Auschwitz were "discovered" in Frankfurt thus could not have been the decisive factor in the assignment of jurisdiction.
All things considered, it could not be too far off the track to say that the assignment of jurisdiction was less the result of legal considerations than of the Auschwitz Trial promoters' desire -- manifested to the authorities in some clandestine manner -- for a trial of the largest possible dimensions. The "chance" discovery of some rather obscure documents in Frankfurt was a legally dubious foundation for the assignment of jurisdiction. The tall tale about the "documents" was probably concocted just to pull the wool over the eyes of the public.
Using these thoroughly devious methods, the promoters of the Auschwitz Trial managed to get all the investigations into the Auschwitz [235-236] case combined into a single inquiry, with the veteran "Nazi hunter" Chief Public Prosecutor Fritz Bauer heading it. Further investigations were then pursued to the fullest "in close cooperation with the International Auschwitz Committee."53 Two prosecutors were made available exclusively for this purpose. The names of more and more former SS members cropped up, and the scope of the case kept on widening. A flood of "incriminating evidence" streamed from the International Auschwitz Committee and other interested parties. The prosecuting attorneys wasted little time pondering whether this material was genume -- at least, that is the impression one gets from Adalbert Rückerl's book NS-Prozesse, a "report on the activities" of the Central Office at Ludwigsburg. There is no reason to suppose that the Frankfurt prosecutors were more meticulous than their colleagues in the Central Office, who, after all, boasted greater expertise in this field. In addition to supplying the authorities with "documents," the International Auschwitz Committee also put them in touch with "witnesses"-- as Langbein proudly reports -- from countries with which the Federal Republic of Germany at that time had no diplomatic relations. Moreover, Langbein arranged for the prosecuting attorneys and examining magistrates to take trips to Auschwitz, so that they could "familiarize themselves with the place" and study "documentary evidence."
How intensively and effectively the International Auschwitz Committee and its General Secretary Hermann Langbein supported the investigation is shown by a letter from Chief Prosecutor Wolf of the Central Office to Hermann Langbein, dated December 12, 1959. In this communication, Wolf expresses "thanks and recognition . . . for the vigorous and valuable assistance." To quote the letter verbatim:
During the preparations for the extensive trial relative to the unexplained crimes of Auschwitz, you have greatly alleviated our difficult and responsibilityladen task by providing us with important evidential material and by interviewing numerous witnesses in this and other countries.
We understand the concern and apprehensions of the survivors, and hear the warning voices of the millions of mute victims in whose name you speak. We will make every effort to discover all the anonymous murderers we can and give them their just punishment.54
Perhaps the most significant thing about this obsequious and pompous letter is that it shows the "servants of justice" had already made up their minds that Auschwitz claimed "millions of victims." It nicely illustrates the prejudicial attitudes of the examining magistrates in this case, especially since it correctly refers to the "crimes of Auschwitz" as "unexplained" -- a Freudian slip, perhaps? With a clarity that could hardly be excelled, it shows just who was in control of the Auschwitz proceedings.
In reviewing the background of the Auschwitz Trial, we must not neglect one further point: the treatment of the defendants during the pre-trial investigation. Almost every one of them was remanded in [236-237] custody after his arrest, even though the lawful reasons for detention -- risk of flight or danger of prejudicing the course of justice -- were absent in each case. For how, in the case of these criminal charges going back for more than ten years in the past, could this clearing up of the alleged "crimes" possibly be "prejudiced"--i.e., jeopardized--by the accused? Anyway, most of the defendants were SS small-fry who held only minor positions in the administrative hierarchy of the camp. Risk of flight was even less of a possibility. Not only did all the defendants earn their living in the Federal Republic of Germany, but they were also of an age at which the mental and physical prerequisites for escape are minimal or no longer exist. Indeed, the charges against them were so fantastic that it must hardly have seemed necessary to avoid facing them.
The only possible explanation for the imprisonment of nearly all the defendants is that one wanted to "soften them up," mainly in order to get them to admit that an "extermination program" had been in effect at Auschwitz and that "gas chambers" were the means used to execute it. Without examining the records of the investigation, one cannot say for sure whether this objective had already been achieved during the pretrial interrogation period, and, if so, how. That it was achieved, at least to some extent, is shown by the behavior of the defendants in the course of the trial, a matter we shall discuss later on. Even during the pre-trial investigation, some of the defendants may have admitted -- whether in good faith or not -- that they had "heard" about the "gassing of Jews" while they were stationed at Auschwitz, in order to secure their release from custody. At first, this concession may have seemed quite harmless. In all probability, none of the defendants knew or could even have imagined that participation in a selection" on the Auschwitz-Birkenau railway platform, for example, guard duty, would be construed as complicity in the alleged "gas chambers" murders.
At the beginning of the Auschwitz Trial, nine of the twenty-two defendants, that is to say, almost half, were still being held in custody. Some of them had been imprisoned for more than four or five years, which can only be called absolutely out of the ordinary. During the course of the trial, eight other defendants were taken into custody, one by one, almost always as a result of witness testimony against them. The illness of two of the defendants, Heinrich Bischoff and Gerhard Neubert, resulted in their cases being severed from the indictment; Bischoff died a few months afterwards. Only three of the defendants remained at liberty throughout the proceedings: Breitwieser, Schoberth, and Schatz. Most of the accused who were not retained in custody had to post bond of up to DM 50,000.55 Under these circumstances, it is beyond doubt that all the defendants were under enormous psychological pressure, from the beginning of the investigation to the conclusion of the trial. This is exactly the situation in which the defendant in a show trial always finds himself.
[237-238]
Particularly noteworthy is the fate of the most prominent of the defendants, Richard Baer, the last commandant of Auschwitz. He did not live to see the beginning of the trial. In December of 1960, Baer was arrested in the vicinity of Hamburg, where he was employed as a lumberjack. He died in June of 1963 under mysterious circumstances while being held in pre-trial custody.56
According to various sources, which, in turn, rely on reports that appeared in the French press, Baer adamantly refused to confirm the existence of "gas chambers" at the camp he once administered. Although it has been alleged that he was eliminated by poisoning on account of this refusal, the cause of his death has never been established. His wife claimed that he was in excellent health.
While Langbein merely states that an autopsy revealed that he died of "natural causes," Naumann specifies a "circulatory ailment" as the cause of death. Of course, a circulatory ailment is only a symptom of preexisting disease that has causes of its own. It is quite possible, however, that the physical condition of this strong and healthy outdoor laborer deteriorated as a result of his treatment in prison.57 That would be damning enough to those suspicious of the whole affair when one reads the report on the autopsy performed at the Frankfurt-Main University School of Medicine: "The ingestion of an odorless, non-corrosive poison . . . cannot be ruled out."58 Nevertheless, there was no further probe into the cause of Baer's death, and Chief Public Prosecutor Bauer ordered his body cremated. One may dismiss the possibility that Baer committed suicide, since, according to his wife, he was counting on an acquittal. Moreover, shortly before his death Baer complained to the guards that he was feeling ill and asked for a physician. That is hardly the action of someone who intends to take his own life.
This very mysterious event hardly attracted public attention, and presumably the affair was systematically hushed up. When one considers the reaction the death of an inmate in a German prison usually calls forth among officials, legislators, and the mass media, it seems astounding that this case was kept so quiet, all the more so because Baer was no ordinary prisoner, but a man whose testimony could have had the greatest impact in the upcoming trial.
The suspicion that interested parties had Baer removed by means of poison--as has often been claimed--cannot be dismissed. The motives for such an action are obvious. If anyone at all knew the truth about the "gas chamber" allegation, it was Baer, the last commandant of Auschwitz. That he refused to give his authoritative confirmation to the "gas chamber" story is shown by the fact that the statements he made during his interrogation were not read into the trial record. They must have been of no value to the prosecution. What the main defendant had to say about the central accusation regarding Auschwitz was anything but a matter of indifference to the initiators of the trial. Had Baer [238-239] resolutely contested this' allegation and been able to show its absurdity, he would not only have made it difficult for them to attain their primary objective -- to reinforce the "gas chamber" myth and establish it as an unassailable "historical fact" -- but he might also have caused the proceedings to take an entirely different course. By his steadfastness, Baer would have set an example for the codefendants to follow, and perhaps even influenced some of the other participants in the trial. Hence one should give some credence to the charge that Baer's refusal to play the role assigned him in the script is the reason the trial couid not begin until after his death.59 We shall not delve into this matter. The fact is that the Auschwitz Trial did begin almost immediately after Baer's death. Laternser is of the opinion that there was too much haste involved.60 However, the preliminary investigations were completed on October 19, 1962, as Langbein informs us,61 so nothing much really could have stood in the way' of the start of the trial -- except, of course, Baer's "stubbornness."
Was Baer murdered in jail? Ever since the brutal abduction of Adolf Eichmann in Argentina -- as a matter of fact, even before -- it has been common knowledge that the Israeli secret service is capable of just about anything.62 Given such circumstances as the fact that Chief Public Prosecutor Bauer was a Zionist -- for which reason he should not have been permitted to head the combined investigation--it is quite possible that the mighty arm of international Jewry was able to reach into Baer's jail cell, though for lack of conclusive proof, this question must remain open. At any rate, one may assume that Baer's sudden death came as a great shock to the other defendants. Since his position on the "gas chambers" allegation must have been known to them, some of the defendants may have taken his unexpected and mysterious demise as a warning, and altered their own stance accordingly. For the promoters of the trial, Baer's death could only have been a welcome development. The composition of the court is something that must have had a considerable effect on the course of the trial. Now, in all trials the empanelment of the tribunal is determined according to the judicial calendar, which is not insusceptible to manipulation, since it is usually valid for only a year. Naturally, the promoters of the Auschwitz Trial were eager to see the proceedings placed in the hands of a court that would give the case more or less the kind of treatment they desired. In particular, Chief Public Prosecutor Bauer, the right-hand man of the initiators of the trial, must have had definite ideas in this regard. Thus it is interesting to learn, from Laternser's book, Die andere Seite im Auschwitz-ProzeA [The Other Side in the Auschwitz Trial], that meetings took place between members of Bauer's staff, the Presiding Judge of the Regional Court, and the prospective head of the Assize Court, during which, among other things, the opening date of the trial and the related matter of the composition of the court were discussed. At the very beginning of the [239-240] trial, Laternser formally protested that manipulation had been involved in the empanelment of the tribunal, but the court did not rule on his petition until February 3, 1964, more than a month after the proceedings had started, and rejected it without deliberating the proofs and arguments he submitted 63
Taking the whole background of the Auschwitz Trial into consideration, one gets the distinct impression that the forces behind these proceedings were intent from the very beginning on staging an out-and-out show trial.64 As we noted above, the essential characteristic of a show trial is that it aims, first and foremost, at producing a politically demonstrative effect rather than arriving at an objective judicial decision. Even in the preliminary stages, the Auschwitz Trial bore every conceivable trait of such a proceeding. The pre-trial investigation was centralized without regard to established legal jurisdiction; extra-judicial forces that were hardly disinterested parties in the Auschwitz case were allowed to influence the preparations for the trial; the framing of the indictments was entrusted to a prosecution staff under the direction of a veteran Zionist; the empanelment of the court involved manipulation; and, last but not least, the accused were treated in a manner out of keeping, to put it mildly, with the German judicial system, something that -- together with the mysterious death of the most prominent defendant in pre-trial detention -- must have had an effect on their will to defend themselves and, no doubt, was responsible for their often ambiguous conduct during the trial.
The Conduct of the Trial
For those who were unable to attend the proceedings against Mulka, et al. before the Frankfurt Assize Court, the reportage of Bernd Naumann, Hermann Langbein, and Hans Laternser gives a rather good picture of the course of the trial. While Naumann, who covered the trial for the Frankfurter Allgemeine Zeitung, a daily newspaper, gives a chronological depiction of the proceedings in his book Auschwitz: Bericht über die Strafsache Mulka und andere vor dem SchwurgerichtFrankfurt*, Langbein, who likewise was able to observe the trial almost continuously, arranged his documentary account of the trial, Der AuschwitzProzeB, according to subject matter, discussing the alleged crimes of the defendants and presenting the testimony of the witnesses within this framework. Augmenting our picture of the trial is the illuminating study by the defense attorney Dr. Hans Laternser Die andere Seite im Auschwitz-Prozeß.
*Auschwitz: Report on the Criminal Case of Mulka et at. before the Frankfurt Court of Assizes.
On the basis of these three documentary works on the trial, we shall examine in the following sections of this chapter how the proceedings were implemented.65 Here let it be noted that Laternser's account is devoted primarily to the juridical aspects of the trial, whereas the other two authors, both of whom are laymen, basically confine themselves to [240-241] reporting the testimony of the defendants and witnesses. Naturally, they do not spare us their own opinions, which, naturally again, are fully in accord with the fundamentals of the Auschwitz legend, and doubtless influenced their selection of material. Even Laternser proceeds from the basic premises of the legend, as is obvious not only from what he writes in his foreword to Die andere Seite im Auschwitz-ProzeB, but also from his summations, which appear in the book. The fact that he is "above suspicion" simply makes his criticism of the proceedings all the more valuable. Both of the other authors are virtually uncritical of the Auschwitz Trial.
Now let us get down to particulars.
The Trial Setting
The Auschwitz Trial was not held in the Frankfurt Courthouse, since it supposedly lacked a suitable courtroom.66 To those unfamiliar with judicial practice, this may seem to have been an unavoidable necessity. After all, given the extraordinary publicity surrounding the Auschwitz Trial -- it attracted worldwide attention -- a large number of journalists were expected to be on hand. Also, from the very beginning, it was planned -- in accordance with what Naumann calls the "ethical, social, and educative implications" of the trial -- to compel groups of young people, for example, army units and school classes, to attend sessions of the proceedings. And, of course, one counted on heavy attendance by politically oriented groups and associations.
But all this really did not justify the rental, at additional expense to the public, of "courtrooms" outside the courthouse, particularly in view of the fact that attendance at the trial would be artificially high as a result of an orchestrated publicity campaign. At first, sessions were held in the assembly room of the Frankfurt Municipal Council, the "ROmer" hall. Beginning on April 3, 1964, the auditorium of the recently constructed "Haus Gallus" was appropriated for this purpose. However, neither place suited the requirements of a court proceeding -- as Laternser shows in considerable detail -- and that alone should have prevented their use in a trial of such importance.67
Although the law prescribes that court proceedings be held publicly -- something that is especially important in the case of penal trials -- the relatively small space in courthouses ordinarily imposes certain limitations on public attendance. When all seats are occupied, the courtroom doors are closed. I cannot recall a single case of a large trial in which sessions were regularly held outside the courthouse. Even the unusually large number of defendants, attorneys, and other participants in the Auschwitz Trial did not warrant this exodus from the courthouse. Every courthouse has at least one chamber that could, with a little effort, be made to accommodate such a crowd. Leaving all this aside, the [241-242] Auschwitz Trial would not have reached almost grotesque physical proportions had not the initiators of the trial insisted on the legally dubious measure of trying all the defendants under one jurisdiction.
Thus one cannot shake off the impression that even the courtroom was selected with the purpose in mind of producing the greatest possible politically demonstrative effect, and, as we have shown, this is a basic element in all show trials. The fact that the rooms did not meet the requirements of a court proceeding merely underscores this point. No ordinary criminal trial would have been conducted under such handicaps. As Laternser points out, insufficient physical distance between the spectators and the participants in the trial, among other things, resulted in some very unpleasant problems. At least at the beginning of the trial, the participants had trouble communicating -- an intolerable condition by itself. Worst of all, the seating arrangement in both of these makeshift courtrooms was a considerable handicap to the defense attorneys, especially during cross examinations.
So far as the externals of the trial go, there are several other circumstances that point to the show trial-like character of these proceedings. We are not considering here so much the fact that they were soon transferred to a theater, with the court on stage -- though certainly symbolic, that was probably just a gaffe on the part of the stagers of this travesty of justice. No, what really strikes us is how publicity was used to accomplish the desired objective, namely, to produce a widespread conviction that it is an indisputable fact that genocide was committed on an immense scale at Auschwitz.
In this connection, one thinks first of the "job" done by the mass media whose uniformly biased reportage was apparently the result of planning and coordination. To be sure, it is the legitimate task of the press, radio, and television to keep the public informed about significant trials. Especially in the case of penal trials, it is of the utmost importance that the coverage be objective and impartial, and usually it is. A fundamental principle of a nation based on laws is that the defendant is to be presumed innocent until proved guilty. In the case of the Auschwitz Trial, this principle was, it seems, simply cast to the wind. Even prior to the trial, the entire mass media portrayed the alleged events at Auschwitz and the alleged participation of the defendants in them as long established facts, at times going even so far as to describe the accused, who were in no position to defend themselves, as "beasts in human shape." Numerous prosecution witnesses were given an opportunity to talk about their alleged experiences at Auschwitz over the radio, on television, and in the press. By making public statements before they appeared in court, some witnesses practically committed themselves to giving a certain line of testimony.68 During the trial, the reporting was just as biased as before -- if anything, more so. With rather inappropriate understatement, Dr. Laternser simply refers in this connection to the [242-243] kind of "pressure" certain sections of the mass media exert on participants in "trials of a political nature"-- a well-known characteristic of show trials 69
The judges cannot be held responsible for this manipulation of public opinion. In fact, they were also under "pressure" from the mass media. Attorneys of the prosecution team were the ones who kept feeding the mass media "information." For example, the reports that between two and four million Jews were killed in Auschwitz alone can be traced to press releases from the Ludwigsburg Central Office and the Frankfurt District Attorney's Office.70
This propaganda activity reached its culmination in the Auschwitz Exhibition that opened in the Frankfurt Paulskirche,* of all places, on November 18, 1964, while the trial was still in progress. The impetus for this, exhibition came from Chief Public Prosecutor Bauer and the Frankfurt attorneys who represented the co-plaintiffs. When it first began, captioned pictures of the defendants were displayed, and they were removed only after the defense formally protested. The defense attorney Dr. Laternser filed a complaint with the Hessian Minister of Justice about Bauer's unprofessional conduct, but it was rejected as "unfounded." Laternser concludes his account of this truly scandalous affair with the terse remark: "In this trial, the normal standards did not apply, even though there are no others."71
That really sums it all up.
Finally, let us return to a matter we mentioned at the beginning of this section. Throughout the proceedings, school classes and other groups of young people were continually brought to attend the trial. These field trips were evidently organized in response to orders from on high. Their purpose could hardly have been to teach the younger generation about the German judicial system through observation of a trial. No trial could have been less suited to that purpose than this one. Because of its basic structure and its scope, not to mention the way it was conducted, the Auschwitz Trial could provide them at best only with a very incomplete view of practical jurisprudence. Of course, this judicial monstrosity was the perfect medium for an insidious morality play designed to implant a permanent guilt complex in the minds of the generation that would one day shape the German future. Langbein was elated to see German youth forced to witness this show, and thereby he revealed once again the true purpose of the Auschwitz Trial:
*The Frankfurt Paulskirche, a Lutheran church built in early Neo-Classical style, destroyed by Allied bombing raids during World War II and later partially reconstructed, was the meeting place of the German National Assembly of 1848-49, which attempted to bring about the unification of the Reich on the basis of liberal and nationalist principles similar to those on which the United States was founded. As a patriotic shrine, it may be compared to Independence Hall in Philadelphia. The insulting maliciousness on the part of the organizers of this "Auschwitz Exhibition" is self-evident. --T.F.
[243-244]
Likewise, the fact that classes of school pupils attended the proceedings every day they were in session, except during the school holidays, along with other groups of young people, shows that the significance of the trial for contemporary history was understood by many of those who hold positions of authority. At times, schools had to make their reservations weeks in advance to get space at the trial.72 (emphasis added)
This is fully in line with Langbein's previous statement that the trial was "primarily of historical, not legal," significance. As one of the main initiators of the Auschwitz Trial, he ought to know.
The Trial Participants
The Judges
The success of a show trial like the Frankfurt proceedings depends above all on the judges, particularly the presiding judge.73 Should the presiding judge decide to conduct the proceedings according to the view that only issues relevant to the trial as a penal case will enter into the court's decision, and avoid anything that merely serves to produce a politically demonstrative effect, then he would be hindering the attainment of the objective of the forces behind the trial, if not sabotaging it entirely. Alas, the conduct of the Auschwitz Trial shows that it is doubtful whether the presiding judge and his judicial colleagues even considered doing this. Nevertheless, Presiding Judge Hofmeyer felt himself called upon to deny, in his oral opinion, the defense attorneys' charge that this trial had been a "political trial" and a "show trial." He went on to say that "those who followed this trial know that it was anything but a show trial, a trial in which the verdict is agreed on in advance and the trial itself is nothing but a farce designed to give the public a show."7" This comment -- which does not appear in the written opinion -- is highly significant. It is supposed to be perfectly obvious and worthy of no special mention that show trials do not exist in a state based on law, and beneath the dignity of any judge to take such a suggestion seriously.
As a matter of fact, the essential characteristic of a show trial is not that the "verdict is agreed on in advance" and that all the defendants will be convicted, if that is what the Presiding Judge meant to say. Were this the case, the Nuremberg "war crimes" trials staged by the Allies could not be considered show trials, since some of the defendants were acquitted -- as in the Auschwitz Trial. The decisive factor is whether judicial rules and procedures are ignored or violated outright in order to achieve a politically demonstrative effect, something that does not, of course, exclude the possibility of certain juristic formalities being observed. Even show trials must have a semblance of legality.
Throughout the course of the Auschwitz Trial, it was evident that the main purpose of these proceedings -- supported even by the bench -- was to establish as an incontestable historical fact the picture of Auschwitz [244-245] that the initiators of the trial found politically desirable. From the outset, the judges made it clear that they regarded Auschwitz as the center of the destruction of millions of Jews, planned by and executed under orders from the German leadership. The whole trial was simply an effort to "corroborate" this "fact" and present a comprehensive picture of it to the public. At no point in the argumentation were the basic premises of the indictment and the raison d'être of the trial disputed, a phenomenon characteristic of show trials. Laternser's observation that the German witnesses all gave the "impression of being downright cowed" is further testimony to the show trial character of these proceedings .75
To be sure, the Presiding Judge is said to have stated in his oral opinion that it was not the task of the court to fulfill the wish implicit in the trial (!), or "to master the past"* through a comprehensive historical presentation of the contemporary events; its only function was "to examine the validity of the charges" and not to "strive for other goals. "76
These statements, though they express a view of the proper function of a court of law that is indubitably correct, are actually nothing but hollow rhetoric so far as the Auschwitz Trial is concerned. The facts about that trial tell a different story. In various ways, the court allowed ample opportunity -- as we shall show in detail later on -- for the treatment of recent history, made numerous pronouncements on the subject in its written opinion, although there was no reason to do so, and even convicted defendants whose deeds themselves would otherwise have borne no relation to the crime of murder, or any other legally punishable crime, on the basis of the totally unsubstantiated "gas chamber" allegation. Thus it cannot be said that the court limited itself to "examining the validity of the indictments." As a matter of fact, the court did not -- strictly speaking -- even examine the validity of the indictments. And thereby it underscored, whether intentionally or not, the show trial character of these proceedings.
It may be that the mass media had convinced the court, particularly its Presiding Judge, that millions of Jews were killed, specifically, "gassed," at Auschwitz. The influence of the mass media, even on intelligent people,is one of the sad facts of our times. A critical look at the literature on recent history would have shown the court that there is at least some doubt about this propaganda charge. But the judges lacked either the time or the courage to come to grips with this material.
*To render the phrase "die Vergangenheit zu bewilltigen" as "to master the past" is perhaps too literal. The original German has connotations of rewriting history, specifically, for the purpose of "re-educating" the German people. At least in German revisionist circles, the term "Vergangenheitsbewilltgung" is used in the sense of "history-twisting."--T.F.
[245-246]
It is not outside the realm of possibility that all or some of the judges knew better, or had certain doubts, but felt it would be inopportune, as it were, to cast the slightest doubt on the story of the "extermination of the Jews." Laternser says that he even got the impression that the Presiding Judge was visibly anxious to avoid making any "mistakes" that might bring negative comment from the press ~ One can readily imagine the grave consequences the judges would have suffered for their heresy had they voiced any doubt about the Auschwitz legend.
Be that as it may, the net result of this judicial bias was to put the stamp of a show trial on these proceedings. Some of the characteristic features of a typical show trial are lack of objectivity and impartiality in the conduct of the proceedings, presentation of one-sided and thoroughly insufficient evidence, and the making of allowances for the political objectives of the initiators of the trial. All these things, which along with the constant hammering into the public mind of the court's "findings" are usually enough to accomplish the purposes for which the show trial was designed, were present in the Auschwitz Trial. Whether the judges were desirous, or even aware, of what was happening is,in the last analysis, beside the point.
That the Auschwitz Trial court, particularly its Presiding Judge, behaved in a manner typical of a show trial court is abundantly clear from the examples Laternser gives in his book, of which we can cite only a few here.78 This conduct is evident even from Langbein's and Naumann's documentary volumes on the trial, although it certainly was not the intention of these authors to call attention to it.
Typical of the atmosphere of this trial is a remark which the Presiding Judge made in the initial stage of the proceedings: "hearsay" would be assigned "greater weight" in this trial because such a long time had elapsed since the alleged events.79 This is a statement guaranteed to raise eyebrows among professional jurists. In an ordinary criminal trial, testimony based on hearsay is immediately rejected. For one of the basic rules of a scrupulous argumentation is that only what the witness actually knows firsthand may be taken into account. Apparently, the Presiding Judge did not consider it necessary, or at least expedient, to conduct this trial as an "ordinary criminal trial." Given the "liberal" attitude of the court, prosecution witnesses could practically lie a blue streak. In passing let it be noted that the reason the Presiding Judge gave for the admission of "hearsay" in this trial is absolutely illogical. Every experienced practitioner of criminal law knows that witnesses find it difficult to recall their own experiences properly after a period of time has elapsed, even if they are in good physical and mental shape. The testimony of hardly impartial witnesses about things they heard almost two decades before must be even less reliable. Nevertheless, [246-247] the judges in the Auschwitz Trial were willing to listen for hours to all sorts of prison gossip, provided it fit into the accepted picture of Auschwitz, and thus contributed to the success of the "show."80
The treatment of witnesses by the court was totally lacking in the judicial fairness customary in ordinary criminal trials. All the prosecution witnesses, most of whom came from abroad, were treated with the utmost courtesy and respect. Very seldom did the judges cast doubt on their claims, no matter how fantastic the tale may have been. Their testimony was not scrutinized in the light of other relevant testimony and evidence, as is normally done in penal trials. Attempts by the defense to do so met with all kinds of procedural sleight of hand. Exonerating testimony was treated with the greatest skepticism by the court. Defense witnesses who once belonged to the SS risked being arrested in the courtroom if they did not take at least a modicum of care that their testimony did not deviate too far from the "line" set by the court, or if their testimony aroused the slightest suspicion that they had been involved in the alleged murder of Jews. On the other hand, the foreigners who testified for the prosecution had a kind of carte blanche: They could freely return to their homelands even when they had obviously committed perjury or come under suspicion of having murdered a fellow inmate.81
How lacking in objectivity and impartiality the court was can be seen from the general attitude of the judges towards the accused. Typical of this was a remark the Presiding Judge made during the session of July 23, 1965--which no doubt reflected the sentiments of the other judges -- that thþe trial would have progressed far better had the defendants told the truth from the first day on.82 That a member of the court should have made this blanket condemnation of the defendants is almost incredible. It was both unfounded and hardly in keeping with the judicial reserve taken for granted in normal trials. What is more, the Presiding Judge reiterated this accusation in the oral opinion. There he claimed that the defendants "have not furnished any clues to help in the search for truth, have kept silent on many points, and have largely failed to tell the truth," adding that "the defendants have no right to feel discriminated against if in one or the other instance the court accepted the word of a witness, since the defendants failed to rectify witness testimony by truthful accounts of what happened."83 This is tantamount to saying that the court gave credence to prosecution witnesses not because their testimony was trustworthy, but because the defendants either did not challenge it or said something else, which, after all, was entirely within their rights. To put it another way: If a witness told the court what it wanted to hear, he was always telling the "truth."
