Frankfurt Trials Followed the Stashynsky verdict

The Frankfurt Auschwitz trials was a series of three trials running from 20 December 1963 to 14 June 1968, charging 25 defendants for their roles in the Holocaust as mid- to lower-level officials (the top ones were long gone by that time) in the Auschwitz-Birkenau killing center and labor camp system.

Overall, only 789 individuals of the approximately 8,200 surviving SS personnel who served at Auschwitz and its sub-camps were ever tried, of whom 750 received sentences – usually far too lenient.

Unlike the first Auschwitz trial in Communist Poland (judicial farce, to put it mildly) held almost two decades earlier, the trials in Frankfurt were not based on the legal definition of crimes against humanity (genocide) as recognized by international law, but according to the criminal laws of the Federal Republic of Germany.

And for good legal reason – according to universally accepted fundamental principles of criminal justice, these laws could not have been applied retroactively… and there were no such laws on the books at the time of Shoah.

Consequently, while most (but not all!) defendants convicted under the “genocide laws” were undoubtedly guilty de-facto (many got what they richly deserved – hangman’s noose), de-jure they were not guilty. Not innocent – just not guilty. Which decades later became a major problem (neo-Nazis, “Holocaust deniers”, etc).

Most of the senior leaders of the camp, including Rudolf H;ss, the longest-standing commandant of the camp, were turned over to the Polish authorities in 1947 following their testimony in the Nuremberg Trial (where they were lying through their teeth – H;ss inflated the number of Auschwitz victims four-fold).

Subsequently, they were tried in Krak;w and sentenced to death for violent crimes and torturing of prisoners. Characteristically, not for serial mass murder of Jews as Poland was only marginally less anti-Semitic than Nazi Germany.

SS-Sturmbannf;hrer Richard Baer, the last camp commandant, died in detention while still under investigation as part of the trials. Defendants ranged from members of the SS to kapos, privileged prisoners responsible for low-level control of camp internees.

Among the defendants were some of those who conducted “selection,” or determination of who should be sent to the gas chambers directly from the “ramp” upon disembarking the trains that brought them from across Europe… and who would live for a while being eligible for hard labor.

In the course of the trial, approximately 360 witnesses were called, including around 210 survivors. Proceedings began in the townhouse B;rgerhaus Gallus, in Frankfurt am Main, which was converted into a courthouse for that purpose, and remained there until their conclusion.

Hessian State Attorney General Fritz Bauer, himself briefly interned in 1933 at the Heuberg concentration camp, led the prosecution. He was Jewish, a politician and played an instrumental role in the post-war capture of former Holocaust planner Adolf Eichmann – but there was no legal problem here.

He was a prosecutor, not a judge or member of the jury so there was no conflict of interest. He was essentially a crusader obsessed with prosecuting Nazi war criminal and at some point, it took a literally deadly toll on him.

On July 1, 1968, he committed suicide by had consumed a lot of alcohol, taken sleeping pills and drowned himself in the tub. Rumors were that he was murdered by the Nazis in retribution for all of the above… but there was no proof.

One of the factors that undoubtedly contributed to his suicide at not exactly old age (he was 64) was the inability of prosecution to secure conviction of murder… of just about every defendant in every Nazi war crimes trial. He could only obtain conviction of being accessory to murder which resulted in far lesser sentences.

All Nazi war criminals in all war crimes trials plead not guilty to serial mass murder claiming that they were “just following orders”. Orders from above that is. Outside West Germany it did not work – the courts ruled that anyone who follows the order to kills (and kills) is guilty of murder. And should be punished accordingly.

The outcome in West German trials was very different – thanks to legal precedent set by (in)famous trial of Bohdan Stashynsky trial in 1962. Stashynsky was a KGB assassin who murdered Ukrainian nationalist leaders Lev Rebet and Stepan Bandera in the late 1950s (amazingly, Stashynsky is still alive at 93).

Following his defection to West Germany in 1961, Stashynsky was put on trial for the two murders in October 1962… but sentenced to only eight years in prison.

