UC Santa Barbara > History Department > Prof. Marcuse > Courses > Hist 133c Homepage > 133c Book Essays Index page > Student essay

Pendas, book cover

The Frankfurt Auschwitz Trial:
Limits of German Law

Book Essay on: David Pendas, The Frankfurt Auschwitz Trial, 1963-1965: Genocide, History, and the Limits of the Law
(Cambridge: Cambridge University Press, 2006), 305 pages. UCSB: KK73.5.A98P462006

by Samantha Curtis
December 5, 2008

for Prof. Marcuse's lecture course
Germany, 1945-present
UC Santa Barbara, Fall 2008

About the Author
& Abstract
and Links
Plagiarism Warning & Links
Amazon.com page

About Samantha Curtis

I am a junior history major with particular interest in 20th century Europe. My fascination with Germany began after taking a high school history course on Hitler's rise to power.

Abstract (back to top)

Devin Pendas' The Frankfurt Auschwitz Trial: 1963-1965: Genocide, History, and the Limits of the Law examines West Germany's most highly publicized and most significant Nazi trial taking place between 1945 and today. The Frankfurt Auschwitz Trial was conducted under ordinary statutory law and was at its core concerned with the Nazi genocide of the Jews. The trial began with twenty-two defendants and twenty remained by the end. Seven were convicted of murder, ten of accessory to murder, and three were acquitted. Sentences ranged from three and one-quarter years to life in prison. Pendas argues that because German criminal law was not written to deal with genocide, jurisprudential difficulties developed over the course of the trial. Such difficulties include distinguishing between murder and manslaughter, distinguishing between perpetrators and accomplices, and German law's assumption of a causal link between individual decisions and behavioral outcomes. Pendas' thorough examination and ability to explain thought processes behind every court decision proves vital in understanding the Auschwitz Trial, as well as weaknesses with ordinary law in dealing with genocide.

Essay (back to top)

Devin Pendas' The Frankfurt Auschwitz Trial, 1963-1965: Genocide, History, and the Limits of the Law studies West Germany's largest, most public, and most important trial of Holocaust perpetrators. The Frankfurt Auschwitz Trial dealt with Nazi genocide of Jews using existing statutory law (Strafgesetzbuch) as opposed to international law. According to Pendas, ordinary statutory law was not equipped to deal with genocide, leading to jurisprudential problems during the trial's prosecution. Through thorough analysis of German law and the Auschwitz Trial's proceedings, Pendas successfully examines the Federal Republic of Germany's struggle to deal with genocide by means of ordinary criminal law. Using press accounts and archives of state organizations connected to the trial, Pendas addresses specifics of the trial's proceedings, as well as strengths, weaknesses, limits, and boundaries of the investigation. Pendas' examination of German criminal law proves essential to understanding the Auschwitz Trial, which depended on ordinary criminal procedure. Pendas argues that because German criminal law was not written to deal with genocide, jurisprudential difficulties developed over the course of the trial. Pendas points to three difficulties in particular: distinguishing between murder and manslaughter, distinguishing between perpetrators and accomplices, and German law's assumption of a causal link between individual decisions and behavioral outcomes. Pendas' thorough examination and ability to explain thought processes behind every court decision proves vital in understanding the Auschwitz Trial, as well as weaknesses with ordinary law in dealing with genocide.

The first difficulty arose in distinguishing between Mord (murder) and Totschlag (manslaughter). Totschlag fell under the statute of limitations after 1960, making it difficult for prosecutors to indict Nazi criminals. It was no longer enough to simply demonstrate Nazis had killed another human being, or even that they had killed thousands. Prosecutors now had to prove it was a specific kind of killing. Three sets of factors can make the act of killing Mord: (1) the motives of the perpetrator (blood lust, sexual desire, or other "base motives"), (2) the means used in the killing (malicious or treacherous), and (3) the purpose of the killing (to enable or conceal another crime). Of the various motives listed, only "blood lust" and other "base motives" have come into question for Nazi crimes (Pendas, 57). Former director of the Central Prosecutor's Office, Adalbert Ruckerl, estimates that a "considerable" number of potential Nazi killers could not be brought to trial as a consequence of this distinction (Pendas, 57). Pendas successfully demonstrates German law was not fit in dealing with Nazi crimes through his careful, word-by-word interpretation of ordinary statutes. Due to German law's distinction between Mord and Totschlag, a great number of Nazi criminals could not be tried, allowing for a great injustice to take place in West Germany.

Another aspect of German criminal law proving troublesome during Nazi trials is distinction between perpetrators and accomplices. Under German law, distinction is made on the basis of the defendant's specific motives for acting as he or she did. The court discussed three prior decisions regarding perpetrators in Nazi crimes. In the first two cases, soldiers who shot civilians under orders were found to be accomplices, while in the third case the accused was convicted as a perpetrator because he had shown particular enthusiasm during the executions. Under German law, prosecutors had to demonstrate that any given defendant had internalized motives of the main perpetrators- Hitler, Himmler, and Heydrich, making it far more difficult to convict low-ranking Nazi offenders as perpetrators, rather than accomplices (Pendas, 70). Distinction between perpetrators and accomplices was ultimately made based on subjective orientation of the accused towards the crime, impacting severity of punishment imposed during the Auschwitz Trial. Pendas successfully shows that ordinary statute allowed for great subjectivity during the Auschwitz Trial, allowing lesser convictions for Nazi criminals.

