Exposure for twenty months to the monstrous deeds and the grotesquely unrepentant, aggressive behavior of the defendants, who more than once almost succeeded in turning the trial into a farce, had no impact on this climate of public opinion, although the proceedings were well covered by German newspapers and radio stations. (Bernd Naumann's highly perceptive reportage, which originally appeared in the Frankfurter Allgemeine Zeitung, was the most substantial.) This came to light during the heated debates in the first months of 1965 — in the midst of the Auschwitz proceedings — over the proposed extension of the statute of limitation for Nazi criminals, when even Bonn's minister of justice, Mr. Bucher, pleaded that the "murderers among us" be left in peace. And yet, these "intolerable cases" in the "proceedings against Mulka and others," as the Auschwitz trial was officially called, were no desk murderers. Nor — with a few exceptions — were they even "regime criminals" who executed orders. Rather, they were the parasites and profiteers of a criminal system that had made mass murder, the extermination of millions, a legal duty. Among the many awful truths with which this book confronts us is the perplexing fact that German public opinion in this matter was able to survive the revelations of the Auschwitz trial.
For what the majority think and wish constitutes public opinion even though the public channels of communication — the press, radio, and television — may run counter to it. It is the familiar difference between le pays réel and the country's public organs; and once this difference has widened into a gap, it constitutes a sign of clear and present danger to the body politic. It was just this kind of public opinion, which can be all-pervasive and still only rarely come into the open, that the trial in Frankfurt revealed in its true strength and significance. It was manifest in the behavior of the defendants — in their laughing, smiling, smirking impertinence toward prosecution and witnesses, their lack of respect for the court, their "disdainful and threatening" glances toward the public in the rare instances when gasps of horror were heard. Only once does one hear a lonely voice shouting back, "Why don't you kill him and get it over with?" It was manifest in the behavior of the lawyers who kept reminding the judges that they must pay no attention to "what one will think of us in the outside world," implying over and over again that not a German desire for justice but world opinion influenced by the victims' desire for "retribution" and "vengeance" was the true cause of their clients' present trouble. Foreign correspondents, but no German reporter so far as I know, were shocked that "those of the accused who still live at home are by no means treated as outcasts by their communities." Naumann reports an incident in which two defendants passed the uniformed guard outside the building, greeted him cordially with "Happy Holidays," and were greeted in return with "Happy Easter." Was this the vox populi?
It is, of course, because of this climate of public opinion that the defendants had been able to lead normal lives under their own names for many years before they were indicted. These years, according to the worst among them — Boger, the camp's specialist for "rigorous interrogations" with the help of the "Boger swing," his "talking machine" or "typewriter" — had "proved that Germans stick together, because [where he lived] everyone knew who [he] was." Most of them lived peacefully unless they had the misfortune to be recognized by a survivor and denounced either to the International Auschwitz Committee in Vienna or to the Central Office for Prosecution of National Socialist Crimes in West Germany, which late in 1958 had begun to collect material for the prosecution of Nazi criminals in local courts. But even this risk was not too great, for the local courts — with the exception of Frankfurt, where the state's attorney's office was under Dr. Fritz Bauer, a German Jew — had not been eager to prosecute, and German witnesses were notoriously unwilling to cooperate.
Who then were the witnesses at Frankfurt? The court had called them, Jews and non-Jews, from many lands — from Russia, Poland, Austria, East Germany, Israel, America. Few of those residing in West Germany were Jews; most were either former SS men who risked self-incrimination (the court heard many such cases and one such witness was arrested) or former political prisoners who, according to the "majority of the German people," represented at Frankfurt by a gentleman from IG Farben, were "mostly asocial elements" anyhow. As it turned out, this was an opinion now shared by some of the former inmates themselves: "The SS men were infected" by the inmates; not the guards but the prisoners "were beasts in human form"; the brutality of the guards was understandable because their victims, especially "the Galician Jews, were highly undisciplined"; and the SS became "bad" because of the influence of the capos, the trustee prisoners. But even those German witnesses who did not indulge in this kind of talk were unwilling to repeat in court what they had said in the pretrial examinations: They denied their testimony, didn't remember it, and talked of having been bullied (certainly untrue): maybe they were drunk, maybe they had lied, and so on in monotonous repetition. The discrepancies are glaring, irritating, embarrassing, and behind them one can sense public opinion, which the witnesses had not faced when they testified in camera. Almost every one of them would rather admit that he is a liar than risk having his neighbors read in the newspapers that he does not belong among the Germans who "stick together."