He got such a lenient sentence (killing two human beings will get you death penalty or life in prison just about anywhere) because West German court ruled that the responsibility for his murders rested only with his superiors in the KGB who had given him his orders and he was… just an accessory to murder. Getting good-time credit, he served 4 years, was released and have been living happily ever after.

The legal implication of the Stashynsky case was that the courts had ruled that in a totalitarian system only executive decision-makers could be convicted of murder and that anyone who followed orders and killed someone could be convicted only of being accomplices (accessories) to murder.

The term executive decision-maker was thus defined by the courts to apply only to the highest levels of the Reich leadership during the National Socialist period, and that all who just followed orders when killing were just accomplices to murder.

Hence, the defendant in a West German war crimes trial could be convicted of murder only if it was proven beyond the reasonable doubt that he or she had killed someone on his/her own initiative. 

In practice, this meant that an SS man who killed thousands while operating the gas chambers at Auschwitz could only be found guilty of being accomplice to murder because he had been following orders; while another SS man who had beaten one inmate to death on his own initiative could be convicted of murder because he had not been following orders.

This principle is not as insane as it might seem from the first glance as in any civilized criminal justice system, the legal definition of murder requires the full intent and thus the full amount of free will.

In any totalitarian system (Nazi, Communist, etc.) no one has the full amount of free will. Consequently, when one was following the orders to kill, one did not possess the full amount of free will and thus did not have full intent.

Therefore, one can not be found guilty of murder but only accessory to murder which required a limited amount of free will and no intent (proving full intent in war crimes was practically impossible).

Information about the actions of those accused and their whereabouts had been in the possession of West German authorities since 1958, but action on their cases was delayed by jurisdictional disputes, among other considerations… like no one in West German powers that be gave a rat’s ass (pardon my French).

It took a shocking and much-publicized Eichmann trial to get the wheels of West German justice turning… and the results were shocking, to put it mildly. The court’s proceedings were largely public and served to bring many horrific details of the Holocaust (hence the shock) to the attention of the elites and the general public in the Federal Republic of Germany, as well as abroad.

Six defendants were given life sentences and several others received the maximum prison sentences possible for the charges brought against them (four to ten years). Four were acquitted and released.

In 1966, three more SS men who had served at Auschwitz were tried: Wilhelm Burger, Josef Erber, and Gerhard Neubert. All three men were found guilty. Erber was sentenced to life in prison, while Burger and Neubert received 8-year and 3.5-year sentences, respectively. From 1967 to 1968, two Kapos, Bernhard Bonitz and Josef Windeck, were tried. Both men received life sentences.

The trial attracted much publicity in West Germany and abroad, but was considered by Bauer to be a failure (which undoubtedly contributed to his subsequent decision to commit suicide).

Bauer complained that the defendants were portrayed by the media as freakish monsters, which allowed the German public to distance themselves from feeling any moral guilt about what had happened at Auschwitz, (it was presented as the work of a few sick people who were not at all like “normal Germans”).

The latter was true – “normal Germans” did not believe (let alone deeply, sincerely and passionately) that they were fighting an “existential war with the Jewish race” and thus had to kill all Jews – men, women, children and the elderly. Only a relatively small number of ardent Nazis held that belief… unfortunately it was enough for murdering four million Jews.

Moreover, Bauer felt that because the law treated those who had followed orders when killing as accomplices to murder it implied that the policy of genocide and the Nazi rules for treating inmates at Auschwitz were in fact legitimate.

Now this was fundamentally wrong – the law (legal precedent, actually) only stated that in the totalitarian system one – when following orders to kill – did not have a full freedom of will and thus did not possess the full intent. Consequently, his or her actions did not fit the legal definition of murder – only of the accomplice.

Furthermore, Bauer charged that the judges, in convicting the accused, had made it appear that Germany in the Nazi era had been an “occupied country”, with most Germans having no choice but to follow orders. In most cases the latter was true.

A public opinion poll conducted after the Frankfurt Auschwitz trials indicated that 57% of the German public were not in favor of additional Nazi trials. Which gives you some idea of how the German people at the time felt about the Holocaust, Nazi war crimes and the Nazi past.