One might argue that in other trials judges have been lacking in objectivity and impartiality. Though this objection may be basically correct, one must recognize a considerable qualitative and quantitative difference [247-248] between the constant partiality of the Auschwitz Trial court, especially the Presiding Judge, and the occasional breaches of judicial objectivity found in some other trials. This is the impression one gets from all the documentary volumes on the trial, not just from Laternser's account.
Given this situation, it was almost to be expected that the Presiding Judge never made an attempt to stop or restrain those in the audience who loudly heckled and insulted the defendants and their attorneys, that he frequently interrupted the defendants and their attorneys, and did not admit relevant questions from the defendants and their attorneys. In this way, he finally brought them to the point where they hardly bothered to exercise their procedural rights. Truly, the normal standards did not apply in this trial.84
Under these circumstances, nobody will be surprised to hear that the defense felt handicapped by the way the court conducted the proceedings, as Dr. Laternser frequently remarked.85 This situation might have some bearing on the curious fact that neither the accused nor the defense at any time dared to cast doubt on the claims that Auschwitz functioned as an "extermination camp" and that "gas chambers" existed there. For the bench had -- as all the documentary volumes on the trial show -- already indicated by its questioning of witnesses and defendants its preconceived ideas about this matter. It would have been futile, if not dangerous, for the defense to challenge those ideas. The court acquitted itself perfectly of the task assigned it by the promoters of the trial.
In conclusion, one cannot describe the show trial-like atmosphere which the prejudicial conduct of the bench gave these proceedings more aptly than in the words of the most widely respected attorney for the defense, Dr. Laternser:
At no time in any of the great international trials in which I have participated -- not even the International Military Tribunal Trial in Nuremberg-- was there the kind of charged atmosphere that prevailed in the Auschwitz Trial. Those trials had a far more objective atmosphere, even though they took place immediately after the cessation of hostilities.86
A more devastating verdict on this trial cannot be imagined, especially if one bears in mind that the victors' trials of the post-war era, which Laternser mentions by way of comparison, have always been subject to severe criticism, even in the conquerors' own countries. Today few people would deny that they were purely show trials.
An equally devastating verdict on the Presiding Judge of the Frankfurt Assize Court appeared in a Swiss newspaper a few days after the beginning of the trial: The Presiding Judge was described as being probably the "best prosecutor in the courtroom"!87
It is perhaps superfluous to add that such a court could never arrive at a determination of historical truth.
[248-249]
The Prosecution and Accessory Prosecutor
By overemphasizing political and historical matters, the prosecutors and accessory prosecutors in the Auschwitz Trial greatly contributed to giving these proceedings the character of a show trial.88 The prosecution considered all the defendants "guilty" simply because they happened to serve at the Auschwitz "extermination camp." In this regard, the prosecution did not make an exception even of Dr. Schatz, who served at Auschwitz as a dentist, though not a single witness could be found to testify against him. It demanded that he be sentenced to life imprisonment, and one of the accessory prosecutors even suggested "30,000 consecutive life terms," a suggestion that Laternser rightly described as "strange"89
The prosecutors and accessory prosecutors thus revealed themselves to be not the servants of justice, but the instruments and representatives of those political forces which aimed from the very start at staging a show trial -- not that objectivity could be expected from the accessory prosecution, anyhow. As we have already noted (see p. 225 above), the prosecution in trials of a political nature frequently neglects its legal duty, set forth in §160, Paragraph 2 of the StPO, to search out facts which exonerate the defendants. This is only natural, since such trials are always initiated at the behest of a higher authority, and even prosecutors who are otherwise very scrupulous may consider it unwise to act contrary to the wishes of their patrons and superiors in the political system. The Auschwitz Trial was no exception in this regard. Assistant Prosecutor Wiese occasionally dared cross-examine witnesses on behalf of the accused.90 In general, however, the prosecutors did not seem to consider themselves under any obligation to inquire into exonerating circumstances. They did not even seem interested in whether the witnesses were telling the truth, something about which there was often considerable doubt. Their rule of thumb was, as Laternser notes, that foreign witnesses always tell the truth, German witnesses are to be regarded with suspicion, and former SS members usually lie. They did nof even balk at taunting and personally insulting the defendants and their attorneys. In an ordinary criminal trial, that would have been inconceivable. They could afford to be offensive since the Presiding Judge rarely censured such unprofessional and unfair conduct. As a matter of fact, he frequently overruled the objections of the defense to these tactics.91 It is not difficult to imagine the kind of psychological war of attrition the prosecutors carried on against the defendants during the years of pre-trial interrogation. In short, the search for truth was impeded, rather than furthered, by the prosecution. That is exactly the role the prosecution always plays in show trials.
The efforts of the prosecution to create, at the expense of the defendants, the picture of Auschwitz which the promoters of the trial thought [249-250] politically desirable were supported by the so-called accessory prosecutors, who were, of course, under no legal obligation to search for the truth. Their part in the trial was simply to represent the relatives of the alleged victims of Auschwitz. As Laternser emphasizes~ they strove above all to give the public a false notion of the number of victims, and with their legally groundless motions~ they were always trying to create a sensation.92 What is more, the accessory prosecutor Friedrich Karl Kaul often used the courtroom as a forum for Communist propaganda. For example, he tried to connect leading figures in West German industry with the Auschwitz concentration camp.93 The very fact that this representative of a Communist regime was even given an opportunity to agitate in the court of a state supposedly based on law underscores the fact that the Auschwitz Trial was nothing but a show trial.
The Defense
Unfortunately, the defense in the Auschwitz Trial did not form a united front. As Laternser notes with a certain bitterness, the defense attorneys hardly ever agreed on anything. According to his account, some of them even avoided the defense attorneys' lounges preferring in stead to chat with the prosecutors and accessory prosecutors during recesses .~" Evidently, they wanted to display aloofness from their clients~ though, of course~ their conduct can be explained otherwise. It is easy to imagine how depressing and demoralizing even the outward bearing of the defense attorneys was to the defendants. If in the course of the trial the defendants hardly bothered to put up any resistance, so far as the basic issues in the trial were concerned, and merely tried to save their own necks, that was at least partially the result of lack of encouragement from their attorneys.
Far more important and remarkable is the fact, which emerges from all the documentary volumes on these proceedings, that none of the defense attorneys challenged the basis of the trial, namely, the allegation that Auschwitz was an "extermination camp." That would have required some research on their part, though that celebrated faculty called common sense is really enough to provoke skepticism about the allegations that keep the extermination legend alive. However, the defense seems to have taken at face value the picture of Auschwitz spread by the mass media. One would assume that in a trial as important--and not just to the accused --as this one, the defense would have shown a bit of initiative in acquiring information, and independence in interpreting it. At least, one would expect some member of the defense team to have requested permission to introduce into the proceedings an expert whose viewpoint on these matters was sharply antithetical to that of the prosecution. That expert could easily have been' the French historian Professor Rassinier, a man extremely well versed in the subject of the [250-251] concentration camps, whose most important works had already been published in German translation when the Auschwitz Trial began. He could have testified on the question of whether the alleged gassings were technically feasible, for example, or whether the Höß memoirs, which played a certain role in this trial, were actually genuine .95 Since none of the defense attorneys had the courage to do so, the whole defense team is open to the charge of having behaved in a manner typical of the performers in a show trial. They simply did not use every available means to oppose the political aims served by the trial, and thus failed the German people. From their conduct it is obvious that they could or would not recognize the tremendous social and political importance of this trial. Each one of them was concerned solely with securing an acquittal, or, at least, a more lenient sentence, for "his" client.
Sorry to say, this applies even to Dr. Laternser, who was the most steadfast member of the defense, and was therefore often attacked. Although it must be conceded that he constantly tried to oppose any argumentation that was irrelevant to the alleged crimes of the defendants and served only the political aims of the trial, he never left any doubt that he regarded the tale of the "extermination camp" with its "gas chambers" as a historical fact. At the beginning of his opening plea, he expressed his agreement with the prosecution's charge that "never in history has there been a persecution of the Jews equal in extent and gravity to that of the National Socialist regime." Further, he claimed that only the turn of events in the war and "not remorse or some other honorable motive" was the reason "Hitler and his accomplices did not finish the job of exterminating the European Jews ~"96
I am not really sure whether Dr. Laternser, an astute and experienced trial lawyer, actually believed all that himself, or whether he only pretended to believe it for tactical purposes. There is some reason to think the latter is the case. By taking this position -- which involved disregarding all the evidence against the extermination thesis -- he could argue, for instance, that the defendants were not "guilty" of "complicity to murder" by participating in "selections." True, the prisoners singled out as "unfit to work" were supposedly "gassed" forthwith; but Laternser insisted that Hitler had ordered the killing of all Jews transported to Auschwitz, so the "selections" actually "saved" part of the arriving Jews from immediate extermination. Since the others would have been "gassed" anyway, Laternser argued, mere participation in a "selection" could not be a legally punishable act.97
But leaving this stratagem aside, Laternser may also have been of the opinion that a frontal attack on the extermination legend would have no hopes of success, and might even bring additional difficulties for the accused. We recognize this position from the Nuremberg Trials. A characteristic feature of the show trial syndrome is that the accused, whether from rational considerations or as a result of brainwashing, [251-252] nearly always adapt themselves to the political sum and substance of the trial. When a defense attorney takes the approach of accommodation (perhaps even forcing it on his client), the individual defendant may benefit in some cases. Morally this posture is deserving of condemnation, of course, if those who have chosen it are aware of the truth.
The Defendants
When one contests the allegation that Jews were gassed en masse in Auschwitz-Birkenau, the reply is often that even the defendants in the Auschwitz Trial admitted that this happened. For example, Langbein writes in his book Menschen in Auschwitz: "None of the accused SS members tried to deny that gassing facilities were present at Auschwitz." 98
Of course, this claim is no substitute for concrete evidence that "gas chambers" existed at Birkenau, evidence that is still lacking. If it were, one could claim with equal validity that witches really exist because during the Middle Ages some people accused of witchcraft "confessed," in many cases without their having been tortured.99 But even Langbein's generalization is misleading. In most instances, the defendants in the Auschwitz Trial simply replied, when asked about "gas chambers" and such, that they had "heard" something about them. Only two of the defendants, Stark and Hofmann, "confessed" to having taken part in some "gassings." (We shall return to this matter later on.) Furthermore, the defendant Broad claimed to have witnessed, from a hiding place, the "gassing" of Jews in the old crematorium, a claim we have already examined in detail (see pp. 145ff. and 164ff. above). A long line of defendants--Boger, Schoberth, Bischoff, Scherpe, Neubert, and Bednarek -- had nothing in particular to say about "gas chambers." It may be they were not even questioned about "gas chambers," since they were not involved in the charges against them. Two of these defendants were eliminated from the trial in the early stages: Bischoff (who died) and Neubert (who fell ill). Had they been asked, of course, they, too, might not have contested the "gas chamber" allegation.
In the introductory essay to his volume of documents on the trial, Langbein asserts that nothing prevented the accused from objecting to and refuting exaggerations.100 From where he stands, this statement may make some sense, but actually it is totally at odds with the facts. No refutation of the gas chamber legend could have been expected from these people, who were without exception men of rather modest intellect. It is even possible they believed rumors about such things that they had heard someplace or other. Perhaps more decisive, however, was the trial atmosphere, the attitude of the other participants, including the defense, and the psychological stress of a pre-trial investigation lasting many years. Almost inevitably, this caused all the defendants to [252-253] resign themselves to their situation and defer to the presumptions of the court. In this, too, their behavior was typical of that of the defendants in a show trial.
As a rule, the defendants in show trials, whose "crimes" are the ostensible raison d'être of the proceedings, do "confess," and it is beside the point whether they do so as a result of brainwashing or in order to secure legal advantages for themselves. In the Auschwitz Trial, the latter was probably the case, even though some of the defendants, judging by their behavior, appear to have been victims of psychological manipulation that made them believe in the "mass gassings." We are acquainted with this phenomenon from the Nuremberg Trials.
Now, the mere fact that some of the defendants in the Auschwitz Trial "confessed" does not tell us whether their statements have any bearing on historical events. What matters is the content and reliability of those "confessions." As we have previously noted, even confessions must be thoroughly checked against other known facts and evidence before one can draw any conclusions about their credibility. The judges in the Auschwitz Trial neglected their judicial duty to check the facts, even when that was absolutely necessary, as in the case of Stark's and Hofmann's testimony regarding their direct participation in the "gassing" of Jews. The utter vagueness of these defendants' statements on an issue of such importance in this trial should have prompted the court to ask them a number of questions to clarify certain details of their testimony. But if we may rely on Naumann's reportage and Langbein's collection of documents on the trial, questions which might have helped get at the truth of the matter were never asked. This fact adds to the suspicion that we are dealing with a show trial. In their own view, the court and the prosecution were just acting logically. For neither the judges nor the prosecutors considered the "gassing of the Jews" to be anything less than an a priori fact, and, as we have shown, the defense shared this assumption. It makes no difference whether the judges realized their true purpose in the trial was merely to "sanction" this idea. By hook or crook, the show trial function of these proceedings, so glaringly conspicuous in this particular instance, was maintained from start to finish.
There can be no doubt that the defendants made "confessions" supporting the exterminationist dogma simply in order not to appear "uncooperative." These "confessions" were nothing more than an attempt to placate the court and the prosecution. They were probably made on the advice of the defense attorneys. If an attorney could succeed in persuading his client to "confess"--falsely--that he had shot inmates,101 how much easier it must have been to convince him that it is only to his advantage to affirm that he knew, at least from "hearsay," that "gassings" of Jews occurred, and even to acknowledge that he played some part in them, albeit a not particularly important one. Could one really expect these defendants not to have conformed, more or less, to [253-254] the "extermination camp" dogma underlying the Auschwitz Trial? Some of them had been illegally detained for years; they had perhaps been "brainwashed" under the direction of the Jewish Chief Public Prosecutor Bauer; they may have taken the mysterious death of the "reticent" Commandant Baer as an object lesson; and, finally, they found themselves at the mercy of a blatantly prejudiced court in a trial conducted in a climate of near hysteria.
All this quite plausibly accounts for the behavior not just of those defendants who stated that their "knowledge" of "gassings" was based on hearsay, but also for that of the defendants who claimed to have participated -- if only to a very limited extent -- in the alleged murder of Jews. After all, they could not deny that Auschwitz was an "extermination camp" and had "gas chambers" without going against the general line set by their attorneys. None of the defendants had the requisite courage for such independent action.
Taken strictly, Stark's testimony has few implications for the problem under discussion here. Stark was in Auschwitz only until November of 1942. He was stationed at the parent camp, and never laid eyes on Birkenau. Some "witnesses" claimed to have seen him at a "gassing" in the old crematorium of the Auschwitz parent camp. Stark himself asserted that Commandant Höß had once ordered him to the roof of the crematorium to help with the "pouring' of Zyklon B into the "pouring holes." He testified that only one man, a member of the disinfection squad, was there to aid him. The alleged victims were 150 to 200 Jews and Poles who, he was purportedly told, had been sentenced to death by a summary court. Stark said that he could not disobey the order since Commandant Höß had threatened to gas him too, when he showed signs of hesitating.102
Obviously, this "testimony" is of very little relevance to the extermination charge, since it concerns the purported execution of a summary court sentence, not the liquidation of Jews for racial reasons. Such executions were carried out by a firing squad, of course, not a disinfection squad. Stark's claim that an execution was carried out with gas is simply unbelievable. From everything known about these matters, it must be called an outright lie.
From Nuremberg Documents NI-9098 and NI-9912, which we have already mentioned in another connection, we know that Zyklon B was an extremely toxic gas; that its effects were immediate; that special training was necessary for its use; and that those who worked with it had to wear gas masks equipped with a special filter (see p. 211 above). All these facts were corroborated during the cross-examination of the defendant Arthur Breitwieser, who for some time was head of the disinfection squad at Auschwitz 103 Stark did not mention that he received any special training or that he wore a gas mask equipped with a special filter during the alleged "gassing." Since according to his own [254-255] testimony, he did not perform any specific task in this "gassing action," he could not have plausibly claimed that he had worn such a mask. Either on purpose or for want of knowledge about the whole subject, the court passed over these contradictions.
In addition, Stark insisted, when questioned further by the Presiding Judge, that the victims screamed for about ten to fifteen minutes after the gas had been introduced into the "gas chamber." Given the instantaneous effect of Zykion B, this is impossible. When asked to describe how people gassed to death look, Stark was at a loss for an answer. It would be a waste of time to say anything more about the "testimony" of this "witness" other than it got him a relatively lenient sentence. Stark was sentenced to ten years imprisonment under juvenile law, since he was a minor when the alleged crime was committed, and according to one of the court's experts had been emotionally immature for his age.104
The other defendant who, "after initial denials," as the Auschwitz Trial opinion puts it, admitted to a certain degree of participation in the "gassing" of Jews in a Birkenau "gas chamber" was the onetime Chief Guard of the Auschwitz camp penal compound Franz Johann Hofmann. From April to September 1943, he was in command of the Gypsy compound at Birkenau, that is, at a time when, so the story goes, the "gassings" had just begun in the "gas chambers" of the newly constructed crematoria 105 Hofmann must have been very well informed about these events, assuming for a moment they actually occurred, since he occupied a rather important post in Birkenau, and the Gypsy compound he administered was in close proximity to the new crematoria. Nevertheless, his testimony regarding these matters is vague and imprecise. According to both Naumaun and Langbein the core of this testimony is as follows:
There were beatings and physical abuse as Jewish details pushed the prisoners into the gas chambers which were disguised as shower rooms. The details were then gassed as well. That always led to great confusion; I even had to watch out to see that working prisoners weren't gassed along with the others. Yes, and sometimes we helped push. Well, what were we supposed to do? We were under orders.106
That is all the defendant Hofmann had to report about the alleged "gassings" and "gas chambers." Certainly, it is not much, and should have elicited further questioning. His description of the "gassing" process contradicts all the other accounts. Usually, it is claimed that prisoners were taken to the "gas chambers" quite peaceably, since the disguising of the "gas chambers" as shower rooms effectively served its purpose of deceiving the prisoners about their fate. Hofmann, too, alludes to this camouflage, and so a contradiction arises that shows up the absurdity of his whole "testimony" on the subject of the "gassings": "There were beatings and physical abuse as Jewish details pushed the prisoners into the gas chambers, which were disguised as shower rooms.
[255-256]
Yet, the court failed to notice -- or chose to ignore -- the discrepancies in Hofmann's testimony. At least, it did not bother to ask any of the obvious questions. When Prosecuting Attorney Kfigler asked Hofmann for details, he replied: "I cannot give any more specific information than this"107
Nothing could better illustrate the worthlessness of this "confession" as historical source material.
One question remains to be answered: What was the motive behind Hofmann's self-incrimination? Considering the position he occupied at Birkenau, only two possible courses of action were open to him. First, he could choose to tell the truth and deny that he had ever seen "gas chambers" at the camp; second, he could do as the other defendants did and "acknowledge" that they existed. If he chose the latter course, he would be forced to include some reference to his own participation in the "gassings," since, after all, he was a camp official. This might have seemed the easiest way out, if he thought he could prove his "participation" in the "crime" was minimal. To be the only defendant who disputed the basis of the whole trial, though that would have served the cause of truth, may have seemed to him an exercise in futility.
But Hofmann had another, more compelling reason to fall in line, and not offend the court and prosecution by an apparent lack of "remorse" for his "crimes." He had already been sentenced to life imprisonment by Assize Court II in Munich, on December 19, 1961, for two murders he allegedly committed at the Dachau camp, and he was now serving that sentence. It seems that Hofmann, like so many other former SS members who had to work in the concentration camps, had fallen victim to "professional witnesses." At any rate, a re-trial was initiated, and had not been concluded while the Auschwitz Trial was still in progress.108 Were Hofmann to be sentenced to another life term, in the Auschwitz Trial, an appeal on his previous conviction would have rather doubtful prospects for success. He was thus eager to come away from the Auschwitz Trial with only a determinate sentence, from which the time he had already served on the previous conviction could be deducted if he won the appeal. The only conceivable way to obtain this advantage from the Auschwitz Trial court -- so his attorney must have advised him -- was to refrain from disputing the dogma underlying the trial and to admit his participation in the alleged "gas chambers" murders, something about which the court had no doubt, anyway, in such a manner that he could be convicted at most of complicity in murder. Unfortunately for Hofmann, this turned out to be a miscalculation.
Partly because of this miscalculation, partly because of manipulation by others, he was impelled to make a false confession. That may explain his outburst of anger when the Presiding Judge pressured him to make additional self-incriminating statements. According to Naumann and Langbein, Hofmann shouted: [256-257]
If I had to do it all over again, I wouldn't say one word. I am being saddled with one charge after another. If I had known everything that was still to come, I would have said nothing. Everybody is shouting for Hofmann: Hofmann is there and Hofmann isn't there. I don't know what you want from me.109
These are not the words of someone with murder on his conscience. They are a cry of despair. Years of persecution and imprisonment had left Hofmann a broken man. He probably would have been at a loss to explain the statements he was forced into making.
It is possible, of course, that Jewish details did herd new arrivals into various rooms, as Hofmann testified. However, those rooms were just shower baths, not "gas chambers." Nothing could be more natural than to give new arrivals at a concentration camp a thorough washing and delousing. 110
To sum up, we can say that not a single one of the defendants in this trial gave convincing testimony that "gas chambers" existed at the Auschwitz camp. It is obvious that any statements they made to that effect were intended to help them get through the whole sticky business. Quite a few of the defendants "overdid it" in saying what was expected of them.111 That is evident not only from the statements of Stark and Hofmann, but also from those of some of the other defendants who testified in the same vein. Their testimony clearly shows they were simply paying lip service to the Auschwitz Trial dogma in order to secure some advantage for themselves. Often they got so bogged down in details that they defeated the purpose. For instance, the defendant Stefan Baretzki explained his "knowledge" of the "gassing of the Jews" by claiming that camp personnel were "taught daily the reasons for the extermination of the Jew."112 This is an obvious lie. Even the court acknowledged that Baretzki was not directly involved in the alleged gassings, but had merely participated in "selections." According to every version of the extermination tale, the "gassings" took place in total secrecy, and the circle of initiates was kept as small as possible. It is therefore altogether unlikely that Baretzki, who merely stood guard at "selections," would have received lectures from his superiors on the necessity of the extermination of the Jews. In his toadying to the court and prosecution, Baretzki went a little too far -- not that they held it against him.
Just as reckless -- and even more thoughtless -- was a statement made by Dr. Willi Schatz, who was accused of participating in "selections" at the Auschwitz railway ramp. "Never in my life," he said, "did I imagine that the 'ramp' would be my downfall."113 This remark can only mean that Dr. Schatz knew, while serving at Auschwitz, that the "selections" were not a preliminary to "gassings." Yet he had previously insisted -- no doubt in conformity with the guidelines of his attorney -- that it was "common knowledge" among camp personel at that time that "Auschwitz was an extermination camp" and "what selection duty was all about."114
[257-258]
Thus, in his attempt to accommodate those who were trying him, the defendant made statements blatantly contradicting the truth, well known to him, that the separation of the able-bodied from the infirm among new arrivals had nothing whatever to do with any homicidal designs.
However, Emil Hantl was the defendant whose claim to "knowledge" of "gassings" most distinctly revealed itself to be nothing more than a concession to the seemingly inalterable assumptions of the court. Though at first he dissociated himself from the alleged "gas chamber" murders, Hantl finally claimed that he had "saved the lives" of inmates who were to be gassed at Mauthausen towards the end of the war.115 His "knowledge" of "gassings" at Mauthausen was on the same level as his "knowledge" of "gassings" at Auschwitz-Birkenau. Today not even the Institut für Zeitgeschichte would dispute the fact that there were neither "gassings" nor "gas chambers" at the Mauthausen camp. This fact was also well known at the time of the Frankfurt Auschwitz Trial. That a defendant was allowed to get away with making such a statement, simply because it fit in so nicely with the extermination legend, once again points up the show trial character of these proceedings. The Hantl episode was typical of the whole atmosphere of this trial.
The Argumentation
At the heart of every penal trial lies the effort to determine the factual basis of the charges in the indictment. The court does this by weighing the evidence according to the ground rules set forth in the Rules of Judicial Procedure in Penal Cases (the StPO). In the following section, we shall examine how the Auschwitz Trial court handled the hearing of evidence.
The charges against the defendants in this trial were of the most diverse kind. Some of them were accused of murdering, as well as maltreating, individual prisoners and small groups of prisoners. Even taking part in the execution of death sentences pronounced by summary courts counted as complicity in murder. But the main charge against nearly all the defendants was that they had participated in some way or other in the "mass gassing" of Jews. In most cases, this accusation was limited to their participation in "selections," the sole purpose of which was allegedly to pick "gas chamber victims." Some were also accused of taking victims to the "gas chambers" or even supervising the administration of the "gassing agent" Zyklon B.116
The charge relating to direct or indirect participation in "gassings" was, of course, predicated on the assumption that "gas chambers" really existed at Auschwitz-Birkenau. As we have seen in the course of our inquiry, that has yet to be proved. The "gas chamber" allegation is precisely the point that should have been subjected to the closest scrutiny during the trial, but the court -- and everybody else involved in [258-259] these proceedings -- acted as though the research of contemporary historians had long since confirmed it as an indisputable fact. Despite the many absurdities and contradictions in the "gas chamber" legend, none of the trial participants ever questioned the physical existence or the technical feasibility of the alleged gas chambers. Even the defendants and their attorneys were careful not to cast doubt on the "gas chamber" legend. We cannot stress this point too much. For it was their position on this matter which resulted in, or, at least, contributed to, the shoddy argumentation in this trial.
Here again, we are reminded of a similarity between the Frankfurt Auschwitz Trial and the show trials the Allies staged after the war. In the Nuremberg trials, the basic rule was that a "fact of common knowledge" did not require proof. It was enough for the court to take "judicial notice" thereof.117 The same device was employed in the Auschwitz Trial. Since the post-war "re-education" of the German people, founded on Zionist and Bolshevik atrocity propaganda, had made the "gas chamber" legend into a "fact of common knowledge," the judges in the Auschwitz Trial had to take "judicial notice" of it, in a certain sense, since otherwise they would have been subjected to the most grievous professional disadvantages and personal attacks. Thus they set great store by evidence tending to prove that the defendants had performed certain tasks at the Auschwitz camp. Both from the standpoint of morality and penal law, these actions were in themselves usually quite neutral. Only with the tacit or express agreement of the trial participants could they be construed as complicity in "crime." The putative "crimes" themselves were seldom, if ever, put to the test of proof.
Given these circumstances, it may seem superfluous to delve any further into the nature of the evidence presented to the Auschwitz Trial court and the use that was made of it. However, we shall briefly consider these matters in the next few pages, since they shed add~1onal light on the show trial character of the proceedings.