What a predicament for the judges in a case that must "rely exclusively on witness testimony," notoriously unreliable even under the best of circumstances. But the weak link in the evidence of this trial was not so much the lack of objective "incontrovertible" proof — the "small, mosaic-like pieces" of fingerprints, footprints, postmortem reports on the cause of death, and the like — nor was it the inevitable memory lapses of witnesses testifying on dates and details of events that happened more than twenty years ago, or the almost irresistible temptation to project "things others described vividly in that setting as his own experiences." It was rather the fantastic discrepancy between pretrial testimony and testimony in court in the case of most of the German witnesses; the justified suspicion that the testimony of the Polish witnesses had been doctored by some governmental agency for the prosecution of Nazi crimes in Warsaw; the less justified suspicion that the testimony of some Jewish witnesses may have been manipulated by the International Auschwitz Committee in Vienna; the unavoidable admission to the witness stand of former capos, stool pigeons, and Ukrainians who "were working hand in glove with the camp Gestapo"; and, finally, the sad fact that the most reliable category, the survivors, consisted of two very different groups — those who had survived by sheer luck, which in effect meant holding an inside job in office, hospital, or kitchen, and those who, in the words of one of them, had understood immediately that "only a few could be saved and I was going to be among them."
The court, under the guidance of the able and calm presiding judge Hans Hofmeyer, tried hard to exclude all political issues — "Political guilt, moral and ethical guilt, were not the subject of its concern" — and to conduct the truly extraordinary proceedings as "an ordinary criminal trial, regardless of its background." But the political background of both past and present — the legally criminal state order of the Third Reich, to which the Federal Republic is the successor, and the present opinions of the majority of the German people about this past — made itself felt factually and juridically in every single session.
Even more striking than the discrepancies between the witnesses' pretrial and trial testimony — and inexplicable except on the grounds of public opinion outside the courtroom — was the fact that exactly the same should happen with the testimony of the defendants. To be sure, these men had now probably been told by their lawyers that the safest course was to deny everything regardless of the most elementary credibility: "I have yet to meet anyone who did anything in Auschwitz," said Judge Hofmeyer. "The commandant was not there, the officer in charge only happened to be present, the representative of the Political Section only carried lists, and still another one only came with the keys." This explains "the wall of silence" and the persistent, though not consistent, lying of the defendants, many of whom simply were not intelligent enough to be consistent. (In Germany, defendants do not testify under oath.) It explains why Kaduk — a former butcher and a sly, primitive brute who, after identification by a former inmate, had been sentenced to death by a Soviet military tribunal and then pardoned in 1956 — will not boast in court, as he had done in the pretrial examination, of having been "a sharp cookie ... not the type to break down" or voice his regret at having only beaten but not killed Polish President Cyrankiewicz. (Immediately after the war, such boasts could still be heard in court. Naumann mentions the Sachsenhausen trial of 1947 before an Allied tribunal in which a defendant could say proudly that other guards might have been "exceptionally brutal, but they couldn't hold a candle to me.") And it was also probably upon advice from their lawyers that the defendants, who before the pretrial examining judge had charged each other freely and "could only laugh" about their colleagues' claims to innocence, could "not seem to remember this portion of their deposition" in court. All this is no more than would be expected of murderers who had in mind least of all what Judge Hofmeyer called "expiation."
We learn little about these pretrial examinations here, but the information we get seems to indicate that the discrepancies mentioned were a matter not only of deposition but of general attitude and behavior as well. The outstanding example of this more fundamental aspect — and perhaps the most interesting psychological phenomenon that came to light during the trial — is the case of Pery Broad, one of the youngest defendants, who wrote an excellent, entirely trustworthy description of the Auschwitz camp shortly after the end of the war for the British occupation authorities. The Broad Report — dry, objective, matter-of-fact — reads as though its author were an Englishman who knows how to conceal his fury behind a facade of supreme sobriety. Yet there is no doubt that Broad — who had taken part in the Boger-swing game, was described by witnesses as "clever, intelligent, and cunning," had been known among the inmates as "death in kid gloves," and seemed "amused by all that went on in Auschwitz" — was its sole author and wrote it voluntarily. And there is even less doubt that he now greatly regrets having done so. During his pretrial examination before a police officer, he had been "communicative," admitted to having shot at least one inmate ("I am not sure that the person I shot wasn't a woman"), and said he felt "relieved" by his arrest. The judge calls him a many-faceted (schillernde) personality, but that says little and could just as well apply, though on an altogether different level, to the brute Kaduk, whom the patients in the West Berlin hospital where he worked as a male nurse used to call Papa Kaduk. These seemingly inexplicable differences in behavior, most striking in the case of Pery Broad — first in Auschwitz, then before the British authorities, then before the examining officer, and now back again among the old "comrades" in court — must be compared with the behavior of Nazi criminals before non-German courts. In the context of the Frankfurt proceedings there was hardly any occasion to mention non-German trials, except when statements of dead people whose depositions had incriminated the defendants were read into the record. This happened with the statement of an Auschwitz medical officer, Dr. Fritz Klein, who had been examined by British interrogators at the very moment of defeat, in May 1945, and who before his execution had signed a confession of guilt: "I recognize that I am responsible for the slaying of thousands, particularly in Auschwitz, as are all the others, from the top down."
