BEYOND JUSTICE

A not wholly successful examination of the seminal trial of Nazi perpetrators.

In December 1963, two dozen former guards who had worked at Auschwitz were put on trial in West Germany. Wittmann (History/Univ. of Toronto) demonstrates, first, how the prosecution, with massive documentation about the camp, tried to show the political context of the crimes, and, second, how German law shaped the outcome of the trial. West Germany banned “retroactivity” in law, meaning that Nazi criminals had to be charged under the laws that were in place at the time. Absurdly enough, this meant that the court had to make the case that the defendants’ acts violated Nazi law in a Nazi extermination camp. As a consequence, behind-the-scenes managers like Karl Höcker, an adjutant to the last Auschwitz Commandant, Robert Baer, received lesser sentences for lesser crimes than more visible camp personnel. Less satisfying than the story of the trial itself is Wittmann’s confusing thesis. On the one hand, she takes a more exculpatory view of Adenauer-era justice than other critics—most famously, Hannah Arendt, whose withering survey of West Germany’s tendency to connive in comfortable amnesia about the past takes up a chapter of Eichmann in Jerusalem. Wittmann, by contrast, believes that “the argument that the entire West German justice system was tainted with a malaise regarding Nazi crimes is too simplistic.” Her own account, however, shows that the court was able, if it chose, to make very creative end runs around the retroactivity law and, furthermore, that the law itself was not imposed on the West German system, but chosen by it. Arendt’s harsher verdict still seems more valid than Wittmann’s. As if confirming Arendt’s suspicions, Hofmeyer, the presiding judge, questioned afterward whether the “background of the ‘entire event’ should be addressed at all in such trials.” In practical terms, that would mean covering up the genocidal nature of Auschwitz completely.

A dry style and theoretical casuistry mar this otherwise terrifying history.