Depositions from Experts
Depositions from expert witnesses are defined as evidence in the Rules of Judicial Procedure in Penal Cases (§§72ff. StPO). According to Langbein, no less than twelve consultant depositions were submitted in the Auschwitz Trial.118 For the most part, they dealt with particular issues that are irrelevant to our inquiry. The most important consultative depositions in the trial are generally considered to be those of the experts on contemporary history. After the trial, they were published under the auspices of the Institut für Zeitgeschichte in two volumes entitled Anatomie des SS-Staates. This collection of documents contains the following depositions: [259-260]
Dr. Hans Buchheim: "Die SS--das Herrschaftsinstrument" ("The 55--Instrument of Domination") and "Befehl und Gehorsam" ("Command and Obedience"); Dr. Martin Broszat: "Nationalsozialistische Konzentrationslager 1933--1945" ("National Socialist Concentration Camps, 1933-45");
Dr. Hans-Adolf Jacobsen: "Kommissarbefehl und Massenexecutionen sowjetischer Kriegsgefangener" ("The Commissar Order and Mass Executions of Soviet Russian Prisoners of War"); Dr. Hehnut Krausnick: "Judenverfolgung im Dritten Reich" ("The Persecution of the Jews in the Third Reich").
According to Dr. Laternser, Broszat also contributed a deposition on "National Socialist Polish Policy," but it is not to be found in the published collection.119
From the very titles of the deposition, one can tell that they have little, if anything, to do with the main issue in the Auschwitz Trial or the alleged deeds of the defendants. The closer one studies these depositions, the more this impression is confirmed. To give but an example: Less than four printed pages of Krausnick's 165-page deposition are devoted to the "gas chambers" of Auschwitz-Birkenau -- the keystone of the extermination legend. What is more, in his treatment of this subject that "expert" relied largely on the memoirs Höß purportedly composed in a Cracow prison, which we have already shown to be completely inaccurate, indeed, possibly a forgery (see pp. 196ff. above). Thus Laternser is quite right when he says these depositions were "made in a vacuum" and "academic exercises so far as this trial is concerned."120 Evidently the court lost sight of the function of experts in a trial when it commissioned these depositions.
In German trial law, experts are defined as helpers of the court. Their task is simply to provide the court with technical information (e.g., as to pathology, psychiatry, toxicology, ballistics, or other such matters) which it may not have at its disposal but which has been shown in the course of the trial to be absolutely indispensable to a judicial decision. Such information must, therefore, concern matters that pertain more or less directly to the main issues in the trial or to the defendant himself. As a rule, the questions that may be asked of the experts are narrowly circumscribed by the court, and for the most part must focus on certain specific points. "General discourses" on subjects not directly related to the charges in the indictment -- such as the Auschwitz Trial depositions mentioned above -- do not contribute to the purposes of a trial and are thus inadmissible. Had the Auschwitz Trial really been an "ordinary criminal trial," this rule would have been observed. However, as we have seen, the instigators of these proceedings never intended them to be an "ordinary" trial. They had other objectives in mind, and it was those objectives, above all, that the court was obviously endeavoring to further when it decided what evidence would be heard. The admission of such depositions as those cited above can be explained only in terms of [260-261] the show trial nature of the proceedings, what Naumann calls their "ethical, social, and educative implications." These depositions were designed as a kind of crash course in the version of contemporary history the instigators of the Auschwitz Trial wished to have presented to the press, public, and, of course, any jurors or other trial participants who might not think exactly as they were supposed to about such matters. Had the usual aims of a penal trial come first in these proceedings, the court would have thought it vital to consult a variety of experts on the questions presented by the extermination legend, if for no other reason than to gain an idea of the credibility of the witnesses and some of the documents. Here are a few such questions:
How long did it take Zyklon B gas to work and what were its effects?
How long did the gas remain active in a sealed room (without ventilation and/or with ventilation immediately after use)?
Could one enter such a room without a gas mask thirty minutes after application of Zyklon B gas, as some insist?
Could corpses be completely incinerated in a crematory oven within twenty minutes?
Can crematory ovens be operated day and night without interruption?
Can human bodies be incinerated in ditches a few meters deep, and, if so, in what length of time?
Obviously, the Auschwitz Trial court could not permit this heretical line of questioning. Had qualified experts been allowed to answer questions like these, most of the allegations made by the prosecution would have inevitably been demolished, the "eyewitnesses" to the "extermination of the Jews' exposed as liars, and the curtain would have fallen on the whole show. Nor did the experts commissioned by the court volunteer any answers to such questions -- after all, keeping the extermination legend alive was their bread and butter.121
It goes without saying that scholars representing a dissenting point of view were not even consulted in this trial. The French historian Professor Paul Rassiier, a former inmate of the Buchenwald and Dora concentration camps ,who made a great contribution to bringing to light what actually happened in the camps, was not even allowed to attend the trial as a spectator. No doubt the forces behind the scenes were afraid of his keen intellect and ready pen.122
If the historical aspects of the concentration camp question were indeed at issue in this trial, nothing could have been more appropriate than to bring in Rassinier, a man who had intensively studied the matter for well over a decade, as a consultant. The thorough and deliberate exclusion [261-262] of experts whose views were known to diverge from the official doctrine is just one more bit of evidence that the extermination legend was an inviolable taboo in this trial. The court made no exceptions.
In brief, we can say that in the Auschwitz Trial "experts" were carefully picked to insure the "correct" historical backdrop for the show. The court did not simply fail to oppose this maneuver on the part of the stage manager but aided it. The numerous and lengthy depositions presented by the "experts" from the Institut für Zeitgeschichte, which is devoted to the "re-education" of the German people, in no way served the purpose of evidence. Their "findings" were either immaterial or inadequately documented, though all the trial participants -- especially the judges -- proceeded on the assumption they were pertinent and factual.123 In this trial, depositions from experts were reduced to the status of theatrical props.
Documents
In general, documentary evidence constitutes the surest and most reliable mode of proof, that is, assuming that the document in question is of indisputable authenticity and contains relevant information about a particular issue in the case. A written document becomes part of the argumentation in a legal proceeding when it is read into the record (§249 StPO). From the standpoint of penal jurisprudence, anything that expresses an idea is considered a "document," whatever its material substance, whatever its form, and whatever it means of expressing that idea.124 Only written documents played a role in the Auschwitz Trial. As evidence for the extermination thesis, none of these documents went beyond anything we have encountered in the course of our inquiry. That is simply another way of saying they furnished no proof at all of gassings or gas chambers at Auschwitz. To review them here would be a waste of time, but a few supplementary remarks may be in order.
When Langbein writes, in the commentary to his collection of documentary material on the Auschwitz Trial, that a "wealth of documents" were read in evidence during the proceedings, he is apparently seeking to give the impression that copious proof of the extermination thesis -- in the particularly reliable form of written documents -- was produced at this trial.125 Nothing could be further from the truth. Leaving aside the possibility that Langbein has grossly exaggerated the quantity ofdocumentary evidence, one notes that the overwhelming majority of documents presented at the trial were only of secondary importance insofar as the "gas chamber" question is concerned, that is, they did not bear directly on the alleged gassings or gas chambers. What is more, he counts as "documents" even the depositions of deceased or absent witnesses, of which there were a great many. Under certain circumstances, the reading in evidence of a deposition [262-263] may serve as a substitute for the usual cross-examination of the witness during a trial. Of course, all it proves is that a certain witness made certain statements about certain subjects; it does not prove whether those statements are true or false. Such documents are in and of themselves no more proof that the witness' statements are factual than is any other form of oral testimony. In fact, they have even less probative value than oral testimony, since one cannot form a personal impression of the witness, something that is very important when it comes to evaluating testimony.
What we have said here about written depositions applies particularly to the court-ordered reading in evidence of interrogation transcripts from the "Belsen Trial" the British occupation forces conducted in 1946. The depositions in question are those of the Birkenau commandant Josef Kramer and the Auschwitz camp physicians Dr. Fritz Klein and Dr. Friedrich Entress.126 Although it may seem nearly incredible that as late as the middle 1960's a German court would still use as evidence transcripts from military trials held during the foreign occupation, since by then there could no longer be any doubt that the defendants in those "trials" were frequently subjected to inhuman and illegal treatment, it was an irregularity quite typical of the Auschwitz Trial. Any testimony from those "trials" that gassings occurred at Auschwitz was either obtamed under duress or simply forged. Given the circumstances under which those "trials" took place, no evidence from them could be regarded as having any probative value whatsoever.127 The admission of such "evidence" had nothing to do with justice or fact-finding, and only in a show trial would it have been possible.
Great importance was attributed to the so-called Broad Report (see pp. 145ff, 164ff above) and the memoirs Rudolf Höß allegedly composed while in a Cracow prison.128 The complete text of the former, and sections of the latter, were read in evidence. In the case of both these documents, the court had only photocopies129 to go by. Now, documentary argumentation may certainly be conducted with the aid of photocopies, but considering how suspect these documents are, one is astonished that the court was satisfied merely with reproductions, even though a few "experts" vouched for the authenticity of the "documents." As we have seen, the photocopy of the "Broad Report" presented at the trial was a reproduction of a typescript of the hand-written "original," and the only "corroboration" of its identity with that "original" was some highiy dubious witness testimony (see pp. 213ff above).130 As for the Höß memoirs, the court was satisfied with the expert Broszat's "credible assurance" that the copies he presented were faithful reproductions of the "originals" kept under lock and key in Poland.131 It never occurred to the judges to ask whether the "original notes" were themselves genuine 132 Here we see once again that the crucial question in this whole trial -- namely the alleged existence of gas chambers at [263-264] Auschwitz -- never really became the subject of argumentation, but was accepted from the outset as an established "historical fact." Otherwise one would necessarily have given some consideration to the authenticity of the Höß memoirs, parts of which were important for the evaluation of that question. As for the rest of their contents, they had no bearing on the issues in this trial.
The reading in evidence of these two "documents," which do not contain a word implicating any of the defendants in the alleged murder of Jews, could have only the purpose of arousing emotions -- with the aid of appropriate press coverage -- in order to strengthen the popular image of Auschwitz as a huge "death factory." Thus they were really not evidence at all, but simply a means of producing a demonstrative effect, in true show trial fashion. In show trials of every kind, such means are commonly employed to create a mood that will facilitate public indoctrination. A court that felt its first duty was to truth and justice would, at very least, have regarded documents so obscure in both origin and content with a critical eye. The Auschwitz Trial court did not bother to question even their formal authenticity.
Physical Evidence
Another aspect of argumentation, less strictly defined and regulated by law than witness testimony, consultations, documents, and interrogations, is the inspection of physical evidence, known in German legalese as Augenschein.133 Above all, this term denotes the inspection of the scene of the crime and the examination of such exhibits as weapons, tools, articles of clothing, and other material objects connected with the crime or the criminal. Under the same general heading comes the viewing of photographs and locale sketches, likewise the hearing of tape recordings; in short, the scrutiny of any relevant physical evidence. As a mode of proof, physical evidence -- if genuine -- can be no less effective than documentary evidence in accurately reconstructing the sequence of events in a crime and in establishing the identity of the culprit beyond a reasonable doubt.
On June 8, 1964, the 53rd day of the trial, Accessory Prosecutor Henry Ormond requested a "site inspection of Auschwitz, the scene of the crime," explaining that not even the best sketches and slides could serve as a substitute for personal impression of the "extermination camp."134 Apparently the exhibits to which he was referring were the plans of the camp displayed in the courtroom and the scale-model of a gas chamber which the Polish Auschwitz Museum had supplied for the trial.
For procedural reasons, the inspection of physical evidence can take place only before a full court and with all trial participants in attendance.135 Evidently the court had some misgivings about that. In any case, on October 22, 1964, it issued a ruling that only one member [264-265] of the tribunal, District Court Justice Hotz, would undertake a site inspection of the former concentration camp at Auschwitz, provided an agreement could be reached between Bonn and Warsaw. This site inspection took place from December 14 to 16, 1964. The rest of the trial participants were given leave to visit Auschwitz at their own discretion. Only the fourteen defendants who remained in custody were denied permission to travel to Auschwitz. Besides Justice Hotz, all four prosecuting attorneys and the three accessory prosecutors took part. However, only thirteen defense attorneys -- not even half of the defense team -- and only one of the six defendants who remained at liberty, Dr. Lucas, went along. From the very beginning, the defense attorney Laternser energetically opposed the site inspection. His objections to it were pertinent indeed. In his argument of June 22, 1964, he pointed out that not only must "natural changes have given the place an entirely different appearance" in the course of twenty years, but that the camp had also been "turned into a museum," which involved "extensive renovations" and "tendentious amplifications."136
He was absolutely right. We have already seen, for example, that the crematorium in the Auschwitz parent camp was "restored" to its present state by the Poles after the war, at which time the purported "gas chambers" were added (see p. Sif. above). No doubt the Soviet occupation forces and the Polish authorities made many other changes in the camp and its environs during the ten-year period when they had the area cordoned off to outsiders. It is quite possible that the Frankfurt Assize Court had no detailed information about these alterations. Nevertheless, the court should have taken into consideration the fact that the changes time had wrought made it unlikely that a site inspection would yield any reliable evidence, as Dr. Laternser noted.
Since site inspection was not to be used in evidence at the trial, the pseudo-site inspection undertaken by one member of the tribunal was a procedural superfluity and plainly reflected judicial opportunism. The report on this visit to Auschwitz was, in fact, entered into the record. Thus, through the circuitous route of documentary evidence, a legally questionable site inspection ultimately became part of the argumentation.
This site inspection did not yield anything important enough to justify its expense. There is no indication in the Auschwitz Trial opinion that it was absolutely essential to the verdict, which would have been its only possible justification.
It did, however, contribute to the acquittal of the defendant Arthur Breitwieser, since it gave the lie to the only witness against him. This witness had claimed he saw Breitwieser at a gassing of inmates in the "Bunker." But the site inspection revealed that the "witness" could not have observed the defendant at the stated place. Between the "Bunker" and his alleged observation point stood a building that would have [265-266] blocked his line of vision. In fact, even if the building had not existed at the time, his claim should have been dismissed out of hand, for he asserted that he had recognized the defendant at a distance of 70 to 80 meters -- at night! 137
Still, the site inspection gave the journalists who went along for the ride a good opportunity to intensify the effect of the show trial with emotion-laden, melodramatic reports, of which Bernd Naumann's outpourings in the Frankfurter Allgemeine Zeitung are but one example. 138 Langbein, who called the "inspection of the place" an "important event in the trial," opined:
It made a deeper and more lasting impression on everybody who participated than any documents and testimony could have done. Judge Hotz, the only member of the tribunal who made the trip to Poland, took a considerably more active part in the cross-examination after his return. Auschwitz and Birkenau also gave some of the defense attorneys food for thought.139
That the tour influenced the thinking of the defense may very well be true. Quite possibly, the aim of this whole business was to "soften up" the defense attorneys, or at least a few of them. Of course, it is doubtful that those who toured Auschwitz-Birkenau could have gained much of an idea of what the camp was really like when it was in operation. Leaving aside Laternser's cautiously phrased remarks, nobody bothered to call attention to this fact, which, in an "ordinary criminal trial," would have been thought worthy of mention.
Just as questionable as the site inspection itself was the display of pictures in the courtroom for evidential purposes. Nobody asked whether the groundplans of the camp were authentic or on the basis of what data the scale-model of a gas chamber was constructed. That these exhibits came from the Polish State Auschwitz Museum was presumably considered proof enough of their genuineness~ though, of course, the opposite should have been the case. It is significant that the court and its helpers -- as Langbein quipped with idiotic self-satisfaction -- "found their way around" those groundplans of Auschwitz better than many witnesses who had been interned at the camp. Only a single witness was on hand to explain the gas chamber model.140 Naturally, he swore to its accuracy -- that was the purpose for which he had been summoned from Poland. Langbein went so far as to emphasize the importance of this witness in the following terms:
Only from his testimony did the full significance of the model become apparent.
Rather than rely on the claims of this witness, the court would have done well to demand that the data used for the construction of this "scale-model" be placed at its disposal, or even have the model-maker testify on the specifications from which he worked. But nobody involved in this grotesque trial seems to have thought of that.
[266-267]
THE AUSCHWITZ TRIAL
Legal Proceedings as a Source of Material for Historians: Fact and Fiction
WHEN THE EVIDENCE in the Auschwitz Trial had been presented and the defense and prosecution were delivering their summations, one could glimpse an unavoidable and telling flaw in the none too meticulously fabricated public image of these proceedings as an "ordinary criminal trial."' With ill-concealed smugness, Accessory Prosecutor Henry Ormond declared at the end of his summation:
If the survivors of the hell of Auschwitz could no longer bear witness -- and certain circles are waiting for just that--then Auschwitz would become nothing more than a legend in a short time. Were it not for this trial, in which the truth was heard out of the mouths of the survivors, those who refuse to learn would have continued their attempts to minimize. That this is no longer possible is, next to the punishment of the guilty, the lasting achievement of this exemplary trial.2
This statement amounted to an expose of the Auschwitz Trial. Yet, even at the outset, an impartial observer of these proceedings would have received the impression that they were designed primarily, if not exclusively, for the purpose of giving a judicial stamp of approval, as it were, to a still widely disputed view of an episode in recent history.
Now that a member of the clique behind this travesty of justice was openly proclaiming its main purpose, it does not come as a surprise that the prominent defense attorney Dr. Hans Laternser, in his plea for Dr. Capesius, unequivocally condemned this function of the Auschwitz Trial as beyond the proper authority of a court of law.3 In his summation, delivered on August 6, 1965, Dr. Lateruser even went so far as to speak of these proceedings as a "show trial," a view other members of the defense had apparently expressed earlier.4 However strange this charge may seem within the general context of German jurisprudence, we shall see that in this case it is not so far-fetched.
Accessory Prosecutor Ormond was not the only person to announce the purpose of the Auschwitz Trial. Hermann Langbein, Secretary General [217-218] of the International Auschwitz Committee, who, in addition to serving as a witness, was a constant observer of the trial, and had been instrumental in putting it together, expressed similar views in his two-volume collection of documents on the trial.5
Describing the Auschwitz Trial as a "documentation of Hitler's largest extermination camp against which nobody could have any logical objections," Langbein goes on to claim that it will "serve future historians, and, above all, give the younger generation in Germany food for thought and enable them to orient themselves in the right direction." He concludes with an admission that is remarkable for one of the men behind the Auschwitz Trial:
To serve this purpose to the utmost, the picture of the Auschwitz extermination camp had to be put together under the direction of German jurists.
Likewise, Robert M.W. Kempner, the former Nuremberg Trial prosecutor, cited as the authority for his recent charge that the "extermination of the Jews" was implemented by "planned administrative teamwork on the part of all State and Party agencies" not any independent post-war historical research but "evidence and testimony in German courts," and he specifically mentioned the "Auschwitz trial in Frankfurt."6
Throughout the proceedings, it was quite obvious that their main purpose was to define a period in recent history, and, at present, the desired result has by and large been achieved. In the long run, however, this attempt will prove to have been a failure. Scholars will have the final say about what goes into the history books as definitive historical knowledge. Myths seldom attain to the rank of historical fact, and the picture of Auschwitz that emerged from the Frankfurt Auschwitz Trial was essentially based on a myth, the most important constituents of which we have discussed in previous chapters. Conscientiously truthful scholars will certainly not take it as their point of departure. One day there will be historians who are free of the dogma of our times, and therefore dispassionate and unbiased. No doubt they will shake their heads in astonishment or disgust when they see how unscrupulously "documents" were used and what kind of nonsensical, contradictory "testimony" was admitted in the Auschwitz Trial. Despite the most careful editing, Hermann Langbein failed to eliminate contradictions and discrepancies from the material in his collection of trial documents.
The objectivity that will some day make serious historical scholars question the basis and results of the Auschwitz Trial and similar proceedings is, of course, not to be expected from the "official" historians of our time, especially those who are affiliated with institutions. If they questioned the Auschwitz legend, they would be placing their jobs in jeopardy. At least insofar as this subject is concerned, the right to free speech has its limits. This observation applies not only to German scholars on both sides of the Brandenburg Gate, but even to historians [218-219] in other countries. The French historian Paul Rassinier and, more recently, the American university professor Dr. Arthur R. Butz learned by experience that violating this taboo entails considerable risk.7 Hence the British scholar at the University of London who wrote Did Six Million Really Die? elected to publish his work under the pseudonym "Richard Harwood." The whole situation was nicely summed up by the American historian whose anonymous work was published in 1969 under the title The Myth of the Six Million. In the introduction it was noted that the book had to be published anonymously because the author intended to keep his position as a college professor until he could collect his hardearned pension.8
Thus historians who wish to be "taken seriously" avoid treating the subject of the "extermination of the Jews," or else simply embellish the picture drawn at the Nuremberg Trials, which, in turn, was largely modelled on war propaganda. In the latter case, all they can do is try to lend a bit of plausibility to the old cliches by incorporating into the prescribed design such novel details as can be gleaned from the likes of the Auschwitz Trial. A good example of this approach is Arndt and Scheffler's essay "Organisierter Massenmord an Juden in Nationalsozialistischen Vernichtungslagern" [Organized Mass Murder of Jews in National Socialist Extermination Camps] .9 Although the authors make the very sound observation that "responsible historiography cannot be based solely on judical decisions," they do not adhere to this principle themselves: their treatment of Auschwitz is based largely on the decision of the Frankfurt Assize Court and -- what amounts to the same thing -- on the memoirs Rudolf Höß allegedly wrote while imprisoned in Cracow, which the judges did not hesitate to admit in evidence (along with some equally dubious witness testimony), even though they had seen only photographs of the document.
Brotszat's introductory note to Arndt and Scheffler's treatise also betrays the fact that the authors are merely paying lip service to this idea. He asserts that the Âjudiciary in the Federal Republic, with its large and experienced investigative apparatus, has made a greater contribution to shedding light on National Socialist crimes and criminality, especially in regard to the extermination camps, than any historians could make." But he really gives away the whole show when he remarks later on that he expects the forthcoming publication of the main results of such legal proceedings to refute the findings of the Revisionists "in regard to the extermination camps."10
What a declaration of intellectual bankruptcy! Here the Director of the Institut für Zeitgeschichte, an outfit that specializes in the history of the Third Reich, is admitting the extent to which historians concerned with proving the extermination thesis feel they must depend on the results of judicial proceedings against "Nazi criminals" (the so-called Nazi Crimes of Violence trials). Perhaps the most remarkable thing about this confession [219-220] is that it so boldly contradicts the generally accepted view that determining the facts of history is the business of scholars, not jurists. Even the judges in the "Nazi Crimes of Violence" trials usually called attention to this point, and summoned "experts" to provide the criteria for judging the historical background in the case. For lack of knowledge, they trusted implicitly the presentations of these experts, most of whom were -- as Broszat very well knows -- members of the Institut für Zeitgeschichte. Difficile est satiram non scribere.*11
*"It is hard not to write satire" -- Juvenal.
Since the judiciary has been made into the character witness, as it were, for what is passed off as "knowledge" about the "extermination of the Jews," it is necessary that we examine briefly the dominant epistemological methods of both historical scholarship and penal jurisprudence. Each of these fields has a different working method. Nobody with any common sense could expect jurists in a penal case to be able to arrive at a definitive explanation of a historical event, quite apart from the fact that a trial has other purposes to serve.
The method historical scholars employ to reconstruct events basically consists in researching, comparing, criticizing, and evaluating sources. A synoptic presentation of a historical event that is faithful to reality can result only when the historian has sorted out, appraised, and compared every available source -- written documents, contemporaneous accounts, material remains, and so forth -- taking into account any other relevant information. This task requires much time, and often special expertise. It could never be accomplished by a court in a penal trial.
In the field of recent German history, it is sometimes no easy matter to do the source research that is so obviously indispensable to genuine historiography. After the fall of the Third Reich, the German archives were plundered by the Allies. Even today, most of these captured documents, which the victors used to fabricate the indictments in their show trials against Germans, have not been returned. In many cases, one cannot even determine their whereabouts. No conscientious and responsible historian would undertake a study of such a grave matter as the alleged extermination of the Jews without examining the relevant original documents. Of course, it is precisely those documents which are being withheld today. Up to now, this material has been gone over solely with a view to incriminating Germany. Only by accident have exonerating documents been made public.
As we have said it is incumbent upon the historian to assess, compare, and criticize all relevant source materials he has obtained. One may reproach contemporary historians for not maintaining any real critical distance vis-á-vis their source material. For it is above all in the field of recent history that the researcher is liable to encounter forged material. Thus he can never dispense with critical evaluation of the form and content of his sources. One finds hardly a trace of such critical [220-221] distance in the literature on the "extermination of the Jews," even though--as in the case of the Höß memoirs--some writers create the impression that they have misgivings about the authenticity of certain sources. Leaving aside the forgery problem, most of the known sources on the "extermination of the Jews" admit of varying interpretations. As Dr. Butz has persuasively argued, almost every particular detail of this legend has a dual meaning, that is to say, one can interpret according to the legend things that are quite commonplace and innocuous, if one is so inclined.12
In approaching any source, it is not enough to ask: "Is it really what it purports to be?" Often one must also ask: "Am I reading into it what I should like to believe it says?" To answer these questions requires extensive investigation, comparison, and, sometimes, complex mental operations as well. If one neglects to ask these questions, which apply to every part of a given source, the only possible outcome is deception or error.
A synoptic presentation of a historical event can emerge only from the kind of methodical research of which we have given a very simplified description here. 13 Only after the historian has completed such research and evaluation may he give his personal views, and then only within certain limits. In the "new" Germany, however, historians are accustomed to proceed in exactly the opposite fashion when focusing on the subject of the Third Reich. They subordinate the selection and interpretation of their sources to preconceived ideas, taken over from the "war crimes trials" of the Allied victors. Their approach is simply alien to sound historical scholarship.
Even if they attempted to employ the method described above, judges in a penal trial could not reach any definite conclusions about a historical event. For that they lack both the time and the training. Moreover, their task is fundamentally different from that of the historian. It is simply to determine whether the defendant is innocent or guilty of a legally punishable offense, and, if guilty, impose the sentence prescribed by law. In reaching a verdict, they need consider only facts which are relevant, according to the usually quite strict definitions of penal law, to the case they must adjudicate, and are obliged to follow the principle in dubio pro reo, which means: in case of doubt, decide in favor of the accused. In other words, judges in a penal trial do not have to pronounce on matters that cannot be cleared up on the basis of legally admissible evidence, whereas a historian dealing with some episode in history is obliged to pursue his inquiries until he has arrived at what he believes to be a complete and accurate picture of events. Thus it is utterly absurd to say that the findings of some court represent "secure knowledge of recent history," as do those members of the Institut für Zeitgeschichte who look above all to judicial decisions for confirmation of their views -- something that in itself ought to make one wary of these "contemporary historians."
[221-222]
In a criminal proceeding, the facts of the case are determined by evidence presented to the court in the manner specified in the Rules of Judicial Procedure in Penal Cases (the Strafprozeßordnung, "StPO" for short). Â~ Even if the defendant has pleaded guilty, the court is not bound by his admission of guilt but must continue to examine the evidence. In hearing evidence, the court is concerned only with such facts and proofs as are relevant to the case before it (§244, Para. 2 StPO). Of course, it may sometimes be necessary to clarify the background of a crime, for example, to determine the motive of the culprit -- which is an important factor in passing sentence. But the specific criminal act is always what matters most, not some historical issue. In the "Nazi Crimes of Violence" trials, this principle has frequently been ignored, especially with respect to the hearing of witnesses and consultants. Assertions about a historical event made in a trial must not be regarded as though they were the definitive conclusions of historical scholarship. The time allotted a trial is not usually sufficient to permit a thorough investigation of a historical event, using the method described above, nor do jurists ordinarily possess the requisite training to conduct such an inquiry.15
That is why judges call on experts when it seems necessary to clarify some historical matter. According to the StPO, the depositions of experts are evidence. This judicial practice attests to the fact that the courts have not yet taken over the job of the historians. Nevertheless, our "new" German historians persist in basing their work to a considerable extent on the decisions of the very courts before which they were called to testify as "experts." The notion that German courts have uncovered "definite information" about the implementation and scope of the "extermination of the Jews" in the Third Reich can be traced largely to the claims of these "contemporary historians."
