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cover of Eder 2002

Review of:
Rebecca Wittmann, Beyond Justice: The Auschwitz Trial
 (Cambridge, MA: Harvard U.P., 2005)

by Harold Marcuse
professor of German history at UC Santa Barbara
(Homepage, Reviews Page, Publications Page, CV/Publications)

in: American Historical Review (Feb. 2007), 298f.
review completed 7/21/06, page updated 10/20/08

The AHR requested a review of 800 words; the text below is based on what I submitted prior to their editing.
I have also included additional material that I wrote before editing down to meet the word limit. These additions are denoted by [text and notes in brackets]. Most of the additions concern the comparison with:
Devin Pendas, The Frankfurt Auschwitz Trial, 1963-1965 (Cambridge Univ. Press, 2006).
This on-line version also has a links section at bottom

Harold Marcuse, Review in: American Historical Review, 112:1(Feb. 2007), pp. 298f.
(on-line publication--@historycooperative.org, available from within subscribing library domains, or pdf)

Rebecca Wittmann, Beyond Justice: The Auschwitz Trial. Cambridge, Mass.: Harvard University Press. 2005. Pp. 336. [$35; $28 at amazon]

.The 20-month trial in Frankfurt of 20 perpetrators from the Auschwitz concentration camp, which lasted from December 1963 until August 1965, was the largest and best publicized of all of West Germany's trials against Nazi perpetrators. A wealth of information has always been available about the trial, since extensive excerpts from some pretrial documents, the indictments, much daily courtroom dialog, and the judgment were published in the two-volume documentation by Auschwitz survivor Hermann Langbein (Der Auschwitz-Prozess, 1965), and the over 500 page compilation of Bernd Naumann's trial reports from the Frankfurter Allgemeine Zeitung, which was published in English with an introduction by Hannah Arendt in 1966 (Auschwitz: A Report on the Proceedings). However, there was no scholarly assessment until the mid-1990s publication of a collection of essays edited by Ulrich Schneider (Auschwitz: Ein Prozess, 1994) and a monograph by Gerhard Werle and Thomas Wandres (Auschwitz vor Gericht, 1995). [There were no scholarly assessments in English, in particular nothing drawing on materials becoming available under Germany's 30-year archival rule.]

[I had some difficulty reconciling the sources used by Wittmann and Pendas.
First, I note that at the Hessisches Hauptstaatsarchiv in Wiesbaden--which Pendas calls the "Hessisches Hauptarchiv" (307), and Wittmann the "Hessisches Staatsarchiv" (321)--Pendas used several volumes of documents, while Wittmann used only the audiotapes.
Second, at the Frankfurt prosecutor's office Wittmann used 128 volumes of "Ermittlungsakten" (call no. Js 444/59), while Pendas used 88+27=115 volumes of "Hauptakten" and "Handakten" (call no. Ks 2/63), which may or may not be the same.*
Finally, it appears that Wittmann only used one document (a closing argument) at the Fritz-Bauer-Institut, while Pendas cites their entire collection.
*note 8/5/06: Pendas informs me that these are indeed the same files. When the case went to trial, the preliminary call no., Js 444/59, was changed to Ks 2/63. The numerical discrepancy may be a counting error. The Hauptakten are the official court records, the Handakten the prosecutors' internal files.]

This was the situation when Rebecca Wittmann began her doctoral research on the Frankfurt trial. Four main bodies of source material form the basis of four of the six chapters of Wittmann's monograph: the voluminous [128 volumes of] pretrial investigation files, the indictment [(including four commissioned historical essays published in 1965 and translated as Anatomy of the SS State [1968], today still a standard work on the Nazi camps)], 101 audiotapes of the proceedings, and the [900-page] final judgment. These four chapters are bracketed by a background chapter on the evolving legal framework of West German perpetrator trials, and a concluding discussion of press responses to the verdicts. Beyond offering the first scholarly assessment in English, Wittmann's main contributions to scholarship are her explication of the pretrial investigation, and the descriptive analysis of the trial based on the audiotapes and press clippings. Her core argument is the "paradox" that the West German court focused narrowly on specific individual acts that were considered criminal under Nazi law, and did not place mere participation in the genocidal enterprise at Auschwitz (pouring cyanide pellets into the gas chamber, for instance) on trial. As Wittmann puts it, "The killing of millions in the gas chambers . became a lesser crime, calling for a lighter sentence, than the murder of one person carried out without orders from superiors" (6).