The point of the matter is that the defendants at Frankfurt, like almost all other Nazi criminals, not only acted out of self-protection but showed a remarkable tendency to fall in line with whoever happened to constitute their surroundings — to "coordinate" themselves, as it were, at a moment's notice. It is as though they had become sensitized not to authority and not to fear but to the general climate of opinion to which they happened to be exposed. (This atmosphere did not make itself felt in the lonely confrontation with examining officers, who, in the case of those in Frankfurt and in Ludwigsburg — where the Central Office for the Prosecution of Nazi Crimes is located and where some of the defendants had undergone their first interrogation — were clearly and openly in favor of conducting these trials.) What made Broad, who had concluded his report to the British authorities twenty years earlier with a kind of cheer for England and America, the outstanding example of this sensitization was not so much his dubious character as the simple fact that he was the most intelligent and articulate of this company.
Only one of the defendants, the physician Dr. Lucas, does not show open contempt for the court, does not laugh, insult witnesses, demand that the prosecuting attorneys apologize, and try to have fun with the others. One doesn't quite understand why he is there at all, for he seems the very opposite of an "intolerable case." He spent only a few months in Auschwitz and is praised by numerous witnesses for his kindness and desperate eagerness to help; he is also the only one who agrees to accompany the court on the trip to Auschwitz, and who sounds entirely convincing when he mentions in his closing statement that he "will never recover" from his experiences in concentration and extermination camps, that he sought, as many witnesses testified, "to save the lives of as many Jewish prisoners as possible," and that "today as then, [he is] torn by the question: And what about the others?" His codefendants show by their behavior what only Baretzki, whose chief claim to notoriety in the camp was his ability to kill inmates with one blow of his hand, is stupid enough to say openly: "If today I were to talk, who knows, if everything should change tomorrow I could be shot."
For the point of the matter is that none of the defendants, except Dr. Lucas, takes the proceedings before the district court very seriously. The verdict here is not deemed to be the last word of either history or justice. And in view of German jurisdiction and the climate of public opinion, it is difficult to maintain that they are altogether wrong. The last word at Frankfurt was a verdict that sentenced seventeen of the defendants to many years of hard labor — six of them for life — and acquitted three. But only two of the sentences (both acquittals) have become operative. In Germany, the defendant must either accept the sentence or ask the higher court to review it; naturally, the defense filed appeals in all cases that did not end with acquittal. The same right to appeal is open to the prosecution, and the prosecution also appealed ten cases, including the acquittal of Dr. Schatz. Once the appeal is filed, the convicted is free until notified of the verdict of the Court of Appeals, unless the judge signs a new warrant of confinement, which was done in all cases for the next six months. Since then, however, a whole year has elapsed, and no review proceedings have as yet taken place; nor has a date for any been set. I do not know if new warrants were signed or if the defendants, with the exception of those who were in prison for other offenses, have gone home. The case, at any rate, is not closed.
Boger smiled when he heard that the prosecution had demanded a life sentence. What did he have in mind? His appeal, or a possible amnesty for all Nazi criminals, or his age (but he is only sixty years old and apparently in good health), or, perhaps, that "everything could change tomorrow"?
For it is indeed true that in terms of the Nazi hierarchy the Frankfurt defendants were all small fry: the highest SS officer rank — held by Mulka, adjutant to Camp Commandant Hoss, by Hocker, adjutant to Hoss's successor, Richard Baer, and by former camp leader Hofmann — was captain (Haupsturmfuhrer). The same is true for their status in German society. Half of them came from the working class, had gone through eight years of elementary school, and worked as manual laborers; and of the ten others, only five belonged to the middle class — the physician, the two dentists, and the two businessmen (Mulka and Capesius) — while the other five were rather lower middle class. Four of them, moreover, seem to have had previous convictions: Mulka in 1920 for "failing to account for funds"; Boger in 1940, while he was a member of the criminal police, for abortion; Bischoff (who died during the trial) and Dr. Schatz, expelled from the Nazi party in 1934 and 1937, respectively, for unknown (but certainly not political) reasons. These were small fry in every respect, even in terms of criminal record. And as far as the trial is concerned, it must be kept in mind that none of them had volunteered — or even been in a position to volunteer — for duty in Auschwitz. Nor can they be held basically responsible for the main crime committed in the camp, the extermination of millions of people through gas; for the decision to commit the crime of genocide had indeed, as the defense said, "been irrevocably reached by order of Hitler" and was organized with meticulous care by desk murderers in more exalted positions who did not have to dirty their hands.
The defense, curiously inconsistent even apart from the "hollow oratory," based its little-man theory on two arguments: first, that the defendants had been forced to do what they did and were in no position to know that it was criminally wrong. But if they had not considered it wrong (and it turned out that most had never given this question a second thought), why had it been necessary to force them? The defense's second argument was that the selections of able-bodied people on the ramp had in effect been a rescue operation because otherwise "all those coming in would have been exterminated." But leaving aside the spurious nature of this argument, had not the selections also taken place upon orders from above? And how could the accused be credited with obeying orders when this same obedience constituted their main, and actually, their only possible, excuse?