One more point needs to be made here. As Arndt and Scheffler have noted in their essay "Organisierter Massenmord an Juden in nationalsozialistischen Vernichtungslagern" (see page 219 above), the courts do not have at their disposal any material evidence whatever on the alleged extermination of the Jews.16 Although in some of the "Nazi Crimes of Violence" trials, on-the-spot investigations have been undertaken-- as in the Auschwitz Trial -- these visits to the "scene of the crime" contributed nothing to an objective clarification of the legal issues, and, more particularly, nothing to the clarification of the historical background, real or alleged, in any of these cases.
As we have said, court proceedings necessarily fail when it comes to determining historical truth, since trials have another purpose to serve and the judicial modus operandi does not lend itself to historical inquiry. But these are not the only reasons. In such trials, all involved -- the defendant or defendants, the defense counsel, the prosecuting attorneys, and, last but not least, the judges -- have conflicting interests. There is no way all participants could cooperate to arrive at a determination [222-223] of historical truth. If anything, their activity necessarily lends itself to distortion of the facts of history. So far as determining the historical background of a given crime is concerned, the court can at best arrive only at a kind of ad hoc historical verisimilitude, basically relevant to that case alone. From such trials, the historian may, of course, obtain some bits of information, which he must assess very carefully, using other sources as his criterion. Were he to accept offhand as "secure knowledge" the total historical picture constructed in a "Nazi Crimes of Violence" trial, he would be placing his reputation for scholarship in jeopardy. For none of the participants in those trials are really concerned with ascertaining historical facts. They all have their personal interests or professional duties in mind, and those interests can only hinder the quest for historical truth.
Naturally, the defendant in any penal trial is eager to be acquitted, or, at least, to come away with the most lenient sentence possible. If he is guilty, he will seek to attain this end by making denials and false statements. Culprits who feel remorse over their misdeeds and confess to them are a rarity in the history of criminology. Seldom does truth play even a subordinate role in the statements of guilty defendants.
But even if the defendant is actually innocent, he will not always stick to the truth. Particularly when certain pieces of circumstantial evidence speak against him, he may think it necessary to bolster his story with a phoney alibi or other false information.
On the other hand, there are, as everybody with any practical experience in criminal law knows, numerous cases in which a demonstrably innocent person accuses himself of wrongdoing, for any number of reasons .17 Article 54 of the Constitutio Criminalis Carolina of 1532, the very first German penal code, prescribes that the judge shall question the accused about such circumstances of which an innocent person could know nothing.18 Although this provision may owe its existence to the fact that back then confessions were frequently extracted by torture, its inclusion in the Imperial book of law is still highiy significant. Psychological considerations alone prompted Carl Joseph Anton Mittermaier, one of the leading professors of penal jurisprudence of his time, to demand that all confessions be verified. In his book Die Lehre vom Beweise im deutschen Strafprozeß, [The Rules of Evidence in German Criminal Procedure] ,published over 150 years ago, he stated:
In attempting to determine the whole truth by means of rational inquiry, one will seek additional proof of the veracity of the confession. Not only must the facts of the confession be proved independently, but it must also be shown that the person who has made the confession is familiar with circumstances surrounding the crime of which an innocent person could have no knowledge.19
Today it is an undisputed tenet of forensic psychology that confessions are not always rendered with the whole truth in mind. In the "Nazi Crimes of Violence" trials, the judges did not pay much heed to this principle [223-224] As a rule, they accepted at face value every statement of the accused that fit into the prescribed pattern, almost with a sigh of relief, and never gave the question of truth a second thought.
In the "Nazi Crimes of Violence" trials, the defendants' view of the historical background of the case counted for nothing, even if they were found innocent. Thus they had less incentive to insist on the truth -- so far as it was known to them -- than merely to say what was expected of them. (Perhaps such conduct is just an expression of human nature. Some of the defendants in the Allies' post-war trials acted no differently.)20 From the outset, the defendants in the "Nazi Crimes of Violence" trials knew that it was utterly pointless to dispute all or part of the picture of the "mass murder of the Jews" in which they were accused of having taken part, since that picture had been inculcated into the public mind long before the trials began. To the defendants it must have seemed the most expedient course not to dispute that the alleged murders occurred, only that they were involved in them. Particularly if they lacked an airtight alibi, the defendants had to secure the goodwill of the court. In short, they had but one aim in mind: their own acquittal.
Without doubt, they were simply acting in accordance with the advice of their attorneys, who, of course, were interested in basically the same thing as the defendants. Every defense attorney naturally strives to secure an acquittal for his client, or, at least, to obtain for him the lightest possible sentence. To do so he must not only present whatever facts may exonerate the accused, but also win the favor of the judges and even to some extent of the prosecution. Above all, he tries to avoid doing anything that might antagonize these decision makers of the judicial system. According to Dr. Laternser, at least one defense attorney in the Auschwitz Trial induced his client, against his own better judgement, to make a partial admission of guilt in order to "meet the court halfway."21 This attorney's action was an utterly inexcusable dereliction of duty, and it may even have been a violation of professional ethics. The only possible explanation for such conduct is that the attorney himself must have been secretly convinced of his client's guilt. It goes without saying that no defense attorney can, for the reasons previously stated, fundamentally challenge the alleged historical background in a "Nazi Crimes of Violence" trial. What is more, some of the defense attorneys in these cases are actually believers in the extermination legend. They plan their courtroom strategy accordingly, and try to get their clients to go along with it. There are exceptions to this attitude and approach, of course, but, as always, the exception merely serves to confirm the general rule.
On the whole, the defense attorneys in the "Nazi Crimes of Violence" trials have never shown the slightest interest in establishing historical truth. Indeed, they are under no obligation to help elucidate even the historical background of the specific crimes of which their clients have [224-225] been accused. They may and therefore do limit themselves simply to presenting whatever facts they believe are most beneficial and least detrimental to their case. Any evidence presented in court they will consider exclusively from this standpoint. It is a matter of complete indifference to them what relation historical events may actually have to the alleged crime so long as they can cast enough doubt on the personal involvement of their clients to get them acquitted according to the judicial principle in dubio pro reo. Although this approach only serves to obscure the historical facts, taking the path of least resistance is often the most effective defense strategy in these cases. It is certainly the most common.
Likewise, the prosecution has interests of its own. Naturally, it should be concerned first and foremost with arriving at the truth, just as the court is supposed to be, and this is indeed what German penal law requires. Our prosecuting attorneys are fond of hearing themselves described as the "most objective officials in the world," and, in fact, under §16O, Para. 2 of the StPO, the prosecution is constrained to inquire not only into those facts and circumstances which tend to incriminate the defendant, but also those which may exonerate him. The popular view that the prosecution aims solely at securing the conviction of the accused is generally incorrect. Of course, "Nazi Crimes of Violence" trials have their own peculiar set of rules, as anyone who has attended such a trial will tell you.
There are several reasons for this state of affairs. For one thing, even prosecuting attorneys are not altogether free of the preconceived ideas regarding recent history that have been drummed into the German public by decades of propaganda. This in itself is sufficient to induce bias against individual defendants in "Nazi Crimes of Violence" trials. For another, one should not overlook the fact that a prosecuting attorney is a civil servant who is subject to orders from his superiors, consequently dependent on the reigning political forces in the state. Their position on these matters requires little comment. They batten on the continuing diabolization of the regime which the Allied occupation allowed them to succeed. The passage of decades has changed nothing in this regard. Quite rightly, many prosecutors in the "Nazi Crimes of Violence" trials are convinced that a promotion could depend on the number of "Nazi criminals" they helped convict. That may be why they have taken so few pains to discover and bring to bear evidence that tends to exonerate the defendants, even though the law requires them to do so. In every one of these politically inspired trials, the version of the historical background that was set down by the men behind the scenes has met with the unqualified acceptance of the prosecution.
This brings us to a feature of the legal system that is peculiar to the "Nazi Crimes of Violence" trials. We are speaking of the Zentrale Stelle der Landesjustizverwaltungen zur Aufklärung nationalsozialistischer [225-226] Verbrechen (Central Office of the Regional Judiciary for the Investigation of National Socialist Crimes -- called the "Central Office" for short). This agency was established in autumn 1958 at Ludwigsburg on the decision of a conference of regional ministers of justice and put in action on December 1, 1958. It is difficult to place the Central Office within the administrative structure of the Federal Republic of Germany. According to the first head of this agency, Chief Prosecuting Attorney Adalbert Riickerl, its task is to conduct comprehensive and systematic investigations of "Nazi Crimes of Violence," i.e., brutalities and murders allegedly committed in the concentration camps and during commando (Einsatzgruppen) operations.22 Created as a resuit of strong political pressures, the Central Office does not rest on any firm legal foundation either with respect to its existence as an institution or its functions.23 The very character of this special office of public prosecutions thus insures that the investigations into these alleged crimes will be pursued in a totally one-sided manner, something that is fairly obvious from Dr. Rückerl's own book, NS-Prozesse.
Here we should note first of all that the "documentary material" from which the staff of the Central Office concocts the "material grounds" for "Nazi Crimes of Violence" indictments comes primarily from archives -- a better term would be forgery factories--in the Eastern Bloc states.24 The Central Office has also developed a "lively working relationship" -- to use Rflckerl's phrase -- with "responsible agencies" of other western countries and "last but not least, Israel." Functionaries of the Central Office have undertaken numerous trips to these countries in their search for incriminating documents.25 It is worth noting, too, that one of these employees smugly boasted that he discovered an "important piece of evidence" right in the city of Ludwigsburg: the 42-volume record of the Nuremberg IMT Trial, copies of which the occupation forces "generously distributed throughout the German judiciary, including the lower courts."26 We have discussed this document several times before in the present volume.
In its search for incriminating material, the Central Office relies almost entirely on those forces which are ideologically and financially interested in pinning on the German people as many crimes as possible against other nations, particularly Jewry. The Central Office acknowledges that the published work of the Jewish Historical Institute in Warsaw and the Yad Vashem Museum and Library in Jerusalem have been of great help to it.27 Thus it shouid come as no surprise that Riickerl attempts to justify the Nuremberg Trials in his book NSProzesse.28 In line with this attitude, the Central Office basically operates according to the methods developed by the prosecution in the old Allied "war crimes trials." Just as back then the occupation forces carried out the greatest manhunt in history as a result of charges made in war propaganda,29 so the prosecutors of the Central Office began [226-227] their inquiries by searching through the relevant published works. They then conducted a systematic investigation of all surviving former members of the Reich agencies mentioned in connection with "crimes" in these works.30 By 1965, the Central Office had about 200 investigators at its disposal for this manhunt. They were assigned to the task on a fulltime basis, and assembled in a special office.31 (In the meantime, more sleuths have doubtless been assigned to the Central Office. With such a waste of law enforcement personnel, no wonder the number of unsolved crimes is on the rise!) After "clarification of the essential facts," the case is handed over to prosecutors within the proper jurisdiction, and they naturally feel obligated to respect the findings of the preliminary investigation. That is to say, as far as the Central Office is concerned, legal jurisdiction is a secondary matter in the proceedings it initiates.32 For someone to come under suspicion of having committed a "Nazi Crime of Violence" it is quite enough that he once belonged to an organization or governmental agency mentioned in some piece of atrocity literature. Once a person has been named as a "Nazi Criminal," "witnesses" can always be found who will swear under oath they are "positively certain" that he was responsible for the murder of at least a few thousand Jews. If necessary, the investigators will show the "witnesses" photographs of the suspect to refresh their memories, which are, however, almost invariably immune to the ravages of time.33
In his book NS-Prozesse, Rückerl repeatedly expresses the idea that it was absolutely necessary for the prosecutors of the Central Office to devote themselves to the study of contemporary history, since "particularly in evaluating a Nazi crime ... the deed ... must be viewed in its historical context."34 The kind of thing to which this leads becomes evident when one reads the article Chief Prosecutor Manfred Blank contributed to Rückerl's volume. Among other things, Blank relates a description of the "gas chambers of Treblinka" from the verdict of the Dfisseldorf Assizes. According to this description, which apparently goes back to the "findings" of the Central Office, there were "6 to 10 rooms" of this kind, "each measuring approximately 8 x 4 x 2 meters" and each with a "capacity of 400 to 700 persons.35 The startling "exactness" of this description is itself a cause for suspicion. Of course, it is so mathematically improbable that one imagines the Central Office functionaries who made it -- and the judges who copied them -- must have flunked grammar school arithmetic. If one squeezed even the minimum of 400 persons into a room that had a surface area of 32 square meters and was 2 meters high, there would be about 13 people to each square meter -- an utter impossibility. Here we could cite similar instances of nonsensical and erroneous conclusions in the work of the Central Office, but let us leave it at this.
Considering the modus operandi and ideological orientation of the investigative bureau which supplies the prosecution in individual "Nazi [227-228] Crimes of Violence" trials with the "material grounds" to support their accusations, it would be simply unrealistic to assume that prosecuting attorneys in such a trial could make a worthwhile or even relevant contribution to elucidating the historical background of the case. And as we noted above, these attorneys, subject to orders from their superiors as they are, would hardly feel themselves impelled to do so. They are quite content to rely exclusively on the material with which the Central Office has supplied them.
The task of the judges in "Nazi Crimes of Violence" trials is -- or should be -- solely to establish whether the deed of which the defendant is accused bears the earmarks of a legally punishable offense, and, if he is found guilty, to mete out the prescribed sentence. It is definitely not their task to investigate and establish the whole historical background of a case. As we examine the Auschwitz Trial more closely, we shall see that judges do not always observe this rule. But again, it would be unrealistic to suppose that the judges in these trials, despite their constitutionally guaranteed independence, could simply cast aside the version of "historical truth" ordained by the Central Office and supported by scores of "experts" and "witnesses." After all, judges are only human. As a group, members of the judiciary are just as reluctant as other people to risk their jobs and chances for promotion on a matter of principle. What is more, they are just as likely to be wearing intellectual blinders. Members of the judiciary have not been immune to forty years of propaganda designed to bring a whole epoch in German history into disrepute.
From everything we have noted here it should be obvious that penal trials are by their very nature unsuited for determining the facts of historical incidents and events, least of all such politically oriented proceedings as the "Nazi Crimes of Violence" trials. In those trials, the prosecution, subject to orders from above as it is, cannot concern itself with historical truth, but must uphold a "political truth," which the defense and the accused, if they have any instinct for self-preservation, will refrain from challenging. Moreover, the judges are, for a variety of reasons, "pre-programmed" to accept only one view of recent history, though they are usually careful to keep within the bounds of correct judicial procedure. Consequently, one cannot expect any conclusions about historical issues that would be of value to scholars to emerge from such trials. On the contrary, the "historical background" and the probable validity of the charges against the defendants have been decided long before the beginning of the trial -- in no small measure through the efforts of the mass media.36 To the extent that "Nazi Crimes of Violence" trials really are "ordinary criminal trials," this "historical background" merely serves to emphasize the exceptional moral depravity of the alleged crimes of the accused. At bottom, however, these are politically inspired proceedings held largely for the purpose of presenting an "official" view of recent history to a still doubting public, and, perhaps, [228-229] too, of providing "contemporary historians" with "evidence" they would be unable to come up with on their own. As such, they come very close to being "show trials," in which the defendants are simply a means to an end.
A "show trial" may be defined as a judicial proceeding which is intended to have some politically demonstrative effect on the public at large. Ordinarily, this term is used in connection with the political purges in the Soviet Union during the 1920's and 1930's. But it would be a mistake to assume that such trials occur exclusively under the Communist system, as is often done. Nor is the elimination of persons who have fallen out of favor with the r6gime the only purpose a show trial can serve. An additional purpose -- even the main purpose -- of a show trial may be to intimidate the population or influence its thinking in a particular direction. Very often, though not always, the "confessions" of the defendants bear every sign of having been extracted by torture or brainwashing. However, the essential characteristic of a show trial is that political objectives quite alien to law and justice are being pursued by means of a highiy publicized judicial proceeding that has the semblance of legitimacy. Such trials have occurred from time immemorial and under every kind of governmental system. The "war crimes trials" the Western Allies held in conquered Germany are proof that "democratic" governments are no slouches when it comes to staging show trials ~
The statements quoted at the beginning of this chapter would seem to confirm the suspicion that the Frankfurt Auschwitz Trial was conceived from the start as nothing but a show trial. There is not much point in debating whether the judges and prosecutors were secretly aware that it was a show trial or sincerely believed that it was an "ordinary criminal trial." In fact, it is quite possible that they were unknowingly used to serve illegitimate ends. Be that as it may, the crucial question remains: Did the Auschwitz Trial have the characteristics and effects of a show trial? If the answer to it is affirmative, the "Nazi Crimes of Violence" trials in general, and the Auschwitz Trial in particular, are utterly worthless as sources of historical information.
In the next section, we shall examine more closely the conduct of this trial and draw some conclusions from it.
The Auschwitz Trial -- A Show Trial?
The Background
The almost uniquely significant judicial proceeding known as the Auschwitz Trial began with an incident that borders on the trivial. On March 1, 1958, a onetime Auschwitz inmate named Adolf Rögner, who was then incarcerated in Bruchsal Prison, filed charges against the former SS-Oberscharführer Friedrich Wilhelm Boger for allegedly committing [229-230] "crimes against humanity" at the Auschwitz concentration camp. According to Bernd Naumann's account, Rögner was being held in pretrial custody. Angry that prison authorities had confiscated a shipment of medication prescribed for him, Rögner sent a complaint to the Public Prosecutor's Office in Stuttgart, and along with it his denunciation of Boger.38 Langbein, however, describes the informer as a "convict" rather than simply a prisoner, in his "documentary" volume Der Auschwitz-Prozeß. He does not mention exactly how the charges against Boger came to be made; he merely states that the Auschwitz Trial began purely "by chance."39
Both stories are quite implausible. In point of fact, Rögner's denunciation of Boger, which was destined to have consequences extending far beyond the Auschwitz Trial itself, did not result from Rögner's annoyance over the confiscation of his drugs, nor was this curtain-raising episode "pure chance." There is reason to believe that Rögner's action was a gambit devised by behind-the-scenes forces which, for a variety of reasons, had a vested interest in continuing and expanding the prosecution of "Nazi Crimes of Violence."
From Rögner's denunciation -- as described by Langbein -- it is obvious that organized interests were behind this whole affair. The denunciation Rögner made contains information that a single person, let alone somebody locked up in jail, would be hard pressed to collect. For example, Rögner claims that in 1946 Boger escaped from a "convoy" of prisoners assembled at "War Crimes Camp 29, Dachau," for "extradition to Poland," and hid out at Unterrath near Schwäbisch Hall until 1948. He even gives Boger's current residence and place of work. And, perhaps in an attempt to explain why he was filing charges so late in the game, Rögner opens his denunciation with the statement: "Ich habe nunmehr folgendes in Erfahrung gebracht" ("I have just learned the following.").
This statement, in particular, confirms the suspicion that Rögner had backers who induced him to file charges. A prisoner, whether being held for questioning or serving out a sentence, would hardly be in a position to make inquiries about the background and present whereabouts of another person, even if he did not have other things to worry about.
The possible identity of these backers is also evident from Rögner's denunciation. As sources of proof for his charges he mentions the International Auschwitz Committee in Vienna, the Central Board of Jews in Dèuuml;sseldorf-Benrath, and, finally, the Auschwitz Museum Archives in Poland. It is unlikely that this petty criminal would ever have heard of any of these groups unless they contacted him first, either singly or together. In all probability, "Secretary General" Langbein -- that is how Rögner refers to him -- of the International Auschwitz Committee was most instrumental in this affair. We do know that Langbein soon emerged as one of the leading strategists in the preparations for, as well as the staging of, the Auschwitz Trial. At any rate, Rögner sent a copy of [230-231] his formal allegations to the International Auschwitz Committee.40 That the three groups mentioned above were acting under the direction of some higher Jewish organization is, by the way, entirely within the realm of possibility. International Jewry has many arms.41
Thus Rögner was simply being used by behind-the-scenes forces which were trying to revive the persecution of former National Socialists, a witchhunt that had steadily been losing momentum in the 1950's.42 He cannot possibly have acted on his own initiative. For one thing, his denunciation of Boger, taken as a whole, shows that he had no knowledge of any other particular crimes committed at Auschwitz, where he was allegedly imprisoned from May 6, 1941 to January 16, 1945, presumably as a habitual criminal. His accusations against Boger are themselves totally vague and wholly unsubstantiated. That may be why Rögner-- who is mentioned in Langbein's volume, by the way, only under the initials "A.R."--is not cited in any of the literature on Auschwitz or the Frankfurt Auschwitz Trial as a witness to any specific crimes at the camp.
The reason that those who were interested in prolonging the "Nazi" witchhunt took this course of action is fairly obvious. After the occupation forces were done with their "war crimes trials," which at least in part were carried out with the most inhuman methods, the German people soon lost interest in charges about the alleged "Nazi" atrocities. Most Germans really did not believe in them, anyhow. At the very least, they were skeptical about the purported extent of the "extermination of the Jews." Revelations of the cruelties perpetrated against Germans interned in Allied camps, the barbaric "punishments" imposed for "crimes" that had never been proved, and, last but not least, the "denazification" tribunals over which "Germans" presided and which reached into almost every German home -- all these things produced a high degree of bitterness among the population at large, even awakened sympathy for the victims of the rancorous "justice" of the Allies.43 As time went on, "antinazi" witchhunting became more and more unpopular. People had seen and heard enough. They were simply fed up with the whole business. By the end of the 1950's, when it turned out that the "gas chambers" the Allies exhibited after the war never existed in Germany during the Third Reich, at Dachau or any other camp, people began to voice their opposition to Chancellor Adenauer's program of financial "reparations" to Israel.44
It must have this latter circumstance, above all, which alarmed those who were profiting, and wanted to continue profiting, from our national prostration and the myth of the six million. It looked as though the German people could not be politically and financially blackmailed much longer. New methods had to be devised to keep the racket going. No doubt enemies of Germany, above all international Jewry, knew they had to take prompt. action. [231-232]
Given the almost proverbial German respect for authority, an obvious solution was to use the German judicial system in a massive effort to revive our national guilt complex. In the past, German authorities had not found much occasion to initiate prosecution of "Nazi crimes." The courts handied mostly cases in which individuals preferred charges against individuals. These trials generally received no more and no less publicity than any other criminal proceedings.45 Moreover, so long as the Allied occupation forces took it upon themselves to hold "war crimes trials," the jurisdiction of German courts was restricted to offenses that occurred within the territory of the former Reich.46 After it became obvious that no "Nazi crimes" worth mentioning were committed there, those who had a vested interest in using "war crimes" allegations to keep the German people subservient realized they must try to focus public attention on atrocities Germans supposedly committed in Eastern Europe and Russia during the war. Also, they had come to realize that the usual atrocity propaganda, which had largely been exposed as fraudulent, was no longer sufficient for their purposes. But the judgements of German courts, for which the mass of Germans had unlimited respect -- so they shrewdly calculated -- would penetrate deeply into the national mind. Judicial decisions along the same lines as their atrocity propaganda could be used to banish, once and for all, the lingering doubts about whether the "gassing" of the Jews and similar inhumanities actually occurred.
Nor could it have been "pure chance" that the judicial machinery was geared up for this purpose in 1958. For it was exactly around this time that the grounds of the former concentration camp at Auschwitz were being opened for visitors, the very camp that was now to become the focal point of the extermination legend. At this time, too, the Institut für Zeitgeschichte brought out its "scholarly edition" of the memoirs Rudolf Höß allegedly wrote in a Cracow prison. This volume was particularly helpful in creating bias among German judges and prosecutors, who, with their modest knowledge of recent history, dared not question the credibility of the Institut für Zeitgeschichte, many of whose members held the rank of full professor. Thus the stage was set for a new witchhunt.
One question remains to be answered. Why did the stage managers of this show choose for their curtain raiser a man who had repeatedly been convicted of crimes and to whose accusations the authorities presumably would pay little attention? Surely, they could have found a more "credible" accuser, or even have filed the charges themselves. As one would expect, the matter was at first treated with great caution by the Public Prosecutor's Office, and hardly anything came of it.
But it seems that was part of the plan. To understand why, one merely has to picture what would have happened had the Public Prosecutor's Office taken Rögner's charges seriously from the outset. The result would have been an ordinary criminal trial before a court within [232-233] the proper jurisdiction, if upon further investigation his charges had been found to be valid. Perhaps Boger would have been convicted of mistreating or even killing a few Auschwitz prisoners. But the trial would have received hardly more than local publicity. Undoubtedly, nothing like the huge Frankfurt Auschwitz Trial, with its worldwide impact and all its far-reaching implications, would ever have come to pass. And what the promoters of the revived witchhunt were apparently seeking was an extensive, centrally directed, and highiy publicized "Nazi Crimes of Violence" trial that would lead to a series of "extermination camp" trials. That alone could serve the purpose of hammering into the minds of the largest possible number of Germans, of every social stratum, the notion that the German nation was guilty of uniquely monstrous atrocities, and thus enable the foreign blackmailers to continue, perhaps even expand, their political and financial extortion racket. Had they picked an intrinsically credible accuser, his charges might have received only the usual treatment, and that is exactly why they avoided doing so. They had much larger objectives in mind.
For similar reasons, they rejected the course of taking legal action that would put the Auschwitz camp collectively, as it were, on trial, as they could have done by having some outfit like the International Auschwitz Committee make charges. That might have resulted in the enormous trial they were seeking, but the stage-managers would also have drawn the attention of the public to themselves, and, one may assume, would have provoked a defensive reaction on the part of the German people. Such a trial would have had much less credibility than one the German authorities had apparently initiated on their own.
In order to attain their objectives, they had to proceed in a somewhat roundabout fashion. Obviously, without a concerted effort on the part of interested organizations, it would have been virtually impossible to gear up the German legal apparatus for an extensive, centralized prosecution of "Nazi Crimes of Violence." By using a front man in the initial stage of the operation, these organizations managed to avoid drawing public attention to themselves. Moreover, the natural reluctance of German prosecutors to act on charges made by a convict gave the International Auschwitz Committee and other non-German forces an opportunity to insinuate themselves into the investigative process, unbeknown to the public -- as though "by chance"-- and to expand the investigation of Rögner's charges into the basis for a judicial spectacle. In his book Der Auschwitz-Prozeß, Hermann Langbein, the Secretary General of the International Auschwitz Committee, reveals how adroitly he and his organization managed to do this. Although Langbein's smug and verbose account does not disclose every aspect of this operation, for instance, how political pressure was employed, it tells quite enough.47 One thing is certain: Langbein contributed mightily to the establishment of the "Central Office" in 1958. His efforts to expedite the processing of [233-234] Rögner's charges brought him into contact with various representatives of the German legal system, including officials of the Federal Ministry of Justice, and he used this opportunity to play up the "inefficiency" and "inadequate background" of local prosecutors for their supposed "investigative tasks." Indeed, the most important thing these alien intriguers achieved with the Rögner gambit may be the centralization of pre-trial inquiries into "Nazi Crimes of Violence" and the progressive co-ordination of all such investigative work under the extra-legal Central Office. At any rate, they were satisfied that they had now accomplished what they set out to do. Langbein was exhilarated over the new judicial atmosphere: "Ein anderer Ton, em neuer Geist!" ("A change of tune, a new spirit!")48 Exactly according to the plan of the promoters of this revived witchhunt, the investigation was soon extended to include all of the surviving Auschwitz camp personnel. After Boger was arrested, on October 8, 1958 -- he was never to draw a free breath again -- the "intimate collaboration" between the Central Office and the International Auschwitz Committee resulted in a wave of arrests, starting in April of 1959.49 Rögner had played his part well, and exited the stage.