This phenomenon, attributable to the strong West German rejection of ex post facto law, has been explicated in most scholarly publications on trials of Nazi perpetrators since the 1960s. It had two important consequences. First, in order to obtain a conviction for murder, the courts had to show that the perpetrators were motivated by base intent, such as hatred, greed or sadism. Thus the trial focused disproportionately on acts of "excessive" zeal or brutality [however, see the nuance in point 6, below]. Second, convictions could only be obtained for specific murders of specific individuals at precise places and times. Thus witnesses were cross-examined about details of crimes they had observed nearly two decades earlier. Such psychologically burdensome treatment gave rise to many unpleasant exchanges in the courtroom. These consequences contributed to the low proportion of convictions and relatively lenient sentences resulting from this and other such trials.

[{changed 12/22/06} If I may editorialize here, I'll add a note about the politics of awarding prizes. While serving on the Hans Rosenberg Prize committee in 2004, we had only 12 submissions from 3 presses by the June 30 deadline. A round of e-mail brought in 3-4 dozen more titles (including the eventual winner), but a few titles I knew of were never submitted. Prizes need to have a more reliable and transparent nomination process!]

[When it was completed in 2001, this University of Toronto dissertation won the annual Fritz Stern Prize for the best doctoral dissertation in German history; in 2005 it was awarded the Wiener Library's Fraenkel Prize for a yet-unpublished monograph. The tremendous achievement of the dissertation was Wittmann's sampling of the 500 hours of untranscribed audiotapes, which she forced the Ministry of Justice to release to her (9). Indeed, Wittmann is at her best in chapter 4, for example when she notes the changes in the presiding judge's tone of voice as he questions defendants and witnesses (187).(but see comparison point 4, below)
I am also surprised at the lack of editorial attention by Harvard University Press. This manuscript would have greatly benefitted from another round of revision, augmentation and certainly more careful editing. As is, it reads like a polished dissertation, with more typos and errors than appropriate for a scholarly publication.]

My main criticism of this book is that it so closely follows the trial sources, with little attention to other archival materials (such as the lawyers' papers) or the results of prior and ancillary scholarship. Since there is much overlap between the pretrial investigation documents, the indictment, and the judgment, there is a tendency towards repetitiousness. For example, the so-called Boger swing is described twice (90f and 120). Other scholarship is often merely listed without discussion (e.g. 289 n. 21 [how does this list show an "awakening" that began "in earnest" in 1967?]; 290 n. 4 [the first two cited works were reviewed by Wittmann for journals; there is little trace of any content knowledge of the other publications--except Rückerl--in this book]; 293 n. 22 [what does this literature have to do with the reception of the Nuremberg trials, and if denazification, why not Niethammer?], 23 [why the long aside on Globke in a note on Stunde Null?]; 294 n. 39 [this is not a very good selection on Vergangenheitsbewältigung]), and Wittmann's notes rarely name (or date) the individual documents, citing instead only the archival reference number (particularly egregious: 299 n. 16). [This makes finding the document in the DVD trial documentation more difficult, and often conceals relevant information.] Finally, a few embarrassing lapses of fact escaped the prepublication readers' attention: Adenauer spending much of the Nazi period in hiding (27); Höss having written a diary that was banned from publication (182, 309 n. 72). [Since 2001 whole collections of scholarly essays and monographs have been published in German, as well as a DVD edition of much of the source material, including 100 hours of audio and a partial transcription (Fritz Bauer Institut, ed., Der Auschwitz-Prozess, 2004). Most of these publications are not even cited in this monograph. This may in part be due to the lead time for publication–the most important works were published in 2004–, but much crucial scholarship is only perfunctorily cited in the endnotes, with no discussion of its content, such as Werner Renz's 2002 essays (288 n. 9), and even Werle and Wandres' 1995 monograph (288 n. 5, with Wandres' name misspelled).]

