Historians at the Frankfurt Auschwitz Trial: Their Role as Expert Witnesses 9781350986688, 9781838608651

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'Die Weltgeschichte ist das Weltgericht/ - Friedrich Schiller, Resignation

List of Plates

Photographs courtesy of Alexander Klotz, Sachbearbeiter Fotografie, Sammlungen und Nachlasse, Institut fur Zeitgeschichte. Plate 1 The Institut fur Zeitgeschichte began life in this building at Mohlstrafie 26. Owing to its growth and limited space, the Institut moved to its current location, Leonrodstrafie 46b, in 1972. Plate 2 Paul Kluke (pictured here in the 1950s) became the somewhat reluctant - IfZ General-Secretary in 1952 following the untimely, accidental death of Hermann Mau. It was under Kluke that the IfZ experienced an exponential growth in requests for Gutachten, the difficulties around which Kluke repeatedly made known at advisory board meetings. Plate 3 Helmut Krausnick (pictured here in the 1960s) joined the IfZ in 1951, and succeeded Kluke as Director in 1958. Krausnick held this position until his retirement in 1972. In the context of West German historians as expert witnesses in Holocaust crimes trials, Krausnick's contribution to the 1958 trial of Einsatzkommando in Ulm was particularly significant. Plate 4 Martin Broszat (pictured here in the 1970s) joined the IfZ in 1955, and succeeded Krausnick as Director in 1972. Broszat held this position until his death in October 1989.

Acknowledgements

The story of how this book came together could itself be described as a work of history, one spanning almost two decades. As multi-causal as any historical event, it would never have been completed without the time and support of many to whom I owe a debt of gratitude. It seems apt to begin by thanking Deakin University for supporting me as an undergraduate and postgraduate over a cumulative nineyear period. The efforts of library staff in doggedly meeting every strange and wonderful request from me for material - undoubtedly picking up some German along the way - has been remarkable. The ongoing support of Deakin's Contemporary Histories Research Group is invaluable. Words are a totally inadequate means of conveying my deep gratitude and heartfelt thanks to three Deakin scholars in particular: David Lowe, Pam Maclean and Tony Joel. Stumbling my way through first-year history in 1999, my very first lecture was given by the then cardigan-wearing Dr David Lowe. Twelve years later, the no longer cardigan-wearing now Professor David Lowe offered sage, sensible and timely advice throughout the course of this project. Pam Maclean is a very special individual to me, one who more than any other saw something in me resembling talent, and implored me to pursue postgraduate ambitions. Pam's advice shaped my historical apprenticeship immeasurably. I had never met Tony Joel prior to my return to Deakin in 2011. When it was revealed in my very first meeting with Tony that he, too, was a

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Richmond Tigers tragic from way back, our fates were sealed. A shared practice of Australian football masochism aside - until, at least, the mutual savouring of the mighty Tigers' ultimate victory in 2017 Tony's ability to complete his PhD and undertake extensive research in Germany during his candidature with young children in tow has remained a much-needed source of hope and inspiration. Tony, 'this one's for you!' Support from the Deutscher Akademischer Austauschdienst (DAAD) facilitated critical archival research in Germany in 201314. Deepest thanks to Norbert Frei and to the Jena Center Geschichte des 20. Jahrhunderts he directs for their long-standing support of this project and guidance over many years. Special thanks also to Jena Center colleagues Kristina Meyer, Daniel Stahl and Annette Weinke. I have been overwhelmed by the willingness and generosity of eminent scholars in lending their time and support, including: Volker Berghahn, Hans Buchheim, Christoph Dieckmann, Randall Hansen, Isabel Heinemann, Peter Longerich, Jorg Osterloh, Lutz Nietkammer and Daniel Siemens. Particular thanks to Nicholas Berg, Jost Diilffer and Devin Pendas. I acknowledge the support of archivists Esther-Julia Howell (Institut fur Zeitgeschichte Miinchen), Annegret Neupert (Bundesarchiv Koblenz) and Werner Renz (FritzBauer-Institut). Particular thanks to former Frankfurt prosecutors Gerhard Wiese and Johannes Warlo for their time and willingness to be interviewed for this project. For their detailed comments and helpful suggestions on an earlier draft, I would like separately to thank Ulrich Herbert, Konrad Kwiet and Dieter Pohl. My gratitude to I.B.Tauris, and to Joanna Godfrey in particular for her interest in, enthusiasm for and ongoing patience with the development of this book. Personal thanks are extended to Jacob Eder and Amandine Barb, Sarah Coates, Emma Grayson, Tatjana Schiwek and Eden Whittaker for their support, encouragement and friendship. Thanks are also extended to my many Deakin colleagues over the years, including but not limited to Rohan Bastin, Donna Frieze, Sam Koehne, Murray Noonan and Celeste Thorn.

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Words fail when it comes to thanking my family. Thank you to David Lindrea, Tony and Liz Vaughan, and Christian Vaughan and Rebecca Williams. Deepest thanks to Jan Vaughan for her perseverance and generosity, and to my parents, Karen and John, for their love and inexhaustible support. Finally, to my four beautiful children - Maeve, Harvey, Clancy and Bastian - and my wife Alison. Your love, sacrifices and support have meant and mean everything to me. Thank you for turning another dream into a reality.

Introduction

On 7 November 1962, in Frankfurt am Main, West Germany, a meeting took place between 14 prosecutors and four historians. 1 Its objective was to prepare for an upcoming trial of suspected Nazi criminals: former personnel of the Auschwitz death camp. Specifically, the matter of discussion was the proposed engagement of historians as expert witnesses for the prosecution. The trial was to become the most famous in West German history: the Frankfurt Auschwitz trial, which ran from 19 December 1963 to 20 August 1965. The pre-trial meeting was led and dominated by Fritz Bauer, the intrepid Attorney-General of Hesse, and his team of prosecutors.2 Among the historians present were three men from the Munich-based Institut fiir Zeitgeschichte (Institute for Contemporary History, or IfZ) - Helmut Krausnick, Martin Broszat and Hans Buchheim. Under Bauer's instructions, these three historians were to introduce 'matters of recent history' into the trial. This injection of historical expertise was intended to contribute to the successful prosecution of those charged, and to force the German public to confront its Nazi past. The historians were to produce expert reports, known in German as Gutachten, on topics specified by the prosecution and deemed most relevant to the trial. The written Gutachten were to be tended to the court for scrutiny. Each historian, in turn, was to appear in court on a nominated day to testify from the witness box, to provide a verbal summary of each Gutachten, and

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to answer questions from the judges, defence and prosecution. The triumvirate of Krausnick, Broszat and Buchheim was ultimately joined in Frankfurt by the Bonn-based historian Hans-Adolf Jacobsen. Furthermore, as Bauer stated in November 1962, the four historians' expert witness reports were to be published in the form of a book immediately following the trial. Released in 1965, it became one of the most influential works by West German historians in the postwar era: Anatomy of the SS State.3 This book examines the roles Krausnick, Broszat, Buchheim and Jacobsen played as expert witnesses in the Frankfurt Auschwitz trial, their experiences in the courtroom, and how this engagement produced Anatomy of the SS State. More precisely, it investigates how the historians came to write their Gutachten, analyses the degree to which their expert witnessing contributed to the Frankfurt court's verdict and scrutinises the ways in which Anatomy shaped subsequent historiography. As will be revealed, the book was an immensely popular and authoritative contribution to scholarship that comprised of reports for the trial. Yet, the process and circumstances under which the Gutachten and Anatomy were conceived, constructed, received and came to wield influence are matters far more complex than previously understood. Indeed, at its core this book argues that the relationship between historical expertise and the Frankfurt Auschwitz trial is thoroughly paradoxical for three main reasons. First, the historians were reluctant courtroom participants, and viewed the writing of Gutachten as burdensome. Ultimately, though, the undertaking opened new opportunities for creating historical knowledge, and marked its authors as leading experts in contemporary history. Second, Bauer's commissioning of the historians as expert witnesses was viewed by prosecutors as essential to their case against the defendants. The historians' actual contribution to the judicial outcome of the trial, however, was less decisive. They faced the rigours and acerbity of court, though the historiographical success of Anatomy was not preceded by a corresponding degree of judicial triumph. Finally, historical reports that were constructed for use in a trial, and restricted by legal parameters determined by

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German law and imposed by prosecutors, subsequently became highly influential works. The book makes a number of additional claims to originality. It explores the unanticipated problems and benefits that arise from writing history for an official - in this case, legal - purpose. It is a process that sees the historian's main objective of advancing historical knowledge collide with the law's need to reach a just verdict. The book also probes the ways in which West German historians slowly began to engage in the writing of their recent, Nazi past, and the repercussions of the trial and publication of Anatomy on this process. It conveys an understanding of Gutachten as a form of historical writing within the newly established IfZ, the place of historical experts within the West German legal system and the state of West German historical scholarship in the mid-1960s. While to a greatly diminished extent it may be possible for insight to be gleaned on these sub-topics through a similar analysis of other trials or historical works, in the case of the Frankfurt Auschwitz trial and Anatomy the matters at hand are themselves substantial: they involve four leading West German historians; the nation's most famous trial; and a groundbreaking work of contemporary history.4 THE EXPERT WITNESS HISTORIAN Underpinning this book is the concept of an expert's history: defined here as a written work of history constructed by professional historians for an official purpose, which subsequently becomes part of historical scholarship. These particular histories are created in direct response to instructions from a requesting agency - whether it is a government department, administrative tribunal or a judicial body. The initial request for historical expertise is formulated by the requestor with applicable legislative provisions in mind, and with a view to achieving a desirable outcome. For historians stepping into the courtroom witness box to testify at a murder trial - as the four experts did in Frankfurt the matters at hand are no less than an individual's liberty and

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justice for victims. Thus, the expert's history is written under circumstances that markedly differ from those typically confronting historians. More than a new addition to historical knowledge, an expert's history is designed to influence a legal outcome, and is shaped by the needs of the requestor. Anatomy of the 55 State is a work of history that entered the scholarly domain bearing the marks of its judicial origins. Representing a collision between history and law, as well as scholarship and justice, the role of the historian as expert witness and the history they produce have all come under intense scrutiny. In the prosecution of Nazi crimes trials in West Germany in the 1960s, however, the engagement was viewed by many key figures as essential. In West Germany from the mid-1960s and throughout the 1970s, the historian most engaged in Nazi crimes trials was Wolfgang Scheffler.5 Although Scheffler did not take part in the Frankfurt Auschwitz trial, thereafter he acted as an expert witness in more than 50 Nazi crimes trials. Given this unmatched degree of experience, Scheffler arguably is best equipped to precisely define the historian's task in court. The primary responsibility of the role, according to Scheffler, is the 'elucidation of historical background' for the court, and answering any questions posed by the judges, defence lawyers and prosecutors. Both historians and the court share the same goal, namely 'to introduce knowledge and sources into the trial, and to bring the knowledge of all participants to an equal level.' 6 What Bauer requested of historians at the November 1962 meeting squared with Scheffler's later definition of the expert's role. The 'matters of recent history' that Bauer referred to were no less than the entire political and institutional framework within which the alleged crimes took place. 7 The use of historical experts in Nazi crimes trials, however, was not merely for effect. The West German legal system and its penal code left judges with much ground to cover and intricate historical context to discern. In 1960s West Germany, as in the unified Germany and much of continental Europe today, the inquisitorial model of justice operated and civil law was practised. Rather than adjudicating between competing arguments around guilt and innocence - the

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prerogative of judges and jurors within the contrasting adversarial system of law - West German judges assumed the role of investigator. Judges had the power to decide what charges the defendants would face, the order of witness questioning and the questions to be answered. 8 Tantamount to a truth commission, the court had to take the initiative to discover both the full facts of the alleged offences, and the defendants' actions. 9 The reasons for this can be found in the German concept of 'crime', which, as Heinrich Reiter argues, 'distinguishes between unlawfulness and blameworthiness/ 10 According to Reiter, in effect this means that the act itself must be proven, as well as the defendant's personal responsibility, both combining to determine guilt. 11 Additionally, under the 1871 German Penal Code {Strafgesetzbuch), murder or accessory to murder were the only options available to German prosecutors in their trial of Nazi crimes after I960. 12 As Henry Friedlander claims, the West German republic 'refused with Teutonic thoroughness to apply new, and therefore retroactive, law to Nazi crimes of genocide', leaving murder and the existing German Penal Code as the sole recourse. 13 The specific definition of murder also complicated the judges' task. According to Article 211 of the German Penal Code, a murderer is 'someone who kills a human being out of bloody lust, for the satisfaction of sexual desires, for greed or any other base motive [niedriger Beweggrund], in a cunning [heimtuckisch] or cruel \grausam] manner or by means of causing common danger, or to make possible or conceal another felony.' 14 The proving of bloodlust (Mordlust) was critical in Nazi crimes trials since, in its absence, defendants could only be convicted as accomplices, irrespective of whether they knew the act was illegal.15 The labyrinthine character of Nazi crimes trials demanded a reconstruction of pertinent historical background, in order to assess the role, deeds and motivations of individuals in the dock. Those on trial had been ordered by their superiors to be accessories to the state-organised murder of millions, though were on trial only for killings that took place above, and often in contravention of, those orders. 16 Comprehensive representations of chains of command, 'objective

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circumstances' and individual duties were thus essential in enabling judges to discern where orders ended and personal motive began. 17 For prosecutors such as Bauer, it was the role of historians to fill these critical gaps in knowledge. Their acts of testimony from the witness box were to not only increase the court's awareness of historical context, but also captivate the West German public. Historical expertise was needed to successfully prove defendants' guilt. Even with historians' assistance, however, the burden on West German prosecutors in successfully bringing a case to trial was considerable. The West German legal system obliged its prosecutors to construct a detailed indictment (Anklageschrift), one that contained all evidence the prosecutors wished to present against the defendants, submitted before the trial began. The indictment represented the prosecution's entire case and, in Devin Pendas's view, the document was the 'single most important contribution that German prosecutors [could] make to a trial'. 18 In Nazi crimes trials, the need to prove 'base motives' forced prosecutors to draw comparisons between the brutality and frequency of mass killings, and murders committed in which particular malice was displayed and could be proven. Personal initiative needed to be demonstrated through reference to official regulations, and ways in which the defendants had acted in their contravention. To overcome this evidentiary burden, racial motivation was used to demonstrate 'base motives', methods of mass killing were judged as 'cruel' and the deceptive measures used to more effectively enable the killing, it was argued, were 'cunning'. 19 Those on trial, Eric Haberer points out, were not likely to confess to murder, still less that 'base motives' had motivated them to kill. In order for prosecutors to prove this, according to Haberer, it was necessary to provide a 'detailed analysis and comprehensive understanding of the objective institutional, organizational, ideological, and jurisdictional circumstances in which the crime took place', which would indicate 'whether subjective motives had led the accused to commit murder.' 20 Thus, ideologically motivated mass crimes

