Historians at the Frankfurt Auschwitz Trial

Their Role as Expert Witnesses

Mathew Turner

• Publisher: I.B. Tauris
• Year: 2018
• ISBN:
  9781838608651
• Edition: 1
• Topic: History
• Subtopic: Holocaust History
• Index: History

The Frankfurt Auschwitz trial was a milestone event in West German history. Between 1963 and 1965, twenty-two former Auschwitz personnel were tried in Frankfurt am Main. It was a trial that saw the engagement of four of the nation's leading historians as expert witnesses - Martin Broszat, Hans Buchheim, Helmut Krausnick, and Hans-Adolf Jacobsen - appointed by the prosecution to give evidence pertaining to the historical and organisational context of the Holocaust. Following the trial, the reports of these historians were published in a bestselling book, Anatomie des SS-Staates (Anatomy of the SS State) and Mathew Turner here investigates the relationship between the trial and this publication. In recent years, more attention has been paid to the intersection between history and law that accompanies historians' entry into the courtroom. Very little, however, has been written about this intersection with a focus on a single case study. Based on original research in several German archives and first-hand interviews, Turner addresses these connections through a study of West Germany's most famous trial, and the monumental work of history produced from the engagement of historical expertise in court.

CHAPTER 1

Background to Frankfurt: The IfZ,
Gutachten and the Ulm Trial

The official creation of West Germany on 23 May 1949 through the formal merger of British, American and French zones of occupation was not met with a renewed call for the prosecution of Nazi criminals. Amidst growing domestic and international cries of ‘victor's justice’ continuing to be imposed after the Nuremberg trials came to an end, German resolve to mount further judicial action wilted.¹ The frontline of Europe's Cold War between the Soviet Union and Western powers, West Germany faced an existential threat – mostly perceived – from the Soviet Union, and waged a propaganda war – wholly actual – with communist East Germany, officially known as the Deutsche Demokratische Republik (German Democratic Republic, or GDR). Though West Germans showed repentance for National Socialist atrocities, the nation's postwar gaze rested to a greater extent on present and future economic and political uncertainties than on further domestic trials of middle-ranking former Nazis.² It was within this challenging context that the Munich-based IfZ was established in 1949. This chapter explores how this new centre of contemporary history was conceived as a public institute, and came to provide an official service to meet the demands of West German society: writing Gutachten. It examines how this role developed and came to be interpreted by the IfZ historians, and how Gutachten evolved into specialised forms of historical evidence. It also establishes how Helmut Krausnick – IfZ director by 1958 – became involved in the Ulm trial, the earliest known proceeding against Nazi criminals for which historical expertise was sought. The evolution of Krausnick's role as expert witness in what was an ultimately profitable historical and legal collaboration – one that set a crucial precedent for the Frankfurt Auschwitz trial – will be scrutinised.

The beginning of the 1950s ushered in an almost decade-long period of indifference towards the prosecution of Nazi crimes. During this time, West Germans' preparedness to confront the past through the trial of perpetrators had, in Frei's view, ‘sunk to zero’.³ According to Joachim Perels, moreover, the West German judiciary ‘gave judicial expression’ to its citizens unwillingness ‘to accept responsibility for the horrors of Nazism’.⁴ The shift is reflected in the numbers alone: in 1950 more than 800 individuals were convicted of Nazi crimes, plummeting to a mere 21 by 1955.⁵ Yet by the late 1950s, the hitherto popular sentiment that further trials should be halted, and an amnesty granted to Germans accused of wartime wrongdoing, splintered in light of the realisation that individuals suspected of serious war crimes had re-integrated, even prospered, in the new (West) Germany. Calls to move on from the Nazi period began to be met with increasing acrimony, bolstered by a younger generation of Germans growing up under its shadow, and wishing to be absolved of their ‘inherited guilt’ (Erbschuld).⁶ It was a situation then-West German Chancellor Konrad Adenauer could not afford to overlook, and opened up the possibility of additional trials of Nazi criminals.⁷

During this period, the IfZ had begun to establish itself as West Germany's leading centre of contemporary history. The IfZ's original name – the Deutsches Institut für Geschichte der nationalsozialistischen Zeit, or German Institute for the History of the National Socialist Period – for all its dullness, left no doubt as to the Institute's anticipated period of focus. Officially charged with collecting, housing and evaluating any evidence ‘relating to National Socialism’, the IfZ was to make this material publicly available, and to construct scholarly works on the Nazi period.⁸ Founded and led by some of West Germany's most prominent historians, backed by influential politicians, and funded by federal and state money, the IfZ's priorities were subject to revision and reactive to political and social pressures. With governmental funding came governmental expectations. Although the trial of Nazi criminals may have paused in the early to mid-1950s, West German society continued to occupy itself with the fallout of the Nazi period. Its courts were busily engaged in various, non-criminal hearings, including restitution (Entschädigung) cases from victims of Nazi persecution, and appeals from former, lower-ranking Nazis who had been denied state pensions. Government agencies charged with tackling this new surge of administrative proceedings needed to establish individuals' responsibility within the complex Nazi bureaucracy and its multifarious and ever-changing institutions. Historians' expertise was required, and the IfZ became the logical point of contact. After almost a decade of constructing Gutachten to meet this official need, by the late 1950s the IfZ historians were exceptionally well-qualified to fulfil the task of stepping into the witness box once trials of Nazi criminals recommenced.

