[7] Has justice been done?

[7] Has justice been done?

All the courtrooms of Europe could not have dealt with crimes on the scale committed under Nazi rule. Justice varied with time and place.

The Nuremberg International Military Tribunal and Allied successor trials were wide-ranging and ambitious, but many Germans dismissed these trials as ‘victors’ justice’. In the Cold War, political competition and mutual goading affected justice on both sides of the Iron Curtain.

In the Federal Republic of Germany since 1949, fewer than 6,700 people have been convicted of Nazi crimes. Despite major trials, including the Auschwitz trial mounted by Fritz Bauer in Frankfurt (1963-65), the criminal law definition of murder as an individually motivated act proved inadequate to mass murder, and sentences were often surprisingly lenient. Legal practice only changed with the Demjanjuk trial of 2009-11, allowing conviction for aiding and abetting murder even when individual motives could not be proved.

In the German Democratic Republic (GDR) from 1949 to 1989, with a different legal system, former Nazis were more likely to be convicted, and were given severe sentences. But political priorities shaped decisions over who to prosecute and who to hide or use as unofficial informers to the secret police.

In Austria, following the abolition of the People’s Courts in 1955, there were only 35 cases brought to jury courts. Trials often ended in shocking acquittals even for those who were manifestly guilty.

These failures of justice in the courtroom were accompanied by resistance on the part of governments, organisations, and individuals to acknowledge accountability, award compensation to victims, or engage in restitution of property. Companies that had benefited from slave labour retained their profits; and former Nazis received full pensions for their service to the Third Reich. As late as 2019 controversy erupted when it was revealed that more than sixty Dutch and Belgian former Waffen-SS members were still receiving benefits from the German government for their wartime service. Yet everywhere, survivors struggled to gain recognition for what they had suffered, often with only belated and very limited success. No amount of symbolic memorialisation can make up for these inadequacies in practice.  

Many West German lawyers had served in the Third Reich and were sympathetic to defendants. The criminal law definition of murder in terms of individual motives also affected trial outcomes.

Judges and prosecutors trying people accused of committing crimes at the Treblinka extermination camp had themselves gone along with Nazism.

Presiding judge Rudolf Gottlebe had joined the NSDAP and SA in April 1933. After 1945, the British occupation authorities dismissed him, but he was soon rehabilitated. Associate Judge Kurt Schwedersky had a similar biography. Public prosecutor Alfred Spiess had earned the Iron Cross 2nd Class for war service. He became instrumental in bringing about a number of significant Nazi crimes trials through the 1970s.

Survivor evidence in court left a deep impression on them. The Treblinka trial lawyers paid considerable attention to survivor witness testimonies and sentenced four of the ten defendants to life imprisonment. However, they upheld the misleading notion of an ‘honourable war’ by the army, ignoring its involvement in mass murder.

Where there was little or no witness testimony, perpetrators were more easily able to get away with murder. In the Bełżec trial (Munich 1963-65), seven of the eight accused SS guards were acquitted because of lack of survivor testimony. There was only one remaining survivor, who could not testify to the motives of individual guards. The defence of ‘only obeying orders’ was successful.

Sources: State Archive Northrhine-Westphalia, Rhineland dept. (Duisburg), personnel files, PS 0005 Nr. 1340, Spieß, Alfred; PS 0002 Nr. 60, Schwedersky, Kurt; BR-PE Nr. 7375, Gottlebe, Rudolf.

Defendants of the Treblinka trial in Düsseldorf Regional Court, trying to cover their faces when confronted with photographers. Most defendants maintained that they had acted only upon orders. Those who admitted a sense of wrongdoing claimed to have been unable to get a transfer away from Treblinka.

Opening of the Treblinka trial,12 October 1964. © TopFoto, IPU486225. Photographer: unknown.

Nazis, survivors, and politics in Austria

Austrian Holocaust survivor Simon Wiesenthal worked tirelessly from the late 1940s to the mid-1980s to bring Nazi perpetrators to justice. However, institutions often refused to cooperate with him, many people were opposed to the trials and the ruling parties wanted to win over former Nazis as voters.

In 1970, Wiesenthal exposed the Nazi pasts of four Austrian government ministers. The chancellor, Bruno Kreisky, leader of the Social Democratic Party and a socialist of Jewish descent, was dismayed. His aim was to integrate former Nazis.

In 1975, Kreisky was considering forming a coalition government with the liberal party. But Wiesenthal revealed that the liberal leader Friedrich Peter was a former member of the 1st SS Infantry Brigade. This unit, formed of concentration camp guards, had committed war crimes in the Soviet Union in 1941. Yet Kreisky continued to back Peter.

Then, in 1986, conservative-leaning Wiesenthal himself failed to support investigations into the Nazi past of the conservative presidential candidate Kurt Waldheim. Political power games had eventually caught up with Wiesenthal: even committed individuals with good intentions were constrained by contemporary political realities, of which they themselves were a part.