Introduction

7

needed to be understood and represented by jurists using standard legal vernacular and a limiting definition of murder. Historians provided this interpretative bridge through their carefully researched Gutachten, enabling lawyers to mount legally sound, historically accurate arguments. 21 The experts' histories that materialised from this engagement of historians in West German courts were framed by prosecutors and designed to achieve successful legal outcomes. Historians testified not as scholars per se but as judicially appointed experts, their historical treatises transformed into court reports. In the case of the Frankfurt Auschwitz trial, the experts' history entered the realm of historical scholarship in the form of Anatomy of the SS State. PLAUSIBLE VERSUS PROBABLE: HISTORY AND LAW The sourcing of historical expertise for Nazi crimes trials is not without its opponents. One of the most outspoken critics of the practice is historian Henry Rousso, who famously refused to testify at the 1998 trial of Maurice Papon, a French national accused of deporting Jews to their deaths during World War II. The trial was to be held in Bordeaux, France, and in his submission to the court Rousso argued that: In my soul and conscience, I believe that historians cannot be 'witnesses', and that a role as 'expert witness' rather poorly suits the rules and objectives of a court trial. It is one thing to try to understand history in the context of a research project or course lesson, with the intellectual freedom that such activities presuppose [...] [however,] the argumentation developed in a trial is not of the same nature as that produced by scholars.22 For Rousso, the trial of Holocaust perpetrators is a legitimate enterprise, but one that is at odds with historians' imperative to understand - rather than to judge - the past. 23 Furthermore, Rousso's claim that '[historians are no longer in their proper element once they don courtroom robes' expresses a sentiment shared by a number of other scholars that history and justice are fundamentally

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disparate enterprises.24 Superficially, both history and law interrogate various forms of evidence - documentary, eyewitness or physical - in striving to establish reasonable conclusions about the 'truth' of a particular matter in the past. Both rely on a preponderance of this evidence and its evaluation to support an overarching judgement. Indeed, observations of the basic similarities between the two practices, and a nascent view of historians as mere 'fact-finders', has led more than a few jurors to question what historians can do that judges cannot. 25 In reality, the dissimilitude between history and law runs far deeper. It is not simply that the quotidian task of meting out justice differs from the avenues of investigation explored by historians. The differences lead their practitioners to adopt correspondingly dissonant methods. Drawing on years of experience as an expert witness, historian David Rothman plainly states that '[t]o enter the courtroom is to do many things, but it is not to do history.' In Rothman's view, the law's preoccupation with a judicial outcome constricts the expert witness historian's scope and mode of research. 'The essential attributes that we [historians] treasure most about historical inquiry have to be left outside the [courtroom] door', argues Rothman, concluding that, as a result, historians' 'scope of analysis is narrowed, the imagination is constrained, and the curiosity, curtailed.' 26 Historians may well impart considerable knowledge about historical background, unravelling an intricate web of connections for the judges' and jurors' benefit. In Rothman's view, however, the 'understanding' of the past historians offer to a court, though useful, does not constitute 'history'. It should be stressed, however, that the courtroom the likes of Rothman and others dissociate from the practice of history is considerably different to that entered by the historians in Frankfurt. The system of common law, which governs adversarial court proceedings, operates predominantly in the USA and former British colonies. 27 A trial under this system is less a search for truth than it is a decision on the most likely version of the truth presented by prosecution and defence teams. Strictly regulated by laws that protect individual rights, opposing counsel present evidence to

Introduction

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support their respective cases, argue in favour of their client (the State, in a prosecutor's case), rebutting their opposition's arguments, with a judge or jury reaching a decision after all evidence has been heard. Historians who find themselves subjected to the evidential rules of this adversarial setting, according to Douglas R. Littlefield, may have their reports picked apart by the other side's successful objection to various bits of evidence. Highly relevant, the exclusion of this material may be so acute that the historical reports are effectively confined to the judicial dustbin. 28 Where historians escape from such a barrage with the evidentiary basis of their reports sufficiently intact, the witness box and a pugnacious opposing lawyer await. Historians appear on behalf of one side in an adversarial courtroom, and their testimony is designed to support that party's legal argument. Yet, they must simultaneously exude an air of impartiality, lest the counsel opposite detect a whiff of bias and proceed to advocate for the historian's preclusion. Under common law, truth becomes secondary to justice, and justice relies on a set of evidentiary rules designed not to ascertain the ultimate truth of a past event, but to reach a just verdict. In this adversarial setting, the legal prerogative to win a case may lead lawyers to, in Jonathan Martin's words, 'work doggedly' to withhold evidence that is unclear, weakens their argument or is inimical to a successful outcome. 29 Without question, such unscrupulous practices would spell - and have spelt - both scholarly treason and reputational ruin for historians. Theirs is a wholly interpretative exercise, one in which narratives are constructed that identify - even highlight - ambiguity and gaps in knowledge. The fragmentary nature of historical evidence leads to informed speculation. Where lawyers quarrel over the probability of an event's isolated aspects, historical disagreements centre on the plausibility of 'competing visions'. 30 Matters of fact may be recognised by a court and accepted by all litigious parties; historical facts, if they exist, are themselves matters of dispute and re-interpretation. History's lowered benchmark of 'plausibility' allows it to investigate and scrutinise evidence otherwise excluded by the law's more restrictive

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'probability' requirement. As Martin notes, without the boundaries imposed by a court's need for certitude, historians might describe their interpretations of evidence and the nature of historical conclusions variously as 'subtle', 'often ambiguous', 'rarely categorical', 'multivalent', 'revisable', 'pluralistic', 'open', 'ironic' and 'contingent'. 31 The question of guilt or innocence - the only question relevant to lawyers - is, in historian Peter Mandler's view, no more than a useful beginning for historical enquiry.32 Historians do not restrict themselves to legal definitions of murder, manslaughter or bodily harm. 33 Nonetheless, a court's appetite for certitude from its expert witnesses may force its way into historians' courtroom interpretations of the past.34 Historians may, for instance, witness the excision of core evidence from their reports and testimony, then find themselves impelled under belligerent cross-examination into adopting an interpretation more categorical than they believe the remaining evidence supports. Indeed, while historians and lawyers both use evidence to support their arguments, the types of evidence accepted by each discipline are starkly different. Various canons of law, designed to protect the integrity of a proceeding and defendants' rights to fairness, automatically veto the examination of certain evidence types freely available to - and frequently coveted by - historians. For example, where an eyewitness is called to testify in court, their state of mind, relationship to the defendant and mental competence may serve to preclude their stepping into the witness box. Professional historians must certainly turn their minds to such considerations in assessing the value and veracity of eyewitness evidence. Post-traumatic stress disorders, lapses in memory, amnesia, even death: none - in and of themselves - results in the dismissal of this material from an historian's inquisition.35 As 'arbiters' of the recent and distant past, historians are left to reconstruct it using traces of evidence, rarely experiencing the opportunity to interact with its long-departed subjects.36 Needless to say, there is no obligation for historians to offer colleagues holding a dissenting view the chance to publicly scrutinise eyewitnesses, such as defence counsel might through crossexamination.

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As with living witnesses, the scattered and often chaotic state of documentary evidence that forms the basis of their enquiries compels historians to accept material courts would immediately reject as inadmissible. Handwritten, undated notes of dubious veracity, unconfirmed origin or creator, that relate third-hand discussions, to give but one example, cannot be discounted and may provide a vital clue to solving key historical mysteries, allowing insight into otherwise latent private sentiments, public Zeitgeist or political climate. 37 History is not encumbered with a duty to uphold persons' rights to a fair and public hearing in the construction of its narratives. Confessions obtained under torture or the threat of death would assuredly prompt a defendant's acquittal, and the torturer's prosecution. For historians, the tormentors may or may not receive admonishment for the means used to extract information within their examination of it, but nothing predetermines the material's interdiction. There is no set of agreed-upon guidelines for the treatment and admissibility of evidence, hammered out at historical conferences, for example. 38 History employs means to protect the inviolability of its methodologies, not the rights of its subjects. Narratives are formed through a mosaic of carefully weighted and assessed pieces of evidence. Its parts may be wholly or partially accepted for various reasons, and historians are bound to express qualification or uncertainty in their conclusions and interpretations. Nonetheless, the pass grade for historical evidence is necessarily lower than that of its juristic equivalent, a willingness that Carey Joynt and Nicholas Rescher attribute to the 'inevitable concession to realism' that historians must make to obviate the 'complete fragmentation of our understanding of history.' 39 Conversely, the higher standard of evidence a court is behoved to weigh tends to generate a picture of the past that is invariably of reduced complexity to that typically constructed by an historian. 40 While less than ideal, the compromise can and must be afforded. When history gets it wrong, an individual falsely accused or adjudged may have their reputation restored through the discovery of new, or the revision of existing, material. When the law gets it wrong, and the ultimate price is paid at the gallows, the

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accused cannot be as easily resuscitated as their history can be rewritten. Moreover, the questions of 'what' and 'who' that dominate judicial investigations, in the hands of historians, act only to inform their all-encompassing question of 'why' - the latter of which is frequently off-limits in a court of law. Primarily, courts are charged with deciding whether an event took place at all, not why it occurred.41 Moreover, the judicial determination of whether or not a criminal act took place, according to Michael Wildt, 'explains neither the act nor the perpetrator'. 42 Lawyers, limited in their focus on the particulars of a given trial, will likely require no details on the daily life, work, eating, marriage and celebratory habits of a trial's subjects (or victims of the crime in question), during a time period or in a specific location. These topics, however, may form the key areas of interest for various historians. Free to engage in research at their inquisitive leisure, historians are able to select from a virtually endless list of subject areas. In Wildt's view, the priorities of justice may lead to the relegation of a theme as intricate and horrifying as the Holocaust to the category of context, outside the bounds of legal relevance. In practice, this has led to the excision of aspects central to these events - the daily violence against German Jews, theft of their belongings, their exclusion and ultimate expulsion from German society - from what is voluminous trial material.43 Likewise, a court will reduce the narrative of mass murder to its individual parts, ignoring the sum and concomitant equation that occupies historians. Again, the evil is a judicially essential one. As with all liberal democracies, West Germany did not recognise crimes against humanity, or mass murder, as an offence, and successful convictions for murder depended on this reduction. While the law is content to rest its narrative on individual persons and acts, historians, according to Wildt, are compelled to develop other criteria and measures to explain the 'reasons for historical developments not found in individual persons.' 44 Historical research can be guided by a host of categories and groups, such as class, association, collectives of people, measurements such as population growth or even non-human subjects such as the environment. 45 Historians, moreover, locate guilt

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not within an individual, but within broader national, international or global contexts. 46 In Martin's view, as a result, history and law are 'not just odd bedfellows but perfect strangers/ 47 Where historians hold steadfast to the principles of their discipline and retain traces of ambiguity in their courtroom interpretations, the result can be equally distressing. The scene may become one in which, as dramatically painted by Richard Evans, 'carefully researched historical material [is] ripped out of its context by clever lawyers and used as a bludgeon to beat the other side.' 48 Another contemporary describes the court into which an historian steps as an arena full of 'legal lions'. 49 For Buckner Melton, the application of legal rules of evidence to historical research is 'downright dangerous for the truth.' 50 Rendering an accurate and compelling interpretation of past events is of interest to legal teams only insofar as it acts to convince the decision maker that their client's story is the most probable one, beyond a reasonable doubt. 51 Thus, while history's and law's verdicts on what constitutes evidence may frequently intersect, for many historians the purposes, methods and functions of their practice seem alien to the corresponding features of law. Subject to the strict evidentiary rules of justice, historians' courtroom testimony and written reports may not only be weakened through the exclusion of critical evidence, but their historical interpretations severely disfigured as a result of fierce cross-examination.

LOCATING THE PARADOX: HISTORICAL KNOWLEDGE AS LEGAL EVIDENCE Rousso's objections to historians' engagement as courtroom experts is vehemently expressed, though not singularly held. Even as one of the most vocal opponents of history in court, however, Rousso maintains that the Frankfurt Auschwitz trial is an exceptional case. Admittedly, the four historians encountered the same set of circumstances in Frankfurt that Rousso found so unacceptable in Bordeaux: historians were to assist the court in reaching a verdict of guilt or innocence; and to be subjected to the rules of a legal process.

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Nonetheless, what Rousso calls the 'weight of guilt engendered by Nazism and the Holocaust' was, in his view, sufficiently heavy in the trial of 20 Auschwitz personnel to justify the engagement of historians. 52 Moreover, in the early 1960s historical knowledge of the Nazi period was at an early stage of development. It could not, Rousso argues, 'provide magistrates with [the] tried and true interpretive grids' needed to comprehend the matter before the court. 53 Yet, Rousso depicts the particular legal and historical collaboration between Bauer and historians in magnanimous terms, beyond the judicial utility of historical expertise. Prosecutors and historians, in Rousso's opinion, 'were seeking a truth that they helped to elaborate together, each with their respective methods and objectives/ 54 Rousso's verdict on the Frankfurt Auschwitz trial is made in stark contrast to his mostly negative view of historians entering court. The gravity of crimes committed in Auschwitz, according to Rousso, justifies historians' involvement even where a finding of guilt or innocence may conflict with their standard practices of scholarship. With the benefit of hindsight, Rousso spoke positively of the role played by historians in the Frankfurt Auschwitz trial. At the time, however, two leading West German jurists sought to unmask what they perceived as a dangerous and emerging legal and historical entente cordiale between historians and prosecutors, of which the recent Frankfurt Auschwitz trial represented the most threatening example. In a brief article from 1965, titled 'The Contemporary Historian as Court Expert' (4Der Zeithistoriker als gerichtlicher Sachverstdndigef), Ernst Forsthoff cautioned that the 'dressing up' of historical reports and their 'forensic use' was itself anathema to the practice of history.55 Taken literally and seen by a court as the final word on a particular matter, the Gutachten 'become apodictic', an outcome which, in Forsthoff's view, spelt no less than 'the death of research in the humanities'. What should be an 'unending intellectual process' for historians in their quest for historical knowledge and truth instead receives an anomalous finality through the reports' expression in the ultimate court judgement. Contradictorily, although Forsthoff advocated for the 'unending'

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refinement of historical knowledge - one he identifies as the lifeblood of the discipline - in his view its practice simultaneously threatened to undermine judicial outcomes. 'What are the legal implications', Forsthoff asked rhetorically, 'of an historical Gutachten, which has been of considerable value to a judicial finding, being discredited through subsequent research'? Though openly conceding the answer was unknown, Forsthoff tentatively suggested that a new trial would be the only recourse. Anticipating 'hundreds of trials' in the near future, Forsthoff's call for the quarantining of history from law was made to guarantee their respective sanctity. 56 A more balanced though nonetheless alarmed conclusion was reached by another jurist, Jtirgen Baumann. In a contribution to a 1964 book examining National Socialist crimes, Baumann argued that the lines of demarcation between 'witness evidence' ('Zeugenbeweis') and 'expert witness evidence' ('Sachverstandigenbeweis') were blurred. 57 For Baumann, the emphasis at all times had to be on the laws governing the admissibility of evidence. Unlike Forsthoff a former leading Nazi juror - who would have freely incited a courtroom boycott of historians, Baumann's primary concern lay in the admission of 'facts' into the proceeding by recognised experts, which, ordinarily, would rely on eyewitness evidence and court investigation. The particular example Baumann singled out as most illustrative of this challenge was the near-universal defence claim of 'superior orders' {'Befehlsnotstand'): that refusing to carry out orders to kill would directly have threatened the life of the refuser. For historians, rebuttal of this claim rested only on an absence of evidence - namely, that despite a myriad of known cases in which orders to kill were refused, not a single case had emerged in which such a decision had led to an individual suffering corporal or capital punishment as a result. In Baumann's view, this postulation, however well researched, was precarious and judicially unsound. 'Could the defendant not be the sole case in which rejection of an order to execute meant death for the refuser', asks Baumann rhetorically. In response, he underscored a court's pervasive obligation to locate and interrogate positive evidence, and to derive

