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[Pages 186-201]

Chapter 11

Retribution

The defendants...are not all perverts. They are not ignorant men. Most of them are trained physicians and some of them are distinguished scientists. Yet these defendants, all of whom were fully able to comprehend the nature of their acts, and most of whom were exceptionally qualified to form a moral judgement in this respect, are responsible for wholesale murder and unspeakable cruel torture. - Telford Taylor[1013]

But Fascist ideology and Hitlerism have transformed the consciences of the young, and those under thirty-five are willing to commit any crime for any purpose ordered by their leader. – Eugène Tisserant, June 1940[1014]

We see these cultured and learned men hesitating at times, but none the less making steady progress, step by step, along the path to the final solution. They did not go the whole way. Those who stopped closed their eyes, or rather they blinded themselves to the truth. They knew nothing, just as they believed Hitler knew nothing. These learned men wanted to know nothing, and so there came into being a remarkable community of self-blinded internal exiles coexisting with the annihilators, those who did go all the way to the final solution. - Benno Müller-Hill[1015]

To find the way back to the law one must first find the way to justice - Eugène Aroneanu[1016]

Although it is apparent that the majority of those involved in Nazi eugenics and the perpetration of associated criminal acts were men, particularly at a senior level, those implicated insofar as “euthanasia” was concerned did include a significant number of women. More specifically, these medical crimes could not have been undertaken without the participation of literally hundreds of nurses, most of whom were female. How could they, members of the most selfless and dedicated profession, rationalise killing helpless patients?[1017] It is true that to a material extent they were misled by the very people they most relied upon for guidance – doctors and other senior medical personnel, an estimated 400 of whom had directly participated in the programme. Eugenics was not a passing fancy, these nurses were told, but a “science” whose importance had finally been recognized. If in the past nothing had been done to “protect the eugenically valuable” members of the nation, thanks to Adolf Hitler's “insight and infectious energy”, a way had been shown “to avoid the certain decline of our Volk.” If the prevention of infectious disease was preferable to its cure, ran the argument, was it not sensible to apply the same logic to genetic disorders?[1018] This is not, of course, to excuse either the nurses' actions or their lack of compassion. They were not automatons, devoid of human sensibilities; many later acknowledged their feelings of guilt at being accomplices, or worse, to the murders. One specific case was particularly enlightening in this respect.

In 1965, a trial was held in Munich of fourteen female nurses who had served at the Meseritz-Obrawalde mental hospital. They were accused of “…cooperation with the `euthanasia' programme by killing thousands of mentally disabled patients through the administering of overdoses of Veronal or Luminal, or by injections with Morphia-Scopolamine or plain air, respectively.” Their testimony provides an insight into the ease with which, given suitable social and political circumstances, it is possible to convince healers to become killers. And if those dedicated to the curative could be so effortlessly converted to the practice of murder, how much easier was it to convince the non-medical personnel of Aktion Reinhard to kill on a vastly greater scale?

Luise Erdmann. [the main defendant in the Munich trial, accused of participation in the killing of 210 patients]:

Through the behaviour of Dr. Wernicke I realized that incurable patients were to be released by giving them Veronal or another medicine. I also declare that was I was not informed by Dr. Wernicke or any other person at the home about euthanasia. I wasn't sworn to secrecy in this respect... I was of the opinion it was taken for granted or believed that I would approve of euthanasia. My attitude to euthanasia was, should I become incurably ill - I don't make any distinction between mental or physical illness - I would consider it as a release if a physician or, on the direction of a physician, another person, would give me a dose releasing me from everything. Despite my attitude to euthanasia, I have - when confronted with the problem - fought out serious inner conflicts. Euthanasia, in the form I experienced it at that time, was after all, a killing of people and I asked myself if a legislator had the right at all to order or permit the killing of people. Never, however, did I hear about a corresponding law on the use of euthanasia but, on the other hand, Dr. Mootz explained to me once that there was no need for reservation as, should the situation arise, he would cover up for me. From this statement I concluded that there had to be some legality for euthanasia.

Erna Elfriede E. [accused of participation in the killing of 200 patients]:

They didn't make me swear about a secret matter of the Reich and I wasn't sworn to silence.... I considered the killings as injustice. Something like that was not supposed to happen, because nobody was allowed to order it. I was brought up as a Christian. I already learned as a child what one may and may not do. I learned that one mustn't steal and mustn't kill.

When asked why she didn't refuse to participate in the killings, she replied:

Because I was ordered to do it. When I am asked again, why I didn't refuse, although I realized that it was an injustice, I can't give an answer to this question. I do and did in the past have a strong feeling of guilt but it is impossible for me to give a reason for the fact that I didn't refuse. It simply was ordered and I had to execute the orders.

Martha Elisabeth G. [accused of killing 28 patients]:

I felt guilty about it at that time and, although I didn't do any killings by myself, I did help and I had a certain feeling of guilt. I'm only an ordinary nurse…and never realised that, legally speaking, I had become implicated in the killings. When I had to assist in the killings, I acted under duress and never with the intention to kill a person. At that time, nobody would have helped us at Obrawalde if we had refused to do the work, and there wasn't anybody to pour one's heart out to, and who could we trust? As a sort of slave, we were completely at the mercy of the rulers and their political line.