Still, given the conditions of public life in the Federal Republic, the little-man theory is not without merit. The brute Kaduk sums it up: "The issue is not what we have done, but the men who led us into misfortune. Most of them still are at liberty. Like Globke. That hurts." And on another occasion: "Now we are being made responsible for everything. The last ones get it in the neck, right?" The same theme is sounded by Hofmann, who had been convicted two years before the Auschwitz trial started for two murders in Dachau (two life sentences at hard labor) and who, according to Hoss, "wielded real power in the camp," although according to his own testimony, he hadn't done a thing except "set up the children's playground, with sandboxes for the little ones." Hofmann shouts: "But where are the gentlemen who stood on top? They were the guilty ones, the ones who sat at their desks and telephoned." And he mentions names — not Hitler or Himmler or Heydrich or Eichmann, but the higher-ups in Auschwitz, Hoss and Aumeier (the officer in charge before him) and Schwarz. The answer to his question is simple: they are all dead, which means to one of his mentality that they have left the "little man" in the lurch, that, like cowards, they have evaded their responsibility for him by allowing themselves to be hanged or by committing suicide.
The matter is not that easily settled, however — especially not at Frankfurt, where the court had called as witnesses former department chiefs of the Reichssicherheitshauptamt (the SS Head Office for Reich Security), in charge, among other things, of the organization of the "final solution of the Jewish question," to be executed in Auschwitz. In terms of the military equivalents of their former SS ranks, these gentlemen ranked high above the accused; they were colonels and generals rather than captains or lieutenants or noncoms. Bernd Naumann, who very wisely refrains almost completely from analysis and comment to confront the reader all the more directly with the great drama of court proceedings in the original form of dialogue, considered this little-man issue important enough to add one of his infrequent asides. Faced with these witnesses, he finds, the defendants "have plenty of reason to think how easily, how smoothly, many an 'exalted gentleman' whom they had served either willingly or under some duress has succeeded, without any psychic scruples, in returning from the far-away world of Germanic heroics to today's bourgeois respectability," how "the big man of the past who, as far as the Auschwitz personnel was concerned, had resided in the SS Olympus, leaves the courtroom head held high, with measured steps." And what is a defendant — or, for that matter, anybody else — supposed to think when he reads in the Sud-deutsche Zeitung, one of the best daily German newspapers, that a former prosecutor at one of the Nazis' "special courts," a man who in 1941 had published a legal commentary that, in the newspaper's opinion, was frankly "totalitarian and anti-Semitic," now "earns his living as a judge of the federal constitutional court at Karlsruhe"?
And if anybody should think that the "big men" were big enough to undergo a change of heart whereas the "little men" were too small for such a heroic internal operation, he need only read this book to know better. To be sure, there were some — for example, Erwin Schulz, a former chief of an Einsatzkommando (the mobile killing units of the SS on the Eastern Front), who truthfully and with a shade of regret testified that at the time he "did not have the feeling that it was completely unjustified" to shoot women and children in order "to prevent avengers against the German people from arising," but he himself had successfully asked to be relieved of such duties after he had gone to Berlin and tried to change the order. Much more typical, alas, is the lawyer (and former court officer in the rear of the Eastern Front) Emil Finnberg, who still quotes Himmler approvingly and announces not without pride: "For me, a Fuhrer order was law." Another example is the former professor and chief of anatomy at the University of Miinster (he was stripped of his academic degrees), who without a single word of regret testified as to how he had selected the victims for the defendant Klehr, who then killed them by injections of phenol into the heart. He thought it "humanly understandable" that the murderers needed special rations, and he would doubtless have agreed with his former "assistant," who admitted having injected prisoners and in the same breath justified it: "In plain German, [these prisoners] weren't sick, they were already half dead." (Even this horrible statement turned out to be an understatement — a lie in fact — for many perfectly healthy children were killed in this way.) Finally (but the reader can easily find more examples in the book) there is Wilhelm Boger's lawyer, who in his final address voices "surprise that 'serious men [sic!] have written about the Boger swing,' which he does consider as 'the only effective means of physical suasion ... to which people react.'"
This then is the standpoint of the accused and their attorneys. After their initial attempt at "making Auschwitz into an idyll ... as far as the staff and their conduct are concerned" has broken down and witness after witness, document after document have demonstrated that they could not have been in the camp without doing something, without seeing something, without knowing what was going on (Hocker, the adjutant to Camp Commandant Baer, hadn't known "anything about the gas chambers" until rather late, when he had heard about them through rumors), they tell the court why they "are sitting here": first, because "the witnesses are testifying out of revenge" ("Why can't the Jews be decent and tell the truth? But obviously they don't want to."); second, because they carried out orders as "soldiers" and "did not ask about right and wrong"; and third, because the little ones are needed as scapegoats for the higher-ups (that's why they are "so bitter today").
