The Inadequacies of Justice

IN THE EARLY 1940s, the Nazi government imprisoned Edmund Bartl for telling a political joke. When his prison sentence expired, he was transferred to the Sachsenhausen concentration camp outside of Berlin, where he was forced to work as a slave laborer for Heinkel Flugzeugwerke, a German airplane manufacturer. In spite of brutal conditions — one survivor of a Heinkel slave labor camp described it as “agony, torture, and starvation” — Bartl lived. At the time of his liberation he weighed just 86 pounds.

Bartl’s story is just one of dozens that Mary Fulbrook, historian of Germany at University College London, chronicles in Reckonings: Legacies of Nazi Persecution and the Quest for Justice, published with Oxford University Press last year. A tome of almost 700 pages, Reckonings sets itself apart from other Holocaust writings by telling not only the history of the genocide, but also the history of how its perpetrators and victims have dealt with it in the 70 years since.

For although Edmund Bartl was among the lucky few who survived, he and thousands like him never found justice. In 1959, Bartl sued the Heinkel corporation for restitution. The highest court in West Germany ruled against him, and in doing so, essentially forbade any further suits by slave laborers against the corporations that had exploited them. Heinkel, and many other German industrialists, would never pay a dime in compensation to their thousands of slave laborers.

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In April 1941, a doctor caring for a woman named Henriette at a psychiatric institute realized she was slated to be murdered in the Nazi government’s “euthanasia” program. He gave her leave to go home for a confirmation ceremony, possibly hoping that her family would realize the danger she was in and prevent her from returning to the hospital. But, Fulbrook tells us, her father “had remarried after her mother’s death and had repeatedly sought to put her into institutional care even when professionals considered this unnecessary.” Henriette was transferred to a gassing facility at Bernburg in central Germany that summer, where she was murdered.

Reckonings is replete with accounts such as Henriette’s, which reveal how dense the webs of persecution were that crisscrossed the Nazi empire. Fulbrook’s depiction of the Holocaust, which composes the book’s first section, is an admirable synthesis of recent scholarship on the Nazis’ programs of mass murder. It is an attempt to come to grips with the overwhelming immensity of the systematic murder of 6,000,000 Jews, 200,000 Roma and Sinti, at least 200,000 disabled Germans, and around 10,000 gay men. Fulbrook focuses on the breadth of victimhood as well as the depth of the German people’s complicity.

Challenging popular perceptions of the Holocaust that center only on death camps, Fulbrook depicts how the genocide evolved, pointing out that “specialized techniques of extermination did not start in the forests of Poland.” Mass murder originated in the heart of the Reich with the so-called “euthanasia” program to exterminate the disabled, whom the regime termed “life unworthy of living.”

In May 1939, the Nazi government decided to begin killing disabled children. Soon thereafter, Hitler authorized the liquidation of disabled adults. These systematic murders, which were known as the T4 program (from the address of its headquarters in Berlin — Tiergartenstrasse 4), started to experiment with techniques of mechanized murder in autumn 1939. Patients were gassed in vans and “shower rooms” built specifically for that purpose. Although Hitler eventually shut down the official T4 program under public pressure, its killing techniques soon migrated eastward.

Since the Nazi invasion of Poland on September 1, 1939, Schutzstaffel (SS) killing squads, known as Einsatzgruppen, had begun mass murdering Jews in Eastern Europe. These groups killed over 1,000,000 people during the war. Einsatzgruppe C organized the infamous massacre at Babi Yar outside of Kyiv, where German troops shot over 30,000 Jews in two days.

But the SS “was in search of […] easier methods of killing at one remove, in which face-to-face shooting of naked men, women, and children would no longer be necessary.” And so in December 1941, with the help of T4 staff, Chełmno in western Poland went online as the first dedicated death camp, where Jews were gassed in vans designed for that purpose. Gassing Jews, SS leaders believed, would take less of a psychological toll on their murderers.

In January 1942, officials met at Wannsee and agreed to the so-called “final solution of the Jewish question,” a euphemism for the industrial murder of millions of Jews. Soon thereafter, the SS set up other death camps in occupied Poland, including Bełzec, Sobibór, and Treblinka: almost 2,000,000 Jews were murdered in these three camps alone. Auschwitz, the most notorious camp, also developed a killing site known as Auschwitz II or Birkenau.

Over 1,000,000 victims died in the Auschwitz camps: in the Birkenau gas chambers, from torture and gruesome medical experiments, from starvation and illness, and from being worked to death at the third Auschwitz camp at Monowitz, where the German conglomerate IG Farben employed mammoth numbers of slave laborers. By the end of the war, half of Farben’s total workforce was slave labor. German industry profited handsomely from the Holocaust.