Lastly, German legal understanding of guilt assumes a direct causal link between individual decisions and behavioral outcomes. This assumption profoundly impacted interpretation of genocide during the Auschwitz Trial, making it difficult for prosecutors to understand the Holocaust as an undertaking where perpetrators' motives varied considerably and can hardly be seen at the individual level as decisive for the extermination process. Guilt of defendants and status as either perpetrators or accomplices depended on how the court evaluated defendants' subjective dispositions in Auschwitz. German law dictates composition of German courts as well as authority granted to trial participants. Pendas' careful examination of court setup gives readers a better understanding of participants' roles during the Auschwitz Trial. Pendas argues that German law carefully bound every maneuver of the trial, proving inadequate in dealing with a genocide trial. Trials had seven main groups of participants: judges, jurors, prosecuting attorneys, counsel for the civil plaintiffs, defense counsel, defendants, and witnesses (Pendas, 82). The Auschwitz court was comprised of three sitting judges, six regular jurors, and two alternate jurors. Judges and jurors have equal authority during the trial and are given an equal voice in deciding the final verdict. The presiding judge in the Auschwitz Trial was Hans Hofmeyer. Although judges are free to evaluate evidence according to their individual consciences, they are strictly bound to written German criminal law. Unlike Anglo-American judges, German judges are under a strict obligation to evaluate the case in terms of the statutory penal code. Pendas frequently draws comparisons to Anglo-American law, allowing readers to gain a better understanding of the foreign concepts of German ordinary statute.

German jurors fully participate in legal decisions during the trial, but do not have the exclusive right to determine the fate of the accused. German prosecutors are civil servants under a dual obligation to the state and to the law (Pendas, 89). The state's interest in securing conviction of Nazi criminals places prosecutors in an ambivalent position. Prosecutors must seek to present a compelling case but are not allowed, according to German criminal law, to resort to one-sided maneuvers. Prosecutors draft a formal written indictment at the conclusion of the preliminary investigation, recommending charges to be brought against the defendant(s). Prosecutors also present closing arguments, containing specific sentencing recommendations. There were four prosecutors in the Auschwitz Trial, the lead being Hanns Grobmann and his subordinates being Joachim Kugler, Georg Friedrich Vogel, and Gerhard Wiese. Civil plaintiffs, consisting of victims or their immediate families, join the prosecution in accusing defendants. Under German law, civil plaintiffs have most of the same rights in a trial as prosecutors. There were two groups of civil plaintiffs in the Auschwitz Trial, the first consisting of fifteen relatives of Auschwitz victims and the second consisting of relatives of Auschwitz victims residing in the GDR. Under German law, every defendant is entitled to representation by an attorney. The Defense counsel are partisan actors in a German criminal trial, obliged to act in best interests of their client. At the same time, the defense counsel has a formal legal obligation to the truth. These dual obligations place defense attorneys in an ambiguous situation. Defense attorneys, like prosecution and the civil counsel, make sentencing recommendations in their closing arguments. Additionally, the court called on eyewitnesses to testify at the trial, hoping they could provide a general account of life and death in Auschwitz. Witnesses described terrible living conditions inside the camp and stressed the degree of independent responsibility possessed by the SS in Auschwitz, particularly important given the way defendants portrayed themselves as powerless men whose murderous output was determined by others (Pendas, 157). The Auschwitz Trial included 359 eyewitnesses and 48 written depositions (Pendas, 101). Through thorough description, Pendas explains that German criminal law set parameters for trial participants. Pendas argues that the German law of homicide had been enacted in 1871 for entirely different purposes and with entirely different crimes in mind. Limitations of German criminal law in the face of genocide created structural blinders that prevented trial participants from grasping the moral and historical complexity of Auschwitz. Pendas' in-depth analysis of the trial's participants suggests that the defense took advantage of the Auschwitz Trial's ordinary statute, by seeking minimal punishment for great crimes committed.

Access to the Auschwitz Trial files allows Pendas to give readers an in-depth look into the trial's specific proceedings. Structure of the court room follows German criminal law, placing boundaries on trial participants. Pendas describes court room procedure in detail, emphasizing arguments of the defense which would not have been taken into consideration if it were not for West Germany's use of ordinary statute. The court read aloud charges against defendants on January 6, 1964. Over the next twelve court sessions, defendants were given the opportunity to speak on their own behalf. Pendas argues that defendants tactically exploited juridical obsession with perpetrator motivation. First, defendants denied participation in any criminal activity while at Auschwitz, claiming to know nothing of the camp's basic functions. Defendants tried to convince the court that they had joined SS not as committed Nazi idealogues, but as ordinary men caught up in a sweep of events. This argument was designed to elicit sympathy among jurors. The Defense's primary goal was to win an acquittal on objective grounds by claiming that defendants did not commit any crimes. Failing to gain acquittal, the defense wanted to secure lenient sentences on subjunctive grounds, claiming the defendants were not perpetrators, but mere accomplices. Pendas' examination of German law's distinction between perpetrators and accomplices explains why and how the defense was able to claim accomplice status. Pendas proves that ordinary statute gave way to lesser punishment for Nazi criminals during the Auschwitz Trials.