One tricky problem remained to be solved: How could all the cases involving crimes allegedly committed at Auschwitz be consolidated into a single trial? Separate trials of former SS members, even more or less important ones, for specific crimes before courts having jurisdiction in each particular case would not have had the desired effect on the public. In order to establish Auschwitz in the public mind as the symbol of the extermination of millions of Jews, the "official" version of what happened at the camp had to be presented in a mammoth trial before one court and endorsed in its final verdict. Only thus could the gruesome picture of Auschwitz that these venomous propaganda artists had worked for years to create obtain widespread, uniform publicity and receive the finishing touch of judicial notice, which is what it needed to be accepted as "incontestably true" by the public at large and even groups that had hitherto been skeptical of the extermination thesis. At first, it seemed this would pose some difficulties. The accused had to be indicted by prosecutors and arraigned before courts having jurisdiction over the localities in which they lived. The Central Office was responsible only for the preliminary investigations (see p. 226 above). It had no legal jurisdiction of its own, nor could it serve as the basis of a new judicature.
Once again, "chance" came to the rescue of the initiators of the Auschwitz Trial -- at least, that is what Langbein tells us. It seems that the Chief Public Prosecutor of the State of Hesse, Fritz Bauer, a Jewish émigré who returned to Germany after the war, happened one day upon a "package of signed documents" concerning the "murder" of Auschwitz inmates. He is said to have turned these papers over to the Federal Court of Appeal, which thereupon designated Frankfurt as the place of jurisdiction for all offenses related to Auschwitz. A journalist purportedly [234-235] "discovered" these documents "by chance" in the Frankfurt apartment of a certain Emil Wulkan. Now, that seems pretty odd, but odder still is the story Wulkan served up to the authorities about the origin of the "documents." He explained that these papers, allegedly Auschwitz camp files containing the names of prisoners slain there and those of the SS men who took part in the slayings, came from the Lessing Lodge in Breslau, where a good friend of his found them in early May 1945.50
All this is pretty incredible. Assuming for a moment that the documents are genuine, one searches in vain for an explanation of how they found their way from the files of the Auschwitz camp to a Masonic lodge in Breslan. But we shall let this matter pass. A far more important question is whether the sudden appearance of these Auschwitz "documents" in Frankfurt was really the decisive factor in the Federal Court of Appeal's ruling that the whole Auschwitz case be placed under the jurisdiction of the Frankfurt courts. One could not answer this question definitely without inspecting and verifying these "documents." Of course, the Rules of Judicial Procedure in Penal Cases (the StPO) does contain a provision that cases involving connected offenses may be brought together under common jurisdiction, even in the pre-trial inquiry state. Supposedly, in this "practicality" is the foremost consideration.50 However, leaving aside the question whether such a judicial monstrosity as the Auschwitz Trial was in any way "practical," one may dispute whether the diverse crimes of which the defendants were accused--individual murders committed in various ways, summary executions, "euthanasia" by means of lethal injections ("Abspritzen"), and complicity of whatever kind in the alleged "gas chamber" murders -- constituted "connected offenses" in the sense that term is used in the Rules of Judicial Procedure in Penal Cases. For according to §3 of the StPO, such a connection exists only when either one person is accused of having committed several punishable offenses (known in German legalese as "Tatmehrheit"; plurality of offenses) or when several persons are accused of having committed or been accessory to one punishable offense ("Tiitermehrheit"; plurality of offenders).52 The mere fact that "documents" concerning Auschwitz were "discovered" in Frankfurt thus could not have been the decisive factor in the assignment of jurisdiction.
All things considered, it could not be too far off the track to say that the assignment of jurisdiction was less the result of legal considerations than of the Auschwitz Trial promoters' desire -- manifested to the authorities in some clandestine manner -- for a trial of the largest possible dimensions. The "chance" discovery of some rather obscure documents in Frankfurt was a legally dubious foundation for the assignment of jurisdiction. The tall tale about the "documents" was probably concocted just to pull the wool over the eyes of the public.
Using these thoroughly devious methods, the promoters of the Auschwitz Trial managed to get all the investigations into the Auschwitz [235-236] case combined into a single inquiry, with the veteran "Nazi hunter" Chief Public Prosecutor Fritz Bauer heading it. Further investigations were then pursued to the fullest "in close cooperation with the International Auschwitz Committee."53 Two prosecutors were made available exclusively for this purpose. The names of more and more former SS members cropped up, and the scope of the case kept on widening. A flood of "incriminating evidence" streamed from the International Auschwitz Committee and other interested parties. The prosecuting attorneys wasted little time pondering whether this material was genume -- at least, that is the impression one gets from Adalbert Rückerl's book NS-Prozesse, a "report on the activities" of the Central Office at Ludwigsburg. There is no reason to suppose that the Frankfurt prosecutors were more meticulous than their colleagues in the Central Office, who, after all, boasted greater expertise in this field. In addition to supplying the authorities with "documents," the International Auschwitz Committee also put them in touch with "witnesses"-- as Langbein proudly reports -- from countries with which the Federal Republic of Germany at that time had no diplomatic relations. Moreover, Langbein arranged for the prosecuting attorneys and examining magistrates to take trips to Auschwitz, so that they could "familiarize themselves with the place" and study "documentary evidence."
How intensively and effectively the International Auschwitz Committee and its General Secretary Hermann Langbein supported the investigation is shown by a letter from Chief Prosecutor Wolf of the Central Office to Hermann Langbein, dated December 12, 1959. In this communication, Wolf expresses "thanks and recognition . . . for the vigorous and valuable assistance." To quote the letter verbatim:
During the preparations for the extensive trial relative to the unexplained crimes of Auschwitz, you have greatly alleviated our difficult and responsibilityladen task by providing us with important evidential material and by interviewing numerous witnesses in this and other countries.
We understand the concern and apprehensions of the survivors, and hear the warning voices of the millions of mute victims in whose name you speak. We will make every effort to discover all the anonymous murderers we can and give them their just punishment.54
Perhaps the most significant thing about this obsequious and pompous letter is that it shows the "servants of justice" had already made up their minds that Auschwitz claimed "millions of victims." It nicely illustrates the prejudicial attitudes of the examining magistrates in this case, especially since it correctly refers to the "crimes of Auschwitz" as "unexplained" -- a Freudian slip, perhaps? With a clarity that could hardly be excelled, it shows just who was in control of the Auschwitz proceedings.
In reviewing the background of the Auschwitz Trial, we must not neglect one further point: the treatment of the defendants during the pre-trial investigation. Almost every one of them was remanded in [236-237] custody after his arrest, even though the lawful reasons for detention -- risk of flight or danger of prejudicing the course of justice -- were absent in each case. For how, in the case of these criminal charges going back for more than ten years in the past, could this clearing up of the alleged "crimes" possibly be "prejudiced"--i.e., jeopardized--by the accused? Anyway, most of the defendants were SS small-fry who held only minor positions in the administrative hierarchy of the camp. Risk of flight was even less of a possibility. Not only did all the defendants earn their living in the Federal Republic of Germany, but they were also of an age at which the mental and physical prerequisites for escape are minimal or no longer exist. Indeed, the charges against them were so fantastic that it must hardly have seemed necessary to avoid facing them.
The only possible explanation for the imprisonment of nearly all the defendants is that one wanted to "soften them up," mainly in order to get them to admit that an "extermination program" had been in effect at Auschwitz and that "gas chambers" were the means used to execute it. Without examining the records of the investigation, one cannot say for sure whether this objective had already been achieved during the pretrial interrogation period, and, if so, how. That it was achieved, at least to some extent, is shown by the behavior of the defendants in the course of the trial, a matter we shall discuss later on. Even during the pre-trial investigation, some of the defendants may have admitted -- whether in good faith or not -- that they had "heard" about the "gassing of Jews" while they were stationed at Auschwitz, in order to secure their release from custody. At first, this concession may have seemed quite harmless. In all probability, none of the defendants knew or could even have imagined that participation in a selection" on the Auschwitz-Birkenau railway platform, for example, guard duty, would be construed as complicity in the alleged "gas chambers" murders.
At the beginning of the Auschwitz Trial, nine of the twenty-two defendants, that is to say, almost half, were still being held in custody. Some of them had been imprisoned for more than four or five years, which can only be called absolutely out of the ordinary. During the course of the trial, eight other defendants were taken into custody, one by one, almost always as a result of witness testimony against them. The illness of two of the defendants, Heinrich Bischoff and Gerhard Neubert, resulted in their cases being severed from the indictment; Bischoff died a few months afterwards. Only three of the defendants remained at liberty throughout the proceedings: Breitwieser, Schoberth, and Schatz. Most of the accused who were not retained in custody had to post bond of up to DM 50,000.55 Under these circumstances, it is beyond doubt that all the defendants were under enormous psychological pressure, from the beginning of the investigation to the conclusion of the trial. This is exactly the situation in which the defendant in a show trial always finds himself.
[237-238]
Particularly noteworthy is the fate of the most prominent of the defendants, Richard Baer, the last commandant of Auschwitz. He did not live to see the beginning of the trial. In December of 1960, Baer was arrested in the vicinity of Hamburg, where he was employed as a lumberjack. He died in June of 1963 under mysterious circumstances while being held in pre-trial custody.56
According to various sources, which, in turn, rely on reports that appeared in the French press, Baer adamantly refused to confirm the existence of "gas chambers" at the camp he once administered. Although it has been alleged that he was eliminated by poisoning on account of this refusal, the cause of his death has never been established. His wife claimed that he was in excellent health.
While Langbein merely states that an autopsy revealed that he died of "natural causes," Naumann specifies a "circulatory ailment" as the cause of death. Of course, a circulatory ailment is only a symptom of preexisting disease that has causes of its own. It is quite possible, however, that the physical condition of this strong and healthy outdoor laborer deteriorated as a result of his treatment in prison.57 That would be damning enough to those suspicious of the whole affair when one reads the report on the autopsy performed at the Frankfurt-Main University School of Medicine: "The ingestion of an odorless, non-corrosive poison . . . cannot be ruled out."58 Nevertheless, there was no further probe into the cause of Baer's death, and Chief Public Prosecutor Bauer ordered his body cremated. One may dismiss the possibility that Baer committed suicide, since, according to his wife, he was counting on an acquittal. Moreover, shortly before his death Baer complained to the guards that he was feeling ill and asked for a physician. That is hardly the action of someone who intends to take his own life.
This very mysterious event hardly attracted public attention, and presumably the affair was systematically hushed up. When one considers the reaction the death of an inmate in a German prison usually calls forth among officials, legislators, and the mass media, it seems astounding that this case was kept so quiet, all the more so because Baer was no ordinary prisoner, but a man whose testimony could have had the greatest impact in the upcoming trial.
The suspicion that interested parties had Baer removed by means of poison--as has often been claimed--cannot be dismissed. The motives for such an action are obvious. If anyone at all knew the truth about the "gas chamber" allegation, it was Baer, the last commandant of Auschwitz. That he refused to give his authoritative confirmation to the "gas chamber" story is shown by the fact that the statements he made during his interrogation were not read into the trial record. They must have been of no value to the prosecution. What the main defendant had to say about the central accusation regarding Auschwitz was anything but a matter of indifference to the initiators of the trial. Had Baer [238-239] resolutely contested this' allegation and been able to show its absurdity, he would not only have made it difficult for them to attain their primary objective -- to reinforce the "gas chamber" myth and establish it as an unassailable "historical fact" -- but he might also have caused the proceedings to take an entirely different course. By his steadfastness, Baer would have set an example for the codefendants to follow, and perhaps even influenced some of the other participants in the trial. Hence one should give some credence to the charge that Baer's refusal to play the role assigned him in the script is the reason the trial couid not begin until after his death.59 We shall not delve into this matter. The fact is that the Auschwitz Trial did begin almost immediately after Baer's death. Laternser is of the opinion that there was too much haste involved.60 However, the preliminary investigations were completed on October 19, 1962, as Langbein informs us,61 so nothing much really could have stood in the way' of the start of the trial -- except, of course, Baer's "stubbornness."
Was Baer murdered in jail? Ever since the brutal abduction of Adolf Eichmann in Argentina -- as a matter of fact, even before -- it has been common knowledge that the Israeli secret service is capable of just about anything.62 Given such circumstances as the fact that Chief Public Prosecutor Bauer was a Zionist -- for which reason he should not have been permitted to head the combined investigation--it is quite possible that the mighty arm of international Jewry was able to reach into Baer's jail cell, though for lack of conclusive proof, this question must remain open. At any rate, one may assume that Baer's sudden death came as a great shock to the other defendants. Since his position on the "gas chambers" allegation must have been known to them, some of the defendants may have taken his unexpected and mysterious demise as a warning, and altered their own stance accordingly. For the promoters of the trial, Baer's death could only have been a welcome development. The composition of the court is something that must have had a considerable effect on the course of the trial. Now, in all trials the empanelment of the tribunal is determined according to the judicial calendar, which is not insusceptible to manipulation, since it is usually valid for only a year. Naturally, the promoters of the Auschwitz Trial were eager to see the proceedings placed in the hands of a court that would give the case more or less the kind of treatment they desired. In particular, Chief Public Prosecutor Bauer, the right-hand man of the initiators of the trial, must have had definite ideas in this regard. Thus it is interesting to learn, from Laternser's book, Die andere Seite im Auschwitz-ProzeA [The Other Side in the Auschwitz Trial], that meetings took place between members of Bauer's staff, the Presiding Judge of the Regional Court, and the prospective head of the Assize Court, during which, among other things, the opening date of the trial and the related matter of the composition of the court were discussed. At the very beginning of the [239-240] trial, Laternser formally protested that manipulation had been involved in the empanelment of the tribunal, but the court did not rule on his petition until February 3, 1964, more than a month after the proceedings had started, and rejected it without deliberating the proofs and arguments he submitted 63
Taking the whole background of the Auschwitz Trial into consideration, one gets the distinct impression that the forces behind these proceedings were intent from the very beginning on staging an out-and-out show trial.64 As we noted above, the essential characteristic of a show trial is that it aims, first and foremost, at producing a politically demonstrative effect rather than arriving at an objective judicial decision. Even in the preliminary stages, the Auschwitz Trial bore every conceivable trait of such a proceeding. The pre-trial investigation was centralized without regard to established legal jurisdiction; extra-judicial forces that were hardly disinterested parties in the Auschwitz case were allowed to influence the preparations for the trial; the framing of the indictments was entrusted to a prosecution staff under the direction of a veteran Zionist; the empanelment of the court involved manipulation; and, last but not least, the accused were treated in a manner out of keeping, to put it mildly, with the German judicial system, something that -- together with the mysterious death of the most prominent defendant in pre-trial detention -- must have had an effect on their will to defend themselves and, no doubt, was responsible for their often ambiguous conduct during the trial.
The Conduct of the Trial
For those who were unable to attend the proceedings against Mulka, et al. before the Frankfurt Assize Court, the reportage of Bernd Naumann, Hermann Langbein, and Hans Laternser gives a rather good picture of the course of the trial. While Naumann, who covered the trial for the Frankfurter Allgemeine Zeitung, a daily newspaper, gives a chronological depiction of the proceedings in his book Auschwitz: Bericht über die Strafsache Mulka und andere vor dem SchwurgerichtFrankfurt*, Langbein, who likewise was able to observe the trial almost continuously, arranged his documentary account of the trial, Der AuschwitzProzeB, according to subject matter, discussing the alleged crimes of the defendants and presenting the testimony of the witnesses within this framework. Augmenting our picture of the trial is the illuminating study by the defense attorney Dr. Hans Laternser Die andere Seite im Auschwitz-Prozeß.
*Auschwitz: Report on the Criminal Case of Mulka et at. before the Frankfurt Court of Assizes.
On the basis of these three documentary works on the trial, we shall examine in the following sections of this chapter how the proceedings were implemented.65 Here let it be noted that Laternser's account is devoted primarily to the juridical aspects of the trial, whereas the other two authors, both of whom are laymen, basically confine themselves to [240-241] reporting the testimony of the defendants and witnesses. Naturally, they do not spare us their own opinions, which, naturally again, are fully in accord with the fundamentals of the Auschwitz legend, and doubtless influenced their selection of material. Even Laternser proceeds from the basic premises of the legend, as is obvious not only from what he writes in his foreword to Die andere Seite im Auschwitz-ProzeB, but also from his summations, which appear in the book. The fact that he is "above suspicion" simply makes his criticism of the proceedings all the more valuable. Both of the other authors are virtually uncritical of the Auschwitz Trial.
Now let us get down to particulars.
The Trial Setting
The Auschwitz Trial was not held in the Frankfurt Courthouse, since it supposedly lacked a suitable courtroom.66 To those unfamiliar with judicial practice, this may seem to have been an unavoidable necessity. After all, given the extraordinary publicity surrounding the Auschwitz Trial -- it attracted worldwide attention -- a large number of journalists were expected to be on hand. Also, from the very beginning, it was planned -- in accordance with what Naumann calls the "ethical, social, and educative implications" of the trial -- to compel groups of young people, for example, army units and school classes, to attend sessions of the proceedings. And, of course, one counted on heavy attendance by politically oriented groups and associations.
But all this really did not justify the rental, at additional expense to the public, of "courtrooms" outside the courthouse, particularly in view of the fact that attendance at the trial would be artificially high as a result of an orchestrated publicity campaign. At first, sessions were held in the assembly room of the Frankfurt Municipal Council, the "ROmer" hall. Beginning on April 3, 1964, the auditorium of the recently constructed "Haus Gallus" was appropriated for this purpose. However, neither place suited the requirements of a court proceeding -- as Laternser shows in considerable detail -- and that alone should have prevented their use in a trial of such importance.67
Although the law prescribes that court proceedings be held publicly -- something that is especially important in the case of penal trials -- the relatively small space in courthouses ordinarily imposes certain limitations on public attendance. When all seats are occupied, the courtroom doors are closed. I cannot recall a single case of a large trial in which sessions were regularly held outside the courthouse. Even the unusually large number of defendants, attorneys, and other participants in the Auschwitz Trial did not warrant this exodus from the courthouse. Every courthouse has at least one chamber that could, with a little effort, be made to accommodate such a crowd. Leaving all this aside, the [241-242] Auschwitz Trial would not have reached almost grotesque physical proportions had not the initiators of the trial insisted on the legally dubious measure of trying all the defendants under one jurisdiction.
Thus one cannot shake off the impression that even the courtroom was selected with the purpose in mind of producing the greatest possible politically demonstrative effect, and, as we have shown, this is a basic element in all show trials. The fact that the rooms did not meet the requirements of a court proceeding merely underscores this point. No ordinary criminal trial would have been conducted under such handicaps. As Laternser points out, insufficient physical distance between the spectators and the participants in the trial, among other things, resulted in some very unpleasant problems. At least at the beginning of the trial, the participants had trouble communicating -- an intolerable condition by itself. Worst of all, the seating arrangement in both of these makeshift courtrooms was a considerable handicap to the defense attorneys, especially during cross examinations.
So far as the externals of the trial go, there are several other circumstances that point to the show trial-like character of these proceedings. We are not considering here so much the fact that they were soon transferred to a theater, with the court on stage -- though certainly symbolic, that was probably just a gaffe on the part of the stagers of this travesty of justice. No, what really strikes us is how publicity was used to accomplish the desired objective, namely, to produce a widespread conviction that it is an indisputable fact that genocide was committed on an immense scale at Auschwitz.
In this connection, one thinks first of the "job" done by the mass media whose uniformly biased reportage was apparently the result of planning and coordination. To be sure, it is the legitimate task of the press, radio, and television to keep the public informed about significant trials. Especially in the case of penal trials, it is of the utmost importance that the coverage be objective and impartial, and usually it is. A fundamental principle of a nation based on laws is that the defendant is to be presumed innocent until proved guilty. In the case of the Auschwitz Trial, this principle was, it seems, simply cast to the wind. Even prior to the trial, the entire mass media portrayed the alleged events at Auschwitz and the alleged participation of the defendants in them as long established facts, at times going even so far as to describe the accused, who were in no position to defend themselves, as "beasts in human shape." Numerous prosecution witnesses were given an opportunity to talk about their alleged experiences at Auschwitz over the radio, on television, and in the press. By making public statements before they appeared in court, some witnesses practically committed themselves to giving a certain line of testimony.68 During the trial, the reporting was just as biased as before -- if anything, more so. With rather inappropriate understatement, Dr. Laternser simply refers in this connection to the [242-243] kind of "pressure" certain sections of the mass media exert on participants in "trials of a political nature"-- a well-known characteristic of show trials 69
The judges cannot be held responsible for this manipulation of public opinion. In fact, they were also under "pressure" from the mass media. Attorneys of the prosecution team were the ones who kept feeding the mass media "information." For example, the reports that between two and four million Jews were killed in Auschwitz alone can be traced to press releases from the Ludwigsburg Central Office and the Frankfurt District Attorney's Office.70
This propaganda activity reached its culmination in the Auschwitz Exhibition that opened in the Frankfurt Paulskirche,* of all places, on November 18, 1964, while the trial was still in progress. The impetus for this, exhibition came from Chief Public Prosecutor Bauer and the Frankfurt attorneys who represented the co-plaintiffs. When it first began, captioned pictures of the defendants were displayed, and they were removed only after the defense formally protested. The defense attorney Dr. Laternser filed a complaint with the Hessian Minister of Justice about Bauer's unprofessional conduct, but it was rejected as "unfounded." Laternser concludes his account of this truly scandalous affair with the terse remark: "In this trial, the normal standards did not apply, even though there are no others."71
That really sums it all up.
Finally, let us return to a matter we mentioned at the beginning of this section. Throughout the proceedings, school classes and other groups of young people were continually brought to attend the trial. These field trips were evidently organized in response to orders from on high. Their purpose could hardly have been to teach the younger generation about the German judicial system through observation of a trial. No trial could have been less suited to that purpose than this one. Because of its basic structure and its scope, not to mention the way it was conducted, the Auschwitz Trial could provide them at best only with a very incomplete view of practical jurisprudence. Of course, this judicial monstrosity was the perfect medium for an insidious morality play designed to implant a permanent guilt complex in the minds of the generation that would one day shape the German future. Langbein was elated to see German youth forced to witness this show, and thereby he revealed once again the true purpose of the Auschwitz Trial:
*The Frankfurt Paulskirche, a Lutheran church built in early Neo-Classical style, destroyed by Allied bombing raids during World War II and later partially reconstructed, was the meeting place of the German National Assembly of 1848-49, which attempted to bring about the unification of the Reich on the basis of liberal and nationalist principles similar to those on which the United States was founded. As a patriotic shrine, it may be compared to Independence Hall in Philadelphia. The insulting maliciousness on the part of the organizers of this "Auschwitz Exhibition" is self-evident. --T.F.
[243-244]
Likewise, the fact that classes of school pupils attended the proceedings every day they were in session, except during the school holidays, along with other groups of young people, shows that the significance of the trial for contemporary history was understood by many of those who hold positions of authority. At times, schools had to make their reservations weeks in advance to get space at the trial.72 (emphasis added)
This is fully in line with Langbein's previous statement that the trial was "primarily of historical, not legal," significance. As one of the main initiators of the Auschwitz Trial, he ought to know.
The Trial Participants
The Judges
The success of a show trial like the Frankfurt proceedings depends above all on the judges, particularly the presiding judge.73 Should the presiding judge decide to conduct the proceedings according to the view that only issues relevant to the trial as a penal case will enter into the court's decision, and avoid anything that merely serves to produce a politically demonstrative effect, then he would be hindering the attainment of the objective of the forces behind the trial, if not sabotaging it entirely. Alas, the conduct of the Auschwitz Trial shows that it is doubtful whether the presiding judge and his judicial colleagues even considered doing this. Nevertheless, Presiding Judge Hofmeyer felt himself called upon to deny, in his oral opinion, the defense attorneys' charge that this trial had been a "political trial" and a "show trial." He went on to say that "those who followed this trial know that it was anything but a show trial, a trial in which the verdict is agreed on in advance and the trial itself is nothing but a farce designed to give the public a show."7" This comment -- which does not appear in the written opinion -- is highly significant. It is supposed to be perfectly obvious and worthy of no special mention that show trials do not exist in a state based on law, and beneath the dignity of any judge to take such a suggestion seriously.
As a matter of fact, the essential characteristic of a show trial is not that the "verdict is agreed on in advance" and that all the defendants will be convicted, if that is what the Presiding Judge meant to say. Were this the case, the Nuremberg "war crimes" trials staged by the Allies could not be considered show trials, since some of the defendants were acquitted -- as in the Auschwitz Trial. The decisive factor is whether judicial rules and procedures are ignored or violated outright in order to achieve a politically demonstrative effect, something that does not, of course, exclude the possibility of certain juristic formalities being observed. Even show trials must have a semblance of legality.
Throughout the course of the Auschwitz Trial, it was evident that the main purpose of these proceedings -- supported even by the bench -- was to establish as an incontestable historical fact the picture of Auschwitz [244-245] that the initiators of the trial found politically desirable. From the outset, the judges made it clear that they regarded Auschwitz as the center of the destruction of millions of Jews, planned by and executed under orders from the German leadership. The whole trial was simply an effort to "corroborate" this "fact" and present a comprehensive picture of it to the public. At no point in the argumentation were the basic premises of the indictment and the raison d'être of the trial disputed, a phenomenon characteristic of show trials. Laternser's observation that the German witnesses all gave the "impression of being downright cowed" is further testimony to the show trial character of these proceedings .75
To be sure, the Presiding Judge is said to have stated in his oral opinion that it was not the task of the court to fulfill the wish implicit in the trial (!), or "to master the past"* through a comprehensive historical presentation of the contemporary events; its only function was "to examine the validity of the charges" and not to "strive for other goals. "76
These statements, though they express a view of the proper function of a court of law that is indubitably correct, are actually nothing but hollow rhetoric so far as the Auschwitz Trial is concerned. The facts about that trial tell a different story. In various ways, the court allowed ample opportunity -- as we shall show in detail later on -- for the treatment of recent history, made numerous pronouncements on the subject in its written opinion, although there was no reason to do so, and even convicted defendants whose deeds themselves would otherwise have borne no relation to the crime of murder, or any other legally punishable crime, on the basis of the totally unsubstantiated "gas chamber" allegation. Thus it cannot be said that the court limited itself to "examining the validity of the indictments." As a matter of fact, the court did not -- strictly speaking -- even examine the validity of the indictments. And thereby it underscored, whether intentionally or not, the show trial character of these proceedings.
It may be that the mass media had convinced the court, particularly its Presiding Judge, that millions of Jews were killed, specifically, "gassed," at Auschwitz. The influence of the mass media, even on intelligent people,is one of the sad facts of our times. A critical look at the literature on recent history would have shown the court that there is at least some doubt about this propaganda charge. But the judges lacked either the time or the courage to come to grips with this material.
*To render the phrase "die Vergangenheit zu bewilltigen" as "to master the past" is perhaps too literal. The original German has connotations of rewriting history, specifically, for the purpose of "re-educating" the German people. At least in German revisionist circles, the term "Vergangenheitsbewilltgung" is used in the sense of "history-twisting."--T.F.
[245-246]
It is not outside the realm of possibility that all or some of the judges knew better, or had certain doubts, but felt it would be inopportune, as it were, to cast the slightest doubt on the story of the "extermination of the Jews." Laternser says that he even got the impression that the Presiding Judge was visibly anxious to avoid making any "mistakes" that might bring negative comment from the press ~ One can readily imagine the grave consequences the judges would have suffered for their heresy had they voiced any doubt about the Auschwitz legend.
Be that as it may, the net result of this judicial bias was to put the stamp of a show trial on these proceedings. Some of the characteristic features of a typical show trial are lack of objectivity and impartiality in the conduct of the proceedings, presentation of one-sided and thoroughly insufficient evidence, and the making of allowances for the political objectives of the initiators of the trial. All these things, which along with the constant hammering into the public mind of the court's "findings" are usually enough to accomplish the purposes for which the show trial was designed, were present in the Auschwitz Trial. Whether the judges were desirous, or even aware, of what was happening is,in the last analysis, beside the point.
