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  • The Frankfurt Auschwitz Trial, 1963–1965: Genocide, History, and the Limits of the Law
  • Michael S. Bryant
The Frankfurt Auschwitz Trial, 1963–1965: Genocide, History, and the Limits of the Law, Devin O. Pendas ( Cambridge: Cambridge University Press , 2005 ), xx + 340 pp., cloth $95.00 .

In her study of the Eichmann trial, Hannah Arendt critiqued the view that criminal trials could or should have a didactic purpose. For Arendt, “the purpose of a trial is to render justice, and nothing else.” Assigning it a heuristic function would “only detract from the law’s main business”1—which is to render justice to the accused. Devin Pendas’s new book on the Frankfurt Auschwitz Trial evokes in modified form Arendt’s skepticism about the power of the criminal trial to serve justice and represent traumatic history faithfully. Pendas holds that German domestic law in the Auschwitz Trial was inadequate, by virtue of its very structure, to convey the social conditions of genocide.

Pendas’s primary thesis is that the trial in 1963 of twenty Auschwitz death camp staffers revealed the inherent representational failures of German law in its confrontation with genocide. These failures resulted from two primary legal dogmas. The first was the law’s subjective focus, which placed the interior psychological state of the actor at the center of analysis in assessing participation in the crime. If the actor inwardly identified with the crime, i.e., perpetrated or contributed to the crime willingly, s/he was considered a perpetrator. In cases of homicide, this subjective methodology was applied to the elements of murder set forth in §211 of the German Penal Code. Under §211, a killing constituted murder when it was motivated by “blood lust,” sexual desire, greed, or other “base motives,” or was carried out in a cruel or deceptive manner. If a killing resulted from any of these motives and the killer inwardly willed the result, s/he was guilty of murder as a perpetrator. If, on the other hand, the killing met the criteria of §211 but evidence of subjective identification with the crime was lacking, the killer was labeled an “accomplice.” In Pendas’s view, the focus of German law on the internal psychology of the killer embroiled the Frankfurt court in a hunt for the Auschwitz defendants’ subjective motives, thereby obscuring the bureaucratic context in which the murders occurred.

A second legal dogma that impaired the Frankfurt court’s understanding of the Holocaust’s social character was “real concurrence.” This doctrine assessed individual actions performed as part of a criminal activity that involved numerous actors. The opposite approach, “ideal concurrence,” emphasized the unity of a collective criminal activity, thus tending to accentuate the end result rather than a defendant’s contributions to it. In adopting real over ideal concurrence, the Frankfurt court established for the trial basic parameters that favored the defendants: they would not be held criminally liable for the genocidal results of Auschwitz, but only for their own criminal actions within the camp.

Guided by these two legal doctrines, the court severed the actors’ crimes from the social reality of Auschwitz—a bureaucratically engineered program to [End Page 131] annihilate European Jewry that implicated all levels of German society. The court’s adherence to the German legal conception of homicide “engendered a degree of historical distortion: the repression of the centrality of genocide to the Nazi past and the substitution of a more conventional image of sadism and barbarism” (p. 248). Such distortion obscured an essential feature of Nazi genocide: the insignificance of the individual’s personal motives to the outcome. As Pendas asserts, the Holocaust is far more than the sum of its parts. Subtract the contributions of the Auschwitz defendants from the totality of the Final Solution, and the Jews still die by the millions. What matters, he cautions, is not the concrete acts of the defendants and their subjective motives for committing them, but the annihilation of European Jewry—a crime made possible by the “structural causality” of antisemitism. The preoccupation of German law with individual acts and subjective disposition eclipsed this important truth.

The Trial emerges in the book as a kind of Original Sin in recent...

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