Judge Hofmeyer announced verdicts on August 19 and 20, 1965 (Pendas, 227). Only seven of the twenty defendants were convicted of murder. Ten defendants were convicted of accessory to murder and three were acquitted. Sentences ranged from three and one-quarter years to life in prison. The court agreed with the prosecution that killing operations in Auschwitz had been illegal, regardless of administrative authoritization. However, the court also agreed with the defense, believing defendants had often exercised only limited agency in the camp. While the court did not believe limited agency constituted grounds for acquittal, it was decisive in the court's decision to convict a large number of defendants only as accomplices. By presenting structure of German law and the court's thought process in applying this law, Pendas successfully argues that under ordinary statute, several guilty defendants escaped the life sentence they would have received based solely on their "objective" actions. Clearly, German criminal law was not adequate to deal with genocide. German criminal law could only punish individuals for specific actions, but in a bureaucracy like Auschwitz, a given outcome could be the result of a series of interlocking decisions taken at various levels within the hierarchy. The Frankfurt Auschwitz Trial, 1963-1965: Genocide, History, and the Limits of the Law is a compelling read, giving insight not only into Nazi trials, but Nazi historiography as well. Pendas convincingly concludes that German criminal law proved inadequate in dealing with the Auschwitz Trial.

Bibliography and Links (back to top)(links last checked 12/x/08)

Book Reviews

  • Biddiss, Michael. "The Frankfurt Auschwitz Trial, 1963-1965: Genocide, History, and the Limits of the Law." English Historical Review 121, no. 494 (December 2006): 1566-1567. (library EHR link)
    Biddiss praises Pendas' quality research and thorough analysis, finding his argument highly successful. Biddiss emphasizes Pendas' success in analyzing preliminary issues of the trial, which prove vital to understanding the outcome.
  • Douglas, Lawrence. “The Frankfurt Auschwitz Trial 1963-1965: Genocide, history, and the Limits of the Law.” American Historical Review 112, no. 5 (December 2007): 1630-1631. (library database link )
    Lawrence believes Pendas offers an excellent overview of German trial procedure. According to Lawrence, one of the book's greatest contributions is Pendas' discussion of the trial's preliminary issues. While Lawrence praises Pendas' elegantly argued and meticulously researched work, he believes the book would have benefitted from deeper analysis of how German jurists reached the conclusion that ex post facto norms barred genocide prosecutions.

Web Sites

  • Wikipedia, “Frankfurt Auschwitz Trials,” http://en.wikipedia.org/wiki/Frankfurt_Auschwitz_Trials
    Wikipedia provides a good summary of the trial, giving background on the trial's participants and listing the sentences of all those convicted.
  • Jewish Virtual Library, “Auschwitz-Birkenau,” http://www.jewishvirtuallibrary.org/jsource/Holocaust/autoc.html
    This site contains detailed information on both the Auschwitz concentration camp and Frankfurt Auschwitz trial, providing links to a variety of web sites with information on Nazi trials.
  • DEFA Film Library at the University of Massachusetts Amherst, “Cinema of East Germany,”
    The DEFA Film Library provides information about the only documentary on the Auschwitz trial. The documentary is based on 430 hours of original trial audiotapes and this web site provides a summary as well as reviews of the film.

Books and Articles

  • Wittmann, Rebecca. Beyond Justice: the Auschwitz trial. Cambridge, Mass.: Harvard University Press, 2005.  Main Library KK73.5.A98 W58 2005 
    Wittman carefully examines the 1964 Auschwitz trial, arguing that it failed to serve justice to the complex history of Auschwitz. Wittman's access to audiotapes of the trial provides a unique perspective as she examines the law's limitations.
  • Pelt, R.J. van. The Case for Auschwitz: Evidence from the Irving Trial. Bloomington: Indiana University Press, 2002. Main Library  KD379.5.I78 P45 2002.
    Holocaust denier David Irving sued Denying the Holocaust author Deborah Lisptadt and Robert Jan van Pelt was called as an expert witness for the defense. Throughout his discussion of the trial, Pelt presents extensive information about the Auschwitz camp's inner workings.

(back to top)

Any student tempted to use this paper for an assignment in another course or school should be aware of the serious consequences for plagiarism. Here is what I write in my syllabi:

Plagiarism—presenting someone else's work as your own, or deliberately failing to credit or attribute the work of others on whom you draw (including materials found on the web)—is a serious academic offense, punishable by dismissal from the university. It hurts the one who commits it most of all, by cheating them out of an education. I report offenses to the Office of the Dean of Students for disciplinary action.

prepared for web by Harold Marcuse on 12/11/08; last updated: 12/16/08
back to top, to Hist 133c homepage, 133c Book Essays index page; Prof. Marcuse's Courses page; Professor's homepage