All postwar trials of Nazi criminals, from the Trial of Major War Criminals in Nuremberg to the Eichmann trial in Jerusalem and the Auschwitz trial in Frankfurt, have been plagued by legal and moral difficulties in establishing responsibilities and determining the extent of criminal guilt. Public and legal opinion from the beginning has tended to hold that the desk murderers — whose chief instruments were typewriters, telephones, and teletypes — were guiltier than those who actually operated the extermination machinery, threw the gas pellets into the chambers, manned the machine guns for the massacre of civilians, or were busy with the cremation of mountains of corpses. In the trial of Adolf Eichmann, desk murderer par excellence, the court declared that "the degree of responsibility increases as we draw further away from the man who uses the fatal instruments with his own hands." Having followed the proceedings in Jerusalem, one was more than inclined to agree with this opinion. The Frankfurt trial, which in many respects reads like a much-needed supplement to the Jerusalem trial, will cause many to doubt what they had thought was almost self-evident. What stands revealed in these trials is not only the complicated issue of personal responsibility but naked criminal guilt; and the faces of those who did their best, or rather their worst, to obey criminal orders are still very different from those who within a legally criminal system did not so much obey orders as do with their doomed victims as they pleased. The defendants admitted this occasionally in their primitive way — "those on top had it easy ... issuing orders that prisoners were not to be beaten" — but the defense lawyers to a man conducted the case as though they were dealing here, too, with desk murderers or with "soldiers" who had obeyed their superiors. This was the big lie in their presentation of the cases. The prosecution had indicted for "murder and complicity in murder of individuals," together with "mass murder and complicity in mass murder" — that is, for two altogether different offenses.
Hence, what the old penal code had utterly failed to take into account was nothing less than the everyday reality of Nazi Germany in general and of Auschwitz in particular. Insofar as the prosecution had indicted for mass murder, the assumption of the court that this could be an "ordinary trial regardless of its background" simply did not square with the facts. Compared with ordinary proceedings, everything here could only be topsyturvy: for example, a man who had caused the death of thousands because he was one of the few whose job it was to throw the gas pellets into the chambers could be criminally less guilty than another man who had killed "only" hundreds, but upon his own initiative and according to his perverted fantasies. The background here was administrative massacres on a gigantic scale committed with the means of mass production — the mass production of corpses. "Mass murder and complicity in mass murder" was a charge that could and should be leveled against every single SS man who had ever done duty in any of the extermination camps and against many who had never set foot into one. From this viewpoint, and it was the viewpoint of the indictment, the witness Dr. Heinrich Durmayer, a lawyer and state councilor from Vienna, was quite right when he implied the need for a reversal of ordinary courtroom procedure — that the defendants under these circumstances should be assumed guilty unless they could prove otherwise: "I was fully convinced that these people would have to prove their innocence." And by the same token, people who had "only" participated in the routine operations of extermination couldn't possibly be included among a "handful of intolerable cases." Within the setting of Auschwitz, there was indeed "no one who was not guilty," as the witness said, which for the purposes of the trial clearly meant that "intolerable" guilt was to be measured by rather unusual yardsticks not to be found in any penal code.
All such arguments were countered by the court thus: "National Socialism was also subject to the rule of law." It would seem that the court wanted to remind us that the Nazis had never bothered to rewrite the penal code, just as they had never bothered to abolish the Weimar Constitution. But the carelessness was in appearance only; for the totalitarian ruler realizes early that all laws, including those he gives himself, will impose certain limitations on his otherwise boundless power. In Nazi Germany, then, the Fuhrer's will was the source of law, and the Fuhrer's order was valid law. What could be more limitless than a man's will, and more arbitrary than an order justified by nothing but the "I will"? In Frankfurt, at any rate, the unhappy result of the court's unrealistic assumptions was that the chief argument of the defense — "a state cannot possibly punish that which it ordered in another phase of its history" — gained considerably in plausibility since the court, too, agreed to the underlying thesis of a "continuity of identity" of the German state from Bismarck's Reich to the Bonn Government.