Such limitations would be less noticeable if another monograph without such shortcomings had not been published simultaneously: Devin Pendas' 2000 University of Chicago dissertation was published in early 2006 as The Frankfurt Auschwitz Trial, 1963-1965. I found that I learned and understood more from a cursory examination of Pendas' monograph than I had in a close reading of Wittmann's. Not only do Pendas' footnotes fully cite the documents and include the latest literature, the cited secondary works are summarized and assessed. Additionally, Pendas has a knack for engaging narrative that contrasts with Wittmann's close analyses of legal sources. [deleted by the AHR: His recounting of the letter that ultimately set the trial in motion (25-32) includes an insightful richness of detail about bureaucratic foot-dragging missing from Wittmann's version (55-58). Similarly, Pendas' rendering of the report about the dramatic arrest of former Kommandant Baer, in hiding as a forester on the Bismarck estate, right down to the soiling of pants and his wife's inadvertent admission of her true married name (48f), illustrates the highly contingent nature of the trial and skillful use of public relations by the prosecutor's office, as well as the banality of some Nazi perpetrators.] Pendas also draws on material from the East and West German national archives, the Frankfurt city archive, the institutional archive of the Institute for Contemporary History, and the Federal Press Office, which enables him to give a much more comprehensive account of the proceedings and their actors than Wittmann. [Note esp. Pendas' accounts of the court's visit to Auschwitz in December 1964, and the exhibition in the Paulskirche, neither of which figure in Wittmann's account.] Surprisingly, neither account offers any biographical details about the defendants, although these were ably summarized by Naumann (1965 ed., 17-37). Still, Wittmann's concise narrative contains most essential details, and she discusses some important documents that Pendas omits, such as Seraphim's expert opinion on the superior orders defense (79ff).

[Additional points of comparison:

  1. Pendas' writing is more engaging. Compare Wittmann's utterly confusing chronological summation that opens chapter 3 (95) with the corresponding elegant overview by Pendas that begins his chapter 4 (104f).
  2. Pendas has a lot more text. Given the print density, I'd estimate that it is 1/4 to 1/3 longer.
  3. Wittmann's analysis of selected publications reacting to the trial is ironically in some respects clearer than Pendas' vastly more comprehensive corresponding analysis. "Ironic" because both Wittmann and Pendas published essays prior to publishing these monographs: Wittmann on the pretrial, and Pendas on the West German press reporting. However, in their monographs, Pendas' chapter on the pretrial is more lucid, while Wittmann's final chapter with its close reading of relatively few selected articles is easier to follow than Pendas' rather ponderous chapter examining his database of over 1400 articles [252 n. 14].)
  4. Although Wittmann's use of the tapes enabled her to capture some of the atmosphere of the trial proceedings, Pendas' reliance on the trial reporting arguably served him better in this regard, since the reporters went to great lengths to capture precisely that, and they were able to describe the visual situationas well.
  5. Pendas' use of several lawyers' personal papers, and holdings of other archives (notably Frankfurt city, Hessian Ministry of Justice) allows him to give much more background. Note especially his treatment of the court's visit to the Auschwitz site in December 1964 (168-182), and the exhibition in the Paulskirche (182-187), neither of which are discussed in Wittmann's account.
  6. On the interpretative nuances of the court's presumption of the legality of Nazi law and the superior orders defense, see Pendas' assessment of Wittmann's argument in his n. 94 on p. 160: Wittmann argues that testimony by SS judges shifted the focus "away from Nazi genocide to individual acts of cruelty, suggesting that Nazi orders were more acceptable and 'legal' ...". Pendas notes that genocidal orders were indeed held to be illegal (even under Nazi law). "Rather, the key issue was the defendants' subjective orientation toward the criminal orders in question. In other words, perpetrators ofgenocide were treated as being less guilty not because their orders were legal but because they were found not to have internalized the criminal motives behind such orders." (return to focus, above)
  7. While Pendas' bibliography is vastly more comprehensive and up-to-date than the works cited in Wittmann's notes--she does not have a bibliography--, Wittmann has found at least a couple of important articles that Pendas missed: Mauz 1968 and Haueisen 1989 (318 n. 32, 35), as well as Dick de Mildt's (albeit rather confusing) In the Name of the People (1996).
  8. Neither Pendas nor Wittmann provides any biographical background whatsoever on the defendants, not even a date of birth, with Pendas saying explicitly that little information is available (81). However, Naumann's 1965 book begins with detailed, page-long biographies of each and every defendant, and Wittmann writes that biographies can be found in the judgment (216). How could both scholars omit that crucial information? This is extremely relevant for understanding the trial and verdicts, for example defendant Schoberth's young age.

I left these points out of the submitted review because of lack of space.]

In sum, while Wittmann's portrayal may better serve an audience seeking a basic information and interpretation, specialists will appreciate Pendas' more comprehensive research and more informative citations.

Harold Marcuse
University of California,
Santa Barbara

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