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conclusions based on its weight. 'Suspicion' and 'gut feelings' alone did not suffice in reaching a guilty verdict, irrespective of the gravity of charges. Where uncertainty arises, and a defendant's version of events cannot be disproven, benefit of the doubt must be afforded. The inescapable ambiguity that frequently enters historical narratives is a quality that lawyers revile, and historians revel in. For Baumann, however, the practice of accepting historians' presumptive conclusions as prima facie evidence of culpability equalled nothing less than a 'new injustice'. 58 The letter of the law stipulated the degree of certitude needed to reach a verdict - a height that, in Baumann's view, historians' Gutachten were unable to scale in determining the existence of 'superior orders'. For their part, the historians who appeared as experts in West German courts displayed few compunctions about the possible legal fallout from their involvement. Confidence in their well-honed methodologies nullified the jittery exhortations that reverberated around legal quarters such as those occupied by Forsthoff and Baumann. For Martin Broszat, the distinction between a court's objectives in determining a criminal matter, and the role of an expert witness historian appearing before it, could hardly have been sharper. Broszat, who features in this book as one of the four expert witnesses in the Frankfurt Auschwitz trial, denounced as false the assumption that historians wield power in determining guilt or innocence. The individuals on trial and their alleged offences were only of interest to the expert witness historian as a starting point for their analysis of broader context, the 'complexities and interdependencies' of which, in Broszat's view, kept historians 'at the edges of an individual's responsibility.'59 Though the written or oral evidence an historian tenders to the court may assist in swaying a judge's finding one way or another, the historical expert should be viewed no differently than the equivalent specialists in medical or psychological fields.60 Arguments are mounted by each from the witness box, not in a legal sense, rather, in accordance with the norms and conventions of their separate disciplines. Deliberations over whether a breach of the criminal code has taken place remains

Introduction

17

the judiciary's fief. In the view of Hans Buchheim, another of the expert witnesses in Frankfurt, the legal framework within which he operated and constructed his Gutachten for the trial imbued Anatomy with a 'sober' quality of scholarship that should be embraced. In his introduction to the book, Buchheim wrote that '[t]he strict rules of the judicial proceeding point the way to a standard of rationalism of which we are in dire need. This was the standard which the authors of these submissions strove to maintain/ 6 1 For Buchheim, then, historians had much to gain from their legal counterparts and the adoption of certain practices which, in his view, tangibly improved the experts' history. Clearly, there are vast differences in opinion between historians and jurists on the validity of historical expertise in the courtroom, and its subsequent entry into the scholarly realm. There is no suggestion made that, in putting Nazi criminals on trial, West German courts and prosecutors in the 1960s were fully equipped to deal with the task at hand. Investigating the alleged crimes required an understanding of intricate historical context and the unravelling of complex institutional structures. It is also not a point of dispute that professional historians had the requisite knowledge to overcome this deficit. Where criticism has been aired it emanated from those who argue that the void was not historians' to fill in the first place. This book examines this disputed concept of an experts' history. It investigates how Anatomy was created for the Frankfurt Auschwitz trial, how it was treated by the court and the implications for historians' engagement in this trial for historiography. This book contends that the relationship between the trial and Anatomy is paradoxical: limited by its judicial purpose, the Gutachten that formed the post-trial book proved less decisive in court than they did in charting the course of historical scholarship. The scrutiny of archival material from several locations - including inter alia the Bundesarchiv Berlin-Lichterfelde, Bundesarchiv Koblenz, Hessisches Hauptstaatsarchiv, Institut fur Zeitgeschichte and the Fritz-Bauer-Institut - serves as the evidentiary basis for this book. Relevant documents analysed, including from personal papers (Nachlasse), consist of meeting minutes, memoranda,

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correspondence, trial material, original Gutachten and contemporaneous newspaper reports. 62 Its conclusions are derived from this wealth of material, in addition to public lectures, interviews with prosecutors and consultation of relevant secondary historical works.

THE FRANKFURT AUSCHWITZ TRIAL EXPERTS: EXISTING LITERATURE On 11 January 1995, the Fritz-Bauer-Institut was created in Frankfurt: a development with implications for research into the trial. 63 As well as bearing the name of the assiduous AttorneyGeneral inextricably linked to it, the establishment of the new institute brought with it a focus on Auschwitz as a place of extermination, on the trial of its perpetrators, and the promise of increased scholarship on the role of historians in the trial. The first such contribution appeared in the form of a chapter by historian Norbert Frei, published in the Fritz-Bauer-Institut's first annual, in 1996. 64 As Forsthoff, Baumann and Broszat revealed, there had been some public discussion prior to the historians entering the witness box in Frankfurt, and an occasional recollection of it from some of the four experts since. 65 The relationship between contemporary historians and the Frankfurt Auschwitz trial, however, had remained an obscure sub-topic until the appearance of Frei's chapter. The central thrust of this piece is that the trial broke a decade-long public attitude of indifference towards Nazi crimes trials, and led to a profitable relationship between historians and prosecutors. While this culminated in the unparalleled success of Anatomy, it did not lead to the 'great wave of contemporary historical research' that had been anticipated. 66 Yet, while Frei laments the trial's failure to inspire new streams of research in the 1960s, his 1996 article similarly did not cultivate subsequent investigations into the role of expert witness historians in the Frankfurt Auschwitz trial, their Gutachten, experiences in the witness box or the historiographical triumph of Anatomy.

Introduction

19

Both Eric Haberer and Dieter Pohl offer useful though brief overviews of the general topic of historians as experts in their respective 2005 and 2009 pieces titled 'History and Justice: Paradigms of the Prosecution of Nazi Crimes' and 'Prosecutors and Historians: Holocaust Investigations and Historiography in the Federal Republic 1955-1975'. 67 For his part, Haberer refers to the Frankfurt Auschwitz trial as an example in which historians' reports became a 'pioneering contribution of their profession to the history of the Third Reich/ 68 Pohl, similarly, examines the relationship between the historian expert witness in Nazi crimes trials and the resultant advancement of historical knowledge on the Holocaust. The Frankfurt Auschwitz trial features prominently within Pohl's survey of well-known cases, while Anatomy is described as 'the preeminent German book on Nazi crimes for a long time [italics in original]'. 69 Both Haberer and Pohl, then, allocate the Frankfurt Auschwitz trial a prominent place within the seven decades of Nazi crimes trials, note the celebrated roles played by Buchheim, Broszat, Krausnick and Jacobsen, and allude to the various historiographical marks left by Anatomy. With their analyses centring on the topic of historical expert witnesses in court, Haberer and Pohl largely avoid the question of trials as a form of legal repentance for West Germans, on which previous works were excessively fixated. Though useful contributions, the breadth of their scope and brevity of their allotted space deny Haberer and Pohl the opportunity to examine the issues raised in greater depth. One edited work dedicated to exploring the relationship between history and law is titled History Before the Court: Historians, Judges and the Search for Justice (Geschichte vor Gericht: Historiker, Richter und die Suche nach Gerechtigkeit). Published in 2000, it includes a chapter by Irmtrud Wojak, titled 'The Fusing of History and Criminology: Historical Gutachten in the First Frankfurt Auschwitz Trial' ('Die Verschmelzung von Geschichte und Kriminologie ...'). Wojak's contribution represents one of the few expressly devoted to investigating historical expertise and the trial.70 Though this work should be acknowledged, Wojak's designation of the historical Gutachten that featured in the trial as a 'fusing of history and

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criminology' is a gross over-simplification of the complex relationship between historians and their engagement as experts in the Frankfurt court. Moreover, Wojak's tendency to flit from one indirectly related sub-topic to another leaves her unable to provide much insight within her short chapter. Pendas's 2004 article, The Historiography of Horror: The Frankfurt Auschwitz Trial and the German Historical Imagination', is a far more useful piece that investigates the circumstances of the IfZ historians' engagement and inception of their Gutachten.71 Pendas's article is more focussed than Wojak's, though not without its frailties. Noting that historians' testimony at the trial was written by historians employed by the publicly funded IfZ, Pendas concludes that it was 'as close as a democratic society ever comes to having a historiographical party line'. 72 This view ignores the considerable interpretative differences between the four historians (which, curiously, Pendas highlights in this very article). More effective are Pendas's observations of the institutional and structural focus of the histories produced for the trial, and their relationship to provisions in German law. The mid-2000s saw a further wave of renewed interest in the trial. The Fritz-Bauer-Institut's 2004 book - simply titled Auschwitz-Prozess 4 Ks 2/63 Frankfurt am Main - is a monumental 800-page work on the trial and its pre-history.73 Rebecca Wittmann and Devin Pendas, with their respective books, Beyond Justice: The Auschwitz Trial and The Frankfurt Auschwitz Trial, 1963-65: Genocide, History and the Limits of the Law, have each laid a claim to having written the most compendious accounts of the trial to date. 74 With access to historical documents, material from the trial, and with the benefits of considerable hindsight, both Wittmann and Pendas have a decided advantage over their predecessors. For Wittmann, the main focus of her work is the pre-trial investigation as much as the trial itself. It is within this longer story of the trial that the historical experts receive coverage. One of Wittmann's primary contentions is that the historical lessons the trial conveyed to the German public were distorted by the definition of murder in German law. It is a 'paradox' that Wittmann excessively dwells upon, at the expense of deeper

Introduction

21

investigation. 75 Moreover, confusion and factual errors plague analysis of the historians' contribution to the trial. Pendas's account is more balanced by comparison. There is detailed insight into the pre-trial investigation, progress of the trial itself and exploration of the limits of prosecuting Nazi criminals using available provisions within the German Criminal Code. Even with this scope and focus, however, the historians are but one component of the prosecution's case. Within an entire book dedicated to the Frankfurt Auschwitz trial, only five pages are devoted to the historians, much of which is fixated on the content of the reports. 76 Once in the witness box, the historians' testimony is presented as unexceptional within Pendas's trial narrative. Building on these previous works, this book elevates the relationship between the four historians' Gutachten and the Frankfurt Auschwitz trial from the background - as has been the scholarly tendency - to the foreground. The proceeding itself and intricacies of German law are context in this book, not central matters as they are for Pendas. It is not a general exposition on the intersections between history and law that arise whenever an historian appears in court. Nor does it attempt to chronicle the many instances of historical witnesses in West German Nazi crimes trials, as Haberer and Pohl briefly sketch. Its dominant subject is not a judicial 'coming to terms with the past' (' Vergangenheitsbewaltigung') or public education, each of which regularly feature in discussions of the trial. Instead, its core theme is historiography - how history is written and received - with historians' Gutachten, the Frankfurt Auschwitz trial and Anatomy as its extraordinary case study. PRAISING ANATOMY Tracing the course of West German historiography and the profession's willingness to tackle the Nazi past in the decades since the war's end invariably leads to the trial's use as a paradigmatic example of how justice shaped the writing of contemporary history. And this train of thought is often complemented by another observation: that Anatomy of the SS State was a groundbreaking

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work. 77 It was a point made in April 2014 by historian Ulrich Herbert in a public lecture - coincidentally, held at the IfZ in Munich. 78 Within this discussion on 'Holocaust Research in Germany', Herbert noted that in the immediate postwar years, the efforts of German historians to confront the worst crimes of the Nazi regime were lacklustre. The catalyst for change, moreover, 'came not from the realm of historians, but [from] the judiciary'. 79 Out of this judicial initiative came the Frankfurt Auschwitz trial, which in turn spawned Anatomy, a work Herbert identified in 2014 as the 'first large-scale work by German historians' on Nazi atrocities. 80 Herbert's comments echo what he wrote about Anatomy 16 years earlier in 1998, namely that the Gutachten comprising its chapters 'determined the state of knowledge of National Socialist extermination policies for decades to follow, and it took much time before this scholarly standard was again reached.' 81 Moreover, Herbert is by no means the sole historian who has voiced praise of Anatomy's scholarship and historiographical importance. In 1996, Frei claimed that 'at least in the field of contemporary history there is no other case known in which Gutachten produced for a court have had a comparable, enduring impact. The empirical approach, that is true to the source material, ensured that this work became a fundamental text.' 82 In 2001, Harold Marcuse argued that until the mid-1980s Anatomy was 'unsurpassed in detail', and 'still rank[s] among the best works about the SS and the systematic criminality of the Nazi state.' 83 For Haberer, writing in 2005, Anatomy's chapters 'are considered models of historical research and their findings have stood the test of time [...] the methodological and dispassionate representation of the "SS-state" was a long-overdue forensic exercise.' 84 Similarly, Pendas labels the Gutachten 'genuine scholarly achievements', their accounts 'new and innovative'. 85 In Lorenz Schulz's view, the trial yielded a map of contemporary German history, that, up to that point, 'the historical profession had only vaguely outlined.' 8 6 In 2007, Torben Fischer and Matthias Lorenz suggested that Anatomy is an 'unrivalled and fundamental work

Introduction

23

on Nazi extermination policies/ 87 For Sybille Steinbacher, writing in 2013, Anatomy's chapters 'set standards for historical research for decades to come/ 8 8 Higher acclaim for an individual work on Nazi Germany is scarce and, arguably, no other historical contribution produced in 1960s West Germany came to wield such historiographical authority. Additionally, Herbert's accolade of Anatomy from an IfZ podium in April 2014 spoke to the esteem in which the book remains held within the echelons of contemporary historical circles in Germany today. For his part, Pendas is one of the few academics to comment on the ways in which Anatomy has influenced subsequent historical research, and retained its scholarly pertinence. 'If the recent historiography of the Holocaust has made tremendous progress/ he argues, 'it is at least in part because it has been able to incorporate a rich understanding of the exact operation of the Third Reich. Anatomy still has much to teach us about that operation/ 89 One goal of this book is to explore these observations made by Pendas and others in greater detail. For all the praise heaped on Anatomy as an instrumental contribution to history, there remains no sense of how the book was received by scholars, and shaped subsequent historical research on Nazi Germany. Building on this work by Pendas and others, this book scrutinises the importance of Anatomy as a scholarly work, and some of the critical ways in which the book influenced historical writing. It investigates the book's origins as court-bound Gutachten and analyses the contrasting degrees to which the historians' acts of expert witnessing impacted the judicial outcome and historiographical scholarship, respectively. BOOK STRUCTURE AND CHAPTER SYNOPSIS This book is divided into seven chapters, each of which examines a separate theme. Chapter 1 summarises how the IfZ became involved in writing Gutachten for official purposes, how the unique practice evolved, and the methodological approaches it engineered.90 This chapter, further, evaluates the pioneering role played by Helmut

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Krausnick as the first West German historian to offer expertise to a Nazi crimes trial, namely, that of members of a mobile, mass killing squad, held in the West German city of Ulm in 1958. From this background chapter, the six chapters following are split evenly between the trial and historians' role as experts, and the reception and influence of Anatomy. Chapter 2 explores the circumstances surrounding the trial's inception, the charges against the accused and the engagement of historians and their Gutachten prepared for court. It examines the instructions Bauer set out at the November 1962 meeting between prosecutors and historians, and the ways in which these directives set the parameters of historians' involvement and research. Doubts expressed by one trial judge on the eve of the main proceeding over the validity of historical expertise in the courtroom are contrasted with Bauer's lofty aspirations. Chapter 3 is a reconstruction and investigation of historians' testimony at the trial and questioning faced in the witness box. Over the course of six months, the four historians testified, with Buchheim and Broszat appearing twice. Attracting media attention which represent contemporary sources - the historians' experiences in court are pieced together, revealing how their evidence was treated by members of the court. Chapter 4 concentrates on the closing stages of the trial, with particular attention given to the final judgement and its assessment of the historians' reports and their contribution to the judicial outcome. How the historians' Gutachten equipped the judges to reach a verdict, and to what extent their impact on the end result can be measured, form critical points of comparison against the reception and historiographical influence of Anatomy: the latter occupying the focus of the remaining chapters. Chapter 5 traces the journey of historians' Gutachten from the judges' chambers to the printing press. It was a process characterised by haste, one in which the publishers fought over book rights, and the public scrambled for copies. These time constraints necessitated that Gutachten became chapters with little more than cosmetic alterations. The chapter also interrogates the earliest reviews

Introduction

25

of Anatomy to consider how the book was received shortly after its publication. Chapter 6 continues this investigation and examines the first reviews of Anatomy from the academic community. Even with the publicity of the trial and historians' prominent role as experts, the release of Anatomy was not met with an avalanche of scholarly commentary. Historians began to engage with the book's content once it entered the academic realm, rather than passing judgement on its value through formal reviews. Nonetheless, the reviews that did first appear from scholars began a process of disentangling Anatomy from its judicial origins, and one in which the book came to be recognised in the years following its release as a seminal text. Chapter 7 evaluates Anatomy's medium- and long-term significance for historical writing, how it informed new streams of research and influenced pivotal historiographical debates. A book that was conceived for a murder trial, with all its inherent restrictions, set a standard unmatched for decades after its release. The book begins with the period during which the study of contemporary history in West Germany was centralised and lent impetus through the establishment of the IfZ in 1949. It marked a confluence of interests between resolute members of the judiciary pursuing justice for Nazi crimes, and contemporary historians who were beginning to write about the recent past.