Gertrude F. [accused of killing 5 patients]:

When I did it by preparing the medicine, I did it without any knowledge of legal consequences…I wasn't able to see a direct connection between my work and the killings…Still today, I haven't completely become aware of my wrongdoing.[1019]

All fourteen women accused in the Munchner Schwesternprozess (Nurses' Trial in Munich), were found not guilty of acting as an accessory to murder. The court ruled that the defendants lacked the intellectual and moral capacity to understand that killing patients was illegal[1020], which may be considered both a rather peculiar interpretation of nursing responsibilities as well as an extremely beneficial judgement so far as the defendants were concerned. It is illuminating to contrast the sentences handed down on these nurses with those passed in the immediate aftermath of war on Helene Wieczorek and Amanda Ratajczak, who had served in the same institution and had committed identical crimes.

It has been argued that it was no great surprise that so many of these supposed “carers” were prepared to become killers. They were “bitter, frustrated, disillusioned, tired, underpaid and undervalued”[1021] - in other words, easy prey for a regime prepared to exploit their vulnerability. Precisely when they became aware of this exploitation was a question that only the individual could answer, for many had been uncomfortable with what was going on around them from the earliest days of “euthanasia”, even if they then had no direct involvement in or complete knowledge of what was happening to their patients. But there are some things it is difficult to admit, even to oneself. Of course, whatever they may have known or not known in 1939-41, so far as the nurses of Meseritz-Obrawalde were concerned, there was no doubt about their knowledge of and complicity in the killings from 1943 onward.[1022]

Some nurses could find personal reasons for participating in murder. As described above, Anna Katschenka assisted in the killing of handicapped children at the Am Spiegelgrund hospital in Vienna. She had been successfully treated for depression by the hospital's psychiatrist, Erwin Jekelius, to whom she became attached and on whom she became dependant. When in 1941 she found out that nurses were required at Am Spiegelgrund, she applied to be transferred there in order to be with Jekelius, who, on her arrival, told her of children's “euthanasia”, and asked her to administer lethal medication to young patients. This she agreed to do, accepting at face value Jekelius' assurance that only the most severely handicapped children would be selected for extermination. When Jekelius was called-up by the Wehrmacht, Katschenka transferred her dependence to his successor, Ernst Illing, and continued to kill children.[1023] A post-war Austrian court found Katschenka intelligent but impressionable, and sentenced her to eight year's imprisonment; her co-defendant, Illing, was sentenced to death and executed in 1946. Jekelius died in Soviet captivity in 1952.[1024]

Doctors had flocked to join the Nazis. In 1929, the National Socialist Physicians' League had been formed with 44 members. Immediately prior to the Machtergreifung, membership had risen to 2,786; by October 1933, it was 11,000, and a year later the waiting list to join was so great that potential members were asked to withhold their application until the backlog had been cleared. By 1942, records indicate that membership of the league was almost 40,000; a year later the figure had grown to 46,000. Nor was it possible to rationalise membership as being on purely medical grounds. It has been estimated that 45 percent of all doctors eventually joined the Nazi party itself, with 26 percent of all male doctors joining the SA and 7 percent the SS.[1025] As Leonardo Conti commented, “Doctors, among all the professions, were the earliest and most active participants in the National Socialist movement.”[1026] And as Karl Brandt attested: “Every individual doctor was responsible for what he did in the course of those measures which led to euthanasia. Each doctor was absolutely responsible for his judgement.”[1027]

The extent to which the medical profession as a whole had rationalized their homicidal behaviour is perhaps best illustrated by the testimony of some defendants at their post-war trials. Valentin Faltlhauser insisted that, for him, “the decisive motive was compassion.” Paediatrician Ernst Wentzler stated, “I had the feeling that my activity was something positive, and that I had made a small contribution to human progress.”[1028] Karl Brandt affirmed the following:

Do you think it was a pleasure for me to receive the order to permit euthanasia? For fifteen years I had toiled at the sickbed and every patient was to me like a brother. I worried about every sick child as if it had been my own...I fully realize the problem; it is as old as mankind, but it is not a crime against man nor humanity. It is pity for the incurable, literally. Here I cannot believe like a clergyman or think as a jurist. I am a doctor, and I see the law of nature as being the law of reason. In my heart there is a love of mankind, and so it is in my conscience. That is why I am a doctor!...Death can mean deliverance. Death is life - just as much as birth. It was never meant to be murder.[1029]