That the Auschwitz Trial court, particularly its Presiding Judge, behaved in a manner typical of a show trial court is abundantly clear from the examples Laternser gives in his book, of which we can cite only a few here.78 This conduct is evident even from Langbein's and Naumann's documentary volumes on the trial, although it certainly was not the intention of these authors to call attention to it.
Typical of the atmosphere of this trial is a remark which the Presiding Judge made in the initial stage of the proceedings: "hearsay" would be assigned "greater weight" in this trial because such a long time had elapsed since the alleged events.79 This is a statement guaranteed to raise eyebrows among professional jurists. In an ordinary criminal trial, testimony based on hearsay is immediately rejected. For one of the basic rules of a scrupulous argumentation is that only what the witness actually knows firsthand may be taken into account. Apparently, the Presiding Judge did not consider it necessary, or at least expedient, to conduct this trial as an "ordinary criminal trial." Given the "liberal" attitude of the court, prosecution witnesses could practically lie a blue streak. In passing let it be noted that the reason the Presiding Judge gave for the admission of "hearsay" in this trial is absolutely illogical. Every experienced practitioner of criminal law knows that witnesses find it difficult to recall their own experiences properly after a period of time has elapsed, even if they are in good physical and mental shape. The testimony of hardly impartial witnesses about things they heard almost two decades before must be even less reliable. Nevertheless, [246-247] the judges in the Auschwitz Trial were willing to listen for hours to all sorts of prison gossip, provided it fit into the accepted picture of Auschwitz, and thus contributed to the success of the "show."80
The treatment of witnesses by the court was totally lacking in the judicial fairness customary in ordinary criminal trials. All the prosecution witnesses, most of whom came from abroad, were treated with the utmost courtesy and respect. Very seldom did the judges cast doubt on their claims, no matter how fantastic the tale may have been. Their testimony was not scrutinized in the light of other relevant testimony and evidence, as is normally done in penal trials. Attempts by the defense to do so met with all kinds of procedural sleight of hand. Exonerating testimony was treated with the greatest skepticism by the court. Defense witnesses who once belonged to the SS risked being arrested in the courtroom if they did not take at least a modicum of care that their testimony did not deviate too far from the "line" set by the court, or if their testimony aroused the slightest suspicion that they had been involved in the alleged murder of Jews. On the other hand, the foreigners who testified for the prosecution had a kind of carte blanche: They could freely return to their homelands even when they had obviously committed perjury or come under suspicion of having murdered a fellow inmate.81
How lacking in objectivity and impartiality the court was can be seen from the general attitude of the judges towards the accused. Typical of this was a remark the Presiding Judge made during the session of July 23, 1965--which no doubt reflected the sentiments of the other judges -- that thþe trial would have progressed far better had the defendants told the truth from the first day on.82 That a member of the court should have made this blanket condemnation of the defendants is almost incredible. It was both unfounded and hardly in keeping with the judicial reserve taken for granted in normal trials. What is more, the Presiding Judge reiterated this accusation in the oral opinion. There he claimed that the defendants "have not furnished any clues to help in the search for truth, have kept silent on many points, and have largely failed to tell the truth," adding that "the defendants have no right to feel discriminated against if in one or the other instance the court accepted the word of a witness, since the defendants failed to rectify witness testimony by truthful accounts of what happened."83 This is tantamount to saying that the court gave credence to prosecution witnesses not because their testimony was trustworthy, but because the defendants either did not challenge it or said something else, which, after all, was entirely within their rights. To put it another way: If a witness told the court what it wanted to hear, he was always telling the "truth."
One might argue that in other trials judges have been lacking in objectivity and impartiality. Though this objection may be basically correct, one must recognize a considerable qualitative and quantitative difference [247-248] between the constant partiality of the Auschwitz Trial court, especially the Presiding Judge, and the occasional breaches of judicial objectivity found in some other trials. This is the impression one gets from all the documentary volumes on the trial, not just from Laternser's account.
Given this situation, it was almost to be expected that the Presiding Judge never made an attempt to stop or restrain those in the audience who loudly heckled and insulted the defendants and their attorneys, that he frequently interrupted the defendants and their attorneys, and did not admit relevant questions from the defendants and their attorneys. In this way, he finally brought them to the point where they hardly bothered to exercise their procedural rights. Truly, the normal standards did not apply in this trial.84
Under these circumstances, nobody will be surprised to hear that the defense felt handicapped by the way the court conducted the proceedings, as Dr. Laternser frequently remarked.85 This situation might have some bearing on the curious fact that neither the accused nor the defense at any time dared to cast doubt on the claims that Auschwitz functioned as an "extermination camp" and that "gas chambers" existed there. For the bench had -- as all the documentary volumes on the trial show -- already indicated by its questioning of witnesses and defendants its preconceived ideas about this matter. It would have been futile, if not dangerous, for the defense to challenge those ideas. The court acquitted itself perfectly of the task assigned it by the promoters of the trial.
In conclusion, one cannot describe the show trial-like atmosphere which the prejudicial conduct of the bench gave these proceedings more aptly than in the words of the most widely respected attorney for the defense, Dr. Laternser:
At no time in any of the great international trials in which I have participated -- not even the International Military Tribunal Trial in Nuremberg-- was there the kind of charged atmosphere that prevailed in the Auschwitz Trial. Those trials had a far more objective atmosphere, even though they took place immediately after the cessation of hostilities.86
A more devastating verdict on this trial cannot be imagined, especially if one bears in mind that the victors' trials of the post-war era, which Laternser mentions by way of comparison, have always been subject to severe criticism, even in the conquerors' own countries. Today few people would deny that they were purely show trials.
An equally devastating verdict on the Presiding Judge of the Frankfurt Assize Court appeared in a Swiss newspaper a few days after the beginning of the trial: The Presiding Judge was described as being probably the "best prosecutor in the courtroom"!87
It is perhaps superfluous to add that such a court could never arrive at a determination of historical truth.
[248-249]
The Prosecution and Accessory Prosecutor
By overemphasizing political and historical matters, the prosecutors and accessory prosecutors in the Auschwitz Trial greatly contributed to giving these proceedings the character of a show trial.88 The prosecution considered all the defendants "guilty" simply because they happened to serve at the Auschwitz "extermination camp." In this regard, the prosecution did not make an exception even of Dr. Schatz, who served at Auschwitz as a dentist, though not a single witness could be found to testify against him. It demanded that he be sentenced to life imprisonment, and one of the accessory prosecutors even suggested "30,000 consecutive life terms," a suggestion that Laternser rightly described as "strange"89
The prosecutors and accessory prosecutors thus revealed themselves to be not the servants of justice, but the instruments and representatives of those political forces which aimed from the very start at staging a show trial -- not that objectivity could be expected from the accessory prosecution, anyhow. As we have already noted (see p. 225 above), the prosecution in trials of a political nature frequently neglects its legal duty, set forth in §160, Paragraph 2 of the StPO, to search out facts which exonerate the defendants. This is only natural, since such trials are always initiated at the behest of a higher authority, and even prosecutors who are otherwise very scrupulous may consider it unwise to act contrary to the wishes of their patrons and superiors in the political system. The Auschwitz Trial was no exception in this regard. Assistant Prosecutor Wiese occasionally dared cross-examine witnesses on behalf of the accused.90 In general, however, the prosecutors did not seem to consider themselves under any obligation to inquire into exonerating circumstances. They did not even seem interested in whether the witnesses were telling the truth, something about which there was often considerable doubt. Their rule of thumb was, as Laternser notes, that foreign witnesses always tell the truth, German witnesses are to be regarded with suspicion, and former SS members usually lie. They did nof even balk at taunting and personally insulting the defendants and their attorneys. In an ordinary criminal trial, that would have been inconceivable. They could afford to be offensive since the Presiding Judge rarely censured such unprofessional and unfair conduct. As a matter of fact, he frequently overruled the objections of the defense to these tactics.91 It is not difficult to imagine the kind of psychological war of attrition the prosecutors carried on against the defendants during the years of pre-trial interrogation. In short, the search for truth was impeded, rather than furthered, by the prosecution. That is exactly the role the prosecution always plays in show trials.
The efforts of the prosecution to create, at the expense of the defendants, the picture of Auschwitz which the promoters of the trial thought [249-250] politically desirable were supported by the so-called accessory prosecutors, who were, of course, under no legal obligation to search for the truth. Their part in the trial was simply to represent the relatives of the alleged victims of Auschwitz. As Laternser emphasizes~ they strove above all to give the public a false notion of the number of victims, and with their legally groundless motions~ they were always trying to create a sensation.92 What is more, the accessory prosecutor Friedrich Karl Kaul often used the courtroom as a forum for Communist propaganda. For example, he tried to connect leading figures in West German industry with the Auschwitz concentration camp.93 The very fact that this representative of a Communist regime was even given an opportunity to agitate in the court of a state supposedly based on law underscores the fact that the Auschwitz Trial was nothing but a show trial.
The Defense
Unfortunately, the defense in the Auschwitz Trial did not form a united front. As Laternser notes with a certain bitterness, the defense attorneys hardly ever agreed on anything. According to his account, some of them even avoided the defense attorneys' lounges preferring in stead to chat with the prosecutors and accessory prosecutors during recesses .~" Evidently, they wanted to display aloofness from their clients~ though, of course~ their conduct can be explained otherwise. It is easy to imagine how depressing and demoralizing even the outward bearing of the defense attorneys was to the defendants. If in the course of the trial the defendants hardly bothered to put up any resistance, so far as the basic issues in the trial were concerned, and merely tried to save their own necks, that was at least partially the result of lack of encouragement from their attorneys.
Far more important and remarkable is the fact, which emerges from all the documentary volumes on these proceedings, that none of the defense attorneys challenged the basis of the trial, namely, the allegation that Auschwitz was an "extermination camp." That would have required some research on their part, though that celebrated faculty called common sense is really enough to provoke skepticism about the allegations that keep the extermination legend alive. However, the defense seems to have taken at face value the picture of Auschwitz spread by the mass media. One would assume that in a trial as important--and not just to the accused --as this one, the defense would have shown a bit of initiative in acquiring information, and independence in interpreting it. At least, one would expect some member of the defense team to have requested permission to introduce into the proceedings an expert whose viewpoint on these matters was sharply antithetical to that of the prosecution. That expert could easily have been' the French historian Professor Rassinier, a man extremely well versed in the subject of the [250-251] concentration camps, whose most important works had already been published in German translation when the Auschwitz Trial began. He could have testified on the question of whether the alleged gassings were technically feasible, for example, or whether the Höß memoirs, which played a certain role in this trial, were actually genuine .95 Since none of the defense attorneys had the courage to do so, the whole defense team is open to the charge of having behaved in a manner typical of the performers in a show trial. They simply did not use every available means to oppose the political aims served by the trial, and thus failed the German people. From their conduct it is obvious that they could or would not recognize the tremendous social and political importance of this trial. Each one of them was concerned solely with securing an acquittal, or, at least, a more lenient sentence, for "his" client.
Sorry to say, this applies even to Dr. Laternser, who was the most steadfast member of the defense, and was therefore often attacked. Although it must be conceded that he constantly tried to oppose any argumentation that was irrelevant to the alleged crimes of the defendants and served only the political aims of the trial, he never left any doubt that he regarded the tale of the "extermination camp" with its "gas chambers" as a historical fact. At the beginning of his opening plea, he expressed his agreement with the prosecution's charge that "never in history has there been a persecution of the Jews equal in extent and gravity to that of the National Socialist regime." Further, he claimed that only the turn of events in the war and "not remorse or some other honorable motive" was the reason "Hitler and his accomplices did not finish the job of exterminating the European Jews ~"96
I am not really sure whether Dr. Laternser, an astute and experienced trial lawyer, actually believed all that himself, or whether he only pretended to believe it for tactical purposes. There is some reason to think the latter is the case. By taking this position -- which involved disregarding all the evidence against the extermination thesis -- he could argue, for instance, that the defendants were not "guilty" of "complicity to murder" by participating in "selections." True, the prisoners singled out as "unfit to work" were supposedly "gassed" forthwith; but Laternser insisted that Hitler had ordered the killing of all Jews transported to Auschwitz, so the "selections" actually "saved" part of the arriving Jews from immediate extermination. Since the others would have been "gassed" anyway, Laternser argued, mere participation in a "selection" could not be a legally punishable act.97
But leaving this stratagem aside, Laternser may also have been of the opinion that a frontal attack on the extermination legend would have no hopes of success, and might even bring additional difficulties for the accused. We recognize this position from the Nuremberg Trials. A characteristic feature of the show trial syndrome is that the accused, whether from rational considerations or as a result of brainwashing, [251-252] nearly always adapt themselves to the political sum and substance of the trial. When a defense attorney takes the approach of accommodation (perhaps even forcing it on his client), the individual defendant may benefit in some cases. Morally this posture is deserving of condemnation, of course, if those who have chosen it are aware of the truth.
The Defendants
When one contests the allegation that Jews were gassed en masse in Auschwitz-Birkenau, the reply is often that even the defendants in the Auschwitz Trial admitted that this happened. For example, Langbein writes in his book Menschen in Auschwitz: "None of the accused SS members tried to deny that gassing facilities were present at Auschwitz." 98
Of course, this claim is no substitute for concrete evidence that "gas chambers" existed at Birkenau, evidence that is still lacking. If it were, one could claim with equal validity that witches really exist because during the Middle Ages some people accused of witchcraft "confessed," in many cases without their having been tortured.99 But even Langbein's generalization is misleading. In most instances, the defendants in the Auschwitz Trial simply replied, when asked about "gas chambers" and such, that they had "heard" something about them. Only two of the defendants, Stark and Hofmann, "confessed" to having taken part in some "gassings." (We shall return to this matter later on.) Furthermore, the defendant Broad claimed to have witnessed, from a hiding place, the "gassing" of Jews in the old crematorium, a claim we have already examined in detail (see pp. 145ff. and 164ff. above). A long line of defendants--Boger, Schoberth, Bischoff, Scherpe, Neubert, and Bednarek -- had nothing in particular to say about "gas chambers." It may be they were not even questioned about "gas chambers," since they were not involved in the charges against them. Two of these defendants were eliminated from the trial in the early stages: Bischoff (who died) and Neubert (who fell ill). Had they been asked, of course, they, too, might not have contested the "gas chamber" allegation.
In the introductory essay to his volume of documents on the trial, Langbein asserts that nothing prevented the accused from objecting to and refuting exaggerations.100 From where he stands, this statement may make some sense, but actually it is totally at odds with the facts. No refutation of the gas chamber legend could have been expected from these people, who were without exception men of rather modest intellect. It is even possible they believed rumors about such things that they had heard someplace or other. Perhaps more decisive, however, was the trial atmosphere, the attitude of the other participants, including the defense, and the psychological stress of a pre-trial investigation lasting many years. Almost inevitably, this caused all the defendants to [252-253] resign themselves to their situation and defer to the presumptions of the court. In this, too, their behavior was typical of that of the defendants in a show trial.
As a rule, the defendants in show trials, whose "crimes" are the ostensible raison d'être of the proceedings, do "confess," and it is beside the point whether they do so as a result of brainwashing or in order to secure legal advantages for themselves. In the Auschwitz Trial, the latter was probably the case, even though some of the defendants, judging by their behavior, appear to have been victims of psychological manipulation that made them believe in the "mass gassings." We are acquainted with this phenomenon from the Nuremberg Trials.
Now, the mere fact that some of the defendants in the Auschwitz Trial "confessed" does not tell us whether their statements have any bearing on historical events. What matters is the content and reliability of those "confessions." As we have previously noted, even confessions must be thoroughly checked against other known facts and evidence before one can draw any conclusions about their credibility. The judges in the Auschwitz Trial neglected their judicial duty to check the facts, even when that was absolutely necessary, as in the case of Stark's and Hofmann's testimony regarding their direct participation in the "gassing" of Jews. The utter vagueness of these defendants' statements on an issue of such importance in this trial should have prompted the court to ask them a number of questions to clarify certain details of their testimony. But if we may rely on Naumann's reportage and Langbein's collection of documents on the trial, questions which might have helped get at the truth of the matter were never asked. This fact adds to the suspicion that we are dealing with a show trial. In their own view, the court and the prosecution were just acting logically. For neither the judges nor the prosecutors considered the "gassing of the Jews" to be anything less than an a priori fact, and, as we have shown, the defense shared this assumption. It makes no difference whether the judges realized their true purpose in the trial was merely to "sanction" this idea. By hook or crook, the show trial function of these proceedings, so glaringly conspicuous in this particular instance, was maintained from start to finish.
There can be no doubt that the defendants made "confessions" supporting the exterminationist dogma simply in order not to appear "uncooperative." These "confessions" were nothing more than an attempt to placate the court and the prosecution. They were probably made on the advice of the defense attorneys. If an attorney could succeed in persuading his client to "confess"--falsely--that he had shot inmates,101 how much easier it must have been to convince him that it is only to his advantage to affirm that he knew, at least from "hearsay," that "gassings" of Jews occurred, and even to acknowledge that he played some part in them, albeit a not particularly important one. Could one really expect these defendants not to have conformed, more or less, to [253-254] the "extermination camp" dogma underlying the Auschwitz Trial? Some of them had been illegally detained for years; they had perhaps been "brainwashed" under the direction of the Jewish Chief Public Prosecutor Bauer; they may have taken the mysterious death of the "reticent" Commandant Baer as an object lesson; and, finally, they found themselves at the mercy of a blatantly prejudiced court in a trial conducted in a climate of near hysteria.
All this quite plausibly accounts for the behavior not just of those defendants who stated that their "knowledge" of "gassings" was based on hearsay, but also for that of the defendants who claimed to have participated -- if only to a very limited extent -- in the alleged murder of Jews. After all, they could not deny that Auschwitz was an "extermination camp" and had "gas chambers" without going against the general line set by their attorneys. None of the defendants had the requisite courage for such independent action.
Taken strictly, Stark's testimony has few implications for the problem under discussion here. Stark was in Auschwitz only until November of 1942. He was stationed at the parent camp, and never laid eyes on Birkenau. Some "witnesses" claimed to have seen him at a "gassing" in the old crematorium of the Auschwitz parent camp. Stark himself asserted that Commandant Höß had once ordered him to the roof of the crematorium to help with the "pouring' of Zyklon B into the "pouring holes." He testified that only one man, a member of the disinfection squad, was there to aid him. The alleged victims were 150 to 200 Jews and Poles who, he was purportedly told, had been sentenced to death by a summary court. Stark said that he could not disobey the order since Commandant Höß had threatened to gas him too, when he showed signs of hesitating.102
Obviously, this "testimony" is of very little relevance to the extermination charge, since it concerns the purported execution of a summary court sentence, not the liquidation of Jews for racial reasons. Such executions were carried out by a firing squad, of course, not a disinfection squad. Stark's claim that an execution was carried out with gas is simply unbelievable. From everything known about these matters, it must be called an outright lie.
From Nuremberg Documents NI-9098 and NI-9912, which we have already mentioned in another connection, we know that Zyklon B was an extremely toxic gas; that its effects were immediate; that special training was necessary for its use; and that those who worked with it had to wear gas masks equipped with a special filter (see p. 211 above). All these facts were corroborated during the cross-examination of the defendant Arthur Breitwieser, who for some time was head of the disinfection squad at Auschwitz 103 Stark did not mention that he received any special training or that he wore a gas mask equipped with a special filter during the alleged "gassing." Since according to his own [254-255] testimony, he did not perform any specific task in this "gassing action," he could not have plausibly claimed that he had worn such a mask. Either on purpose or for want of knowledge about the whole subject, the court passed over these contradictions.
In addition, Stark insisted, when questioned further by the Presiding Judge, that the victims screamed for about ten to fifteen minutes after the gas had been introduced into the "gas chamber." Given the instantaneous effect of Zykion B, this is impossible. When asked to describe how people gassed to death look, Stark was at a loss for an answer. It would be a waste of time to say anything more about the "testimony" of this "witness" other than it got him a relatively lenient sentence. Stark was sentenced to ten years imprisonment under juvenile law, since he was a minor when the alleged crime was committed, and according to one of the court's experts had been emotionally immature for his age.104
The other defendant who, "after initial denials," as the Auschwitz Trial opinion puts it, admitted to a certain degree of participation in the "gassing" of Jews in a Birkenau "gas chamber" was the onetime Chief Guard of the Auschwitz camp penal compound Franz Johann Hofmann. From April to September 1943, he was in command of the Gypsy compound at Birkenau, that is, at a time when, so the story goes, the "gassings" had just begun in the "gas chambers" of the newly constructed crematoria 105 Hofmann must have been very well informed about these events, assuming for a moment they actually occurred, since he occupied a rather important post in Birkenau, and the Gypsy compound he administered was in close proximity to the new crematoria. Nevertheless, his testimony regarding these matters is vague and imprecise. According to both Naumaun and Langbein the core of this testimony is as follows:
There were beatings and physical abuse as Jewish details pushed the prisoners into the gas chambers which were disguised as shower rooms. The details were then gassed as well. That always led to great confusion; I even had to watch out to see that working prisoners weren't gassed along with the others. Yes, and sometimes we helped push. Well, what were we supposed to do? We were under orders.106
That is all the defendant Hofmann had to report about the alleged "gassings" and "gas chambers." Certainly, it is not much, and should have elicited further questioning. His description of the "gassing" process contradicts all the other accounts. Usually, it is claimed that prisoners were taken to the "gas chambers" quite peaceably, since the disguising of the "gas chambers" as shower rooms effectively served its purpose of deceiving the prisoners about their fate. Hofmann, too, alludes to this camouflage, and so a contradiction arises that shows up the absurdity of his whole "testimony" on the subject of the "gassings": "There were beatings and physical abuse as Jewish details pushed the prisoners into the gas chambers, which were disguised as shower rooms.
[255-256]
Yet, the court failed to notice -- or chose to ignore -- the discrepancies in Hofmann's testimony. At least, it did not bother to ask any of the obvious questions. When Prosecuting Attorney Kfigler asked Hofmann for details, he replied: "I cannot give any more specific information than this"107
Nothing could better illustrate the worthlessness of this "confession" as historical source material.
One question remains to be answered: What was the motive behind Hofmann's self-incrimination? Considering the position he occupied at Birkenau, only two possible courses of action were open to him. First, he could choose to tell the truth and deny that he had ever seen "gas chambers" at the camp; second, he could do as the other defendants did and "acknowledge" that they existed. If he chose the latter course, he would be forced to include some reference to his own participation in the "gassings," since, after all, he was a camp official. This might have seemed the easiest way out, if he thought he could prove his "participation" in the "crime" was minimal. To be the only defendant who disputed the basis of the whole trial, though that would have served the cause of truth, may have seemed to him an exercise in futility.
But Hofmann had another, more compelling reason to fall in line, and not offend the court and prosecution by an apparent lack of "remorse" for his "crimes." He had already been sentenced to life imprisonment by Assize Court II in Munich, on December 19, 1961, for two murders he allegedly committed at the Dachau camp, and he was now serving that sentence. It seems that Hofmann, like so many other former SS members who had to work in the concentration camps, had fallen victim to "professional witnesses." At any rate, a re-trial was initiated, and had not been concluded while the Auschwitz Trial was still in progress.108 Were Hofmann to be sentenced to another life term, in the Auschwitz Trial, an appeal on his previous conviction would have rather doubtful prospects for success. He was thus eager to come away from the Auschwitz Trial with only a determinate sentence, from which the time he had already served on the previous conviction could be deducted if he won the appeal. The only conceivable way to obtain this advantage from the Auschwitz Trial court -- so his attorney must have advised him -- was to refrain from disputing the dogma underlying the trial and to admit his participation in the alleged "gas chambers" murders, something about which the court had no doubt, anyway, in such a manner that he could be convicted at most of complicity in murder. Unfortunately for Hofmann, this turned out to be a miscalculation.
Partly because of this miscalculation, partly because of manipulation by others, he was impelled to make a false confession. That may explain his outburst of anger when the Presiding Judge pressured him to make additional self-incriminating statements. According to Naumann and Langbein, Hofmann shouted: [256-257]
If I had to do it all over again, I wouldn't say one word. I am being saddled with one charge after another. If I had known everything that was still to come, I would have said nothing. Everybody is shouting for Hofmann: Hofmann is there and Hofmann isn't there. I don't know what you want from me.109
These are not the words of someone with murder on his conscience. They are a cry of despair. Years of persecution and imprisonment had left Hofmann a broken man. He probably would have been at a loss to explain the statements he was forced into making.
It is possible, of course, that Jewish details did herd new arrivals into various rooms, as Hofmann testified. However, those rooms were just shower baths, not "gas chambers." Nothing could be more natural than to give new arrivals at a concentration camp a thorough washing and delousing. 110
To sum up, we can say that not a single one of the defendants in this trial gave convincing testimony that "gas chambers" existed at the Auschwitz camp. It is obvious that any statements they made to that effect were intended to help them get through the whole sticky business. Quite a few of the defendants "overdid it" in saying what was expected of them.111 That is evident not only from the statements of Stark and Hofmann, but also from those of some of the other defendants who testified in the same vein. Their testimony clearly shows they were simply paying lip service to the Auschwitz Trial dogma in order to secure some advantage for themselves. Often they got so bogged down in details that they defeated the purpose. For instance, the defendant Stefan Baretzki explained his "knowledge" of the "gassing of the Jews" by claiming that camp personnel were "taught daily the reasons for the extermination of the Jew."112 This is an obvious lie. Even the court acknowledged that Baretzki was not directly involved in the alleged gassings, but had merely participated in "selections." According to every version of the extermination tale, the "gassings" took place in total secrecy, and the circle of initiates was kept as small as possible. It is therefore altogether unlikely that Baretzki, who merely stood guard at "selections," would have received lectures from his superiors on the necessity of the extermination of the Jews. In his toadying to the court and prosecution, Baretzki went a little too far -- not that they held it against him.
Just as reckless -- and even more thoughtless -- was a statement made by Dr. Willi Schatz, who was accused of participating in "selections" at the Auschwitz railway ramp. "Never in my life," he said, "did I imagine that the 'ramp' would be my downfall."113 This remark can only mean that Dr. Schatz knew, while serving at Auschwitz, that the "selections" were not a preliminary to "gassings." Yet he had previously insisted -- no doubt in conformity with the guidelines of his attorney -- that it was "common knowledge" among camp personel at that time that "Auschwitz was an extermination camp" and "what selection duty was all about."114
[257-258]
Thus, in his attempt to accommodate those who were trying him, the defendant made statements blatantly contradicting the truth, well known to him, that the separation of the able-bodied from the infirm among new arrivals had nothing whatever to do with any homicidal designs.
However, Emil Hantl was the defendant whose claim to "knowledge" of "gassings" most distinctly revealed itself to be nothing more than a concession to the seemingly inalterable assumptions of the court. Though at first he dissociated himself from the alleged "gas chamber" murders, Hantl finally claimed that he had "saved the lives" of inmates who were to be gassed at Mauthausen towards the end of the war.115 His "knowledge" of "gassings" at Mauthausen was on the same level as his "knowledge" of "gassings" at Auschwitz-Birkenau. Today not even the Institut für Zeitgeschichte would dispute the fact that there were neither "gassings" nor "gas chambers" at the Mauthausen camp. This fact was also well known at the time of the Frankfurt Auschwitz Trial. That a defendant was allowed to get away with making such a statement, simply because it fit in so nicely with the extermination legend, once again points up the show trial character of these proceedings. The Hantl episode was typical of the whole atmosphere of this trial.