Moreover, if this continuity of state institutions actually exists — and indeed it does apply to the main body of civil servants whom the Nazis were able to "coordinate" and whom Adenauer, without much ado, simply reemployed — what about the institutions of court and prosecution? As Dr. Laternser — by far the most intelligent among the attorneys for the defense — pointed out, wouldn't it then have been the duty of the prosecution to take action "against flagrant violations of law, like the destruction of Jewish businesses and dwellings in November 1938, the murder of mentally retarded [in 1939 and 1940], and, finally, the murder of Jews? Hadn't the prosecution known at the time that these were crimes? Which judge or state's attorney at the time had protested, let alone resigned?" These questions remained unanswered, indicating just how precarious were the legal foundations of the proceedings. In glaring contrast to the legal assumptions and theories, each and every one of the postwar trials of Nazis has demonstrated the total complicity — and hence, one would hope, the nonexistence of a "continuous identity" — of all state organs, all civil servants, all public figures in high positions in the business world in the crimes of the Nazi regime. Dr. Laternser went on to charge "the Allies with having dissipated the chance of finding a definitive yardstick for future law and thus of having contributed to the confusion of the legal situation." No one who is acquainted with the proceedings at Nuremberg will gainsay this. But why does Laternser not level the same charge against the Federal Republic, which obviously would have a much more immediate interest in correcting the situation? For is it not obvious that all talk about "mastering the past" will remain hollow rhetoric so long as the government has not come to terms with the very criminality of its predecessor? Instead, it now turned out at Frankfurt that a decision on the legality of the infamous Commissar Order — on the basis of which untold thousands of Russian prisoners of war were killed upon arrival in Auschwitz — "has not yet been reached by the Federal Court," although the same court has proclaimed the nonlegality of the extermination of the Jews "by referring to natural law," which, incidentally and for reasons outside these considerations, is not a very satisfactory solution either. (The trouble with the Commissar Order seems to be that it did not originate clearly enough with Hitler but came directly from the German High Command; the prisoners "brought with them a file card that bore the notation 'On orders of the OKW [Oberstes Kommando der Wehrmacht]" Was that the reason why the court acquitted the defendant Breitwieser, on the ground that the testimony of the witness Petzold must have been mistaken, without mentioning the testimony of Eugeniusc Motz, another witness who had charged Breitwieser with having tried out Zyklon B in the early gassing experiments on Soviet officers and commissars?) For the defense, the decision of the highest German court at any rate represents no more than "present legal thinking," and there is little doubt that these lawyers are in agreement with "the majority of the German people" — and perhaps with their colleagues in the legal profession as well.
Technically, it was the indictment for "mass murder and complicity in mass murder" that was bound to call forth the troublesome "background" of unsolved legal questions, of the absence of "definitive yardsticks" for meting out justice, thus preventing the trial from becoming the "essentially very simple case" that State's Attorney Bauer had hoped it would be. For as far as the personalities of the defendants and their deeds were concerned, this was indeed a "very simple case" since nearly all the atrocities they were accused of by the witnesses had not been covered by superior orders of either the desk murderers or the actual initiator, or initiators, of the "final solution." No one in high position had ever bothered to give instructions for such "details" as the "rabbit chase," the "Boger swing," the "sport," the bunkers, the "standing cells," the "Black Wall," or "cap shooting." No one had issued orders that infants should be thrown into the air as shooting targets, or hurled into the fire alive, or have their heads smashed against walls; there had been no orders that people should be trampled to death, or become the objects of the murderous "sport," including that of killing with one blow of the hand. No one had told them to conduct the selections on the ramp like a "cozy family gathering," from which they would return bragging "about what they had taken from this or the other new arrival. 'Like a hunt party returning from the hunt and telling each other all about it.'" They hadn't been sent to Auschwitz in order to get rich and have "fun." Thus the doubtful legal ruling of all Nazi criminal trials that they were "ordinary criminal trials" and that the accused were not distinct from other criminals for once came true — more true, perhaps, than anybody would have cared to know. Innumerable individual crimes, one more horrible than the next, surrounded and created the atmosphere of the gigantic crime of extermination. And it was these "circumstances" — if this is the name for something that lacks a word in any language — and the "little men" responsible for and guilty of them, not the state crime and not the gentlemen in "exalted" positions, that were fully illuminated in the Auschwitz trial. Here — in contrast to the Jerusalem trial, where Eichmann could have been convicted on the grounds of irrefutable documentary evidence and his own admissions — the testimony of every witness counted, for these men, and not the desk murderers, were the only ones with whom the victims were confronted and whom they knew, the only ones who mattered to them.
Even the otherwise rather spurious argument of the "continuity of identity" of the German state could be invoked in these cases, albeit with some qualifications. For it was not only true that the defendants, as the court said in the case of the trustee prisoner Bednarek, "did not kill the people on order, but acted contrary to an order that no prisoner in the camp was to be murdered" — except, of course, by gassing; the fact was that most of these cases could have been prosecuted even by a Nazi or SS court, although this did not often happen. Thus the former head of the Political Section in Auschwitz, a certain Grabner, had been charged by an SS court in 1944 "with having arbitrarily selected 2,000 prisoners for execution"; and two former SS judges, Konrad Morgen and Gerhard Wiebeck, both today practicing lawyers, testified about SS investigations into "corrupt practices and ... independent killings," which led to charges of murder brought before SS courts. Prosecutor Vogel pointed out that "Himmler had stated that without his special order prisoners were to be neither beaten nor liquidated," which did not prevent him from visiting "the camp a few times to watch the corporal punishment of women."
