A Brief for Humanity
by Wolfgang Scheffler
Translated by Nina Morris Farber.
Helge Grabitz. NS-Prozesse: Psychogramme der Beteiligten. 2d rev. ed. Recht- justiz-Zeitgeschehen 39. Heidelberg: C. F. Miffler Juristischer Verlag, 1985. x, 171 pages.
Historians are now beginning to study the large number of judicial proceedings conducted during the past several decades by the West German judicial authorities against the perpetrators of the crimes of the Nazi regime. This growing interest is not without a certain irony for those who participated, as did this reviewer, in many trials and innumerable interrogations. After all, these trials were usually devoid of spectators or journalists, who appeared only for the opening and closing days of spectacular proceedings like the Auschwitz trial or for the macabre confrontations of the Maidanek trial. In virtually empty courtrooms the survivors of a shtetl, a ghetto, or a camp met once again. There they had to confront their former torturers. There also appeared the subpoenaed former members of SS and police units, and civilian occupation authorities, as well as various other participants or observers of those tragic events. Aside from the documentation that was accumulated by the state attorneys in massive and costly investigations hidden from public view, the public trial proceedings provided the opportunity to reconstruct the past event by event.
So many authors later wrote about these events as if the persons involved- whether perpetrators or surviving victims-no longer existed, as indeed is now the case since many of the participants have died in the intervening years. No research team, however well funded, can possibly retrieve the opportunities lost during the last few decades. Only gradually will historians everywhere begin to understand how much was thus consciously missed. A systematic observation of the numerous judicial proceedings could have prevented many errors of fact and interpretation still found in the historical literature. The low standard of discussion among historians today is determined by their fragmentary knowledge about the accumulated factual evidence.
Public attention usually focused on spectacular trials, witness testimonies, and particularly on controversial decisions, although public discussion frequently lacked even a minimum of legal expertise to evaluate the courtroom proceedings properly. The public received almost no reports about the trials which did not arouse broad interest. Even today only generalizations, partial verdicts, or dramatic events from these trials are published.
The trials placed an enormous emotional burden on all participants, because they involved mass murder, vast atrocities, and the unspeakable suffering of the victims. Until now, no judges, prosecutors, defense counsel, or other participants have written about their subjective experiences. Only now has this silence been broken by one such participant: the Hamburg senior state attorney (Oberstaatsanwaltin) Helge Grabitz. For 20 years she prepared innumerable investigations, wrote large numbers of indictments, and conducted many prosecutions for the Hamburg judicial authorities, becoming during this period chief of one of the three offices dealing with Nazi crimes. Grabitz belongs to the small group of judges and prosecutors who for decades had to uncover and reconstruct that abyss of cruelty and depravity. Anyone who has been compelled to relive such experiences knows that persons directly and continuously involved in the trials-not to mention the survivors as witnesses-are indelibly marked by their participation. Many attorneys who were not involved, especially in the Federal Republic, simply do not comprehend this. They do not comprehend that the events described in a "normal" murder case, as unpleasant as they might be, cannot be compared to the inconceivable proliferation of atrocities and abominations committed by innumerable perpetrators against uncounted numbers of victims during the Nazi campaign of extermination.
Grabitz has deliberately written a book marked by her Hamburg experiences, a book that might be perceived as a polemic by those viewing this subject from a distance. She investigates the human and legal problems connected with the trials. It is her aim to present basic psychological profiles of those who participated in the trials. In the first part of the book she focuses on the problems faced by judges, prosecutors, defense attorneys, and official experts. Further, she provides an analysis of German defendants, German witnesses, and also non-German perpetrators and accomplices. A special section is devoted to the behavior of the Jewish witnesses, carefully differentiating between those testimonies that are marked by objectivity and those that are overwhelmed by agony and hate.
We must be grateful that Grabitz is totally frank in describing atmosphere, circumstances, and behavior-for example, that of the perpetrators as defendants-that is usually perceived by all participants, often discussed in private, but never mentioned in public. For example, she analyzes the multiple attempts of the defendants to squirm out of their accountability (as is their right under a democratic legal system), thereby revealing a wealth of imagination that strained to the utmost the patience of all participants.
Grabitz's descriptions of the concomitant circumstances during the testimonies of Jewish witnesses make an especially strong impression: the unspeakable effort of survivors reliving the murder of their relatives, the oppressive courtroom atmosphere, the physical collapse of many witnesses, and so forth. Grabitz poignantly expresses what many of those involved in the trials have felt: "As a human being one simply wants to embrace the witnesses and cry with them" (p. 12).