The Argumentation
At the heart of every penal trial lies the effort to determine the factual basis of the charges in the indictment. The court does this by weighing the evidence according to the ground rules set forth in the Rules of Judicial Procedure in Penal Cases (the StPO). In the following section, we shall examine how the Auschwitz Trial court handled the hearing of evidence.
The charges against the defendants in this trial were of the most diverse kind. Some of them were accused of murdering, as well as maltreating, individual prisoners and small groups of prisoners. Even taking part in the execution of death sentences pronounced by summary courts counted as complicity in murder. But the main charge against nearly all the defendants was that they had participated in some way or other in the "mass gassing" of Jews. In most cases, this accusation was limited to their participation in "selections," the sole purpose of which was allegedly to pick "gas chamber victims." Some were also accused of taking victims to the "gas chambers" or even supervising the administration of the "gassing agent" Zyklon B.116
The charge relating to direct or indirect participation in "gassings" was, of course, predicated on the assumption that "gas chambers" really existed at Auschwitz-Birkenau. As we have seen in the course of our inquiry, that has yet to be proved. The "gas chamber" allegation is precisely the point that should have been subjected to the closest scrutiny during the trial, but the court -- and everybody else involved in [258-259] these proceedings -- acted as though the research of contemporary historians had long since confirmed it as an indisputable fact. Despite the many absurdities and contradictions in the "gas chamber" legend, none of the trial participants ever questioned the physical existence or the technical feasibility of the alleged gas chambers. Even the defendants and their attorneys were careful not to cast doubt on the "gas chamber" legend. We cannot stress this point too much. For it was their position on this matter which resulted in, or, at least, contributed to, the shoddy argumentation in this trial.
Here again, we are reminded of a similarity between the Frankfurt Auschwitz Trial and the show trials the Allies staged after the war. In the Nuremberg trials, the basic rule was that a "fact of common knowledge" did not require proof. It was enough for the court to take "judicial notice" thereof.117 The same device was employed in the Auschwitz Trial. Since the post-war "re-education" of the German people, founded on Zionist and Bolshevik atrocity propaganda, had made the "gas chamber" legend into a "fact of common knowledge," the judges in the Auschwitz Trial had to take "judicial notice" of it, in a certain sense, since otherwise they would have been subjected to the most grievous professional disadvantages and personal attacks. Thus they set great store by evidence tending to prove that the defendants had performed certain tasks at the Auschwitz camp. Both from the standpoint of morality and penal law, these actions were in themselves usually quite neutral. Only with the tacit or express agreement of the trial participants could they be construed as complicity in "crime." The putative "crimes" themselves were seldom, if ever, put to the test of proof.
Given these circumstances, it may seem superfluous to delve any further into the nature of the evidence presented to the Auschwitz Trial court and the use that was made of it. However, we shall briefly consider these matters in the next few pages, since they shed add~1onal light on the show trial character of the proceedings.
Depositions from Experts
Depositions from expert witnesses are defined as evidence in the Rules of Judicial Procedure in Penal Cases (§§72ff. StPO). According to Langbein, no less than twelve consultant depositions were submitted in the Auschwitz Trial.118 For the most part, they dealt with particular issues that are irrelevant to our inquiry. The most important consultative depositions in the trial are generally considered to be those of the experts on contemporary history. After the trial, they were published under the auspices of the Institut für Zeitgeschichte in two volumes entitled Anatomie des SS-Staates. This collection of documents contains the following depositions: [259-260]
Dr. Hans Buchheim: "Die SS--das Herrschaftsinstrument" ("The 55--Instrument of Domination") and "Befehl und Gehorsam" ("Command and Obedience"); Dr. Martin Broszat: "Nationalsozialistische Konzentrationslager 1933--1945" ("National Socialist Concentration Camps, 1933-45");
Dr. Hans-Adolf Jacobsen: "Kommissarbefehl und Massenexecutionen sowjetischer Kriegsgefangener" ("The Commissar Order and Mass Executions of Soviet Russian Prisoners of War"); Dr. Hehnut Krausnick: "Judenverfolgung im Dritten Reich" ("The Persecution of the Jews in the Third Reich").
According to Dr. Laternser, Broszat also contributed a deposition on "National Socialist Polish Policy," but it is not to be found in the published collection.119
From the very titles of the deposition, one can tell that they have little, if anything, to do with the main issue in the Auschwitz Trial or the alleged deeds of the defendants. The closer one studies these depositions, the more this impression is confirmed. To give but an example: Less than four printed pages of Krausnick's 165-page deposition are devoted to the "gas chambers" of Auschwitz-Birkenau -- the keystone of the extermination legend. What is more, in his treatment of this subject that "expert" relied largely on the memoirs Höß purportedly composed in a Cracow prison, which we have already shown to be completely inaccurate, indeed, possibly a forgery (see pp. 196ff. above). Thus Laternser is quite right when he says these depositions were "made in a vacuum" and "academic exercises so far as this trial is concerned."120 Evidently the court lost sight of the function of experts in a trial when it commissioned these depositions.
In German trial law, experts are defined as helpers of the court. Their task is simply to provide the court with technical information (e.g., as to pathology, psychiatry, toxicology, ballistics, or other such matters) which it may not have at its disposal but which has been shown in the course of the trial to be absolutely indispensable to a judicial decision. Such information must, therefore, concern matters that pertain more or less directly to the main issues in the trial or to the defendant himself. As a rule, the questions that may be asked of the experts are narrowly circumscribed by the court, and for the most part must focus on certain specific points. "General discourses" on subjects not directly related to the charges in the indictment -- such as the Auschwitz Trial depositions mentioned above -- do not contribute to the purposes of a trial and are thus inadmissible. Had the Auschwitz Trial really been an "ordinary criminal trial," this rule would have been observed. However, as we have seen, the instigators of these proceedings never intended them to be an "ordinary" trial. They had other objectives in mind, and it was those objectives, above all, that the court was obviously endeavoring to further when it decided what evidence would be heard. The admission of such depositions as those cited above can be explained only in terms of [260-261] the show trial nature of the proceedings, what Naumann calls their "ethical, social, and educative implications." These depositions were designed as a kind of crash course in the version of contemporary history the instigators of the Auschwitz Trial wished to have presented to the press, public, and, of course, any jurors or other trial participants who might not think exactly as they were supposed to about such matters. Had the usual aims of a penal trial come first in these proceedings, the court would have thought it vital to consult a variety of experts on the questions presented by the extermination legend, if for no other reason than to gain an idea of the credibility of the witnesses and some of the documents. Here are a few such questions:
How long did it take Zyklon B gas to work and what were its effects?
How long did the gas remain active in a sealed room (without ventilation and/or with ventilation immediately after use)?
Could one enter such a room without a gas mask thirty minutes after application of Zyklon B gas, as some insist?
Could corpses be completely incinerated in a crematory oven within twenty minutes?
Can crematory ovens be operated day and night without interruption?
Can human bodies be incinerated in ditches a few meters deep, and, if so, in what length of time?
Obviously, the Auschwitz Trial court could not permit this heretical line of questioning. Had qualified experts been allowed to answer questions like these, most of the allegations made by the prosecution would have inevitably been demolished, the "eyewitnesses" to the "extermination of the Jews' exposed as liars, and the curtain would have fallen on the whole show. Nor did the experts commissioned by the court volunteer any answers to such questions -- after all, keeping the extermination legend alive was their bread and butter.121
It goes without saying that scholars representing a dissenting point of view were not even consulted in this trial. The French historian Professor Paul Rassiier, a former inmate of the Buchenwald and Dora concentration camps ,who made a great contribution to bringing to light what actually happened in the camps, was not even allowed to attend the trial as a spectator. No doubt the forces behind the scenes were afraid of his keen intellect and ready pen.122
If the historical aspects of the concentration camp question were indeed at issue in this trial, nothing could have been more appropriate than to bring in Rassinier, a man who had intensively studied the matter for well over a decade, as a consultant. The thorough and deliberate exclusion [261-262] of experts whose views were known to diverge from the official doctrine is just one more bit of evidence that the extermination legend was an inviolable taboo in this trial. The court made no exceptions.
In brief, we can say that in the Auschwitz Trial "experts" were carefully picked to insure the "correct" historical backdrop for the show. The court did not simply fail to oppose this maneuver on the part of the stage manager but aided it. The numerous and lengthy depositions presented by the "experts" from the Institut für Zeitgeschichte, which is devoted to the "re-education" of the German people, in no way served the purpose of evidence. Their "findings" were either immaterial or inadequately documented, though all the trial participants -- especially the judges -- proceeded on the assumption they were pertinent and factual.123 In this trial, depositions from experts were reduced to the status of theatrical props.
Documents
In general, documentary evidence constitutes the surest and most reliable mode of proof, that is, assuming that the document in question is of indisputable authenticity and contains relevant information about a particular issue in the case. A written document becomes part of the argumentation in a legal proceeding when it is read into the record (§249 StPO). From the standpoint of penal jurisprudence, anything that expresses an idea is considered a "document," whatever its material substance, whatever its form, and whatever it means of expressing that idea.124 Only written documents played a role in the Auschwitz Trial. As evidence for the extermination thesis, none of these documents went beyond anything we have encountered in the course of our inquiry. That is simply another way of saying they furnished no proof at all of gassings or gas chambers at Auschwitz. To review them here would be a waste of time, but a few supplementary remarks may be in order.
When Langbein writes, in the commentary to his collection of documentary material on the Auschwitz Trial, that a "wealth of documents" were read in evidence during the proceedings, he is apparently seeking to give the impression that copious proof of the extermination thesis -- in the particularly reliable form of written documents -- was produced at this trial.125 Nothing could be further from the truth. Leaving aside the possibility that Langbein has grossly exaggerated the quantity ofdocumentary evidence, one notes that the overwhelming majority of documents presented at the trial were only of secondary importance insofar as the "gas chamber" question is concerned, that is, they did not bear directly on the alleged gassings or gas chambers. What is more, he counts as "documents" even the depositions of deceased or absent witnesses, of which there were a great many. Under certain circumstances, the reading in evidence of a deposition [262-263] may serve as a substitute for the usual cross-examination of the witness during a trial. Of course, all it proves is that a certain witness made certain statements about certain subjects; it does not prove whether those statements are true or false. Such documents are in and of themselves no more proof that the witness' statements are factual than is any other form of oral testimony. In fact, they have even less probative value than oral testimony, since one cannot form a personal impression of the witness, something that is very important when it comes to evaluating testimony.
What we have said here about written depositions applies particularly to the court-ordered reading in evidence of interrogation transcripts from the "Belsen Trial" the British occupation forces conducted in 1946. The depositions in question are those of the Birkenau commandant Josef Kramer and the Auschwitz camp physicians Dr. Fritz Klein and Dr. Friedrich Entress.126 Although it may seem nearly incredible that as late as the middle 1960's a German court would still use as evidence transcripts from military trials held during the foreign occupation, since by then there could no longer be any doubt that the defendants in those "trials" were frequently subjected to inhuman and illegal treatment, it was an irregularity quite typical of the Auschwitz Trial. Any testimony from those "trials" that gassings occurred at Auschwitz was either obtamed under duress or simply forged. Given the circumstances under which those "trials" took place, no evidence from them could be regarded as having any probative value whatsoever.127 The admission of such "evidence" had nothing to do with justice or fact-finding, and only in a show trial would it have been possible.
Great importance was attributed to the so-called Broad Report (see pp. 145ff, 164ff above) and the memoirs Rudolf Höß allegedly composed while in a Cracow prison.128 The complete text of the former, and sections of the latter, were read in evidence. In the case of both these documents, the court had only photocopies129 to go by. Now, documentary argumentation may certainly be conducted with the aid of photocopies, but considering how suspect these documents are, one is astonished that the court was satisfied merely with reproductions, even though a few "experts" vouched for the authenticity of the "documents." As we have seen, the photocopy of the "Broad Report" presented at the trial was a reproduction of a typescript of the hand-written "original," and the only "corroboration" of its identity with that "original" was some highiy dubious witness testimony (see pp. 213ff above).130 As for the Höß memoirs, the court was satisfied with the expert Broszat's "credible assurance" that the copies he presented were faithful reproductions of the "originals" kept under lock and key in Poland.131 It never occurred to the judges to ask whether the "original notes" were themselves genuine 132 Here we see once again that the crucial question in this whole trial -- namely the alleged existence of gas chambers at [263-264] Auschwitz -- never really became the subject of argumentation, but was accepted from the outset as an established "historical fact." Otherwise one would necessarily have given some consideration to the authenticity of the Höß memoirs, parts of which were important for the evaluation of that question. As for the rest of their contents, they had no bearing on the issues in this trial.
The reading in evidence of these two "documents," which do not contain a word implicating any of the defendants in the alleged murder of Jews, could have only the purpose of arousing emotions -- with the aid of appropriate press coverage -- in order to strengthen the popular image of Auschwitz as a huge "death factory." Thus they were really not evidence at all, but simply a means of producing a demonstrative effect, in true show trial fashion. In show trials of every kind, such means are commonly employed to create a mood that will facilitate public indoctrination. A court that felt its first duty was to truth and justice would, at very least, have regarded documents so obscure in both origin and content with a critical eye. The Auschwitz Trial court did not bother to question even their formal authenticity.
Physical Evidence
Another aspect of argumentation, less strictly defined and regulated by law than witness testimony, consultations, documents, and interrogations, is the inspection of physical evidence, known in German legalese as Augenschein.133 Above all, this term denotes the inspection of the scene of the crime and the examination of such exhibits as weapons, tools, articles of clothing, and other material objects connected with the crime or the criminal. Under the same general heading comes the viewing of photographs and locale sketches, likewise the hearing of tape recordings; in short, the scrutiny of any relevant physical evidence. As a mode of proof, physical evidence -- if genuine -- can be no less effective than documentary evidence in accurately reconstructing the sequence of events in a crime and in establishing the identity of the culprit beyond a reasonable doubt.
On June 8, 1964, the 53rd day of the trial, Accessory Prosecutor Henry Ormond requested a "site inspection of Auschwitz, the scene of the crime," explaining that not even the best sketches and slides could serve as a substitute for personal impression of the "extermination camp."134 Apparently the exhibits to which he was referring were the plans of the camp displayed in the courtroom and the scale-model of a gas chamber which the Polish Auschwitz Museum had supplied for the trial.
For procedural reasons, the inspection of physical evidence can take place only before a full court and with all trial participants in attendance.135 Evidently the court had some misgivings about that. In any case, on October 22, 1964, it issued a ruling that only one member [264-265] of the tribunal, District Court Justice Hotz, would undertake a site inspection of the former concentration camp at Auschwitz, provided an agreement could be reached between Bonn and Warsaw. This site inspection took place from December 14 to 16, 1964. The rest of the trial participants were given leave to visit Auschwitz at their own discretion. Only the fourteen defendants who remained in custody were denied permission to travel to Auschwitz. Besides Justice Hotz, all four prosecuting attorneys and the three accessory prosecutors took part. However, only thirteen defense attorneys -- not even half of the defense team -- and only one of the six defendants who remained at liberty, Dr. Lucas, went along. From the very beginning, the defense attorney Laternser energetically opposed the site inspection. His objections to it were pertinent indeed. In his argument of June 22, 1964, he pointed out that not only must "natural changes have given the place an entirely different appearance" in the course of twenty years, but that the camp had also been "turned into a museum," which involved "extensive renovations" and "tendentious amplifications."136
He was absolutely right. We have already seen, for example, that the crematorium in the Auschwitz parent camp was "restored" to its present state by the Poles after the war, at which time the purported "gas chambers" were added (see p. Sif. above). No doubt the Soviet occupation forces and the Polish authorities made many other changes in the camp and its environs during the ten-year period when they had the area cordoned off to outsiders. It is quite possible that the Frankfurt Assize Court had no detailed information about these alterations. Nevertheless, the court should have taken into consideration the fact that the changes time had wrought made it unlikely that a site inspection would yield any reliable evidence, as Dr. Laternser noted.
Since site inspection was not to be used in evidence at the trial, the pseudo-site inspection undertaken by one member of the tribunal was a procedural superfluity and plainly reflected judicial opportunism. The report on this visit to Auschwitz was, in fact, entered into the record. Thus, through the circuitous route of documentary evidence, a legally questionable site inspection ultimately became part of the argumentation.
This site inspection did not yield anything important enough to justify its expense. There is no indication in the Auschwitz Trial opinion that it was absolutely essential to the verdict, which would have been its only possible justification.
It did, however, contribute to the acquittal of the defendant Arthur Breitwieser, since it gave the lie to the only witness against him. This witness had claimed he saw Breitwieser at a gassing of inmates in the "Bunker." But the site inspection revealed that the "witness" could not have observed the defendant at the stated place. Between the "Bunker" and his alleged observation point stood a building that would have [265-266] blocked his line of vision. In fact, even if the building had not existed at the time, his claim should have been dismissed out of hand, for he asserted that he had recognized the defendant at a distance of 70 to 80 meters -- at night! 137
Still, the site inspection gave the journalists who went along for the ride a good opportunity to intensify the effect of the show trial with emotion-laden, melodramatic reports, of which Bernd Naumann's outpourings in the Frankfurter Allgemeine Zeitung are but one example. 138 Langbein, who called the "inspection of the place" an "important event in the trial," opined:
It made a deeper and more lasting impression on everybody who participated than any documents and testimony could have done. Judge Hotz, the only member of the tribunal who made the trip to Poland, took a considerably more active part in the cross-examination after his return. Auschwitz and Birkenau also gave some of the defense attorneys food for thought.139
That the tour influenced the thinking of the defense may very well be true. Quite possibly, the aim of this whole business was to "soften up" the defense attorneys, or at least a few of them. Of course, it is doubtful that those who toured Auschwitz-Birkenau could have gained much of an idea of what the camp was really like when it was in operation. Leaving aside Laternser's cautiously phrased remarks, nobody bothered to call attention to this fact, which, in an "ordinary criminal trial," would have been thought worthy of mention.
Just as questionable as the site inspection itself was the display of pictures in the courtroom for evidential purposes. Nobody asked whether the groundplans of the camp were authentic or on the basis of what data the scale-model of a gas chamber was constructed. That these exhibits came from the Polish State Auschwitz Museum was presumably considered proof enough of their genuineness~ though, of course, the opposite should have been the case. It is significant that the court and its helpers -- as Langbein quipped with idiotic self-satisfaction -- "found their way around" those groundplans of Auschwitz better than many witnesses who had been interned at the camp. Only a single witness was on hand to explain the gas chamber model.140 Naturally, he swore to its accuracy -- that was the purpose for which he had been summoned from Poland. Langbein went so far as to emphasize the importance of this witness in the following terms:
Only from his testimony did the full significance of the model become apparent.
Rather than rely on the claims of this witness, the court would have done well to demand that the data used for the construction of this "scale-model" be placed at its disposal, or even have the model-maker testify on the specifications from which he worked. But nobody involved in this grotesque trial seems to have thought of that.
[266-267]
Witness Testimony
All the evidence we have examined thus far was designed to produce the politically demonstrative effect so fervently desired by the promoters of the Auschwitz Trial. It contributed hardly anything to establishing the guilt or innocence of the accused, which rested for the most part upon witness testimony, which was even more of a problem here than it is in other trials. In its judgement, the court itself complained that the available factual information was thoroughly inadequate to determine the veracity of the testimony in this trial:
The court lacked almost all of the means normally used in homicide trials to piece together a picture of what actually happened. There were no corpses of the victims, no autopsies, no testimony from experts on the cause and time of death, no clues regarding the murderers, no murder weapons, etc. Only in rare instances was it possible to ascertain the validity of the witnesses' testimony.141
This statement is revealing indeed. It shows the whole procedural dilemma of this trial. Noteworthy is the court's admission that no traces of the legendary gas chambers are to be found in Auschwitz -- at least, that is how one might interpret the rather vague statement about the absence of murder weapons and so forth, since most of the defendants were accused of complicity in murders by gassing. Nonetheless, the court even acted as though the existence of such gas chambers were an incontrovertible historical fact, and so did not see any need to scrutinize witness testimony on that point.
More than a year was required to take the depositions of the 409 witnesses. Of these 248 were former inmates of Auschwitz, 91 had been members of the SS, and 70 did not belong to either group.142 Naturally, the overwhelming majority of these people, including some of the former SS men, were witnesses for the prosecution.143 Just as in the Nuremberg trials, the defense had a hard time obtaining witnesses. Potential defense witnesses living in the Eastern Bloc were not able to get exit visas, since the authorities in those countries did not -- as Laternser was able to prove in some cases -- see the necessity of their testifying in a trial conducted by a German court.144 And if such witnesses were eventually able to obtain a visa, or gave their depositions in their native lands, one could be sure they had become "turn coats" and would testify against the accused. 145 As one would expect, German witnesses for the defense were extremely reserved, to say the least, in their testimony.
In this context, we should return to the problem of the reliability of witness testimony per se (see Chapter Three, Section I; pp. 107ff. above). Let it be repeated that witness testimony is generally the least reliable mode of evidence. That is why it is so important that all witness testimony be scrutinized in the light of known and certain facts. The Auschwitz Trial court had -- as it admitted -- hardly any possibility of [267-268] doing this. What is more, it evidently did not dare cast doubt on the testimony of foreign witnesses for the prosecution. On this point Laternser remarks:
They appeared before the court, gave their testimony--the origins of, and motives behind, which could not be checked--and departed for home. Their testimony involved almost no practical responsibility. However, the fact that a witness must bear responsibility for his testimony is a very important factor in the evaluation of it. In the view of the defense, a lot of these witnesses gave the impression that they did not think they needed to be too particular about what they said against "beasts in human shape," as a large section of the press called the defendants.
How much time and effort is devoted in a normal penal trial to determining the accuracy and origins of witness testimony! In the Auschwitz Trial, only the attorneys for the defense made the effort . . . It seemed as though the other trial participants accepted the testimony of foreign witnesses at face value. And one received the impression that the prosecution was determined to prevent by any means detailed and thorough questioning of foreign witnesses. To an extreme degree, the accessory prosecutors took the side of these foreign witnesses. Sorry to say, the court sustained the overwhelming majority of the objections the prosecution and accessory prosecution raised to questions asked by the defense. Thus most of the attempts to defend the accused were rendered futile.146
Once again we are faced with the inescapable conclusion that the attitude of the court and the prosecution fit in perfectly with the general pattern of a show trial, in which the objective is not to discover the truth but to produce a politically demonstrative effect.
These observations do not apply to foreign witnesses only. German witnesses were not sounded out, either, if they gave the "correct" testimony. If they did not, they ran the risk of being arrested right in the courtroom.147 On the other hand, foreign witnesses who had obviously committed perjury had nothing to fear. In its opinion, the court tried to dispel the impression that it was wanting in vigilance or objectivity. At the end of the previously quoted passage on the lack of factual information available to it, the court stated:
For this reason, the credibility of witnesses had to be carefully checked . . . Whenever certain witnesses seemed to be inclined to telling fantastic tales, whether from a desire to show off or some other such motive, . . . the court did not make use of their testimony at all.
These fine phrases were intended to suggest to the reader that the court thoroughly checked all testimony. In practice, however, it gave credence to witnesses whose testimony was utterly nonsensical. Here are just a few examples -- we could cite many more.
For a start, let us take another look at Dr. Konrad Morgen, a person with whom we have already dealt in our discussion of the Nuremberg IMT Trial. In testifying about his visit to the "Birkenau extermination camp" at the "end of 1943 or the beginning of 1944," he made the following statement: [268-269]
In the enormous crematorium everything was spick-and-span. There was nothing whatsoever to indicate that just the night before thousands of people had been gassed and incinerated there. Nothing was left of them, not even a speck of ash on the cremation equipment. 148
We recall that when Dr. Morgen testified at the Nuremberg IMT Trial he described Monowitz as the "extermination camp" (see p.132ff. above). That he later tailored his version of the extermination legend to fit current fashion apparently did not move the court to question his credibility. But even the rest of his statement has all the earmarks of mendacity. There is no way in the world that thousands of people could be so thoroughiy "exterminated" in a single night that "not even a speck of ash on the cremation equipment" was left to tell the tale.
None of Morgen's testimony, by the way, concerned any alleged deeds of the defendants 149 He incriminated nobody directly. Hence one may rightly call him a mere bit player in the Auschwitz Trial "show."
Another witness whose lack of credibility is obvious -- at least to those who have any familiarity with the literature on Auschwitz -- was Dr. Rudolf Vrba, who was brought over from England for the trial. (On the character and alleged experiences of the Auschwitz "eyewitness," see pp. 93ff, 160ff above.) If one may give credence to the documentary volumes on the trial, Vrba avoided going into tangible details, nor did the court question him about the contradictions and discrepancies in his earlier, written accounts. Above all, his accusations were directed against the defendant Robert Mulka. Solely on the basis of the testimony of this notorious liar, Mulka was remanded in custody, though he had been released a few months before on account of his failing health.150 Thus it seems the court regarded even this teller of fantastic tales as a credible witness. Here we shall not go into the question of whether the court did not dare question the credibility of this witness, or whether it was simply ignorant of his literary productions. In the latter case, the worst that could be said is that the judges were ill-prepared for their duties in this trial.
A particularly neat example of how unquestioningly the court accepted any inculpating testimony, no matter how far-fetched, is the case of the Czech witness Filip Müller. According to his own account, he was a member of the Sonderkommando for the crematoria. (In his book I Cannot Forgive, Vrba claimed that Müller worked in one of the crematoria as a "stoker" and, therefore, was in a position to estimate the number of corpses burnt from the amount of fuel consumed!)151 Surprisingly, Müller -- again by his own account -- tells us that he worked in the Sonderkommando for the crematoria from 1942 on, that is to say, he escaped what was -- so the extermination legend goes -- the usual fate of Sonderkommando workers: Every three or four months, they, too, were "gassed and cremated," for "security reasons." Though he failed to give a convincing explanation for his survival, he was otherwise quite talkative. 152 [269-270]
For example, this frustrated martyr told of giant pits, near crematorium IV, in which corpses were incinerated. He described them as follows:
The 120-foot-long, 18-to-24-foot-wide, 7-to-8-foot-deep pits had indentations at one end into which the human fat ran off. The prisoners had to pour this fat over bodies so that they might burn more easily.
Further, he claimed that the "boss of the crematorium," SS Oberscharfuhrer Moll, would "take a child from its mother, carry it over to Crematory IV, which had two big pits, and throw the child into the seething fat." He also had something to say about "experiments" conducted in the crematoria. Once a "hunchback was put into a tub containing various chemical salts and acids, in order to obtain his skeleton." Also, SS men "cut flesh from the thighs of people shot in the crematories." For what possible reason that might have been done, this witness was at a loss to explain.
Any commentary on this "testimony" would be superfluous. One must say that it is astonishing that seasoned judges would even listen to such utter--and in part, physically impossible --nonsense, when they should have immediately struck it from the record. Yet even though this man's tendency to tell fantastic tales was patent, the court never expressed any fundamental doubts about his credibility, and, what is more, even based its conviction of three defendants -- Stark, Lucas, and Frank -- on some of his stories.153
Even these few examples are sufficient to warrant the conclusion that the credibility of witnesses. was not so carefully checked by the court as the previously cited passage from its opinion would have us believe. In the case of foreign witnesses, its dread of casting doubt on testimony incriminating the defendants was perfectly obvious.
Hence it ignored the fact that most of the witnesses for the prosecution were in some way dependent on, or influenced by, various interested parties. Dr. Laternser has brought to light numerous examples of the coaching and virtual subornation of ~ Perhaps his most damning discovery was that the International Auschwitz Committee sent information sheets to all these witnesses, to help them "orient themselves." Besides containing allegations about the overall situation in Auschwitz, they listed the purported crimes of the defendants, gave personal information about them -- including photographs -- and even their seat numbers in the courtroom.155 Given such a state of affairs, it is simply incredible that the court was able to attach any significance at all to the professed recognition of a defendant by a former inmate. To be sure, this bit of judicial laxity was quite in keeping with the general pattern of a show trial.