In the immediate aftermath of war, the courts were not fooled by such apparent display of contrition. Telford Taylor, chief of counsel for the prosecution at the Nuremberg Medical Trial, was scathing in his description of the prominent physicians who appeared before the court.[1030] However, despite the fine words and admirable sentiments of the victorious allies, the scale of retribution for the great majority of the perpetrators of Nazi crimes was neither commensurate with the offences under consideration, nor swift in its application. In particular, justice for the victims of “euthanasia” was often simply ignored. To an appreciable extent this failure of due process arose initially as a result a misinterpretation of the nature of the programme, its application, and its illegality. Subsequently it came about as a consequence of the compelling impetus of “cold war” politics and the establishment of the new West German state. So far as the latter nation was concerned, the “euthanasia” perpetrators shared the good fortune of thousands of war criminals, who either evaded punishment altogether, or at worst served brief terms of imprisonment, sometimes with the minor added inconvenience of a temporary loss of civil rights. As has been observed, these later judgements were the kind of sentences second rate cheque forgers might have been expected to receive.[1031]

Perhaps Richard Toellner, medical historian at the University of Münster, best expressed the guilt of the supposed healers: “A medical profession that accepts mass murder of sick people as normal, and to a large degree approves of it as a necessary, justified act for the sake of the community, has failed and betrayed its mission.”[1032]And as Professor Thomas Szasz has commented:

“Schizophrenia” is a strategic label as “Jew” was in Nazi Germany. If you want to exclude people from the social order, you must justify this to others, but especially to yourself. So you invent a justificatory rhetoric. That's what the really nasty psychiatric words are all about: they are justificatory rhetoric, labelling a package “garbage”, it means “take it away! Get it out of my sight!” etc. That's what the word “Jew” meant in Nazi Germany; it did not mean a person with a certain kind of religious belief. It meant “vermin!”, “gas him!” I am afraid that “schizophrenic” and “sociopathic personality” and many other psychiatric diagnostic terms mean exactly the same thing; they mean “human garbage,” “take him away!”, “get him out of my sight.”[1033]

* * *

With the end of the war and the collapse of the Nazi regime, Germany was left without any effective or acceptable form of government. In order to establish and maintain order, on 5 June 1945 the Allies issued a declaration by which the duties and responsibilities of governing the defeated country were vested in them:

The Governments of the United States of America, the Union of Soviet Socialist Republics and the United Kingdom, and the Provisional Government of the French Republic, hereby assume supreme authority with respect to Germany, including all the powers possessed by the German Government, the High Command and any state, municipal, or local government or authority.

Although each of the four victor nations had authority within their own zone of occupation, matters that affected Germany “as a whole” were to be decided jointly by all four military Commanders-in-Chief, who for this purpose formed a single governing body called the Control Council.

The allies derived their authority to conduct post-war trials from Control Council Law number 10. The Moscow Declaration of 30 October 1943, “Concerning Responsibility of Hitlerites for Committed Atrocities”, and the London Agreement of 8 August 1945, “Concerning Prosecution and Punishment of Major War Criminals of the European Axis”, had laid down the basis on which the allies would seek to prosecute Nazi crimes. Apart from defining the categories of crime committed, law 10 laid down the degrees of punishment to be meted out to the guilty, the legal authority of zonal and International Military Tribunals (IMTs), and the intention that those accused of a crime alleged to have been committed in a country other than Germany should be tried by the country in which the alleged crime had taken place.[1034] In the increasingly hostile and confrontational atmosphere of the cold war, this latter intention was not extensively pursued in practice and by 1948 had been effectively abandoned by the British and Americans.[1035]

As indictments were raised by the allies, there was the anticipated accusation of “victor's justice” from those who had been members of and loyally served a criminal regime and their politically motivated friends and supporters (then and now), as if in the prevailing circumstances any other kind of justice was feasible. There were, however, some thorny legal issues. At the forefront of these was the concept of nulla crimen sine lege (no crime without a law), and the associated unacceptable notion of ex post facto justice (a law created after the event cannot make something a crime.) Both of these abstractions failed so far as “euthanasia” crimes were concerned because (a), as has already been illustrated, the Hitler authorization was not a law, and therefore throughout the Nazi regime, “euthanasia” was illegal and a punishable offence under the then existing legal code; and (b), even if some perpetrators had believed that the authorization did have the status of a law, “euthanasia” remained a crime, with or without a civil law authorizing it, by virtue of the violation of “natural law.” In September 1945, the German lawyer, Gustav Radbruch, wrote:

There are basic legal principles that are stronger than every existing law…These basic principles are called the law of nature or reason. If laws consciously violate the ends of justice…then these laws lack validity. Then the people owe them no obedience, then jurists must summon the courage to deny them the character of law.[1036]

To the defendants, there was another concept that was even more difficult to grasp. The fundamental Anglo-Saxon legal principle of presumption of innocence (an accused remains innocent until proven guilty) was unknown in Germany, where examining magistrates were responsible for establishing probable guilt in a pre-trial process held before a case came to actual trial.[1037]

Despite these caveats, the horrific nature of the crimes under consideration demanded some form of judicial process, whatever its real or imagined imperfections may have been, and the courtrooms of the allies provided the only viable option. German judges who had held office under the Nazis could hardly be relied upon to truly serve the cause of justice, although in time such reliance was to become evident. Many former Nazi judges of both the civil and criminal courts were to serve out their full period of office in the new democracy of West Germany.[1038] In part, this explains the attitude of courts of the Federal Republic towards alleged perpetrators when the newly constituted nation inherited the responsibility of trying the accused from the allies.[1039] But in 1945, the alternative to trials conducted by the occupiers would have been to simply let the guilty walk away from their crimes unscathed. Such a course of action was unthinkable. If the problems associated with arranging and conducting war crimes trials were unprecedented for the allies, the scale of criminality involved dictated that there had to be accountability for the horrors that had occurred.