As state attorney, Grabitz also headed the prosecution in the so-called Streibel trial, a proceeding that dragged on for years and was hardly noticed by the public, involving the investigation of more than two dozen large criminal conspiracies (Tatkomplexe) and ending with one of the most scandalous acquittals. Drawing on her experiences during these proceedings, Grabitz; discusses the attitude of those non-German perpetrators-the auxiliaries employed by the Lublin SS and Police Leader Odilo Globocnik-who were involved in numerous crimes in the Generalgouvemement, both inside and outside the extermination camps. These East European SS auxiliaries, the "units of Operation Reinhard" known as Hiwis, provided the majority of the personnel running the extermination camps of Belzec, Sobibor, and Treblinka. The trial of one of these auxiliaries, John (Ivan) Demjanjuk,1 held in Jerusalem in 1987, will no doubt arouse the public interest that was totally absent during the Hamburg trial of 1973-1976. In any case, historical literature has virtually ignored the activities of these non-German auxiliaries.
The second part of the book is devoted to legal problems: the distinction between murder and manslaughter and between perpetrator and accomplice,2 legal niceties that the victims find difficult to accept. But a democratic legal system demands such distinctions, and the crimes committed by the defendants must be measured by the norms defined in the penal code dating from the last century. For the witnesses, the legal definition of base motives, cruelty, etc. in classifying the nature of the crime is largely incomprehensible; for judges and attorneys, however, such distinctions are, in any nation governed by law, a conditio sine qua non for a murder case.
Grabitz also discusses the problems associated with the so-called defense of duress under orders (Befehlsnotstand). Her clear and pointed position that this duress under orders is a fairy tale invented in the postwar years will not always be popular with her legal colleagues. This reviewer annoyed many defense attorneys by reaching the same conclusions in expert briefs prepared for a number of trials. However, Grabitz correctly emphasizes that while the objective basis for duress cannot be substantiated, the so-called defense of putative duress cannot always be refuted. Grabitz makes every effort to show how penal code and criminal procedure currently in force in West Germany are applied in trials of Nazi criminals, as well as to clarify how the testimonies of witnesses fit into this framework.
Grabitz clarifies in her book, written with great personal commitment, the usually overlooked difficulties that confront the German legal system in the prosecution of Nazi criminals. First of all, one must consider the political and social milieu. People in the know have for decades been aware of the fact that those involved with these trials-attorneys and laymen alike-have basically been left in the lurch by society as they carried out their almost impossible task. The daily demands of these trials were worlds apart from moralizing speeches made during commemorations and in political discussions. In addition, major trials that lasted for years had to be conducted within a legal system that was neither intended nor practicable for such proceedings. Thus many critical comments about the trials by German and non-German public have been and continue to be based on an astonishing ignorance of the applicable penal code and criminal procedure. The few remedies that legislators could introduce after long delays came too late or proved inadequate. Non-German attorneys only became aware of these now obvious inadequacies by chance when they themselves, by a trick of fate or politics, were confronted with similar problems. Thus the French prosecutors who are working on the Barbie case have gained more understanding for their German colleagues, as have Israeli prosecutors occupied with the Demjanjuk,1 case. It is no accident that the U.S. prosecutors conducting the belated denaturalization and deportation proceedings against Nazi criminals must often rely upon the experiences of German prosecutors. In this context, the Hamburg proceedings against the German mentors of the East European SS auxiliaries assume special importance.
Prosecutors involved in these trials only too often met rejection and aloofness from their West German colleagues. Grabitz recalls the angry words of those who refused to work on this subject: "I didn't study law to count corpses." This reviewer likewise recalls the complaint of members of the Central Office for the Investigation of Nazi Crimes in Ludwigsburg. At the beginning of the 1960s worried parents inquired whether the transfer of their lawyer sons to the Ludwigsburg office would not be a barrier to their future careers.
Practical shortcomings and procedural difficulties during investigations and trials have marked the history of German proceedings against Nazi criminals. For someone who consistently observed these trials during the last decades and also participated in many, there is no escape from the conviction that what was achieved in the face of all sorts of difficulties is, on the one hand, amazing. On the other hand, it cannot be overlooked that in these proceedings the German judiciary was able to unravel only some events. One must also add that these proceedings served legal ends and it could not be their job to do the work of historians. Still, the historical significance of these trials, the insights they provide as well as their limitations, will occupy historians and others for a long time to come. Finally, an intensive analysis of these trials will illuminate the socio-political realities of postwar Germany.
Many survivors who testified in Hamburg will never forget Senior State Attorney Grabitz, because of her strong convictions and her gift of human empathy; she helped many survivors overcome the burdens imposed by having to testify in major trials. It is therefore no accident that the sections of Grabitz's book dealing with these issues are among the most impressive chapters. Grabitz has written a very personal book that shows how strongly her work affected her. This book is valuable because it provides information about previously ignored questions dealing with the trials of Nazi criminals. More important even, it also provides an example of a prosecutor with a deep commitment to humanity.
1. On Demjanjuk,1 see Henry Friedlander and Earlean McCarrick, "Nazi Criminals in the United States: Denaturalization after Fedorenko," SWC Annual 3 (1986): 47ff. and "The Extradition of Nazi Criminals: Ryan, Artukovic, and Demjanjuk,1 in this volume, pp. 65-98.
2. On the German postwar trials, see Henry Friedlander, "The Judiciary and Nazi Crimes in Postwar Germany," SWC Annual 1 (1984): 27ff.