CHAPTER 1

Background to Frankfurt: The IfZ, Gutachten and the Ulm Trial

The official creation of West Germany on 23 May 1949 through the formal merger of British, American and French zones of occupation was not met with a renewed call for the prosecution of Nazi criminals. Amidst growing domestic and international cries of 'victor's justice' continuing to be imposed after the Nuremberg trials came to an end, German resolve to mount further judicial action wilted.1 The frontline of Europe's Cold War between the Soviet Union and Western powers, West Germany faced an existential threat - mostly perceived - from the Soviet Union, and waged a propaganda war - wholly actual - with communist East Germany, officially known as the Deutsche Demokratische Republik (German Democratic Republic, or GDR). Though West Germans showed repentance for National Socialist atrocities, the nation's postwar gaze rested to a greater extent on present and future economic and political uncertainties than on further domestic trials of middle-ranking former Nazis.2 It was within this challenging context that the Munich-based IfZ was established in 1949. This chapter explores how this new centre of contemporary history was conceived as a public institute, and came to provide an official service to meet the demands of West German society: writing Gutachten. It examines how this role developed and came to be interpreted by the IfZ historians, and how Gutachten

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27

evolved into specialised forms of historical evidence. It also establishes how Helmut Krausnick - IfZ director by 1958 - became involved in the Ulm trial, the earliest known proceeding against Nazi criminals for which historical expertise was sought. The evolution of Krausnick's role as expert witness in what was an ultimately profitable historical and legal collaboration - one that set a crucial precedent for the Frankfurt Auschwitz trial - will be scrutinised. The beginning of the 1950s ushered in an almost decade-long period of indifference towards the prosecution of Nazi crimes. During this time, West Germans' preparedness to confront the past through the trial of perpetrators had, in Frei's view, 'sunk to zero'. 3 According to Joachim Perels, moreover, the West German judiciary 'gave judicial expression' to its citizens unwillingness 'to accept responsibility for the horrors of Nazism'.4 The shift is reflected in the numbers alone: in 1950 more than 800 individuals were convicted of Nazi crimes, plummeting to a mere 21 by 1955. 5 Yet by the late 1950s, the hitherto popular sentiment that further trials should be halted, and an amnesty granted to Germans accused of wartime wrongdoing, splintered in light of the realisation that individuals suspected of serious war crimes had re-integrated, even prospered, in the new (West) Germany. Calls to move on from the Nazi period began to be met with increasing acrimony, bolstered by a younger generation of Germans growing up under its shadow, and wishing to be absolved of their 'inherited guilt' (Erbschuld).6 It was a situation then-West German Chancellor Konrad Adenauer could not afford to overlook, and opened up the possibility of additional trials of Nazi criminals. 7 During this period, the IfZ had begun to establish itself as West Germany's leading centre of contemporary history. The IfZ's original name - the Deutsches Institut fur Geschichte der nationalsozialistischen Zeit, or German Institute for the History of the National Socialist Period - for all its dullness, left no doubt as to the Institute's anticipated period of focus. Officially charged with collecting, housing and evaluating any evidence 'relating to National Socialism', the IfZ was to make this material publicly

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available, and to construct scholarly works on the Nazi period. 8 Founded and led by some of West Germany's most prominent historians, backed by influential politicians, and funded by federal and state money, the IfZ's priorities were subject to revision and reactive to political and social pressures. With governmental funding came governmental expectations. Although the trial of Nazi criminals may have paused in the early to mid-1950s, West German society continued to occupy itself with the fallout of the Nazi period. Its courts were busily engaged in various, noncriminal hearings, including restitution (Entschddigung) cases from victims of Nazi persecution, and appeals from former, lowerranking Nazis who had been denied state pensions. Government agencies charged with tackling this new surge of administrative proceedings needed to establish individuals' responsibility within the complex Nazi bureaucracy and its multifarious and everchanging institutions. Historians' expertise was required, and the IfZ became the logical point of contact. After almost a decade of constructing Gutachten to meet this official need, by the late 1950s the IfZ historians were exceptionally well-qualified to fulfil the task of stepping into the witness box once trials of Nazi criminals recommenced. The change in public opinion and Adenauer's newly found political will also resonated with a plucky, younger generation of West German prosecutors. The nine-year trend of apathy towards resuming a judicial confrontation of the Nazi past was finally shattered in the unassuming West German city of Ulm, in 1958. Ten men, former members of a mobile killing squad (Einsatzkommando) were tried in Ulm for their role in the 1941 execution of at least 5,000 civilians in Lithuania. In substantiating their case, prosecutors needed to explain how these horrendous crimes were possible. What followed Ulm was the forging of a successful and cooperative alliance between prosecutors and the relatively few West German historians engaged in contemporary historical research, one that would establish a blueprint for future West German trials - including, crucially, the Frankfurt Auschwitz trial.

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29

GUTACHTEN AND THE INSTITUT FUR ZEITGESCHICHTE The IfZ's early mandate was to produce methodologically sound, politically useful scholarship on the Nazi period, and events within the Federal Republic in the early 1950s suggest the degree of political mindfulness and reactive tendencies of the new Institute. Article 131 of the West German constitution, effected in 1949, left open the future legislative options for the country's civil service. Essentially, this article stated that the status of individuals employed as civil servants on 8 May 1945 - the date of Nazi Germany's surrender who had since left the civil service and had not been reinstated, would be regulated by a future federal law. On 11 May 1951, such a law came into effect, known as the Taw for the Regulation of the Legal Status of Persons falling under Article 131 of the Basic Law'.9 This complex legislation compelled West German civil institutions to re-employ, or pay pensions to, a significant number of experienced bureaucrats who had lost their positions in the wake of Nazi Germany's defeat, and had not been re-engaged. In stark contrast, a coterminous law was introduced in September 1953 that empowered the victims of Nazi persecution, many of whom had lost their civil service positions at the beginning of the Third Reich, to seek damages from the West German state. It was known as the 'Amended Federal Law for Restitution to Victims of National Socialist Persecution'.10 The various legal and administrative proceedings launched by those arguing that their circumstances fell variously under the jurisdiction of these regulations - the so-called /131ers' on one hand, and victims of Nazism who headed to restitution courts (Entschadigungsgerichte) on the other - involved a degree of historical reconstruction in establishing the plausibility of respective claims. Where the '131ers' sought to downplay their role in the Nazi apparatus, victims attempted to substantiate their claims of persecution. If the alleged persecution had been experienced by victims within other states of Nazi control, the newly effected restitution law necessitated that German responsibility for these measures, frequently perpetrated by non-Germans, be established.11 Instigated by the civil service offices in question, private individuals

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or lawyers, the adjudication of these claims through public institutions, and the complex historical nature of the questions asked, brought such cases within the purview of the IfZ and compelled the involvement of its historians. Writing Gutachten was a simultaneously pioneering and burdensome endeavour for the IfZ, one driven by the needs of a democratic society coming to terms with its criminal past. The importance of administrative hearings in restitution and article 131 cases within this process was not lost on historians, while shortages of time, labour and evidence left Gutachten with provisional and partly speculative conclusions. The circumstances also forced historians to confront questions that may otherwise have remained untouched, at least until evidentiary conditions improved. Two examples serve to illustrate these points. On 2 June 1956, the President of the Hanseatic Higher Regional Court (Prasidenten des Hanseatischen Oberlandesgerichts) in Bremen requested information from the IfZ in relation to an ongoing restitution case in which a 'gypsy woman' had been deported from Konigsberg in East Prussia to Auschwitz in the summer of 1940. The claimant, who was 13 years old at the time of her deportation, had been tattooed with a number upon her arrival in Auschwitz. In particular, the court was assessing this claim, and seeking a definitive answer to a question of timing, namely: 'when did the first gypsy [sic] arrive in Auschwitz?'. 12 Likely without realising it, the court was seeking a level of clarity that neither Buchheim, nor any historian at the time, was in a position to offer. Nonetheless, despite the weight of unknowns, Buchheim's response on 3 July 1956 was substantial and appropriately measured.13 He stressed that there was no way to verify whether the claimant's date of arrival in Auschwitz corresponded to her tattoo number, nor could it be established when the first 'gypsy' was deported to Auschwitz. Buchheim could have limited his response to this unprofitable, though honest, determination, given the limited scope of the court's question. Instead, Buchheim elucidated the broader historical context, attempting to provide insight into the

Background to Frankfurt

31

plausibility of the claimant's account. His seven-page response outlines what was known about related events: the deportation of 'gypsies' from East Prussia during the period in question; the establishment and expansion of Auschwitz generally, and its women's camp specifically; and how the claimant's tattoo number, its position on her body and its sequential relationship to other tattoos may inform an assessment of her stated arrival date in Auschwitz. Buchheim declared that his findings were conjectural, advising that 'we are not in a position to reach a more definite determination on this question', and referred the court to other avenues of enquiry. 14 The efforts, however speculative, made an obvious impression on the presiding judge. On 13 July 1956, he wrote to Buchheim expressing gratitude for what was described as an 'extraordinarily valuable' response. 15 A second example further points to ways in which IfZ historians came to view the function of historical expertise and crafting of Gutachten. On 24 April 1957, the Restitution Division of the Landgericht Karlsruhe (Landgericht Karlsruhe Entschadingungskammer) wrote to the IfZ with an astonishingly lengthy question that, just in part, read [c]an it [...] be established as a fact that persons of a Jewish racial extraction [sic] over the age of 50 years, who, in the middle of August in 1942, were sent from France via the Drancy [transit] camp to the Auschwitz concentration camp [sic], were, without exception, immediately killed (gassed) upon their arrival or a few days thereafter?16 The respondent, Martin Broszat, took the opportunity to explicate what he concluded to be the double function of Auschwitz as a centre of Jewish extermination, and a source of forced labour. The situation, Broszat concluded, was a 'contradictory' one that led to conflict between competing Nazi agencies. Broszat also outlined the process of 'selection' that took place after the arrival of each trainload of Jews to Auschwitz, in which they were chosen to work or immediately condemned to death in the camp's gas chamber. Broszat's conclusions with respect to the individual circumstances are remarkably nuanced, stating that although it is 'probable' such

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a person would be 'immediately gassed [...] it is, however, possible to accept almost as a certainty, that there were also many Jews over the age of 50 years who joined the camp population after arrival, even though no such examples are known'. 17 Thus, while Broszat could only offer the court probability in this case, he identified that the most effective means to reach this admittedly tentative conclusion was through a wider examination of intricate and shifting historical context. Buchheim, for his part, received praise for his Gutachten from the presiding judge, while Broszat's Gutachten on the process of selections in Auschwitz was made available in a collected edition of Gutachten the IfZ published in 1958. 18 Both Gutachten explored historical questions that remained virtually untouched by historians throughout the 1950s. And, though a small sample, these two Gutachten are emblematic of the hundreds written by IfZ historians during this decade. As an official IfZ function, written on Institute letterhead, the conclusions reached in Gutachten represented - or were seen to represent - not merely the view of an individual historian, but of the Institute as a whole. According to Buchheim, this secondary consideration forced a 'particular thoroughness' in his investigations, and a 'particular meticulousness' in reaching conclusions from obtainable data. Although both qualities were needed in academic work generally, wrote Buchheim, under other circumstances 'failure to meet these requirements simply leads to negative marks against the author, not detriment to a third party/ 1 9 This danger was especially acute given the sensitive nature of restitution hearings, for example, and a shortage of labour at the IfZ. In late 1954, director of the IfZ Paul Kluke made his feelings known at a joint meeting of the Board of Trustees (Kuratorium) and the Advisory Board (Beirat).20 Describing what he saw as 'excessive activity' in writing Gutachten, Kluke feared negative repercussions for the Institute in the event that it be held responsible for the outcome of proceedings for which the reports were being constructed. He announced at this meeting that henceforth all Gutachten would be prefaced with a declaration that 'its purpose is to address

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33

historical rather than judicial problems' and that 'a court should never make a decision based on a Gutachten'. The 'declaration' would also stress the provisional nature of historical knowledge and allude to the deficit in available evidence. According to the meeting minutes, Kluke stated that The Gutachten have only been compiled on the basis of limited historical records [...] [and] could be comprehensively amended or even invalidated on the basis of material presently unknown to the Institute, and, therefore, should only be understood when reaching a legal finding as a necessarily relative historical contribution.21 The legal representative of the Advisory Board, prominent lawyer Hellmuth Becker, was left with the task of writing an acceptable statement to precede future Gutachten, and there were no objections to the proposal, nor attempts to allay Kluke's fears. And the concerns were not limited to the Board. Exasperated by both the demand for Gutachten and the limited resources available to write them, decades later Buchheim recalled the sense of powerlessness he felt in the mid-1950s. Perusing the verdicts reached in numerous restitution hearings, Buchheim lamented the 'shaky ground' on which the decisions were based, and recognised 'how little we could do to change it, since we lacked the personnel to sift through the abundant source material'. 22 Though it is unclear whether Buchheim is deploring positive or negative outcomes in restitution hearings, his general position was made clear in 1999: 'it was better to submit [at the time] reports that were (and specifically labelled as) fragmentary and incomplete than to provide nothing at all.' 23 The two previously mentioned examples of Gutachten, and the hundreds of other original Gutachten housed at the IfZ, reveal, however, that historians were willing to reinterpret the requesting agency's or individual's question. This allowed the historians to construct answers that may have exceeded the initial scope of the question, though remained broadly relevant to the matter under review, and academically sound. Thus, the initial, circumscribed enquiry represented more a starting point for wider contextual examination, and less an unanswerable end

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goal that acted to restrict deeper analysis, and prevent the engagement in credible, informed historical speculation. The historians emphasised the conjectural nature of their findings, identifying that the most effective means to reach useful conclusions was through a full examination of historical context. The act of writing Gutachten, and the enquiries that spawned their development, focussed the IfZ historians' attention on establishing a particular - frequently inscrutable - historical fact. Open recognition of evidentiary limitations within Gutachten enabled the IfZ historians to concede what they could not say upfront, and to preserve the sanctity of their historical methods in exploring, through historical context, what they could say. It was, therefore, not left to the inclusion of a disclaimer to forfend the IfZ from implication in subsequent legal battles, as Kluke had wished. Historians, through the mechanisms available to their craft, ensured that their Gutachten highlighted uncertainty, and underscored shortfalls in evidence, while striving to reach a high scholarly standard. THE ULM EINSATZKOMMANDO TRIAL In 1958, the trial of Bernhard Fischer-Schweder began in the unassuming city of Ulm. 24 For both law and history, the trial was a watershed event. In the annals of West German jurisprudence, Ulm marked the beginning of a renewed effort to prosecute Nazi criminals, the appetite for which had been missing since the early 1950s. The scope of the trial was deliberately sweeping. A bank of ten defendants occupied the dock, including Fischer-Schweder, as former members of a mass shooting squad. In place of a single individual, an entire 'complex of mass murder' - or Verbrechenskomplex - was on trial. For history, Ulm marked a confluence of interests. Having staked its reputation as a politically engaged and government-funded centre of historical knowledge, well-versed in outsourcing its expertise for official purposes, the IfZ became a logical point of contact for Ulm prosecutors. The practice of crafting historical Gutachten for administrative disputes, one that