The United States was the driving force behind the intended prosecutions, utilising a combination of any or all of the four headings eventually adopted by the allies - (1) the common plan or conspiracy; (2) crimes against peace; (3) war crimes; and (4) crimes against humanity. The latter was an all-encompassing general category intended to include crimes committed against civilians, such as murder, torture, the annihilation of specific ethnic groups, and any other acts that could not be included under any of the other three classifications.[1040] It has been persuasively argued that when considering those implicated in “euthanasia”, the distinction between (3) and (4) became blurred, almost to the point of invisibility. “Euthanasia” was perceived by the Americans as being essentially a war crime – if hospitalised civilians were murdered, it was postulated that this was as a result of a planned war of expansion, with the wards vacated by the victims being required to house the casualties, specifically the military casualties, such a war would inevitably produce.[1041] Whilst this factor did provide an essential element of the programme, and, as has been noted, was put forward as their understanding of its necessity by a number of participants, it was by no means the sole motivation. Rather, it served as a smoke screen, disguising the reality of the long pre-history of “euthanasia” as an essential component of Nazi ideology on racial as well as economic grounds.

There was a flawed understanding of the true meaning of crimes against humanity, as a percipient observer noted in 1946:

Traditionally, we have been inclined to think of crimes against humanity as crimes against common law. It would follow, then, that the world would have no reason to be alarmed since every nation has its penal code…[However]…crimes against humanity are only vaguely related to crimes against common law. As long as society is subordinate to common law, the victim always retains the possibility of seeking help from public authority. In the cases of crimes against humanity, those concerned stand there completely powerless. No one interferes, not the police, not the mayor, not anybody. Public authorities are no longer able to provide protection to those who innocently come into conflict with the penal code.[1042]

The truth was that in general terms there was no desire among the allies for the prosecution of Germans for the crime of murdering or otherwise maltreating their fellow Germans. Indeed there was considerable doubt about whether such acts could be described as criminal where relevant Nazi legislation had been enacted (for example, that regarding compulsory sterilisation, and, it was thought at the time, “euthanasia”). The prime concern in the immediate aftermath of the war, as it had been during it, was to track down and prosecute those responsible for the mistreatment and killing of allied military personnel.[1043] It was only as evidence of the sheer magnitude of Nazi atrocities emerged that attention became more clearly focused on the barbarity inflicted upon civilians. Even then, there was little reference made to citizens of the former Reich. Thus, at the Hadamar “euthanasia” trial held by the United States in October 1945, the charges brought against the defendants related solely to the killing of Polish and Russian workers. The charge consequently read:

…In that Alfons Klein, Adolf Wahlmann, Heinrich Ruoff, Karl Willig, Adolf Merkle, Irmgard Huber and Philipp Blum, acting jointly and in pursuance of a common intent and acting for and on behalf of the then German Reich, did, from on or about 1 July, 1944, to on or about 1 April, 1945, at Hadamar, Germany, wilfully, deliberately and wrongfully, aid, abet, and participate in the killing of human beings of Polish and Russian nationality, their exact names and number being unknown but aggregating in excess of 400, and who were then and there confined by the then German Reich as an exercise of belligerent control.[1044]

When defence counsel asked a witness to estimate the number of German mental patients killed between the re-commencement of “euthanasia” operations in August 1942 and March 1945, the prosecutor objected, saying:

The charge doesn't cover Germans at all. We could be here a month trying that. Counsel's clients are not on trial for any German nationals they may have killed. This is confined entirely to the Russian and the Polish.[1045]

More than two years later this attitude still prevailed. At the so-called RuSHA trial held at Nuremberg between 20 October 1947 and 10 March 1948, one of the defendants, Richard Hildebrandt, stood accused of “ special responsibility for and participation in the extermination of thousands of German nationals pursuant to the so-called `euthanasia' programme' of the Third Reich.” The evidence submitted by the prosecution was that a unit commanded by Hildebrandt had killed thousands of mentally sick Germans in the Danzig region. Incredibly, the Tribunal dismissed this charge on the grounds that the administration of death under Nazi legislation against persons who were solely citizens of the Third Reich did not constitute a crime against humanity, a verdict worthy of the Nazis themselves.[1046]

It has been suggested that the overriding reason for this abrogation of the fundamental concept of justice was the matter of sovereignty – at first the threat to that of the allies, particularly the United States, and subsequently the possible impairment that might be caused to that of West Germany after the new state inherited the responsibility of prosecuting the alleged criminals.[1047] In the first instance, this surfaced most visibly in the American legal interpretation of the “euthanasia” dispensation. Hadamar was described by U.S. Army lawyers in pre-trial documentation as being part of the “mercy killing programme” established “in accordance with the existing laws of Germany, which permitted mercy killings and which became effective in 1939.” Under international law, the U.S. was “only concerned with the murder of … foreign forced labourers.” The court was not convinced of the legality of this “euthanasia” law that had been so readily accepted by Army counsel, stating:

…As a matter of fact the existence of this alleged German law or decree was not established by the Defence. At the most it was proved, through the testimony of a former Chief Prosecutor of Wiesbaden, that there was an “administrative order” from Hitler's office which permitted it.