The lack of definitive yardsticks for judging crimes committed in these extraordinary and horrible conditions becomes painfully conspicuous in the court's verdict against Dr. Franz Lucas. Three years and three months of hard labor — the minimum punishment — for the man who had always been "ostracized by his comrades" and who is now openly attacked by the defendants, who as a rule are very careful to avoid mutual incrimination (only once do they contradict each other, and they retract in court the incriminating remarks made in their pretrial examinations): "If he now claims to have helped people, he may have done so in 1945, when he tried to buy a return ticket." The point is, of course, that this is doubly untrue: Dr. Lucas had helped people from beginning to end; and not only did he not pose as a "savior" — very much in contrast to most of the other defendants — he consistently refused to recognize the witnesses who testified in his favor and to remember the incidents recounted by them. He had discussed sanitary conditions with his colleagues among the inmates, addressing them by their proper titles; he had even stolen in the SS pharmacy "for the prisoners, bought food with his own money," and shared his rations; "he was the only doctor who treated us humanely," who "did not look on us as unacceptable people," who gave advice to the physicians among the inmates on how to "save some fellow prisoners from the gas chambers." To sum up: "We were quite desperate after Dr. Lucas was gone. When Dr. Lucas was with us we were so gay. Really, we learned how to laugh again." And Dr. Lucas says: "I did not know the name of the witness until now." To be sure, none of the acquitted defendants, none of the lawyers for the defense, none of the "exalted gentlemen" who had gone scot-free and had come to testify could hold a candle to Dr. Franz Lucas. But the court, bound by its legal assumptions, could not help but mete out the minimum punishment to this man, although the judges knew quite well that in the words of a witness, he "didn't belong there at all. He was too good." Even the prosecution did not want "to lump him together with the others." It is true, Dr. Lucas had been on the ramp to select the able-bodied, but he had been sent there because he was suspected of "favoring prisoners," and he had been told that he would be "arrested on the spot" if he refused to obey the order. Hence, the charge of "mass murder or complicity in mass murder." When Dr. Lucas had first been confronted with his camp duties, he had sought advice: his bishop had told him that "immoral orders must not be obeyed, but that did not mean that one had to risk one's own life"; a high-ranking jurist justified the horrors because of the war. Neither was very helpful. But let us suppose he had asked the inmates what he ought to do. Wouldn't they have begged him to stay and pay the price of participation in the selections on the ramp — which were an everyday occurrence, a routine horror, as it were — in order to save them from the feeble-minded, Satanic ingenuity of all the others?
Upon a first and careless reading of this book, one might be tempted to indulge in sweeping statements about the evil nature of the human race, about original sin, about innate human "aggressiveness," etc., in general — and about the German "national character" in particular. It is easy and dangerous to overlook the not too numerous instances in which the court was told how "occasionally a 'human being' came into the camp" and after one short glance left in a hurry: "No, this is no place for my mother's child." Contrary to the view generally held prior to these trials, it was relatively simple for SS men to escape under one pretext or another — that is, unless one had the bad luck to fall into the hands of someone like Dr. Emil Finnberg, who even today thinks that it was perfectly all right to demand penalties ranging "from prison to death" for the "crime" of physical inability to shoot women and children. It was by far less dangerous to claim "bad nerves" than to stay in the camp, help the inmates, and risk the much greater charge of "favoring the prisoners." Hence those who stayed year in and year out, and did not belong to the select few who became heroes in the process, represented something of an automatic selection of the worst elements in the population. We do not know and are not likely ever to learn anything about percentages in these matters, but if we think of these overt acts of sadism as having been committed by perfectly normal people who in normal life had never come into conflict with the law on such counts, we begin to wonder about the dream world of many an average citizen who may lack not much more than the opportunity.
In any event, one thing is sure, and this one had not dared to believe any more — namely, "that everyone could decide for himself to be either good or evil in Auschwitz." (Isn't it grotesque that German courts of justice today should be unable to render justice to the good as well as the bad?) And this decision depended in no way on being a Jew or a Pole or a German; nor did it even depend upon being a member of the SS. For in the midst of this horror, there was Oberscharfuhrer Flacke, who had established an "island of peace" and didn't want to believe that, as a prisoner said to him, in the end "we'll all be murdered. No witnesses will be allowed to survive." "I hope," he answered, "there'll be enough among us to prevent that."