Describing the genocide’s many faces, Fulbrook’s account seeks to convince her readers that, in essence, every German was more or less complicit in the Nazis’ criminal enterprise. Not every German worked at a death camp, packed Jews into trains bound for Poland, or assisted in the murder of innocent children. But the violence was so pervasive, the number of sites of imprisonment and murder so vast, the number of beneficiaries so numerous, that almost every German knew, whether they wanted to or not. “In a system of collective violence persisting over a period of years,” Fulbrook calmly asserts, “there is essentially no ‘outside’ of the dynamics of violence.”

Of course, that did not prevent Germans from claiming they knew nothing. And for years, those narratives held the day. But Reckonings is of a piece with other scholarship from the last several decades that has convincingly revealed just how complicit all organs of state were in the murder of Jews and how widespread knowledge of the Holocaust was among Germans.

In 2013, for example, scholars at the United States Holocaust Memorial Museum discovered, after 10 years of research, that the Holocaust had encompassed 42,500 prisons, ghettos, and camps at which victims were confined and murdered. With so many sites dotting the European countryside, it strains credulity that any German could have lived in blissful ignorance of what their government was undertaking in their name.

“An appreciation of the sheer extent and visibility of Nazi inhumanity — even well away from the gas chambers of Auschwitz,” Fulbrook contends, “provides a crucial clue to the widespread unease underlying the later claim ‘We knew nothing about it’.”

These two elements — mass culpability and mass knowledge of the Holocaust — are important to Fulbrook’s project precisely because they illustrate how difficult the question of exacting justice in the postwar era was. After all, how do you put an entire nation on trial?

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Any reader would be forgiven for thinking that the Allied Powers had done a successful job denazifying Germany and prosecuting perpetrators of war crimes and crimes against humanity. After all, the International Military Tribunal (IMT), better known as the Nuremberg tribunal, became the fountainhead for international criminal law, the basis on which other perpetrators of genocides from Bosnia to Cambodia have faced justice. Of the 24 defendants, the IMT sentenced 12 to death and seven to prison terms ranging from 10 years to life. In his memoir, The Anatomy of the Nuremberg Trials, the American prosecutor Telford Taylor wrote, “In short, the International Military Tribunal was a success.”

Beyond the IMT, thousands more trials took place between 1945 and 1949. American occupation authorities staged 12 more trials in Nuremberg that focused on the culpability of distinct institutions and professional groups: doctors, military officers, jurists, the SS, and industrialists all faced judgment for their roles in Germany’s war of aggression, the T4 euthanasia campaign, and the mass murder of Europe’s Jews.

Many of these subsequent trials, Fulbrook argues, shone a harsh light on German industry’s complicity with and profit from the Holocaust. In the Nuremberg trial of Flick corporation executives, for example, it came to light that “in his many enterprises in the iron, coal, and steel industries during the Third Reich, Flick had employed somewhere in the region of forty-eight thousand slave laborers, some 80 percent of whom did not survive.”

Moreover, thousands of Germans faced the judgment of local courts. In the occupation zones that would become West Germany, 13,600 trials took place between 1945 and 1949 involving tens of thousands of individuals. Each year of the occupation brought hundreds of convictions. Millions of German filled out denazification questionnaires and thousands were removed from their posts and deprived of their pensions.

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But for all these seemingly successful efforts to bring Nazis to justice, Fulbrook writes, “[i]n none of the Third Reich successor states was it easy to undertake a legal reckoning with Nazi persecutions.”

Austria was easily the most regressive of the successor states. Austrians were content to view their nation (inaccurately) as “Hitler’s first victim.” Unsurprisingly, then, “[t]rials of former Nazis in Austria then more or less dried up completely after the State Treaty of 1955 gave Austria full sovereignty and independence.”

East Germany, on the other hand, pursued perpetrators more aggressively, for the East German state predicated its existence on its supposed anti-fascism. Its courts (and Soviet occupation authorities) meted out far harsher punishments, on average, than those in the West. Fulbrook notes that between 1945 and 1989, the year the Berlin Wall fell, East Germany and its Soviet zone predecessor passed almost 10,000 sentences for Nazi crimes on a population of roughly 17,000,000. In the same period, West Germany and the Western zones passed less than 7,000 sentences on a population of almost 60,000,000.