Unfortunately, the judgement went on to qualify its otherwise accurate dictum:

There was the additional consideration that even if such a decree existed and if it made the killing of incurable persons legal, such provisions could not legalise the killing of other than German nationals, because under general rules of interpretation a rule of this kind would have to be interpreted strictly. Moreover, the accused could not prove that their victims had actually been incurable persons.[1048]

In essence, this assumption of the legality of “euthanasia” presented an intractable problem. The inevitable conclusion was that only defendants who had killed non-German mentally healthy patients could be brought to trial; prosecuting those who had murdered German patients, whether mentally healthy or disabled, would be a de facto breach of German sovereignty. To appear to interfere in the domestic affairs of a foreign country would lay the United States open to the possibility of being subject to such a process itself in certain circumstances. If an act was perceived to be legal under German law when committed, then prosecution of the perpetrators by the allies was deemed to be out of the question.[1049] This dichotomy became even more apparent when considering the issue of enforced sterilisation. Unlike “euthanasia”, a valid law permitting sterilisation was in existence, albeit one passed under a Nazi government. Sterilizing individuals without receiving their prior consent may have been morally indefensible, but it was not illegal in the Reich between 1933 and 1945.[1050] The physicians who had conducted such procedures were therefore able to resist calls for their prosecution.[1051] The only recourse for the younger members of an indignant post-war population was the “name and shame” technique such as that practised by his students against Karl Heinrich Bauer, described below.

The Hadamar case was thus paradigmatic in establishing U.S. and British attitudes towards “euthanasia” crimes, and brought to the forefront the ever present conflict between law and justice. For whilst it was possible for lawyers to argue about the legality or otherwise of certain acts, there could be no argument concerning the morality, or lack of it, of those selfsame deeds . If justice was to be served at all, it was surely to be in the name of commonly accepted standards of decency and compassion. Regrettably that was not always to be the case.

* * *

The reliance placed by the allies on the conspiracy doctrine was completely misplaced. It was a concept literally quite foreign to continental law, and one which was to prove singularly unsuccessful when argued before the International Military Tribunal in Nuremberg. There, of the 22 defendants indicted under the conspiracy charge, no fewer than 14 were found not guilty. By way of contrast, in the 52 other charges laid against the defendants at the only proceedings conducted jointly by all four occupying powers, 44 guilty verdicts were returned.[1052] The logic behind the conspiracy charge was simple; proving guilt of a common plan to conduct aggressive expansionist war would of itself confirm guilt on all the other charges – crimes against peace, war crimes, and crimes against humanity would flow naturally as a consequence of the alleged conspiracy. So far as “euthanasia” was concerned, it had to be seen as part of that alleged conspiracy if trials and judgements were to have validity. U.S. law at the time stated: “Whoever directly commits any act constituting an offence defined in any law, or aids, abets, counsels, commands, induces, or procures its commission is a principal.”[1053] Applying this definition would invalidate any distinction between degrees of criminality. It presumed that any person participating in a crime, whether as principal or accessory, was equally guilty. Thus, linking “euthanasia” to the common plan or conspiracy became an essential plank in any prosecution. That this was conceptually quite inaccurate only became evident much later.

The conspiracy accusation appeared again as part of the indictment at the Nuremberg Medical Trial. In place of the IMT's “Crimes against Peace” was the charge of “Membership in Criminal Organizations”; the two indictments were otherwise identical. But the idea of a conspiracy of physicians was even more difficult to maintain than one pertaining to the hierarchy of the Third Reich. Thus, on a motion of the defence (and no doubt following the failure of the conspiracy charge at the IMT), as the Medical Trial progressed the accusation of a common design was dropped.[1054] In fact, experience shows that whilst accusations of conspiracy abound and are easily assumed, they are notoriously difficult to prove without what is, in effect, a “smoking gun”.