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evolved alongside historians' refined knowledge and improved access to evidence, was to be adjusted to meet the prosecutors' need to prove the crime of murder as denned under the German Criminal Code. In Ulm, the task of expert witnessing fell to Helmut Krausnick, who by the time the trial opened in 1958 had replaced Kluke as director of the IfZ. Krausnick's written and courtroom testimony received praise from the judges at Ulm, the general public and from the IfZ executive. In the witness box, Krausnick demonstrated how historians and prosecutors could successfully combine to achieve mutually beneficial outcomes. Although all ten defendants were found guilty, the significance of the Ulm trial extends beyond this favourable prosecutorial result, unique though it was in the scheme of the West Germany's spasmodic attempts at justice. Within the narrative of Nazi crimes trials, Ulm signalled more than a revitalised, domestic version of the Nuremberg proceedings: it can be identified as a prototype for the wave of judicial proceedings against Nazi criminals that followed. Modelled on the success of Ulm, these trials came to depend on historians' involvement. In substantiating their case, Ulm prosecutors needed to explain how the horrendous crimes were possible. Faced with the immensity of Fischer-Schweder's alleged crimes committed as the Einsatzkommando leader, Ulm prosecutor Rudolf Mettler understood the implications of failing to construct a legally sound indictment. Historian Sabrina Miiller casts Mettler as both solicitous and worrisome, ill-equipped to unravel the 'multifaceted historical and geographical questions' that he confronted through the investigation of Fischer-Schweder's case.25 The task was a professional and psychological burden for Mettler, who over a twelve-month period strenuously pieced together a brief, one that underwhelmed the Stuttgart Attorney-General Erich Nellmann in June 1956. Fortuitously, Nellmann recognised the import of the case, and while stamping Mettler's report as 'entirely insufficient', threw the Ulm prosecutor a critical lifeline.26 A Stuttgart prosecutor, Erwin Schiile, was directed to not only join the investigation, but lead it, and to construct the indictment. The development was fateful,

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and triggered what Dieter Pohl identifies as the 'actual beginnings of a systematic interaction between the prosecution of Nazi crimes and historiography'.27 Schiile was young, enterprising and assertive. Enjoying his Attorney-General's unyielding support, the two men defied their Ulm counterparts and set about building a case against not only Fischer-Schweder, but the entire Einsatzkommando.28 Individual cases already on hand were lumped into a single investigation. As a consequence, the ten-fold expanded list of alleged murderers commensurately deepened the gap of historical knowledge prosecutors needed to fill. With the decision made, Schiile and his team were left to confront the same dilemma facing their historical contemporaries: evidence of mobile killing squad actions proved elusive. The pilfering and, in some cases, wholesale removal of documents by allied forces, particularly the USA, left West German historians and prosecutors dependent on published volumes of the Nuremberg trials, and secondary works constructed by nonGerman historians. Privileged access to material otherwise locked away from their West German counterparts allowed historians such as Gerald Reitlinger, a Briton, to assemble his influential 1953 book, The Final Solution.29 As the first historical representation of the attempted extermination of European Jewry, Reitlinger's book ineluctably became a staple for men like Schiile, whose efforts marked the earliest attempt to confront Holocaust crimes in a West German court. 30 True to his character, however, Schiile was not content to hang his case against 'Fischer-Schweder and the others', as the Ulm trial was officially known, on a hodgepodge of documents and the word of Reitlinger. He had effectively tasked himself with unravelling the tangled web of organisations, and deciphering the interwoven historical context for the judges and jury. This ambitious ploy, though clever, exceeded the capabilities even of Ulm's historically literate prosecutors, who lacked the necessary expertise and familiarity with the subject matter. The swelling bank of defendants and paucity of historical details available to prosecutors became apparent. Schiile sought to complement and

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bolster his arraignment through the recruitment of archivists, memorial centres, Jewish aid organisations and, critically, contemporary historians. 31 In short, the legal team had to seek historical advice. It is itself a quirk of history that the IfZ's band of enterprising contemporary historians became ready, able and - eventually willing to commit themselves to the task of expert witnessing only when the opportunity first presented itself at Ulm. Still, Krausnick's reaction to the Ulm prosecutor's suggested collaboration was less than wildly enthusiastic. In fact, he initially rejected the proposal altogether. Over a period of 13 months, from December 1956 onwards, there had been a steady stream of correspondence between the historian and Mettler, in relation to what Krausnick described as 'the matter of providing expertise in the Einsatzgruppen [sic] trial'. 32 No fewer than eight letters had been exchanged before Krausnick finally reached a decision, one he communicated on 13 January 1958. '[A]fter careful consideration and in agreement with the director of the Institute', Krausnick wrote, '[it has been decided] that I should refrain from acting as an expert witness for the prosecution or the court in the upcoming trial.'33 The 'final' decision must have come as a blow to the prosecution's case. Krausnick's rationale, moreover, appeared to contain an insurmountable objection: that he feared participation would lead to subsequent charges of appearing 'biased' or to be 'holding a pre-determined view.'34 While the historian was 'willing' and, at pains to stress, 'obliged' to supply the Ulm prosecutors with 'written information', Krausnick's view of historians' providing expertise in court was at this stage dimly held, however important the cause.35 Guarding against any perception that his impartiality as an historian might be suspect, Krausnick opted to reject the Ulm prosecutor's advances and to eschew the very prospect of entering the witness box. In reality, the IfZ director had less to fear from the West German courtroom than he might have expected. As outlined in the introduction, discovering the truth about an event - the historian's mandate - was also the core task of West German courts, with the

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judge or judicial panel playing a leading role as inquisitors. It is a disposition largely shaped by the court's function and approach. Rather than relying on the cases mounted and material submitted by the opposing sides, West German judges proactively sought the introduction and interrogation of evidence pertinent to establishing the full facts of a matter. 36 As a result, the inquisitorial proceedings that took place in West Germany were intrinsically less antagonistic for participants than their adversarial equivalents. Judges had the power to decide what charges the defendants faced, the order of witness questioning and the questions to be answered, and were duty-bound to conduct the fullest possible investigation. The judges' thorough interrogation of the evidence - specifically, the presiding judge - removed the onus on the prosecution, beyond the initial reading into evidence of the indictment, to prove their case. They could sedately question witnesses and seek further information or clarification. But an overly interrogative prosecutor was likely to be reprimanded by the judicial panel, since their intervention in the questioning of witnesses may imply that the judges were not sufficiently probing - widely understood as the court's primary undertaking. Witnesses in these courtrooms faced scrutinising questions (Befragung), but were not badgered, and were free to give their testimony largely without interruption. 37 The prosecution could move to call witnesses, eyewitness or expert, but the judge had the final say as to whether a witness was heard. Relevance alone determined this decision.38 The court in Ulm (as it would be in the Frankfurt Auschwitz trial) was a Schwurgericht: a particular form of state court. Made up of three judges and six jurors, a Schwurgericht was dedicated to trying the most serious crimes. 39 Prosecutors, defence lawyers, the defendants, eye-witnesses and expert witnesses were the other courtroom actors. A very brief summary of the trial's proceedings was written down (Protokoll), though it was not kept verbatim. Defendants were questioned by the judge, though were not compelled to answer, and the court could not rule unfavourably as a result of defendants' silence. Instead, the accused were encouraged to speak to the court, and to engage in what John

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Langbein describes as 'a direct and continuing dialogue, without the intermediation of counsel/ 40 Defendants had the final word in a trial. Defence lawyers could question witnesses where testimony was relevant to the client's alleged crimes, though, above all, remained subservient to the judges' enquiries, and to their clients' interests. In Pendas's view, the difference between the roles and duties of defence lawyers and prosecutors and is revealing. Where the former's 'obligation to his client takes precedence over his obligation to the truth', the latter's 'obligation to the truth outweighs his obligation to the state.' 41 Unlike the adversarial system, West German courts allowed the appointment of joint plaintiffs (Nebenklager): lawyers who represented the victims of the alleged crimes, or their family members, and who had similar rights to a public prosecutor. 42 A West German trial consisted of four phases: questioning the defendants; the evidentiary phase; closing arguments; and the final judgement. 43 During the first phase, defendants took the stand to answer questions about their backgrounds and the charges levelled against them. The second phase was the lengthiest and included the hearing of all eyewitness and expert witness testimony. The third phase gave the prosecution, joint plaintiffs and defence lawyers an opportunity to directly argue their cases for and against the defendants, and the possible sentences to be imposed. In the final stage, the judge issued a determination of guilt or innocence, statement of reasons and delivered a sentence at the same time. A full written judgement was completed following the trial. Throughout, West German courts were governed by the dictum in dubiopro reo - 'when in doubt, for the accused' - a guiding principle that ensured guilty verdicts were only reached on the basis of substantial incriminating evidence. 44 Luckily, Krausnick waivered in his opposition to participating in the Ulm trial. The agents for this change of heart, owing to an absence of further written correspondence, are unknown. It can, however, be established that Krausnick was eventually pleased with his ultimate about-face. As with any test-flight, even a successful one, Ulm had its share of problems. Krausnick's own account,

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narrated in his December 1958 letter to Hermann Brill, shows the historian had no sense of what to expect in court. Over 18 months had passed since he was first approached by prosecutors with overtures of collaboration, yet the court had only Vaguely suggested' what they wanted to know. As a result, Krausnick claimed, he was forced to 'follow the trial in an exact manner on one hand, and prepare myself somewhat broadly on the other/ 4 5 A letter exchange between Krausnick and Schule in June 1958, one month before Krausnick testified in Ulm, verifies the improvised, ad hoc nature of the preparations made between prosecutor and historian, and uncharted territory into which both were thrust. On 23 June 1958, Krausnick asked Schule whether it would not be 'in the interests of me providing sound and precise responses [...] [to be advised of] a few of the intended questions beforehand', in order to better prepare his courtroom testimony. 46 Wasting no time to respond, the next day Schule emphatically told Krausnick that 'I am not in a position to inform you of the questions [...] the defence intend to put several questions to you to which the prosecution will not be privy'. 47 Thus, Krausnick's pre-trial preparation was over before it began. Having agreed, it seems reluctantly, to offer his services to Schule in the first place, and being left to face court unprepared, it is remarkable that Krausnick still opted to take the plunge. After following the trial in Ulm as a more than interested observer, Krausnick was questioned for 'over two hours' in the witness box. Drawing on his knowledge, Krausnick was asked to confirm the veracity of the Einsatzkommando reports, outline a 'pre-history' of the 'Final Solution', and provide an overview of where executions took place, the numbers killed and 'justifications' given. 48 Testifying in mid-1958, with the judgement sentencing all ten defendants to imprisonment in September 1958, the end of the year afforded Krausnick an opportunity to remind colleagues how propitious the trial had indeed been. 49 Writing to two members of the Advisory Board - Becker and Brill - Krausnick was keen to highlight the scale of his task in Ulm. In his letter to Becker, Krausnick described the role as 'more than a little burdensome',

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though found 'very satisfying' the praise he received from the court, prosecution and defence. 50 He reassured both men that he represented the Institute 'appropriately' and had 'brought no dishonour', trumpeting the attention his testimony received from press, as well as in a television programme. 51 One paragraph in Krausnick's letter to Brill, in particular, reveals the significance of the trial for contemporary history. The Ulm trial has now gotten the ball rolling with the prosecution of crimes that belong within my area of expertise', he wrote, before setting out the various enquiries he had fielded from enterprising prosecutors intent on enlisting his help. 52 A joint meeting between the Board of Trustees and the Advisory Board in January 1959 similarly praised Krausnick's effort in Ulm, noting that it was 'significant in maintaining the Institute's reputation', including internationally. 53 Developments closer to home, however, would rapidly increase the numbers of Nazi crimes trials, and reinforce the value and necessity of historical expertise in court. In December 1958, the formal establishment of the Ludwigsburg-based Central Office of the State Justice Administrations for the Investigation of National Socialist Crimes (Zentrale Stelle der Landesjustizverwaltung zur Aufklarung NS-Verbrechen, hereafter Central Office) signalled that a new succession of West German trials of alleged perpetrators was to begin. The West German pursuit of justice had received, in Freia Anders's estimation, 'an institutional foundation.' 54 This authority undertook systematic investigations of Holocaust and other Nazi crimes, with its findings referred on to individual German State prosecutors to commence judicial proceedings against those suspected of committing atrocities. Traditionally, the Ulm trial and tangible public outrage at unpunished crimes have been pinpointed as catalysts for the Central Office's founding. More recent scholarship questioned whether the new organisation's roots lay in Ulm, or in the knotted, retributory exchanges and propaganda war that was being waged by the two ideologically antithetical German states in the late 1950s.55 In any case, the Central Office was inexplicably linked to the Ulm trial, and provided impetus for the larger-scale

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trials of Nazi perpetrators that were to take place in the decades thereafter. The inaugural head of the new agency was none other than Erwin Schiile, whose exploits in Ulm had won him more than sufficient admiration to warrant promotion. Despite a shoestring budget and well-nigh open hostility from the judiciary, under Schiile's leadership the Central Office energetically led West Germany's prosecutorial drive against Nazi criminals in the 1960s. Indeed, by as early as 1959 the Central Office had launched around 400 investigations, including of personnel who had worked in extermination centres, such as Sobibor and Treblinka.56 The task required a Herculean effort, and as had been the situation during the investigatory stage of the Ulm trial, Schiile and his staff returned to the published volumes of the Nuremberg proceedings and Reitlinger's translated work to inform their historical narratives. Praise abounds for what this small group of prosecutors at the Central Office, and others operating within their own jurisdictions, were able to achieve: Pohl argues that during the early 1960s they 'gradually became the historical experts on Nazi crimes/ 57 For his part, Scheffler sympathised with prosecutors who, even without formal training, acquired a level of knowledge that 'must be envied by many contemporary historians/ 58 These prosecutors conducted investigations into new fields as yet unexplored by historians, came face to face with survivors, and had to separate the legal assignment from the human suffering of victims - often to the detriment of their own psychological wellbeing. 59 Their contributions to history were immense, and arguably outweighed those of their historical counterparts. Broszat's estimation of this judicial contribution to history is particularly high. While acknowledging the prevailing view that the trials were inadequate in number, and their outcomes disproportionate to the crimes, for Broszat, history was the beneficiary. The judiciary's 'extraordinarily comprehensive investigative efforts [...] [and] historical reconstruction of facts, in laborious detail' he wrote, 'were greater and perhaps more significant than the prosecutorial outcomes/ 60 The law's resources and exigent need to determine an

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individual's motives and place within the Nazi behemoth uncovered evidence likely to have remained otherwise shrouded, lifting successive historians to new interpretative heights. 61 Marshalling numerous defendants accused of committing offenses within the same institutional context into a single trial made the task easier for both judges and prosecutors. Shared chains of command and location of events simplified the assessment of evidence. For prosecutors, particularly the cash-strapped Ludwigsburg outfit, it amounted to an economy of scale, with multiple convictions resulting from a single investigation. Such a gambit, however, relied on the input and expertise of historians, who, in Haberer's view, 'became an indispensable handmaid of judicial investigations/ 62 Where prosecutors' knowledge was insufficient, the task of historical fact-finding too complex, or the sheer volume of cases exceeded available manpower, historians would find themselves in demand - and in court. Alongside the triumph in Ulm, and the establishment and activity of the Central Office, the year 1958 heralded one other auspicious development for West German historians: the return of vast swathes of documentary material from British and American hands. The 13-year-long 'fight for the records' ('Kampf um die Akten') - as historian Astrid Eckert terms it - was over.63 The trickle of documents soon became a torrent, and contemporary historians in West Germany busied themselves with the deluge. This integral evidence provided fertile ground for historians to revitalise their investigations of the Nazi past.64 The result fostered a growing interdependence between historical scholarship and justice, each benefiting from the advances of the other. The Ulm trial and establishment of the Central Office marked a convergence of legal and historical interests, one that drew historians into West German courtrooms. Hans Buchheim stated, 40 years after the gavel came down in Ulm, that for German awareness of Nazi crimes the trial represented 'one half of the turning point', with the second half provided in the Frankfurt Auschwitz trial five years later. 65 The mould was cast in Ulm, and trials of Nazi perpetrators thereafter would be modelled on its

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success, be comprised not of individual defendants, but encompass whole sites, or complexes, of mass murder. By the start of the 1960s, the 'ball' was indeed 'rolling', as Krausnick had predicted it would be. A decade of experience in crafting Gutachten, recognising their limitations and tailoring their content to the requesting agency impacted how, from November 1962 onwards, reports for the Frankfurt Auschwitz trial were constructed. For prosecutors, Ulm demonstrated how historians could aptly equip West German courts with the necessarily detailed historical context required to determine the role, responsibility and possible motives of those on trial. It was thus no coincidence that once pre-trial preparations for the Frankfurt Auschwitz trial were in full swing, prosecutors would seek out historical testimony and request Gutachten. The 'ball' that Krausnick had predicted would continue 'rolling' landed on his Institute's doorstep with a timely thud, and it was powerfully lobbed by Fritz Bauer.