The clinical normality of the defendants notwithstanding, the chief human factor in Auschwitz was sadism, and sadism is basically sexual. One suspects that the smiling reminiscences of the defendants, who listen delightedly to the recounting of deeds that occasionally make not only the witnesses but the jurors cry and faint; their incredible bows to those who bear testimony against them and recognize them, having once been their helpless victims; their open joy at being recognized (though incriminated) and hence remembered; and their unusually high spirits throughout: that all this reflects the sweet remembrance of great sexual pleasure, as well as indicating blatant insolence. Had not Boger approached a victim with the line of a medieval love song, "Thou art mine" (Du list mein /Ich bin dein /des solt dugewiss sein) — a refinement of which such almost illiterate brutes as Kaduk, Schlage, Baretzki, and Bednarek would hardly have been capable? But here in the courtroom they all behave alike. From what the witnesses describe, there must have been an atmosphere of black magic and monstrous orgies in the ritual of "rigorous interrogation," in the "white gloves" they put on when they went to the bunker, in the cheap bragging about being Satan incarnate, which was the specialty of Boger and the Romanian pharmacist Capesius. The latter — sentenced to death in absentia in Romania and now to nine years at Frankfurt — is the ghoul among them. With the spoils from Auschwitz, he settled in Germany, established his business, and has now charged a "friend" with influencing the witnesses in his favor. His misfortunes in Frankfurt have done his business no harm; his shop in Goppingen, as Sybille Bedford reported in the Observer, was "more flourishing than ever."
Only second in importance, as far as the human factor in Auschwitz is concerned, must have been sheer moodiness. What changes more often and swifter than moods, and what is left of the humanity of a man who has completely yielded up to them? Surrounded by a never-ending supply of people who were destined to die in any event, the SS men actually could do as they pleased. These, to be sure, were not the "major war criminals," as the defendants in the Nuremberg trial were called. They were the parasites of the "great" criminals, and when one sees them one begins to wonder whether they were not worse than those whom today they accuse of having caused their misfortunes. Not only had the Nazis, through their lies, elevated the scum of the earth to the elite of the people; but those who lived up to the Nazi ideal of "toughness," and are still proud of it ("sharp cookies" indeed), were in fact like jelly. It was as though their ever-changing moods had eaten up all substance — the firm surface of personal identity, of being either good or bad, tender or brutal, an "idealistic" idiot or a cynical sex pervert. The same man who rightly received one of the most severe sentences — life plus eight years — could on occasion distribute sausages to children; Bednarek, after performing his specialty of trampling prisoners to death, went into his room and prayed, for he was then in the right mood; the same medical officer who handed tens of thousands over to death could also save a woman who had studied at his old alma mater and therefore reminded him of his youth; flowers and chocolates might be sent to a mother who had given birth, although she was to be gassed the next morning. The defendant Hans Stark, a very young man at the time, on one occasion selected two Jews, ordered the capo to kill them, and then proceeded to show him how this was done; and in demonstrating, he killed an additional two Jews. But on another occasion, he mused to an inmate, pointing to a village: "Look how beautifully the village was built. There are so many bricks here. When the war is over the bricks will bear the names of those who were killed. Perhaps there won't be enough bricks."
It certainly is true that there was "almost no SS man who could not claim to have saved someone's life" if he was in the right mood for it; and most of the survivors — about i percent of the selected labor force — owed their lives to these "saviors." Death was the supreme ruler in Auschwitz, but side by side with death it was accident — the most outrageous, arbitrary haphazardness, incorporated in the changing moods of death's servants — that determined the destinies of the inmates.
Instead of the truth, however, the reader will find moments of truth, and these moments are actually the only means of articulating this chaos of viciousness and evil. The moments arise unexpectedly like oases out of the desert. They are anecdotes, and they tell in utter brevity what it was all about.
There is the boy who knows he will die, and so writes with his blood on the barrack walls: "Andreas Rapaport — lived sixteen years."
There is the nine-year-old who knows he knows "a lot," but "won't learn any more."
There is the defendant Boger, who finds a child eating an apple, grabs him by the legs, smashes his head against the wall, and calmly picks up the apple to eat it an hour later.
There is the son of an SS man on duty who comes to the camp to visit his father. But a child is a child, and the rule of this particular place is that all children must die. Thus he must wear a sign around his neck "so they wouldn't grab him, and into the gas oven with him."
There is the prisoner who holds the selectees to be killed by the "medical orderly" Klehr with phenol injections. The door opens and in comes the prisoner's father. When all is over: "I cried and had to carry out my father myself." The next day, Klehr asks him why he had cried, and Klehr, on being told, "would have let him live." Why hadn't the prisoner told him? Could it be that he was afraid of him, Klehr? What a mistake. Klehr was in such a good mood.
Finally, there is the woman witness who had come to Frankfurt from Miami because she had read the papers and seen the name of Dr. Lucas: "the man who murdered my mother and family, interests me." She tells how it happened. She had arrived from Hungary in May 1944. "I held a baby in my arms. They said that mothers could stay with their children, and therefore my mother gave me the baby and dressed me so as to make me look older. [The mother held a third child by the hand.] When Dr. Lucas saw me he probably realized that the baby was not mine. He took it from me and threw it to my mother." The court immediately knows the truth. "Did you perhaps have the courage to save the witness?" Lucas, after a pause, denies everything. And the woman, apparently still ignorant of the rules of Auschwitz — where all mothers with children were gassed upon arrival — leaves the courtroom, unaware that she who had sought out the murderer of her family had faced the savior of her own life. This is what happens when men decide to stand the world on its head.