So far as Britain and the United States were concerned, following the cessation of hostilities and a brief interlude of determined pursuit and prosecution of those responsible for criminal acts, an overwhelming desire ruled to abandon the trial of perpetrators to the Germans themselves. Confrontation with a fresh enemy in the shape of their recent ally, the Soviet Union, necessitated the support of West Germany as a “bulwark against communism,” a phrase reminiscent of the Third Reich. The post-war trials conducted by the allies had not been welcomed in Germany,[1055] and further trials were now of little interest in Britain and America, if not the subject of actual opposition.[1056] The historian John Wheeler-Bennett, one of those responsible for the prosecution of the German generals and diplomats, considered that by 1948 “the British people were bored to death with war crimes trials.”[1057] In October of that year Britain announced that no further such trials would be conducted in the zone of Germany under its control.[1058] The following year trials in the American zone ended.[1059]Notwithstanding the ambitious wartime declarations concerning the retribution to be meted out to those guilty of war crimes, post-war realpolitik dictated a different response. Following an amnesty in 1950/51 for many of those who had been convicted of war crimes in trials conducted by the United States, Telford Taylor bitterly wrote that this represented “the embodiment of political expediency…[dealing] a blow to the principles of international law and concepts of humanity for which we fought the war.”[1060]

The courts of the former West Germany were particularly lenient in their sentencing of individuals who had been responsible in part or in whole for the murder of thousands of individuals. To a significant extent this was due to the nature of the legal principles developed by the judicial system of the Federal Republic.[1061] An accused could not be convicted solely on the basis of membership of a unit or organisation that had taken part in a crime. To be convicted, actual participation in a criminal act had to be proved. In cases that did result in a conviction, but in which the accused had not acted on their own initiative but had simply followed the orders of their superiors, the courts as a rule concluded that the accused had been an accessory to the crime and not an actual perpetrator. The requirement was to prove the “base motive” of a killer in order that his action be declared outright murder, even though he may have personally fired the fatal bullet, or dropped the canisters of Zyklon B into the gas chamber.[1062] In simplistic terms this meant that if, for example, a defendant succeeded in claiming that when gassing 100,000 victims he was merely following orders and had not acted out of “malice, cruelty, and base motives”, the court could find him an accomplice, and sentence him accordingly. If, on the other hand, he had killed a single person and the evidence proved that he had acted out of malice, cruelty, or a base motive, the court could rule him a perpetrator and impose a much more severe punishment. So far as actual sentencing was concerned, the distinction made between perpetrator and accomplice in cases of murder was of overwhelming importance. A guilty verdict for a perpetrator could mean a sentence of life imprisonment. In contrast, to be found guilty of being an accomplice would result in a sentence of not less than three years and a maximum of five years.[1063] Almost inevitably, after time served whilst detained in custody awaiting trial was taken into account, the guilty party left the court a free man immediately following the reading of the verdict.

So far as questions of culpability are concerned, whether justice and the supposed rights of the victims were served by this interpretation is open to question, but there is no doubt that this concept worked to the considerable benefit of the defendants. As was demonstrated:

An ever smaller number of perpetrators, mostly from the subordinate ranks of the Nazi regime's hierarchy, were convicted. Mid- and high-ranking officials were considered accessories and thus could count on either lesser punishments or stays of the proceedings brought against them. As a result, the image of the individual, abnormal perpetrator solidified alongside the corresponding view of top-level Nazi bureaucrats as helpless victims unjustly delivered for judgement before the courts.[1064]

Until it was reviewed and effectively revoked in 1975, this differentiation between degrees of guilt produced a scenario in which only those at the very apex of Nazi government – Hitler, Himmler, and Heydrich – could be considered perpetrators.[1065] Everybody below them in the chain of command could claim to have been an accomplice – they were “only obeying orders”. This was in fact predominately the position taken by the courts of the Federal Republic throughout the 1950s and 1960s, a stance much, it must be said, in accordance with the views of the general population.[1066] Had they survived long enough to be tried in West Germany at some time during those decades, it is interesting to speculate whether Himmler and Heydrich might themselves have mounted such a manifestly absurd defence. After all, they too might have argued, they were “only obeying orders”. Which would conveniently have left Adolf Hitler as the sole person legally accountable, in anything other than derisory terms, for the murder of millions.

* * *

In order to better understand the German judicial process as applied to those accused in post-war trials of Nazi crimes, it is necessary to have some comprehension of the manner in which justice was (and is) administered. These defendants in the courts of the Federal Republic appeared before a Schwurgericht, a tribunal consisting of a combination of laymen and professional judges who sit together in a single panel that deliberates and decides on all issues of verdict and sentence. Trial by jury, as exemplified by Anglo-Saxon law, was abolished in Germany in 1924.

The Schwurgericht is made up of three professional judges and two lay-judges. This setting is determined by law and is the same throughout Germany. In all questions relating to the criminal case under consideration, the two lay-judges are the equal of the professionals, in that they take part in the entire decision making process. The Schwurgericht is chaired by a professional judge and decisions are made by a simple majority. During the main proceedings, all issues relevant to the case are investigated and judges can (and often do) question witnesses. Decisions (that is verdicts) are made behind closed doors and are always presented in the judgment as unanimous. That is to say the court speaks with one voice, and it is impossible to determine who had the most influence on which decision. As already mentioned, deliberations take place in the seclusion and privacy of the judges' chambers, as is common to most, if not all legal systems, and are not made public.