CHAPTER 2

The Law Courts History: Pre-Trial Preparations

As the opening segment of this book remarks, the November 1962 meeting between prosecutors and historians was the watershed moment in which history and law first met in preparing for the Frankfurt Auschwitz trial. Yet, the two parties had begun discussing the possibility of historians entering the witness box as early as March 1960. This chapter examines the pre-trial investigatory phase of the trial. It outlines how the trial came to take place, who the defendants were, the crimes with which they were charged, and their areas of responsibility within the Auschwitz camp system. The role of Fritz Bauer in identifying and committing to the employment of historical witnesses is contrasted with a simultaneous, though gradual, change in attitude within IfZ ranks towards public engagement, and the move to counter a growing number of historical distortions. It also outlines a summary of each Gutachten and how the historians set about their construction. Finally, the chapter analyses pre-trial statements by various actors involved in the trial, revealing a complex and, at least partially, incongruous understanding of the role and place of historians. One member of the judicial panel, Substitute Judge (Erganzungsrichter) Werner Hummerich, expressed a view that historians should not set foot in the courtroom - an outcome Bauer himself had not discounted might occur. For his part, Bauer stressed in almost equal measure the

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needs and necessarily imposed boundaries on historians' participation in the trial. As had been the case in Ulm, and routinely in other proceedings against Nazi criminals, the genesis of West Germany's most famous trial can be traced back to a series of coincidences, opportunities and personal crusades.1 Two primordial developments in particular - as identified by archivist and historian Werner Renz - proved fateful. The first began in March 1958, when the prosecutors' office in Stuttgart received two letters from a man named Adolf Rogner. A convicted fraudster who had found himself in state prison, in his first letter Rogner claimed that he was a former inmate of Auschwitz, and had information and access to evidence that would reveal the location and prove the crimes of Wilhelm Boger. Rogner alleged that Boger, a Senior Squad Leader (SS-Oberscharfuhrer) in the SS within the political section of Auschwitz, had murdered numerous inmates, and subsequently had reintegrated into West Germany without facing charges. The prosecutor, Renz points out, 'had every reason [...] to treat the information from Rogner cautiously/ 2 The second letter from Rogner, and formal questioning in May 1958, revealed a dozen more names of SS personnel - including Josef Klehr, Hans Stark and Pery Broad.3 Unproductive correspondence followed between Stuttgart prosecutors and the Vienna-based Internationales Auschwitz Komitee (IAK), an organisation formed by Auschwitz survivors, and headed by Hermann Langbein. Where prosecutors sought the IAK's help in securing eyewitness evidence against Boger, Langbein refused to provide it unless and until Boger had been arrested. Eventually relenting, in August 1958 Langbein supplied prosecutors with names of relevant eyewitnesses, who were interviewed in September, and which led to Boger's arrest in October. 4 With Langbein's condition met, promises of IAK assistance followed, and the idea of extending the investigation to 'all other members of the SS guards in Auschwitz' was floated.5 Though the relationship between Langbein and the Stuttgart prosecutors was testing - November 1958 saw each hold press conferences at which they criticised the other - further arrest warrants were issued, and actioned, for Stark, Broad and Klaus

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Dylewski in April 1959.6 In early 1959, the Boger case was taken over by the Central Office.7 The second development Renz pinpoints is the engagement of the Frankfurt Auschwitz trial's most critical participant: Fritz Bauer. Attorney-General of the West German state of Hesse, Bauer received documents in January 1959 from a journalist, Thomas Gnielka. The material included original documents and names of SS men who had allegedly shot prisoners for attempting to 'escape'. Intent on pursuing the matter and immediately recognising its significance, in February 1959 Bauer sought a jurisdictional determination (Zustandigkeitsbeschlufi) in the Federal Court as to where the trial of 94 men - 14 of whom were ultimately defendants in the trial - should take place. 8 The Gnielka papers enabled Bauer to successfully claim jurisdiction for Frankfurt, including over the Boger case. In June 1959, pre-trial investigations were earnestly pursued by two prosecutors, Georg Friedrich Vogel and Joachim Kiigler, who investigated 290 suspects and achieved 14 additional arrests. During a two-year investigation, Vogel and Kiigler enlisted the help of Langbein, consulted with research and documentation centres in West Germany, the USA and Israel, and in 1960 even arranged to visit the Auschwitz-Birkenau State Museum in Poland - no small feat given Cold War politics at that time. 9 With the assistance of the museum's director Kazimierz Smoleri, the prosecutors gained access to vital documents, including personnel files, copies of survivor testimonies and material that detailed the camp's functions. 10 Over 600 eyewitnesses were interviewed during this period. 11 On 12 July 1961, the prosecutors tendered an application for a preliminary hearing (Voruntersuchung), which was finalised by Judge Heinz Dux in October 1962. 12 Thereafter, prosecutors drafted their indictment naming 24 defendants, 11 recommended charges of murder (Mord) and 14 of accessory to murder (Beihilfe zum Mord), lodging all final documents on 16 April 1963, including the indictment. The trial indictment originally listed 24 defendants in April 1963, with 22 men left at the beginning of the trial in December 1963, and 20 by the end

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in August 1965.13 Their positions of responsibility branched across the Auschwitz complex and its various functions. Richard Baer, the highest ranking defendant and former commander of Auschwitz, died before the trial opened, in July 1963. As was customary under German legal convention, the trial had been known as the 'criminal matter against Baer and the others' ('Strafsache gegen Baer und die andere').14 Baer's death promoted his surviving deputy Robert Mulka into the leading role, with the trial re-named the 'criminal matter against Mulka and the others' ('Strafsache gegen Mulka und die andere'), thereafter. Within the remaining group of 20 defendants, their responsibilities at Auschwitz could be located within five distinct sections of the camp: Executive Administration; Protective Custody Leadership; Political Section; Medical Service; and Kapos. The Executive Administration (Kommandantur) comprised of Karl Hocker and Robert Mulka, camp adjutants and part of the group broadly responsible for running the camp day to day. Both were charged with accessory to murder. The Protective Custody Leadership (Schutzhaf tlagerfuhrung) was represented by Stefan Baretzki, Franz Hofmann and Oswald Kaduk, all charged with murder. This group was in charge of the camp's prisoners. The Political Section (Politische Abteilung bzw. Lager-Gestapo) had six members in the Frankfurt dock: Wilhelm Boger; Pery Broad; Klaus Dylewski; Bruno Schlage; Johann Schoberth; and Hans Stark. Charged with the most brutal crimes, this group was responsible for 'discipline' in the camp - a task that routinely meant an inmate's torturous killing. Boger, arguably the most blood-thirsty of all trial defendants, was charged with murder. Broad and Dylewski were charged with both murder and accessory to murder. The remaining men - Schlage, Schoberth and Stark - were charged with accessory to murder. Schoberth was ultimately acquitted. The Medical Section (Dienststelle SS-Standortartzf) comprised the largest group of defendants: Arthur Breitweiser; Dr Viktor Capesius, Dr Willi Frank; Emil Hantl; Josef Klehr; Dr Franz Lucas; Dr Willi Schatz; and Herbert Scherpe. Capesius and Klehr were charged with murder, while the remaining six men were charged with accessory to murder. Breitweiser and Schatz were acquitted. Engaged as medical

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officers for the camp staff, this group was also involved in the selection of new prisoner arrivals to the camp, decisions which led to immediate death for those deemed unable to work, as well as the execution of other prisoners through lethal injection. The final category, the Kapo (or prison functionary), was made up of a sole representative, Emil Bednarek, an inmate who assisted the SS and was accused of beating prisoners to death. Bednarek was charged with murder. 15 The defendants, their areas of responsibility and alleged offences covered the gamut of Auschwitz's functions and administration. Likewise, the importance of the indictment has already been noted as the prosecution's most significant contribution to a German murder trial. With 24 original defendants, hundreds of witnesses and the complexities of Auschwitz - to say nothing of the intricate historical context the challenge was a colossal one. Yet, the 700-page document that made up the trial indictment was a commendable achievement from a legal perspective, and a more than modest accomplishment from an historiographical viewpoint, too. 16 The first 100 pages elucidate the background details of each defendant, and include basic biographical information, their roles in Auschwitz and offences committed. Thereafter follows a 200-page historical exposition, mostly dedicated to the structure and functions of Auschwitz. It details the various camps and sub-camps that made up Auschwitz-Birkenau, the living conditions, execution methods and locations, 'justice' administered by its personnel, as well as extermination procedures for mass gassing and lethal injections. Admittedly, the indictment suffered from the same historiographical weakness that plagued previous trials: namely, a top-down approach to the Holocaust that emphasised the roles of Hitler and Himmler, and presumed that orders - including for the 'Final Solution' - were issued directly to underlings. Despite this shortcoming, however, the trial indictment of 1963 constituted the most detailed and historiographically sound analysis of the Auschwitz camp system written up to that point. Given its purely juridical purpose, that the indictment can simultaneously

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withstand a degree of historical scrutiny is a testament to the prosecutorial endeavour and historiographical instincts of its authors. As will be shown, in fact, the trial indictment proved by a considerable margin to be the most important historical document in the prosecution of 'Mulka and the others'. The remaining 400 pages of the indictment detailed the charges and evidence against each defendant, with quotes from witnesses, and related (with direct references) to the historical background information of the previous section. Renz concisely sums up the aim of the indictment: The exact and correct understanding the prosecutors had of the entire scheme of events at Auschwitz, the administrative structure of the camp, the functions and official positions of the camp personnel, enabled a precise explanation of the individual areas of operation, responsibilities, command and with it an exact representation and assessment of the accused's particular actions.17 The strict definition of murder under West German law and its emphasis on brutality and personal actions ensured that details of the crimes committed would need to be marked by a particular barbarity. Even with Auschwitz as its backdrop, where over one million people were murdered, the prosecution was compelled to detail the most heinous individual acts within this scheme of mass atrocity. The historical background that prefaced summaries of the alleged crimes provided a means to identify where defendants had acted beyond their orders. A PERFECT STURM: BAUER AND THE IFZ, 1959-1962 Given the sophisticated historical narrative pieced together by the Frankfurt prosecutors, then, it may be surprising that expertise from professional historians was sought at all. Indeed, for Bauer the legal position was uncomplicated and required little by way of historical clarification. Writing in 1965, Bauer remarkably claimed that the Frankfurt Auschwitz trial, although the lengthiest of all German jury trials up to that point, 'in reality, could have been one of the shortest'. 18 In Bauer's judgement, given the assumption that there

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was an order to exterminate European Jews, and that one of the 'murder weapons' to carry out this order was Auschwitz, '[a]nyone who operated this machinery of murder was guilty of involvement in murder'. 19 That Bauer and his team sought historical help is by no means a slight against the scholarship within the written indictment before the trial, nor the slated eyewitness testimony to be given during it. Instead, Bauer recognised that a court would necessarily reduce an event such as the mass killing in Auschwitz down to individual acts of murder, and had doubts over the judges' ability to grasp the necessary historical framework. Firsthand experience and accounts from reliable sources gave Bauer some cause for concern. In May 1961, for example, at a meeting of Attorneys-General in Bremen, Erwin Schule recalled one trial of a physician who worked at Auschwitz. During this proceeding, a Polish witness was reprimanded by the presiding judge on two occasions for referring to the camp as 'Birkenau', and was reminded that the matter at hand 'does not relate to Birkenau, but to Auschwitz.'20 The glaring fact that Birkenau was a large secondary camp within the structure of the Auschwitz complex, one that included the gas chambers and crematoria, was lost on the learned judge in question. A further example in 1962 related to a defendant who took part in the deportation of Hungarian Jews to Auschwitz. Drawing on the posthumously published memoirs of Rudolf Hofi, the former commandant of Auschwitz responsible for overseeing the mass extermination of Jews at the camp during the 'Final Solution', the presiding judge wondered whether Hofi was still alive and could be questioned by the court. (Hofi had been executed by a Polish court in 1947.) According to Matthias Meusch, Bauer considered that this judicial deficit in historical knowledge had led to less than desirable outcomes. 21 By contrast, Bauer had seen for himself how the injection of historical expertise into a trial could assist the prosecution's case. One early instance was the 1952 libel case against Otto Ernst Remer, who had alleged that members of the 20 July bomb plot - the attempted assassination of Hitler in 1944 - had committed treason. 22 The Remer trial is recognised as one of the first instances

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in which historical experts provided Gutachten and appeared in a West German court. 23 Although the case is relatively obscure, the contribution from historical experts made a positive impression on Bauer, particularly since it was he who initiated the request for assistance.24 Moreover, the effectiveness of Gutachten and testimony from medical experts used successfully in a Nazi 'euthanasia' trial that took place in 1962 in Frankfurt reinforced the value of courtroom expertise in Bauer's mind. 25 It is noteworthy, however, that despite Bauer's judicial mandate as Attorney-General to prosecute, it was the obligation he felt to public historical enlightenment that primarily motivated his decision to engage historians. The 1958 Ulm trial may have served as a prototype for historians' engagement as experts in Nazi crimes trials, but in Bauer's view that proceeding offered little by way of public education. Anyone reading about the Ulm trial in a newspaper, said Bauer, would have thought they were reading about a 'labour court trial', rather than one prosecuting mass murder. 26 Historians were not to appear in Frankfurt simply to stir public curiosity, nor did Bauer envision Nazi crimes trials as ordinary murder trials infused with historical expertise. Rather, the court's disposition towards reducing a murder trial down to the sum of its individual actions - which in Bauer's view 'violates the [reality of the] event' was to be overcome via the prosecutorial strategy of putting the entire 'complex of murder' on trial. 27 It took only nine months for prosecutors to find their way to the IfZ in Munich. With their pre-trial investigation beginning in June 1959, on 25 March 1960 Kugler visited the Institute and consulted its archival holdings for the purpose of the trial's preliminary hearing. In a subsequent file note, dated 29 March 1960, Kugler states that he met with archivist Hildegard von Kotze and took a random sample of 21 documents, predominantly photocopies of Nuremberg trial material. The results proved useful, and Kugler noted that 'so far as I could tell within the time available to me [...] [the documents] gave a complete and exhaustive picture'. 28 Curiously, Kugler did not mention speaking to any of the IfZ historians, nor broaching the topic of Gutachten. That particular