Wiesenthal’s efforts were officially acknowledged only in the 1990s, when Austria began to accept its responsibility for Nazi crimes.

Sources: Gerhard Botz, ‘Simon Wiesenthals Beitrag zur Aufarbeitung der Geschichte des österreichischen Nationalsozialismus’, in: DÖW, Vienna, 2012; Winfried R. Garscha, ‘Simon Wiesenthals Beitrag zur gerichtlichen Verfolgung der NS-Täter in Österreich’, DÖW, Vienna, 1998.

Simon Wiesenthal: Tracking Nazis, Irritating Austrians

Renowned Nazi-hunter Simon Wiesenthal continued his attempts to track down war criminals despite a lack of support from the American and Austrian governments.

A large group of judges wearing their robes give the Nazi salute as they pledge their loyalty to the Nazi Party in Berlin.

Judges displaying their loyalty to the Nazi Party in Berlin, 1936. Most judges fell in line with National Socialism. Some benefitted from the removal of Jewish and Socialist colleagues. Although some judges were sentenced at the Nuremberg trials, in West Germany and Austria most continued in their careers after denazification.

© Granger Collection, 0080341. Photographer: unknown.

The Failure of Justice in Austria

Austrian investigations into Nazi perpetrators were hampered by a lack of commitment by politicians and their electorates, many of whom were implicated in the Nazi past.

Josef Blösche (second from right) led an unremarkable life in the GDR, following his war-time involvement in the violent suppression of the Warsaw ghetto uprising. Arrested in 1967, he was tried and executed in 1969. One of his former superiors who had given him orders, Dr. Ludwig Hahn, had been identified living openly in West Germany in 1959. Following long-drawn-out proceedings and two trials, Hahn was finally sentenced to life imprisonment in 1975 but released in 1983, serving only eight years.

Josef Blösche, Warsaw ghetto uprising, 1943. Bundesarchiv, 183-41636-0002. Photographer unknown.

German soldiers point guns at young children, women, the elderly, and men during the Warsaw ghetto uprising as they round everyone up for deportation to concentration camps. Some people carry bags of their meager belongings. A young boy of 7 or 8 stands in the foreground, his arms above his head as an officer holds a rifle to his back.

Federal Republic of Germany (1949 to present)

Good reputation for taking responsibility and ‘facing up to the past’; but reintegration and rehabilitation of most former Nazis.

German Democratic Republic (GDR) (1949 – 1989)

Self-designation as ‘anti-fascist state’; but reintegration and rehabilitation of most former Nazis.

Austria

Myth of being ‘Hitler’s first victim’; but reintegration and rehabilitation of most former Nazis.

Federal Republic of Germany (1949 to present)

Many professional groups evaded justice; notion of ‘perpetrator’ often restricted to lower-class thugs, or key people already convicted or dead.

German Democratic Republic (GDR) (1949 – 1989)

Trials in absentia of prominent Nazis in the West; some former Nazis in GDR co-opted as informers for the secret service, the Stasi.

Austria

Many relatively minor domestic cases sentenced in the People’s Courts up to 1955.

Juries and lawyers generally sympathetic to Nazi defendants.

Federal Republic of Germany (1949 to present)

Fewer than 6,700 convicted.

German Democratic Republic (GDR) (1949 – 1989)

Around 12,890 convicted, including more than 3,400 at the ‘Waldheim’ trials of 1950, which lacked due process. Former Nazis far more likely to be convicted than in the FRG.

Austria

After abolition of the People’s Courts in 1955: only 35 trials of Nazi crimes.

Federal Republic of Germany (1949 to present)

Only 164 sentenced for crime of murder. Others convicted of lesser crimes; nearly 5,000 sentenced to less than 2 years in prison.

German Democratic Republic (GDR) (1949 – 1989)

Severe sentences: 129 death sentences; 274 life sentences; 3,191 sentenced to more than 10 years.

Austria

49 people accused:
20 found guilty and 23 not guilty. Only 3 life sentences. Six trials ended without judgment.

An East German judge recognized that Rudolf Zimmermann, who had been found guilty of shooting Jews in Poland, had only obeyed orders, and was leading a model life: ‘he is a citizen of our state who has done everything, but everything, to work off his guilt’.

Zimmermann was nevertheless sentenced to life imprisonment.

A West German judge noted that Walther Thormeyer, one of Zimmermann’s former Gestapo bosses, ‘was accustomed to lead an orderly bourgeois life’ and it would be ‘difficult to build this up again’ after a lengthy prison sentence. The judge also said, in mitigation, that the way Thormeyer had murdered his Jewish mistress had been ‘humane’, since he had shot her while out on a walk in the woods without any forewarning.

Sources: BArch DP 3 /1589; and C. F. Rüter and D. W. de Mildt (eds). Justiz und NS-Verbrechen, Vol XXVI (Munich, 2001) Lfd. Nr. 655, 1 Ks 1/66, Schwurgericht beim Landgericht Freiburg i. Br.