The Bundesgerichtshof (Federal Court of Appeal) is made up of five professional judges, and so there is no lay-element involved. Any appeal to the Bundesgerichtshof from the Schwurgericht is limited to questions of law only. The Bundesgerichtshof deals only with these questions and does not “repeat”, so to speak, the case itself. That is, the facts of the case are considered proven by the court of the first instance; only the correct interpretation of the law is at stake in the Bundesgerichtshof's deliberations. The Bundesgerichtshof is in fact a so-called cassation court, a term common to the court of appeal in a number of countries. In Great Britain and the United States it is the equivalent of an appellate court.[1067]

In Austria, whose record regarding the prosecution of war criminals has been immeasurably worse than that of Germany, the Schwurgericht is made up of three professional judges and eight jurors. It is the latter who decide upon questions of guilt or innocence. The professional judges rule on matters of law and procedure; they are responsible for pronouncing sentence, and can also unanimously challenge the decision of the jurors to the Supreme Court. Having carefully nurtured the idea that Austria had been the first victim of German aggression and therefore bore no responsibility for the crimes of the Nazi era, successive post-war Austrian governments were notably reluctant to acknowledge the criminality of certain of their country's nationals. It was not until 1991 that the Austrian federal chancellor, Franz Vranitzky, assumed responsibility for “the harm which Austrian citizens had done to other human beings and peoples”. He went on:

We must also not forget that there were not a few Austrians who in the name of [the Third Reich] brought great suffering to others, who took part in persecutions and crimes of this Reich… [some of whom] were in prominent positions. Our citizens cannot distance themselves even today from a moral responsibility for these deeds.[1068]

In considering the nature of the verdicts, particularly so far as the sentencing of those found guilty was concerned, it may be that certain extraneous factors came into play. Apart from international political considerations and the questionable personal histories mentioned earlier of both the professional and lay-judges, it is conceivable there was a kind of knee-jerk legal reaction to the excesses of National Socialist “justice”. After Roland Freisler and the horrors of the Volksgerichtshof (People's Court), it was necessary to show that the law could be compassionate and merciful, rather than brutal and merciless. It can be argued that the application of these humanitarian principles, admirable though they may have been, was often taken too far. It may well have been impossible to make the punishment fit the crime, but passing derisory sentences in proven (and sometimes admitted) cases of mass murder was in nobody's long term interest, other than the criminal's.

* * *

It is impossible to arrive at an acceptable figure for the number of citizens of the Reich who were involved, to a greater or lesser degree, in the criminal deeds of the National Socialist government.[1069] What can be stated with certainty is that between 1945 and 1992, 103,823 individuals were investigated in connection with such matters in the Federal Republic.[1070] Impressive as it sounds, put into perspective that figure represents about 0.12 percent of the total 1939 population of the Greater Reich of 87.1 million.[1071] To that total must of course be added the number of similar investigations conducted in the former Democratic Republic and Austria,[1072] but even assuming a quadrupling of the Federal Republic's volume of enquiries, the total of potential criminals examined would be less than one half of one percent of the total 1939 Greater Reich population. Clearly, given the scale of criminal activities involved, that would have represented no more than a fraction of those responsible. Some who were never called to account for their actions were dead, killed in battle, in air raids, or by their own hand, some had fled to other more congenial climes, some had been prosecuted by the Allies. Other arrests were prevented by the failure of the West German police to take the fingerprints of men accused of thousands of murders.[1073] But what of those who were investigated in the Federal Republic, where some reliable statistics are available?

6,487 of the investigations resulted in a trial and conviction. Of those convictions, only 974 related to Nazi capital crimes committed during the Second World War. Thus, of the more than 100,000 investigations commenced, less than one percent resulted in a conviction for wartime killings. On closer examination, the figures are even less admirable. Of the 974 convictions, just 472 related to the murder of Jews.[1074] It is true that there were prosecutions both of German nationals and of their own citizens in other countries that had suffered under Nazi occupation, but it is apparent that there had been little accountability for the death of millions.

The figures regarding “euthanasia” are even more revealing. Between 1945 and 1988, there were 31 trials in the Federal Republic relating to the “euthanasia” Aktion. More than one defendant was involved in each of these trials.[1075] A total of 106 individuals were tried for the murder of mentally sick patients. 45 of the defendants were found guilty; with two exceptions (Hilde Wernicke and Helene Wieczorek, who were sentenced to death and executed in 1946),[1076] and in two cases where no punishment was imposed despite a guilty verdict, they received prison sentences varying in length from one year to life imprisonment. In other pre-1949 cases where a death sentence was initially imposed, it was subsequently reduced to a term of imprisonment. The remaining 61 defendants were acquitted.[1077]

It was not solely members of the medical profession at the killing centres or in positions of leadership in the administration of the “euthanasia” programme who bore the guilt. For the system to function it was necessary for physicians and others at the grass-roots level to participate – which many did more than willingly.[1078] Karl Schnurer was a medical officer in the Wolfsberg district of Austria. He dispatched the “feeble-minded” and others deemed unworthy of life from the region of which he was Kreisärzteführer, or district leading doctor, to Klagenfurt, the regional capital. There they were either killed with lethal injections, or sent on to Hartheim or another T4 establishment to be gassed. In 1945 Schnurer was arrested by the British occupation authorities, accused – in his own words – of “murdering twelve women”. He was briefly imprisoned before being released. No formal charges appear to have ever been brought against him. The British had withdrawn his medical licence, but in post-war Austria Schnurer practised as a dentist, a prominent and respected citizen and unrepentant National Socialist.[1079]