Indeed, West Germany offers the most perplexing case. For all that the Western powers hoped to purge West Germany of its criminal past, the newly independent state quickly set about undoing denazification. To begin with, the Nuremberg trials, which were intended to teach Germans about the crimes of their government, were quickly delegitimized. While 78 percent of Germans believed the IMT to be fair in 1946, by 1950 that number was a mere 38 percent.

The reasons are easily grasped. Judges had been drawn exclusively from the Allied countries, opening it to the charge that its judgments represented nothing more than “victors’ justice.” Likewise, opponents charged that if Germans were to be held responsible for their crimes, the Allied Powers too should be held responsible for their own transgressions, including the firebombing of German civilians.

Moreover, the trial’s legitimacy rested on the London Charter, issued on August 8, 1945. The Charter had defined a new set of crimes, including crimes against humanity and crimes against peace. Because these offenses had not been crimes at the time of their commission, Germans charged that the trials represented an ex post facto application of law, something that most liberal jurisprudence forbids. The trials of high-level perpetrators thus failed to convince many ordinary Germans that the Nazi regime had been a largely criminal enterprise guilty of the murder of millions of innocent people.

The denazification carried out by Western powers also proved to be an illusory palliative. Most Germans, in Fulbrook’s words, considered these efforts “a hurdle to be jumped rather than an occasion for serious confrontation with the past.” A cartoon from 1946 satirized this view, showing black Nazi sheep tumbling into a large machine labeled “De-Nazificator.” Out of the machine appear reformed, snow-white lambs.

Konrad Adenauer, West Germany’s first chancellor, was determined that the new country should not be preoccupied with the crimes of its past. The new chancellor distinguished between what he saw as the few “real criminals,” as Fulbrook puts it, and the many who did not deserve punishment. In effect, he “reversed much of what the Allies had initially achieved.”

Adenauer’s government passed an amnesty law in December 1949 that forgave all crimes carrying sentences of less than six months. Coupled with a later amnesty law and pardons of many high-ranking perpetrators, Adenauer’s government obviated much of the justice meted out between 1945 and 1949.

Two years later, Adenauer’s government passed a law allowing former civil servants to claim their pensions and to be reinstated into their former jobs. Tens of thousands of former Nazis benefited from the statute and it led “to what has been called a ‘renazification’ of the West German legal profession in the 1950s.”

Finally, West Germany’s Basic Law, its constitution, explicitly forbade the ex post facto application of law, meaning that Holocaust perpetrators could no longer be tried for crimes against humanity. All future trials would have to rely on Germany’s murder statute (which had remained theoretically in force during the Nazi years). This meant any state-sanctioned killings were now legally protected. This technicality meant that even once West German prosecutors began to show a renewed interest in tracking down perpetrators in the 1960s, two-thirds were only convicted of being “accessories to murder” and were given commensurately shorter sentences for their role in slaughtering thousands.

Fulbrook muses that these legal decisions “may pragmatically have assisted political stability in an emergent democracy: exemplary punishment of the few combined with widespread rehabilitation of the many may have served to spread a moral lesson without fomenting widespread unrest.” But they also did grave disservice to those who survived the Holocaust, depriving them in many cases of any sense of justice.

The story of Friedrich Flick is perhaps a fitting capstone to these inadequacies of justice. When Flick corporation executives were put on trial at Nuremberg, only two of Flick’s colleagues were actually convicted (by an American court no less). Flick himself served less than three years in prison after receiving a pardon in August 1950. He never paid any compensation to former slave laborers. When he died in 1972, he was the wealthiest person in West Germany and passed a vast fortune on to his heirs. In 2018, Bloomberg reported that his twin grandchildren Karl-Friedrich Flick and Viktoria-Katharina Flick were, at the age of 19, the world’s youngest billionaires.

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Reckonings suggests that when governments commit crimes it is exceedingly difficult to hold them accountable, for the state’s sovereignty, power, and legitimacy stand behind all a government does — even a criminal government. And so when Fulbrook writes that “there can be no easy resolution […] and this discomfort, this failure to achieve resolution, remains with us today,” I take it to mean not only the failure to provide justice for Holocaust victims but also the failure to provide justice for victims of state-sponsored violence everywhere.

This is the ultimate message, and perhaps one of the ultimate lessons of the Holocaust: that crimes of collective guilt — crimes of the state — are often unpunishable. For those waiting for justice for bureaucrats and politicians complicit in such crimes, Reckonings seems to offer a simple, ghastly message: don’t count on it.

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Samuel Clowes Huneke is a historian of modern Germany at George Mason University. He is currently at work on a book that examines homosexuality and politics in Germany during the Cold War.