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discussion was first recorded as having taken place at the Munich Institute on 28 April 1961, between the Senior Prosecutor Hans Grofsmann and Hans Buchheim. 29 Compiled by Grofimann, the minute states that the two men discussed in detail the question of 'whether and, if necessary, to what extent the Institut fur Zeitgeschichte can provide Gutachten for pending court trials, on the basis of comprehensive literary and miscellaneous sources'. The minute states, further, that 'Dr. Buchheim agreed to this in principle', and that requests should be made to the director in order to avoid delays. 30 A trial of Auschwitz personnel, or any specific trials, was not mentioned. Nor does it seem that Buchheim necessarily welcomed the suggestion - still less was Grofimann's proposal grasped as an opportunity for the IfZ to project its image on a national and international level. Within the context of the IfZ's general attitude towards writing Gutachten at the time, however, Buchheim's non-committal 'in principle' agreement is understandable. At a meeting of the Advisory Board and the Board of Trustees on 7 November 1961, its Chair Hans Rothfels stated that '[a]gainst all expectations [...] the numbers of requests have multiplied', and that, in Rothfels's personal view, 'the quiet, scholarly work of the Institute is enormously impeded by work on Gutachten', a burden from which there seemed 'no escape'. 31 The lugubrious frustration expressed by Rothfels and other IfZ historians stemmed from what they saw as an excessive demand for Gutachten, which, though an important contribution to postwar German society, detracted from what should be the Institute's main focus. The entire notion of 'coming to terms with the past', a ubiquitous concept at the time in the Federal Republic, was anathema to the IfZ historians. According to Buchheim's colleague Hermann Graml, the term was 'taboo' ('Unworf) - within the Institute walls in the 1950s and 1960s. Their task was not to counter propagandistic representations of Nazi Germany with improvised responses, but to carefully and gradually construct robust scholarly works. 32 Though resolute in November 1961, developments saw Rothfels and other members of the Advisory Board waiver slightly in their

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attitude towards public engagement, even at the expense of academic pursuits. Meeting on 30 July 1962, some members of the Board expressed alarm at the recent public attention several 'controversial publications' received, specifically those authored by William Shirer, Fritz Tobias and David Hoggan. 33 Works by these historians were viewed within IfZ circles as empirically unsound at best, dangerous apologia - as in the case of Hoggan - at worst. In either case, at this meeting members of the Advisory Board expressed a view that 'one expects that the Institute takes a position' against these distortions. Rothfels faced a dilemma. He reiterated the sentiment expressed in the previous year that the IfZ's 'primary objective is research', and that its historians 'should not fritter away their time' through public engagements. 'One wonders', Rothfels is recorded as stating, 'whether the lectures conducted here and there [by IfZ historians] are not already too much as opposed to too little.' 34 At the same time, he recognised that the Institute was expected to engage in wider public education, and that there were often requests for what he termed a 'clarificatory opinion' to counter the widely publicised, fallacious positions taken by less than scrupulous historians. The possibility of responding to these historical distortions was canvassed, and suggestions ranged from press conferences, to a column published in the Institute's quarterly journal of contemporary history, the Vierteljahrshefte fiir Zeitgeschichte. No decisions were made in relation to these vague proposals, and it was recognised that in some cases extensive research would be required to form a counter-position that upheld the IfZ's scholarly standards. Though a visible change in outlook, the July 1962 meeting heralded no seismic shift in the Institute's research activities. The gathering did suggest, however, that the IfZ was looking, albeit casually, for avenues that would allow them to increase their public profile, demonstrate the integrity of their nonpareil historical scholarship and potentially to oppugn extreme views. It was opportune that within months, Bauer and the IfZ historians would meet to discuss the upcoming Frankfurt Auschwitz trial, and the possibility of historical expertise. Evidence from the

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7 November 1962 meeting suggests that an earlier preliminary gathering took place between members of Bauer's office - possibly with Bauer in attendance - and IfZ historians on 2 October 1962. 35 Little is known about the content of and circumstances surrounding this meeting. It can be established, however, that on 15 October 1962 two Frankfurt prosecutors came to the IfZ and spoke with Helmut Heiber, an experienced though somewhat aloof historian, who recorded the content of this discussion in a brief minute. 36 One man, identified as 'OStA [Oberstaatsanwalt, or Senior Prosecutor] Zinnal', appeared on Bauer's behalf. The other unnamed individual appeared 'in representation of the senior prosecutor of the Frankfurt state court.' The two men informed Heiber, according to the historian's minutes, that the coming year would see a swathe of large-scale 'war crimes trials' taking place in Hesse, the Federal state in which Frankfurt is located, proceedings that would last several months. The prosecutors slated to carry out these trials agree that 'the Institut fur Zeitgeschichte is requested to provide a number of Gutachten for the purposes of use in all of these trials', with the state of Hesse footing the research bill. 37 The remaining points in Heiber's document are perplexing, and, as a result of convoluted language and vague expressions, suggest a number of possibilities. After the delicate question of funding was settled upfront, Heiber records that the Gutachten are for 'internal domestic use [Hausgebrauch] of the prosecutor's office; these records [Niederschriften] therefore will not be introduced into the trials'. The 'records', continues Heiber, 'do not need to be stylistically prepared' and might, for example, be a 'compilation of the most important documents with connecting and explanatory texts.' 38 The ambiguity results from Heiber's use of the word 'records' in the same sentence as Gutachten, and it is somewhat unclear whether Heiber is discussing two different matters - proposed Gutachten, and 'these records' {diese Niederschriften) - though subsequent commentary strongly suggests the former. Historians were to take the stand in the main trials and deliver their 'experts' Gutachten' in verbal form only, an undertaking that would last several hours and expose historians to questioning from the prosecution and defence.

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Heiber notes that the IfZ director Krausnick pledged the assistance of his Institute's historians to the prosecutor's office. If Heiber's minutes are taken at face value as a true reflection of the discussion in October 1962, then, the prosecution saw no need to request Gutachten. Historians' only act in the trials would be their testimony from the witness box. Of course, it is possible that Heiber misunderstood and incorrectly recorded the discussion from the two visiting legal representatives. It is at least equally probable that Heiber accurately transcribed an exchange that, it will be shown, may not have reflect Bauer's intentions. Whichever the case, Heiber's minutes did at least correctly predict that a meeting would soon be held in Frankfurt between prosecutors, including Bauer, and historians. This gathering proved to be the most fateful development in shaping the role the IfZ historians would play in the Frankfurt courtroom, and the Gutachten they would prepare for the trial.

THE WEIEER FLECK: 7 NOVEMBER 1962 As depicted in the opening sequence of this book, the meeting between historians and prosecutors took place on 7 November 1962. Led by Bauer, no fewer than 15 legal representatives were in attendance, including Grofknann, Kiigler and Zinnall, alongside IfZ historians Krausnick, Broszat, Buchheim and Heiber. The surviving minutes from this gathering, a document of historical significance, paint Bauer as a man on a self-defined mission.39 He praised the Israeli prosecution's efforts during the recent trial of Adolf Eichmann in Jerusalem, which he argued 'enabled [both] a complete explanation of the political events in the Third Reich to emerge, with respect to Nazi anti-Jewish policies, and the utilisation of all documentary evidence.' It is a strategy, however, that was 'not possible in all trials.'40 Though it adds doubts to the veracity of Heiber's account of prosecutors' 15 October visit to the IfZ, Bauer stated that at the earlier meeting on 2 October agreement was reached that 'the general political and historical events' relating to the crimes in question 'be introduced by experts into the trial.'41 The historical experts would be invited

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by prosecutors to attend the trial and, from the witness box, provide the court with 'the necessary summary and classification of the entire scheme of political events at that time/ 4 2 Bauer made clear both his expectation of the IfZ historians, and what purposes the trial should serve. According to the minutes, in response to what he had identified as a defence strategy in earlier proceedings to 'cover up the true nature' of criminal trials, Bauer stressed that even 'matters of recent history, [which] actually ought to be [...] known to the court, cannot be evaluated unless introduced into evidence in a given trial/ 43 For the most part, that task would fall to the historians, a point recognised by everyone present. With an indirect reference to German law, Bauer stated that 'the subjective conditions of individual perpetrators must be explained. It is important to establish when the decisive actions became known to persons beyond the inner circle of its architect, especially the lower ranks/ 44 In Bauer's view, the entire political background would be needed to dispel any assertions that 'an act in question was a sudden idea of Hitler's or other official, rather, that the subordinates who carried out the act recognised the purpose of the order'.45 Historians' expertise would help to meet what Bauer considered to be the overarching goals of the trial: the successful prosecution of those charged; and forcing the German public to confront its past.46 At the November 1962 meeting, however, Bauer was not armed with a general request that historians were to introduce relevant evidence in supporting the prosecution's case; he prescriptively instructed the historians on how to write their reports. In an area of the minutes unambiguously titled 'limit of the expert reports' ('Begrenzung der Gutachteri), the role of the historian is plainly outlined: The expert witness reports should only provide the so-called background without giving an opinion on the specific trial; this creates a weifser Fleck [blank spot] that is to be explored through the hearing, not through the expert witnesses.47 The historians, then, could conduct research only relevant to the prosecutors' definition of 'background', which in turn was defined by the requirements of German law. Far from the autonomous

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freedom to pursue topics of interest or have their curiosity driven by the material they locate in archives, historians were limited by the prosecutors' need to provide relevant background without commenting on individual circumstances. In turn, the prosecutors' strategy (and by association, the historians' research) was defined by the alleged crimes committed, and by each individual defendant's circumstances. The historians were instructed to leave a deliberate hole in the historical narrative, one to be filled through the court process, not within the expert witness reports. The resultant historical reports were, by design, left intentionally incomplete. The creation of a weifser Fleck, explicit restriction to 'background' and withholding of personal opinion suggest that historians were not to operate as self-directed researchers. In any other circumstance this was their standard modus operandi. Additionally, the historians were requested to 'extensively quote the wording of the most important documents and - as in academic reports - give the sources.' 48 Although corresponding to historians' standard practices, the adverb 'extensively' denotes a preference for the relevant evidence to be presented descriptively, rather than encouraging historians to offer their own analysis. In every sense, this request builds on the previous instruction that historians stick to the 'background' and not offer an opinion on the individual trial. At the same time, Bauer directed that historians must produce reports of a scholarly nature that were, according to Pendas, 'academic rather than prosecutorial in character'. 49 In this sense, at least, the prescribed approach hardly differed from that adopted by historians in the application of their craft generally. Notably, Bauer's instructions with respect to historians' testimony from the witness box were far more limiting. At the November 1962 meeting, he made it clear that historians would need to leave many of their professional habits at the door of the courtroom, plainly stating that 'an academic lecture is to be avoided'. In its place, historians were to provide testimony that was 'simple', and that the general public must be able to comprehend. 50 Bauer's instructions

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unambiguously highlight his recognition of an opportunity to educate the public through accessible expert testimony from historians. Nonetheless, despite his specific and circumscribed instruction, Bauer's expectations of historians' testimony at the trial were no less weighty. Although 'simple' and comprehensible, through their oral testimony historians remained obliged to provide 'the necessary summary and classification of the entire series of political events' in question. 51 The historians present knew from the outset that their Gutachten would reach a wide audience, though the scale of the reports' success could not be anticipated. At the November 1962 meeting, Bauer stated that the Gutachten must be reproduced in large numbers for official bodies, and urged that the reports be published 'as a paperback'.52 Although an important work of history, one constructed by leading historians and supported through archival evidence, the foundation for Anatomy was laid in November 1962 not by an historian, but a jurist. It was thus not a case of historians seizing an unexpected opportunity to publish what became fruitful historical exploits. Rather, Bauer's plan from the beginning, expressed at the November meeting and likely embraced by the historians present, was for the trial Gutachten to be published. Historians were therefore guided in their research and formulation of the reports by a multitude of factors, all of which came to influence the reports produced. They were not shaped by historians' instinctive curiosity to acquire and refine knowledge of the past. The prosecution determined the breadth, length and scope of the reports, and foresaw their imminent publication. The Gutachten needed to be scholarly sound and legally admissible. They were to be read not only by an unknown panel of judges, but received by the academic community and the general public. Moreover, they had to meet the judicial need for relevant historical context, one shaped by the realities of a West German courtroom, legal system and definition of murder. Two months later, on 10 January 1963, Bauer wrote an opinion piece for the newspaper Frankfurter Rundschau. Without direct reference to the Frankfurt Auschwitz trial, he anticipated an increase in demand for experts in future trials, and advocated

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their engagement. Titled The Experts Reign' ('Herrschaft der Sachverstandigen'), Bauer's article implored experts to demonstrate their 'moral courage' ('Zivilcourage') by providing expertise into all manner of questions beyond the scope of a judge's (and jury's) knowledge - psychological; chemical, physical, technical, as well as historical. With respect to the latter, Bauer claimed that previous 'anti-Nazi' trials had shown that 'generally, sufficient knowledge about matters of contemporary history can in no way be assumed'. Bauer thus invoked the need for historical Gutachten to meet a strictly legal purpose. 53 Two months before the trial commenced, in October 1963, Bauer gave the most amplified vision yet - albeit not publicly - of what awaited the historians in Frankfurt, stressing their judicial indispensability. Invited to speak before a meeting of representatives from various state criminal offices (Landeskriminalamte), Bauer identified a fundamental shortcoming in earlier attempts to prosecute Nazi criminals in the 1950s. Localised, and devoid of context and connections, defence lawyers were able to reduce the matter down to the finest details, thus denying the court any sense of wider perspective. It was a state of affairs which, in Bauer's view, had led to a number of acquittals. 54 Additionally, these defence attempts to fragment a proceeding denied both jurors and the general public an understanding of the 'overall picture.' 55 A new strategy would be required to pre-empt this defence line of attack. Clearly, an outcome that saw mass murderers released back into a society, which itself had been prevented from confronting the horrors of Auschwitz, was unthinkable. The prosecution faced its own challenges in proving the charges against the accused, while keeping sight of the overall historical picture. Although Bauer preferred to rely on documentation as evidence, rather than eyewitness statements, he recognised the inherent risks of this approach. Given the scope of the charges, as well as the administrative complexities of Auschwitz, and the SS as an organisation, the documentary evidence required would be considerable. In Bauer's estimation, there was 'a danger that the entire trial could become disjointed as a result of copious motions to take