Perhaps even more disturbing than the leniency of post-war courts when sentencing the guilty, was the complete absence of any kind of meaningful investigation into the activities of the many physicians who had been enthusiastic members of the Nazi Party, and/or the SA and SS, and who, on the cessation of hostilities, blithely resumed their positions as leaders of the German medical profession. Men such as Wilhelm Heim, in 1983 president of the West Berlin Chamber of Physicians, a man who as an SA member in 1933 had been involved in the persecution of Jewish physicians in that city, or Herman Voss, sometime professor of anatomy at Posen University, who recorded in his diary how looking into the furnace at the remains of four members of the Polish resistance executed by the Gestapo made him “feel very calm and comfortable.” Voss, who conducted experiments on the content of the blood in the spleen, recorded “How nice it would be to chase the whole [Polish] population through such furnaces!” After the war Voss held the prestigious chair of anatomy at the University of Jena and thereafter was appointed professor emeritus at the Greifswald anatomical institute.[1080] Another eminent surgeon, Karl Heinrich Bauer, in 1946 appointed Rector of the newly reopened Heidelberg University, and subsequently made director of the National Cancer Institute at that seat of learning, in 1968 was confronted by his students with his alleged involvement in compulsory sterilisation. The extent of Bauer's direct participation in such matters is disputed, but there is no dissent concerning his support for the Sterilisation Law.[1081] Bauer had not only been a vocal supporter of sterilisation, he had co-authored a guide to the surgical procedures required to conform with the new Sterilisation Law, and had allegedly performed such operations at the direction of the Breslau Hereditary Health Court. Moreover, it was claimed that Bauer had also been well aware of the “euthanasia” programme, although knowledge alone was not, of course, in itself a crime.[1082]

The real issue with these men and hundreds like them was the absence of any of the aforementioned accountability for what they had said, written, or done. It can be offered in their defence that in essence their position was no different from members of the judiciary or the civil service. Somebody had to be found to fill the void left on the collapse of the Nazi regime, and innocents within the professions were rare indeed in the former Reich. Nonetheless, the uncomfortable feeling remains that rather than being held answerable for their actions, some seem almost to have been rewarded by post-war society for the services they had rendered to an odious and criminal regime.

If a balanced and nuanced view of post-war German judicial proceedings is taken, ultimately it is difficult to disagree with the observations of Dr Dick de Mildt:

I wouldn't say that, in regard to the “euthanasia” and Aktion Reinhard functionaries, justice wasn't administered. In my view, it was, but not necessarily in accordance with our interpretation of the concept. Now, of course, this is not the time or the place to plunge into an in-depth discussion on the fascinating question of what would have constituted Justice (with a capital J) in connection to the NS-trials. Suffice it to say here that my ponderings over this issue during the past years have led me to question whether the German courts could have done a substantially better job, under the given circumstances (e.g. within the confines of existing German criminal law). I'm not so sure about an unequivocal answer to that question. Our indignation about the quality of justice as administered by the German courts (and I'm referring here solely to the courts' judgments, not to overall prosecution policies, which were essentially beyond the grasp of the courts) is in itself understandable enough, given the crimes under consideration, but this doesn't necessarily imply that these feelings allow for a fair and sound judgement of these courts. There are, I feel, many factors which have to be taken into account here. One of them concerns the question whether crimes such as those of the Aktion Reinhard state-organized type of mega-murders can be addressed in an appropriate way by regular criminal courts (such as was the case with the German ones). Indeed, given the experiences with international criminal courts such as the International Criminal Tribunal for the former Yugoslavia, one may well ask whether such crimes can be “suitably” addressed by any type of court.

As in any western constitutional state, German courts and judges were independent and their judgments were the result of the application of given German criminal law to the extraordinarily complex issue of trying (often decades later) individual mass murderers hired by a previous German government. These complicated circumstances in themselves were, I feel, quite enough to produce results that could hardly “do justice” to the enormous crimes under consideration.[1083]

This very point was addressed by Hannah Arendt in her report on the trial of Adolf Eichmann. She concluded that those proceedings had demonstrated “the inadequacy of the prevailing legal system and of current juridical concepts to deal with the facts of administrative massacres organized by the state apparatus.”[1084] Arendt's observations made more than fifty years ago; they could equally be applied to the attempts to find an acceptable judicial response to the crimes of Nazism both before and since Eichmann's trial. More controversially, Arendt also considered that while “certain political responsibilities among nations might some day be adjudicated in an international court [it is] inconceivable that such a court would be a criminal tribunal which pronounces on the guilt or innocence of individuals.”[1085] Which naturally begs the question, where then is justice for the victims to be found?

 

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