In lieu of an abstract, here is a brief excerpt of the content:

CONCLUSION The world is perpetual caricature of itself; at every moment it is the mockery and contradiction of what it is pretending to be. —George Santayana The reader will have noticed a certain tension in the argument of this book. On the one hand, it defends the basic integrity of the Operation Reinhard investigations and trials, finding that both the Central Office’s investigations and the subsequent adjudication of former death camp personnel from Belzec, Sobibor , and Treblinka were thorough and procedurally sound. When acquittals or overly lenient punishment resulted, they were typically due to the lack of convincing eyewitness testimony, not to a preexisting urge by the West German judiciary to exonerate Nazi killers. Contrary to some scholars of the postwar trials,1 this study has contended that a considerable measure of justice was achieved in these trials and that the conviction of men such as Kurt Franz, Karl Frenzel, Gustav Münzberger, and others was a salutary development in the Federal Republic’s confrontation with Nazi criminality. However, against these genuine achievements must be balanced the efforts by the West German judiciary to shield itself from criminal investigation. Konrad Adenauer’s construction of a dubious binary of hardcore Nazi criminals and good Germans caught up in the fortunes of war was used already in the immediate postwar years to rebut the Taylor/Vansittart accusation of broad-based complicity in the Nazi regime’s crimes; at the same time, Adenauer’s binary became a justification for reintegrating deeply compromised ex-Nazis into West German society , the civil service, and government. By the late 1950s, as pressure mounted from without and within to punish Nazi war criminals, the judiciary reacted by hoisting the drawbridge and withdrawing into a fortress of immunity. Adenauer’s perpetrator profile was later brought back into service to focus public attention on the monstrous atrocities committed by Einsatzgruppen shooters and death camp guards. These became the focus of criminal investigation , indictment, and prosecution; the headlines announcing the trials filled newspapers across the globe. In the meantime, attempts to deal with the judiciary ’s own crimes, whether through prosecution or forced retirement, yielded meager results. Conclusion 224 The effect of this process was to prosecute the direct, hands-on perpetrators and to hold harmless the bureaucratic killers within the judiciary. This does not mean, as I have repeatedly emphasized, that the actual application of the law to Nazi defendants in their trials was itself biased. In fact, the courts were often acting congruent with the subjective theory of perpetration set forth by the Supreme Court in its Staschynskij verdict. Subjective theory was a “legalism”—that is, a form of legal reasoning at odds with the norms of ethical reasoning outside the law.2 As Lawrence Friedman has observed, legalism is an essential part of internal legal culture, one “confined . . . to systems or subsystems with closed or partly closed legal premises.”3 As argued in chapter 5, the German judiciary was a closed professional class guided by its internal cultural norms and a keen regard for the self-preservation of its various members . These norms, which included a type of legal reasoning that often seems opaque (or even morally questionable) to nonjurists, were reflected in the subjective theory of perpetration.4 We may blanch at the idea that a person who has killed another with his own hands is an accomplice to murder rather than a perpetrator; yet the principle of complicity in homicide cases as first set forth in the 1940 Reichsgericht “bathtub case” and subsequently reaffirmed in the Staschynskij verdict was the standard in these trials. Adherence to the often abstruse and sometimes counterintuitive norms of a professional culture does not, however, fully explain the outcomes of the trials. The very adoption of subjective theory as the rule for determining the status of Nazi killers was problematic, as was the tendency of some regional courts to apply it in circumstances where its logic was contradicted by the facts. When these features of the postwar trials are considered along with the self-serving chicanery of the West German legal profession—the judiciary’s “flipable” requirement of proof of direct intent before a Nazi judge (but not a communist judge!) could be convicted of perverting the law, the refusal of state attorneys general to investigate compromised judges, and the ludicrous failure of using the German Judges Law to force retirement—the firm impression forms that more than arcane legalisms were involved here. Rather, the judiciary as a special...


Additional Information

Related ISBN
MARC Record
Launched on MUSE
Open Access
Back To Top

This website uses cookies to ensure you get the best experience on our website. Without cookies your experience may not be seamless.