The change in public opinion and Adenauer's newly found political will also resonated with a plucky, younger generation of West German prosecutors. The nine-year trend of apathy towards resuming a judicial confrontation of the Nazi past was finally shattered in the unassuming West German city of Ulm, in 1958. Ten men, former members of a mobile killing squad (Einsatzkommando) were tried in Ulm for their role in the 1941 execution of at least 5,000 civilians in Lithuania. In substantiating their case, prosecutors needed to explain how these horrendous crimes were possible. What followed Ulm was the forging of a successful and cooperative alliance between prosecutors and the relatively few West German historians engaged in contemporary historical research, one that would establish a blueprint for future West German trials – including, crucially, the Frankfurt Auschwitz trial.

GUTACHTEN AND THE INSTITUT FÜR ZEITGESCHICHTE

The IfZ's early mandate was to produce methodologically sound, politically useful scholarship on the Nazi period, and events within the Federal Republic in the early 1950s suggest the degree of political mindfulness and reactive tendencies of the new Institute. Article 131 of the West German constitution, effected in 1949, left open the future legislative options for the country's civil service. Essentially, this article stated that the status of individuals employed as civil servants on 8 May 1945 – the date of Nazi Germany's surrender – who had since left the civil service and had not been reinstated, would be regulated by a future federal law. On 11 May 1951, such a law came into effect, known as the ‘Law for the Regulation of the Legal Status of Persons falling under Article 131 of the Basic Law’.⁹ This complex legislation compelled West German civil institutions to re-employ, or pay pensions to, a significant number of experienced bureaucrats who had lost their positions in the wake of Nazi Germany's defeat, and had not been re-engaged.

In stark contrast, a coterminous law was introduced in September 1953 that empowered the victims of Nazi persecution, many of whom had lost their civil service positions at the beginning of the Third Reich, to seek damages from the West German state. It was known as the ‘Amended Federal Law for Restitution to Victims of National Socialist Persecution’.¹⁰ The various legal and administrative proceedings launched by those arguing that their circumstances fell variously under the jurisdiction of these regulations – the so-called ‘131ers’ on one hand, and victims of Nazism who headed to restitution courts (Entschädigungsgerichte) on the other – involved a degree of historical reconstruction in establishing the plausibility of respective claims. Where the ‘131ers’ sought to downplay their role in the Nazi apparatus, victims attempted to substantiate their claims of persecution. If the alleged persecution had been experienced by victims within other states of Nazi control, the newly effected restitution law necessitated that German responsibility for these measures, frequently perpetrated by non-Germans, be established.¹¹ Instigated by the civil service offices in question, private individuals or lawyers, the adjudication of these claims through public institutions, and the complex historical nature of the questions asked, brought such cases within the purview of the IfZ and compelled the involvement of its historians. Writing Gutachten was a simultaneously pioneering and burdensome endeavour for the IfZ, one driven by the needs of a democratic society coming to terms with its criminal past. The importance of administrative hearings in restitution and article 131 cases within this process was not lost on historians, while shortages of time, labour and evidence left Gutachten with provisional and partly speculative conclusions. The circumstances also forced historians to confront questions that may otherwise have remained untouched, at least until evidentiary conditions improved.

Two examples serve to illustrate these points. On 2 June 1956, the President of the Hanseatic Higher Regional Court (Präsidenten des Hanseatischen Oberlandesgerichts) in Bremen requested information from the IfZ in relation to an ongoing restitution case in which a ‘gypsy woman’ had been deported from Königsberg in East Prussia to Auschwitz in the summer of 1940. The claimant, who was 13 years old at the time of her deportation, had been tattooed with a number upon her arrival in Auschwitz. In particular, the court was assessing this claim, and seeking a definitive answer to a question of timing, namely: ‘when did the first gypsy [sic] arrive in Auschwitz?’.¹² Likely without realising it, the court was seeking a level of clarity that neither Buchheim, nor any historian at the time, was in a position to offer. Nonetheless, despite the weight of unknowns, Buchheim's response on 3 July 1956 was substantial and appropriately measured.¹³ He stressed that there was no way to verify whether the claimant's date of arrival in Auschwitz corresponded to her tattoo number, nor could it be established when the first ‘gypsy’ was deported to Auschwitz.