Here we shall only note in passing that the testimony of many of these witnesses was, despite the most intensive "coaching," extremely [270-271] contradictory. If the reader thinks it worth his while, he may confirm this himself by consulting the volumes of documents on the trial, from which, presumably, the most drastic contradictions have been expunged. In this respect, the literature on the Auschwitz Trial presents the same familiar picture as the literature on the Auschwitz camp itself.
A very significant datum in determining whether or not these proceedings were a show trial is the fact that many witnesses for the prosecution did not stick to testifying in regard to the alleged crimes of the individual defendants, but wandered off into digressions about general conditions at the camp or alleged personal experiences having little or nothing to do with specific points in the indictment. Again we see that the main purpose was to achieve a politically demonstrative effect. In this case, it was facilitated, even promoted, by the presiding judge, who, as superintendent of the proceedings, could have called a halt to such meanderings the moment they started, as was incumbent upon him to do.156
So far as witness testimony is concerned, perhaps the clearest evidence that we are dealing with a show trial is the fact that the first three ex-inmates who testified gave the court -- as Langbein notes with obvious satisfaction -- "only a general survey." These were the witnesses Otto Wolken, Ella Lingens-Reiner, and Hermann Langbein himself, who was instrumental in laying the groundwork for the Auschwitz Trial. For two whole sessions, Otto Wolken stood in the witness-box and recited to the court a series of totally unveriflable atrocity stories about camp conditions, some of them well-known, others obscure. All were obviously intended to fuel the claim that Auschwitz was an extermination camp, but completely unrelated to any specific charges against the defendants.'57 The witnesses Lingens-Reiner and Langbein gave similar performances. When, at last, Dr. Laternser rather cautiously admonished Langbein to keep his testimony to the point, the presiding judge turned a deaf ear to his plea, and let the witness ramble on.'5'
More than anything else, what put the stamp of a show trial on these proceedings was the fact that so much of the testimony consisted of broad statements -- "general discourse" -- lacking any tangible point of reference to the alleged crimes of the defendants. There can be no doubt that one aim of a show trial is to implant in the public mind certain notions, demands, or-- as is particularly true of concentration camp trials -- unfounded guilt feelings. Nothing, it seems, could be better suited to attain this aim than impressing a large number of average citizens with testimony making a purely emotional appeal for the message one wishes to get across. No doubt it was with the view in mind that the International Auschwitz Committee and similar groups went about providing a supply of well-coached witnesses for the trial, something that may be unparalleled in the history of German [271-272] jurisprudence.Through an orchestrated mass media campaign, the tales of these "witnesses" were represented as incontrovertible fact to those who were unable to attend the trial. Here we see the extensive "social, ethical, and educative implications" of the Auschwitz Trial, to use the phrase coined by the courtroom journalist Bernd Naumann.
Langbein has claimed that the picture of Auschwitz that emerged from the witness testimony at this trial is of "historical value" and will "provide source material for the historians of the future."'~~ Leaving aside the content of this testimony, his claim must be disputed simply on the basis of the manipulations disclosed by Dr. Laternser, who was in general hardly critical of the Auschwitz Myth.
Not one witness could describe beyond a reasonable doubt how a gas chamber looked and operated. Even to the Auschwitz "expert" Langbein that was perfectly obvious. With regard to the Birkenau crematoria, he admitted: "Only very little of what happened in these, the largest, buildings in the Auschwitz camp can be recounted by witnesses today."160
In other words, none of the witnesses ever had a good look inside the walls of the buildings in which the extermination of the Jews supposedly took place. The lone witness who explained the scale model of a "gas chamber" from the Auschwitz Museum (see p. 266 above) is certainly no proof to the contrary. It may be worth noting that Langbein does not tell us either the man's name or occupation, and Naumann does not mention him at all. Presumably he was an employee of the Auschwitz Museum, whose only knowledge of "gas chambers" was the scale-model, which undoubtedly was the product of someone's imagination.
This brings us to the end of our survey of the evidential material in the Auschwitz Trial. It was, as we have seen, like everything else in these proceedings, designed to serve the purposes of the producers of the show. That the show had its effect on the public cannot be denied. History proves, however, that the effect of all show trials is short-lived, and this will also hold true for the Auschwitz Trial.
In the next section, we shall examine how even the Auschwitz trial decision carried to absurd lengths the gas chamber legend based on this muddied testimony.
The Judgement
The judgement in the Auschwitz Trial was everything one would expect of a trial that was not conducted according to normal rules of penal jurisprudence, but staged as a political show. It was not so much a judicial decision as a recapitulation of the distorted picture of events drawn in the course of the proceedings. Not the verdict and sentencing, but rather the judicial opinion, was the essential product of this trial. The defendants were little more than waxwork figures in a chamber of horrors tableau designed to impress on the German and international public [272-273] the historicity of the extermination legend. With this verdict, the whole German people was convicted of-- so the phrase goes -- "letting Auschwitz happen."
The panorama of horrors depicted in the court's written opinion loses some of its impact when one considers the disproportion between the sentences pronounced and the enormity of the alleged crime. Three of the defendants (Johann Schoberth, Arthur Breitwieser, and Dr. Willi Schatz) had to be acquitted since the "evidence" against them was not convincing enough even for this court. A particularly remarkable acquittal is that of Breitwieser, who was for some time the chief of the disinfection department of Auschwitz, which would have put him in charge of the men who allegedly introduced Zyklon B into the "gas chamber." As a practical matter,the acquittal of Breitwieser reduces to gas chamber allegation to absurdity. For in view of the fact that Breitwieser himself was "chief of the "gassing detachment," the circumstance that it could not be proven -- because of a most embarrassing breakdown in the stage management of the trials -- that he had ever been present at a "gassing" (see pp. 265 above) strictly speaking ought not to have borne any weight in the matter at all. Presumably the acquittal was thus some kind of "Freudian slip" on the part of the court.161
Eleven of the defendants received limited prison sentences. Most of them were given credit for time served in pre-trial custody, and had only to serve the remaining time. In two cases, those of Emil Hantl and Herbert Scherpe, this meant the prisoners went free the moment after their sentences were passed.162 It seems as though the purpose of such sentences was merely to forestall claims for indemnity. Hantl, by the way, was one of those defendants who exhibited the greatest "remorse," since he labelled not only Auschwitz, but also Mauthausen, as an "extermination camp" (see p. 332 above)!
Six defendants received life sentences, and they were not even the ones who, according to the indictment, had the most murders on their conscience. This peculiar sentencing rested on a legal regulation then in effect: Someone who commitLed even just a single murder automatically incurred a life sentence, whereas the accessory to the murder could -- but did not have to -- receive a lighter sentence.163 The defendant Emil Bednarek, a former Auschwitz trustee ("Kapo"), who, according to the verdict, killed 14 inmates with his own hands, received a life sentence, while the defendant Dr. Lucas, whom the court found guilty of "mere" aiding and abetting in the murder of at least 4,000 people in the "gas chambers" of Birkenau, got off with a sentence of three years and three months. Assuming for a moment the alleged murders did occur, no rational person could regard the gross disproportion in the severity of the sentences as just. Something that may have played a role in the sentencing of Dr. Lucas is that, throughout the trial, he accepted the extermination thesis and showed "remorse." In general, however, [273-274] the kind of sentences imposed on defendants accused of participation in large-scale "gas chamber" murders lead one to suspect that the court had its doubts -- at least subconsciously -- about whether these crimes actually occurred. Here we see the consequences, so baneful to the cause of justice, of the opportunistic attitude the court displayed throughout the trial.l64
But now let us turn to the Auschwitz Trial opinion.
Even though the presiding judge, stressed, in his oral opinion, that the "treatment of historical events" was not the proper task of the court, the written opinion, like the trial, dealt extensively with historical matters, instead of confining itself to determining whether the accused had committed legally punishable offenses, as would have been the case in an ordinary criminal trial.165 The trial opinions reflect the same general abnormality, the same specific anomalies, as the argumentation. They are often irrelevant, unrealistic, contradictory, and even illogical; last, but not least, they are just as unconvincing in their assessment of the defendant's guilt as the previously mentioned sentences. In a manner of speaking, they are a mirror image of the whole show trial.166
The first section of the written opinion deals with "The Establishment and Development of Concentration Camps in the National Socialist State."167 It is a general, overall view and has nothing to do with the main issues in the trial. The second section treats in great detail various aspects of the "Auschwitz Concentration Camp": its construction, organization, living conditions, and related matters.168 Admittedly, some of this material might be of slight value in a legitimately conducted trial. However, what made all these elaborations so necessary was that they could be used -- and this was the real aim of the Auschwitz show trial -- to connect the alleged extermination of Jews at the camp with a systematic murder program" created by the leadership of National Socialist Germany. More specific "findings" of this kind appear in the sections of the opinion dealing with the individual defendants and their supposed "crimes." For instance, in the section on the former camp adjutant Robert Mulka there is a lengthy discourse on the meaning of the so-called "selections," a term which the judges understood in the sense it is used in atrocity propaganda, and on the implementation of the "gassing of Jewish people" that purportedly followed them.169
For want of space, we cannot reproduce all the nonsense contained in these general findings of the court, but here are a few of the more choice bits.
The description of living conditions at Auschwitz contains the following statement: "In Birkenau and its environs there was no drinking water. All the wells were contaminated with coliform bacteria."170
Had that been the case, then probably no human being could have survived even a month there. Nevertheless, there are masses of former inmates who were imprisoned in Birkenau for years. A few of them [274-275] appeared as witnesses in the Auschwitz Trial, which should have given the court pause for thought.171 And, of course, the SS guards who lived there also could not get along without drinking-water. All this is obvious, just as obvious as the mental laxity of the judges who lent their names to this statement.
The idea that human life was not worth much at Auschwitz runs like an unbroken thread through the entire opinion, and often enough is explicitly stated. It is all the more surprising, then, that in the second section of the opinion the court goes into the "Guidelines for the Treatment of Prisoners" laid down by Reichsfuhrer SS Himmler, which were binding for all the concentration camps.172 It even quotes, among other things, the following pledge of honor, which every SS member detached to Auschwitz had to sign:
Uber Leben und Tod eines Staatsfeindes entscheidet der Fuhrer. Kein Nationalsozialist ist daher berechtigt, Hand an einen Staatsfeind zu legen oder ihn körperlich zu mißhandein. Bestraft wird jeder Hälfling nur durch den Kommandanten.
Life and death of an enemy of the State is decided by the Fiihrer. Hence no National Socialist has a right to lay a hand on an enemy of the State or physically abuse him. Any punishment of an inmate is administered only under orders from the Commandant.
Later on in the opinion, it is pointed out that corporal punishment of inmates required permission from the Inspector of Concentration Camps, SS-Gruppenffihrer Richard Glficks, and, moreover, could be carried out only in the presence of a physician, who had to examine the physical condition of the prisoner beforehand. In the higher ranks of the SS -- as the court notes on page 52 of the opinion -- it was an unspoken law that an SS man did not strike or shove an inmate, indeed, even so much as touch him.
All this seems rather paradoxical for an "extermination camp." Not until later on in the opinion does it become clear exactly why the court chose to bring up these guidelines issued by the Reichsftihrer SS, which certainly do not fit into the general frame of reference of its judgement: The court needed them to establish the personal culpability of defendants accused by witnesses of having slain one or more inmates outside the "normal" "extermination program." If the defendant was not acting "on orders," but "against orders," that supposedly would be conclusive proof of criminal intent.173 Of course, it is quite improbable that any SS man would have acted on his own in that way. In the Third Reich-- especially in the ranks of the SS -- discipline and obedience were the highest values, and infractions against them were ordinarily punished with the utmost severity. But this fact did not bother the court in the least. It even made the general assertion that SS officers, SS non-coms, and SS troops "constantly disobeyed" the guidelines for the treatment of prisoners and "not infrequently" maltreated inmates "to the point of death."174 This "finding" of the court rests solely on witness testimony
[275-276]
and the consultations of "contemporary history experts." In the Auschwitz Trial, it was that easy to transform a fact contrary to the propaganda lies about Auschwitz into incriminating evidence.
A particularly embarassing gaffe appears on pages 99-100 of the opinion. It shows just how little thought the judges gave the factual basis of the gas chamber theory. On page 99, the court asserts that the "disrobing and gassing areas" of crematoria I-IV were "underground, and the cremation ovens aboveground." On the very next page, it states that in crematoria III and IV the Zykion B was introduced "via a small side window." Evidently two conflicting stories told by witnesses got mixed up here, and the court did not notice. The whole absurdity of the gas chamber legend could hardly be illustrated any better.
The general "findings" of the court on the "Auschwitz Concentration Camp" (section two of the opinion) are founded primarily on the "cogent and well-grounded depositions of the experts," as well as the memoirs Höß allegedly wrote in a Cracow prison and the Broad Report, the latter two of which contradict each other on many points ~176 We have already said what is necessary about the contents and quality of the expert witness depositions (see pp. 259-262 above). Likewise, our examination of the Höß memoirs and the Broad Report, elsewhere in this book (see pp. 164-168 and 196-216 above), has shown that these "documents" are highly dubious, both in origin and content. It is significant that the court's attempt to remove all doubt as to the authenticity and reliability of the Höß memoirs was a failure.
Apart from Brotszat's corroboration of its authenticity (see p. 263 above), the judges considered the whole of the memoir allegedly written by the former Auschwitz commandant to be genuine because -- as it stated in the opinion -- the author must have been "a person very familiar with conditions in Auschwitz" and "commanded a view of not just a part of the camp, but all of it."177 This may be true in a general way, but that does not affect the judges' assertions in regard to the parts of the memoir pertaining to the "extermination of the Jews." And they are precisely the parts that matter. Höß' statements are none the more believable for the court's insistence that
Höß took pains to be exact and objective. With the accuracy of a bookkeeper, he depicted events in detail. Since those points on which his statements could be confirmed by witnesses were confirmed, the other facts in his memoirs also appeared to be credible and pertinent, except for a few dates about which the author did not seem to be entirely sure. 178
Among the "facts" that the court regarded as "credible" and "pertinent" are that a single Birkenau crematory oven was capable of completely incinerating three corpses within twenty minutes, that one could enter a room without a gas mask a half hour after Zyklon B had been administered, [276-277] that thousands of corpses could be burnt to ashes in open pits without constant oxygenation and addition of fuel, and similar nonsense. When the court speaks here of "exactness," "objectivity," and the "ac curacy of a bookkeeper," it only reveals its ignorance and credulity, if not opportunism. Did it really not occur to any of the judges that the witnesses who "confirmed" details of the statements attributed to Com mandant H&0uml;ß may have read the H&0uml;ß memoirs, published in 1958, and gained their "knowledge" therefrom? And, after all, their contents merely corresponded to what had been appearing in the mass media for years, but especially during the period of the Auschwitz Trial. How can one believe that such "confirmation" has the slightest value?
Finally, let us take a look at the "crimes" of which the defendants were convicted. The purpose of a penal trial is, of course, to ascertain that a crime was committed, though the Auschwitz Trial — as we have seen — went above 'and beyond this modest goal. But, then, the Auschwitz Trial was no ordinary criminal trial. Of that there can no longer be any doubt.
A few of the defendants were convicted because, in the view of the court, it could be proved that they were guilty of maltreatment resulting in the death of inmates or of slaying inmates with intent. Perhaps one or two of these convictions were justified. Excesses of that kind in prisoner of war camps were nothing new, and no doubt they will occur again in the future. Since these convictions had nothing to do with the real Auschwitz question, namely, the alleged systematic murder of Jews in "gas chambers" as a result of orders from on high, we need not dwell on them. However, we should mention the fact that the court reckoned the shooting of hostages and summary executions as "murder," as in the cases of the defendants Friedrich Wilhelm Boger, Hans Stark, Franz Johann Hofmann, and Oswald Kaduk.179
Another series of crimes that figure in the opinion were related to the alleged killing of inmates by means of the injection of phenol into the heart, known in Auschwitz inmate jargon as "Abspritzen."* This is also something that may actually have happened, but the court did not pursue the implications of the defendants' claim that this measure was reserved for the terminally ill, people who were, in the words of the defendant Josef Klehr, already "half dead."'180 Taking this into consideration, one could dispute that such euthanasia performed under the conditions then prevailing could really be considered murder, especially since — as is indubitably clear from the testimony of former inmates — it was under taken only after medical treatment at the camp infirmary had failed to restore the health and working capacity of the invalid. In any case, these acts, which lead to the conviction of the defendants Josef Klehr, Herbert
"Abspritzen" may be roughly translated as the "knock-off shot."—T.F.
[277-278]
Scherpe, and Emil Hantl, had nothing to do with the "genocide" usually associated with the word "Auschwitz."180
Nevertheless sixteen of the twenty defendants were charged with participating in legally punishable aiding and abetting in this much-cited "genocide." All the defendants who were convicted -- with the exception of the trustee Emil Bednarek -- were sentenced on the basis of this charge, either solely or in conjunction with other offenses. One is astonished at the kind of acts that were sufficient for the court to convict defendants of this particularly grave crime.
The basis of these convictions was the court's supposition that Jews were killed en masse in various areas of the Auschwitz complex by means of the insecticide Zyklon B, as a rule directly after so-called selections, whether these took place in the infirmary, at the railway ramp upon the arrival of a new convoy of prisoners, or in some other part of the camp. The court proceeded on the assumption that all the unfit, among whom were reckoned "women with children, the elderly, cripples, the sick, and children under sixteen years of age," were sent to the "gas chambers" forthwith. According to the Auschwitz Trial opinion, only between 10 and 15 percent, seldom more, of a newly arrived convoy were "selected," for labor and never more than 25 percent, and now and then, it happened that a whole convoy was sent to the "gas chamber."181
Here it must once again be emphasized that the court's whole ruling is simply based on supposition. As we have shown in the course of our inquiry, no solid and cogent proof of the existence of "gas chambers" has ever been produced, nor did the court demand it. Even the court's statistics lack any real, factual basis. They rest entirely on the speculations and assumptions of "experts" from the Institut für Zeitgeschichte, as well as some equally shaky witness testimony.182
Given this state of affairs, only the "confessions" of the defendants Stark and Hofmann (see pp. 327-330 above) regarding their own "participation" in the "gassing of Jews" lent the convictions a semblance of legal propriety, since they admitted to acts which could be directly related to the crime, if it did indeed occur.183 But all the other defendants would have been acquitted had normal standards of penal jurisprudence been applied, at least on the charge of aiding and abetting in the alleged "gas chamber" murders. The charges levelled against them in this connection were simply ridiculous, and only go to show how little factual substance there is to the "gas chamber" legend.
According to the Frankfurt Assize Court, the following acts were enough to warrant its conviction of these defendants for aiding and abetting in the supposed "gas chamber" murders:184
Receiving and passing on teletype messages announcing the arrival of prisoner convoys (Robert Mulka and Karl Höcker);
Procuring Zyklon B for the Disinfection Department of the camp and placing an [278-279] order for an airtight door with the firm Deutsche Ausrfistungswerke GmbH (Robert Mulka);
Being in command of the guards during the arrival of prisoners at the Auschwitz railway ramp (Robert Mulka);
Standing guard at the railway ramp during the arrival of convoys of prisoners (Klaus Dylewski, Pery Broad, Franz Hofmann);
Participating in the selection of prisoners at the Birkenau railway ramp (Robert Mulka, Friedrich Wilhelm Boger, Dr. Willi Frank, Dr. Franz Lucas, Stefan Baretzki, Dr. Victor Capesius, Josef Klehr);
Participating in the selection of prisoners in the infirmary or other parts of the camp (Herbert Scherpe, Josef Klehr, Emil Hand, Stefan Baretzki, Bruno Schlage, Oswald Kaduk, Friedrich Wilhelm Boger).184
At the time of the Auschwitz Trial, the legally punishable offense of aiding and abetting, which now comes under §27 of the Penal Code (the StGB), was covered by §49. According to this statute, a person was subject to prosecution for aiding and abetting if he knowingly aided, by moral or physical force, the chief actor in the commission of a felony or misdemeanor. This is not the place to examine all the legal ramifications of the statute. Here it should be enough to adhere to the prevailing view that this offense consists in aiding the crime of another with the intent of promoting its accomplishment by such acts as are generally suited to that purpose. Such aid may be given in the preparatory stages of the crime. The act of aiding and abetting need not bear a causal relation to the main offense, in the sense that it could not have been committed without that support. It must, however, tend to further in some way ("by moral or physical force") the accomplishment of the act that forms the sum and substance of the crime (the so-called corpus delicti), for example, in murder, the actual death of the victim. Naturally, all this presupposes that a crime has been been committed, or, at least, attempted. Alding and abetting is thus dependent (akzessorisch, as one says in German legalese) upon the main offense. Moreover, the accessory as well as the principle must act with premeditation. Likewise, he must know all the major circumstances of the crime, though he need not be aware of every detail of its execution. If he regards his actions as not tending to further the crime, if he sincerely believes that it would inevitable have been accomplished without his own contribution, then criminal intent is usually lacking, since intent on the part of the accessory, as well as the principal, must be directed towards the realization of the crime.185 If the definition of aiding and abetting recognized in every ordinary criminal trial were applied to the previously mentioned acts of the defendants, the jurist would have to regard their classification as aiding and abetting in the alleged "gas chamber" murders -- for which there is no concrete evidence in each individual case, anyway -- as downright false, or, at very least, questionable. The layman, too, can only shake his head in disbelief at the conviction of the defendants for "aiding and abetting" the "crime." Perhaps raisons d'état had something to do with these convictions?
[279-280]
It is hard to imagine how receiving and passing on wires or requisitioning Zyklon B and placing an order for an airtight door could be construed as "aiding and abetting in murder." None of Mulka's and Höcker's papershuffling could have had the slightest effect, one way or the other, on the arrival of convoys or the subsequent fate of the prisoners. The wires they received did not even contain orders to "gas" these people, which purportedly had already been given in some roundabout way.186 Even if one proceeds on the assumption that Jews were "gassed," this activity on the part of the camp adjutants in no way tended to "further" the "commission of the crime," as the statute on aiding and abetting puts it. Likewise, there was nothing criminal in requisitioning Zyklon B or placing an order for an airtight door. In Auschwitz, as in every other concentration camp, as well as in the army, Zyklon B was used to disinfect buildings and clothing. 187 Airtight doors could be found everywhere during the war, in bunkers and air-raid shelters that certainly were not used to "gas" Jews. Though the court may have believed that the door was "intended for a gas chamber," it failed to state the grounds for that belief. (According to the purchase order, the door was bought for the mortuary of crematorium III; see p. 53 above.) Since it was impossible to determine the use to which the Zyklon B and the door Mulka ordered were put, he should have been acquitted on the basis of the principle in dubio pro reo (in cases of doubt, decide in favor of the accused). One gets the definite impression that both Mulka and Höcker had to be convicted, since their acquittal would have clashed with the general picture and certainly have caused a great uproar.
Just as incredible is that the court saw participation in the "selections" at the Birkenau railway ramp as an act of aiding and abetting. Taken objectively, these "selections" had nothing in the least to do with the alleged "gassings" of the Jews. In fact, Laternser aptly contended that they saved the lives of part of the new arrivals, who, so the story goes, were all to be "gassed" right away, under express orders from the Fuhrer.188 If this were so, the "selection" of the fit would have been in disobedience to those orders, and doubtless saved many people from certain death. So far as I know, one tenet of the extermination legend that has never been disputed -- it appears even in the Auschwitz Trial consultations -- is that able-bodied Jews were spared from immediate "gassing" as a result of policy disagreements within the SS-hierarchy.189 Since the court evidently accepted every tenet of the extermination legend, including this one, its ruling that participation in "selections" constituted punishable aiding and abetting in murder makes it rather obvious that it was under considerable pressure to convict the defendants -- by whatever means.
Less ambiguous is the conviction of those defendants who did not "select" the new arrivals at the ramp, but stood guard, in order to prevent them from fleeing, as was always a possibility. Thus the act of aiding [280-281] and abetting of these defendants consisted in ensuring that nobody destined for "gassing" escaped his fate, which, of course, presupposes that the arriving Jews were actually to be gassed and that the guards were aware of it. Even though the court proceeded on this unwarranted assumption, it should have made an effort to discover whether the defendants believed this act tended to "further" the gassing of the Jews, or whether it would have inevitably occurred without their assistance. In the latter case, they should have been acquitted, on the basis of the statute cited above, because criminal intent was lacking.
All the above considerations regarding the part of the defendants in the "selections" would be meaningful only if-- as we have noted -- those "selections" led, in each and every case, to the "gassing" of the unfit. In the literature on Auschwitz, however, we find instances of prisoners unfit for work being received into the camp or transferred to special camps, ergo not "gassed."190 Not only were the Auschwitz Trial judges unable to prove the opposite; they even confirmed it in the case of the defendant Oswald Kaduk -- who had enough charges against him, already--when they ruled that, despite his participation in a number of "selections" of sick inmates at the camp, he could not be convicted, since it could not be proved "beyond a reasonable doubt" whether "those selected were gassed or transferred to another camp."191 Why the court had these doubts with respect to only some "selections" is a mystery, for there is no tangible evidence to suggest that prisoners singled out as unfit to work in any "selection" were actually "gassed." Not even the precise dates of the various "selections" could be reliably determined. Given the general uncertainty about the subsequent fate of the "selectees," the defendants should not have been convicted on this count, if only because, as noted above, aiding and abetting is predicated on the proven occurrence of a main offense. Once again, it behooved the court to apply the principle in dubio pro reo. In the case of Oswald Kaduk, the court itself revealed the absurdity of the contention that the "selections" always meant "gassings."
In passing, let it be noted that the court showed a distinct lack of logic in its arbitrary estimates of the number of "victims" in these "selections." Sometimes it was 750, others 1,000, still others as many as 2,000 people who -- according to the verdict -- found their way into the "gas chambers." There is no rational basis for these disparate estimates.192
That the Auschwitz Trial court could not determine in a single case precisely when the selection in which the defendants were involved took place, and whether the selectees were really gassed, is perhaps the legally most disputable point about the convictions. The fact that complicity depends upon the clear-cut occurrence of a main offense should have made it absolutely necessary to find out these things in each particular instance.
[281-282]
This leads us to the inevitable conclusion that the court reached its decision entirely on the basis of presumption. Its manner of adjudication bears a distressing resemblance to the methods of the medieval witch trials. In those days, the occurrence of the "crime" had only to be presumed, since basically it could not be proved. Even the most distinguished jurists of the time -- for example, Benedikt Carpzow -- were of the opinion that in the case of "crimes difficult to prove" one could dispense with inquiring into the objective basis of the deed if "presumption" spoke for its occurrence.193 The medieval judges found themselves in the same position vis-á-vis the demonstrability of fornication with the Devil at the Witches Sabbath as the "enlightened" judges of the 20th century do in regard to the murder of the Jews in "gas chambers." They had to believe in such fictions, or else they would have been burned at the stake themselves. In a figurative sense, this also held true for the judges in the Auschwitz Trial.
This brings us to the end of our investigation. The final results leave no doubt that the Auschwitz legend is rooted not in historical actuality, but in the morass of muddled myth-making. There is not one shred of evidence for its historicity. The main pillars of the legend of the Auschwitz "extermination camp"-- the Cracow Höß memoirs and the Auschwitz Trial -- have proved too feeble to support it. What remains is for courageous and honest historians to make this clear to the international public. If this volume spurs them to do that, it has not been written in vain. Until then, may it provide intellectual ammunition and moral support to all those men and women of good will who are fighting against the defamation of the German past.
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