Buchheim could have limited his response to this unprofitable, though honest, determination, given the limited scope of the court's question. Instead, Buchheim elucidated the broader historical context, attempting to provide insight into the plausibility of the claimant's account. His seven-page response outlines what was known about related events: the deportation of ‘gypsies’ from East Prussia during the period in question; the establishment and expansion of Auschwitz generally, and its women's camp specifically; and how the claimant's tattoo number, its position on her body and its sequential relationship to other tattoos may inform an assessment of her stated arrival date in Auschwitz. Buchheim declared that his findings were conjectural, advising that ‘we are not in a position to reach a more definite determination on this question’, and referred the court to other avenues of enquiry.¹⁴ The efforts, however speculative, made an obvious impression on the presiding judge. On 13 July 1956, he wrote to Buchheim expressing gratitude for what was described as an ‘extraordinarily valuable’ response.¹⁵

A second example further points to ways in which IfZ historians came to view the function of historical expertise and crafting of Gutachten. On 24 April 1957, the Restitution Division of the Landgericht Karlsruhe (Landgericht Karlsruhe Entschädingungskammer) wrote to the IfZ with an astonishingly lengthy question that, just in part, read

[c]an it […] be established as a fact that persons of a Jewish racial extraction [sic] over the age of 50 years, who, in the middle of August in 1942, were sent from France via the Drancy [transit] camp to the Auschwitz concentration camp [sic], were, without exception, immediately killed (gassed) upon their arrival or a few days thereafter?¹⁶

The respondent, Martin Broszat, took the opportunity to explicate what he concluded to be the double function of Auschwitz as a centre of Jewish extermination, and a source of forced labour. The situation, Broszat concluded, was a ‘contradictory’ one that led to conflict between competing Nazi agencies. Broszat also outlined the process of ‘selection’ that took place after the arrival of each trainload of Jews to Auschwitz, in which they were chosen to work or immediately condemned to death in the camp's gas chamber. Broszat's conclusions with respect to the individual circumstances are remarkably nuanced, stating that although it is ‘probable’ such a person would be ‘immediately gassed […] it is, however, possible to accept almost as a certainty, that there were also many Jews over the age of 50 years who joined the camp population after arrival, even though no such examples are known’.¹⁷ Thus, while Broszat could only offer the court probability in this case, he identified that the most effective means to reach this admittedly tentative conclusion was through a wider examination of intricate and shifting historical context. Buchheim, for his part, received praise for his Gutachten from the presiding judge, while Broszat's Gutachten on the process of selections in Auschwitz was made available in a collected edition of Gutachten the IfZ published in 1958.¹⁸ Both Gutachten explored historical questions that remained virtually untouched by historians throughout the 1950s. And, though a small sample, these two Gutachten are emblematic of the hundreds written by IfZ historians during this decade.

As an official IfZ function, written on Institute letterhead, the conclusions reached in Gutachten represented – or were seen to represent – not merely the view of an individual historian, but of the Institute as a whole. According to Buchheim, this secondary consideration forced a ‘particular thoroughness’ in his investigations, and a ‘particular meticulousness’ in reaching conclusions from obtainable data. Although both qualities were needed in academic work generally, wrote Buchheim, under other circumstances ‘failure to meet these requirements simply leads to negative marks against the author, not detriment to a third party.’¹⁹ This danger was especially acute given the sensitive nature of restitution hearings, for example, and a shortage of labour at the IfZ. In late 1954, director of the IfZ Paul Kluke made his feelings known at a joint meeting of the Board of Trustees (Kuratorium) and the Advisory Board (Beirat).²⁰ Describing what he saw as ‘excessive activity’ in writing Gutachten, Kluke feared negative repercussions for the Institute in the event that it be held responsible for the outcome of proceedings for which the reports were being constructed. He announced at this meeting that henceforth all Gutachten would be prefaced with a declaration that ‘its purpose is to address historical rather than judicial problems’ and that ‘a court should never make a decision based on a Gutachten’. The ‘declaration’ would also stress the provisional nature of historical knowledge and allude to the deficit in available evidence. According to the meeting minutes, Kluke stated that

The Gutachten have only been compiled on the basis of limited historical records […] [and] could be comprehensively amended or even invalidated on the basis of material presently unknown to the Institute, and, therefore, should only be understood when reaching a legal finding as a necessarily relative historical contribution.²¹

The legal representative of the Advisory Board, prominent lawyer Hellmuth Becker, was left with the task of writing an acceptable statement t...

Table of contents

• Front Cover
• Title Page
• Copyright
• Dedication
• Contents
• List of Plates
• Acknowledgements
• Introduction
• 1. Background to Frankfurt: The IfZ, Gutachten and the Ulm Trial
• 2. The Law Courts History: Pre-Trial Preparations
• 3. Giving Evidence: The Historians’ Court? Or, Historians Caught?
• 4. Judgement Day: Hofmeyer Reaches a Verdict
• 5. Publishing Anatomy: Gutachten to Chapters
• 6. Responding to Anatomy: Scholars React
• 7. Receiving Anatomy : How the Book Made History
• Conclusion
• Notes
• Bibliography