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evidence and opinions on evidence' and that, critically, 'the fate of two million Jews will be completely relegated to the background under the weight of formalities/ 56 Much rested, then, on the shoulders of the IfZ historians and their Gutachten. Their injection into the trial would both 'prevent and remedy' this situation, while the expert reports were to give the trial 'a certain backbone'. 57 Broszat's Gutachten on Nazi policies towards Poland was singled out by Bauer, who defiantly stated that an overall framework of these policies would be outlined to the court, '[e]ven at the risk of accusations that the prosecution is conducting a show-trial'.58 The expert reports' raison d'etre and historians' testimony were to reveal the Nazi regime's 'true purpose' to the court and to the German public. Historians were to offer Bauer the 'surest means' of circumventing defence attempts to fragment the proceedings.59 Part of the attempt to successfully prosecute Nazi criminals, and to facilitate a public confrontation with the past, historians were to feature not peripherally, but centrally, in the Frankfurt Auschwitz trial. DRAFTING THE GUTACHTEN In relative terms, although an historian in the witness box was still a rare sight at this time, at least two of the IfZ members - Krausnick and Buchheim - had arguably become West Germany's most experienced historical experts by the mid-1960s. Prior to the trial, the two men had accumulated five courtroom appearances between them, including Krausnick's effort in Ulm. The procedure of trialling murder, and the definition of this charge under the West German Criminal Code, was not unfamiliar to the historians. While the trial would be Broszat's debut as an expert witness in a criminal trial, his decade-long engagement in constructing Gutachten - a degree of experience shared by Krausnick and Buchheim - and publishing historical works, held him in good stead for writing his reports. Although detached from the IfZ and from the pitfalls of the witness box prior to Frankfurt, Jacobsen had marked himself as an emerging and distinguished scholar.60 Confidence in their historical expertise,

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methodologies and knowledge, as much as the inquisitorial system itself, mitigated the possibility of failure, and the historians' reports would be no mere elaboration of the prosecutorial brief under specified and particular subject headings. Buchheim's report, titled 'Structure of the SS and Police within National Socialist rule' ('Die Organisation von SS und Polizei unter nationalsozialistischer Herrschaft'), was a decade in the making. Although only the immediate burden of writing Gutachten was apparent at the time, the report that came to occupy most of Anatomy's first volume was derived predominantly from this compulsory, earlier undertaking. This basis included three reports in the 1958 collected edition of Gutachten published by the IfZ on the subjects of SS and Police jurisdiction, legal status and structure of a Reichskommissar, and the development of political police.61 Two articles, one in particular on the 'Higher SS and Police Leader' ('Hoherer SS- und Polizeifuhref), proved important in building his trial report, along with unpublished Gutachten on the admission of police into the SS and the Gestapo. All - save for a 1955 article - were drafted in response to requests for Gutachten from external agencies.62 In the introductory comments to his Frankfurt Auschwitz trial Gutachten on the SS and Police, Buchheim highlighted the fact that it encompassed material 'already published by the author', which had been 'shortened and reworked'.63 Without elaborating, he listed the subject matters of this reworking as the Higher SS and Police leader, SS and Police jurisdiction, and the 'Reichskommissar for the Consolidation of German Nationhood' - all topics on which Buchheim had published.64 For Buchheim, it was a fusing together, not of history and criminology as Wojak argues, but of previously written historical reports, many of which were themselves shaped by the original, external requests for Gutachten. As a roadmap of Buchheim's Gutachten for the trial, then, his preliminary remarks are a more than serviceable guide to how he constructed the report, much of which pre-existed in other published and unpublished forms. Where the SS Gutachten was for all intents and purposes a summary of existing, extensive research over a ten-year period, in drafting his

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second report on the topic of 'superior orders' Buchheim enjoyed - or suffered from - no corresponding bounty of evidentiary riches. The subject matter was not part of his oeuvre up that point, nor was it of much more than peripheral interest to Buchheim thereafter. As the resident expert on the SS and command structures, however, Buchheim was arguably the most logical and reliable candidate. Moreover, the second report was not, as had been the case with the first, a tapestry of historical works deliberately woven to meet a legal request. The prospect of a report on 'superior orders' was suggested as early as the November 1962 meeting between historians and prosecutors. There is also some evidence that prior to April 1963, Buchheim had been engaged as an expert witness in several trials, providing expertise on the question of 'superior orders'. 65 While it was not new territory, therefore, nor was it familiar terrain. Compared to his co-witnesses, Krausnick's Gutachten, titled simply 'Jewish Persecution' ('Judenverfolgung'), hinged far less on the explication of Nazi structures and institutions that featured so prominently in Buchheim's and Broszat's reports. 66 In it, Krausnick traced and linked the Nazis' pre-war persecution of German Jews to the subsequent European-wide programme of extermination. Emphasis was placed on the intensification of anti-Jewish measures from the beginning of the Nazi regime in January 1933, with the November 1938 Kristallnacht pogrom - which saw widespread acts of violence and arson, and the arrest of thousands of Jews across Germany and Austria - identified as a turning point. Statements by Hitler and other leading Nazis predicting Jewish annihilation in the lead-up to the outbreak of war also featured prominently in Krausnick's report, marked as harbingers for the eventual extermination of Jews, an event rooted in the emerging racial theories that found credence in late nineteenth-century Europe, and became increasingly accepted as a result of popular antisemitic 'thinkers' and political ideologues. It was from this context, according to Krausnick's report, that Hitler's antisemitism emerged and drove the campaign of Jewish persecution and extermination: the crime scene in which the defendants ultimately found themselves.

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Where Krausnick's Gutachten traced a course to Auschwitz through antisemitism and escalating persecution, the two subjects Bauer allotted to Broszat were the evolution of the concentration camp system, and Nazi policies towards Poland. In fact, Broszat's latter report was a truncated and summarised version of a book he published in 1961. 67 Given it already appeared in a longer version, Broszat's Gutachten on this topic was never intended to be part of Anatomy.68 By contrast, Broszat's Gutachten on concentration camps was an original piece of research, one that necessitated the consultation of archival material.69 The report, titled The evolution of National Socialist Concentration Camps' ('Die Entwicklung der nationalsozialistischen Konzentrationslager'), was a detailed exposition on the creation and implementation of Nazi concentration camps, throughout the period of the Third Reich. Attention switched, particularly once Broszat's account entered the war years, to the expansion of Auschwitz first as a concentration camp, then as a killing centre. At various stages, ideology motivated the Nazis' criminal actions against opponents and 'racial' enemies. The consequences were a swelling number of political prisoners in the early years of the Nazi state, and millions of Jews destined for extermination in its final years. In his report, Broszat placed emphasis on the ad hoc nature of responses intended to meet these new demands. Jacobsen did not attend the November 1962 meeting, and first agreed to become an expert witness only in June 1964. The task of writing a report on the treatment of Soviet prisoners-of-war and commissars had initially been assigned to historian Heinrich Uhlig. The latter's unexpected death, and Jacobsen's sudden enlistment to the prosecution's cause, acted to further differentiate his involvement from that of his IfZ counterparts. Correspondence from the Frankfurt prosecutors, dated 24 June 1964, referred to a recent discussion in which Jacobsen agreed to provide a Gutachten 'on the historical background of the so-called commissar shootings and the mass execution of Soviet prisoners-of-war'.70 The unnamed prosecutor included with this correspondence, 'as agreed', a Gutachten completed by Uhlig on the same topics for an earlier trial. Uhlig's

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report was dated 15 April 1963, and the prosecutor issued Jacobsen with strict instructions to ensure that his updated version contains 'additional knowledge acquired in the interim period'. 71 At least according to the prosecutor's letter, Jacobsen acceded to this stipulation, one that required him to build on and update Uhlig's work. The circumstances were, thus, quite different to those the IfZ historians faced in constructing their Gutachten. Buchheim, Broszat and Krausnick enjoyed a period of over 12 months to complete their Gutachten, a role in which they had proven themselves adroit many times over, and had the benefit of drawing on their own expertise, or beginning new research. None were, as Jacobsen was, made responsible for the completion of a task already commenced by another historian - and given fewer than six weeks to complete it. Whether it was an aid or encumbrance, as documentary evidence Uhlig's original Gutachten provides a useful means to compare the approaches taken by Jacobsen and Uhlig. Although the latter's Gutachten lacked the polish and sophistication of those produced by the IfZ historians, he did appear to share their willingness to expand the scope of analysis beyond the subject matter, and to draw conclusions that attempt to convey historical insight. For example, Uhlig did not simply detail how the mass shootings by mobile killing squads (Einsatzgruppen) were carried out, but argued there was a 'remarkably smooth collaboration' between these squads and the German armed forces.72 The question as to when the first systematic murders of Soviet prisoners-of-war took place was recognised as historiographically significant, though difficult to ascertain 'with the exactitude necessary'.73 Nonetheless, where Uhlig and the IfZ historians endeavoured to weigh the significance of events, Jacobsen's Gutachten served to inform, rather than interpret and influence. It examined the mass shootings of Soviet political commissars and prisoners-of-war that took place following and within the context of the invasion of the Soviet Union from June 1941 onwards, codenamed Operation Barbarossa. This military action not only marked a drastic escalation in National Socialist expansionist ambitions, but signified that the new conflict would be a

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murderous ideological and racial crusade. Pitted as a war against what Hitler viewed as 'Jewish-Bolshevism', the various criminal decrees issued by German military planners that form the substance of Jacobsen's report were critical in setting the tone, expectations and authority for the coming invasion and its anticipated, unparalleled barbarity. For all four experts, remaining bound to the prosecution's instructions and selected themes was a sine qua non for their involvement in the trial. For the three IfZ historians, the unifying force was not content, but structure, style and reasoning - the result of a decade-long engagement with Gutachten. The same principle of expanding the scope of enquiry and context beyond the initial request for information (made at the November 1962 meeting between historians and prosecutors) was applied to the task of drafting Gutachten for the Frankfurt Auschwitz trial. For Krausnick, it entailed no mere enumeration of Nazi anti-Jewish policies between 1933 and 1945, but an investigation into the origins of racial antisemitism, its interaction with Nazi ideology and gradual implementation of discriminatory measures. Likewise, Buchheim did not project a structural chart detailing the SS on the courtroom wall, but deciphered its various organisational idiosyncrasies, detailed the separation from and entanglement with police units and identified the duties of key members. Similarly, Broszat did not simply begin his Gutachten with the earliest Nazi concentration camp (Dachau) and draw lines to the death camp at Auschwitz. Rather, he sought to analyse the episodic development of camps, as well as their various and conflicting functions. In Jacobsen's hands, the subject became a clinical examination of decrees and orders, the manner of their transmission and numbers killed. It was a fact that most of the defendants had committed their crimes as members of the SS, which ran the extermination centre at Auschwitz, and the upper echelons of which fanned the fanaticism and built the mechanics of the 'Final Solution'. This was reflected clearly in the subjects and content of the Gutachten. While the SS dominated Buchheim's report, the organisation's importance to the trial is highlighted within each report. For Broszat, the concentration camp was not only the ultimate

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expression of SS brutality, but the scene of the crimes under investigation in Frankfurt. Moreover, as Broszat highlighted, the 'Final Solution' provided the circumstances under which the defendants became stationed in Auschwitz, their actions underpinned by a virulent antisemitism - the evolution of which was charted by Krausnick.

'GUTACHTEN ARE WORTHLESS HERE': A JUDGE'S PRE-TRIAL VERDICT As the historians continued to piece together their Gutachten, and Bauer publicly expressed his enthusiasm for their intended contribution to the trial, discontent emerged from a critical voice: the judges who would preside over the case. Evidence suggests that one of the first reports submitted to the court, Buchheim's treatise on the SS and Police, may have prompted the judicial panel to establish its position on the use - and potential misuse - of historians as expert witnesses in the Frankfurt Auschwitz trial. 74 Buchheim's original Gutachten is dated 19 December 1963, and, with the trial itself commencing on 20 December 1963, was presumably submitted to the court as evidence shortly after its date of signature. The early stages of the trial, from its commencement until 6 February 1964, were occupied primarily by the interrogation of the defendants. 75 Yet the evidentiary phase that was to begin on 7 February 1964, and be headlined by Buchheim's testimony, was prefaced by a clandestine exchange between members of the judicial panel. Whether perturbed or simply cautious, the panel saw it necessary to seek a written opinion from one of its members, Substitute Judge Werner Hummerich, on the admission of historical Gutachten and testimony in the trial. Hummerich's response, though terse, was unequivocal and in stark contrast to Bauer: historians would best serve the court through the examination of documentary evidence, not through the submission of Gutachten and provision of oral testimony. Hummerich's opinion, dated 26 January 1964, and with reference to the Gutachten that examine the 'structure and development of the SS and

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Concentration Camps', stated that these topics 'primarily relate to facts that are proven through documents. Therefore, they [the facts] absolutely cannot be introduced into the HV [Hauptverhandlung or main trial] through expert witnesses/ 76 The candid and colourful language Hummerich employed reveals both that his cri de coeur was for judges' eyes only and that, at least on the part of the more junior Hummerich, there was genuine concern that historians interfering in court matters could jeopardise the integrity of proceedings. Moreover, he was open in his contempt for historians' Gutachten as suitable evidence in the trial. While the prosecution had intended for the historians to fire the first evidentiary salvoes, and to sketch the historical scenery for the court's benefit, in Hummerich's view, this strategy was misguided and dangerous. Experts should only be called after specific matters had been discussed in the trial, and where it was agreed that outside expertise was necessary. 'As a rule', he wrote, 'a Gutachten would therefore be worthless, [since] the trial is no place for contemporary history to be practised, rather, for the specific actions of those on trial to be clarified and a verdict reached.'77 In Hummerich's view, the contemporary historian would 'take an active position on matters and conduct evaluations using his [sic] own methods within a scientific framework.' Hummerich, again, stressed that the court's role was to assess evidence 'within the rules of the Code of Criminal Procedure.'78 In Hummerich's estimation, there was a colossal gap between the historian's modus operandi, and the function of a courtroom. Hummerich's report, however, foreshadowed a greater threat to the trial than that posed by arguments over legal and historical methodology: the Gutachten themselves. Not content with dismissing the reports as 'worthless', Hummerich suggested that Gutachten would lead to an 'expansion of the matter at hand which, although historically interesting, presents dangers for a jury court.' 79 The historians and their Gutachten, according to Hummerich, would not only fail to answer the right questions, but raise new ones that he considered 'generally meaningless' for the trial. 80 Hummerich ultimately feared a trial overtaken by experts, who would introduce not only Gutachten, but 'QownXet-Gutachten' and 'counter-counter

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Gutachten', with judges forced to decide 'which historians should be allowed as serious scholars, and which not'. 81 The pressing matter of a murder trial may be overlooked. Although clearly a worst-case scenario, nothing in Hummerich's report suggests that the image of a disorderly courtroom, besieged by squabbling experts armed with multiple Gutachten, and refereed by a helpless panel of judges, was conjured in jest. For Hummerich, historians' place in court should be pre-determined by the judges, and responses provided to specific questions. Giving historians free rein would confuse the jury and drag proceedings into a mire of irrelevance. Where Hummerich foresaw a possible role for historians, one that would spare the court from disorder, his statement ostensibly comes into conflict with Bauer's original brief from November 1962. Preferring not to bestow the title of 'expert' on the historians, Hummerich deliberately, and contemptibly, describes them as (and demotes them to) 'witnesses with expertise' ('sachverstandige Zeugen').82 Their role, in Hummerich's view, was not to offer modes of interpretation and overarching, essential historical context through Gutachten, but to authenticate and provide an opinion on the significance of particular documents submitted to the court, where such matters were unclear. In Hummerich's estimation, 'Auschwitz was simultaneously, and at different periods, used for various purposes [...] [therefore] where documents are introduced into the trial, the relevant time period must be highlighted, as well as their relationship to the defendants.' 83 In this sense, Hummerich appeared even to trespass Bauer's strict decree that historians leave the defendants out of the historical narrative within Gutachten - the socalled 'blank space' ('weifier Fleck'). A closer reading of Hummerich's report, however, reveals clearer lines of demarcation for historians' activities. Expertise in the realm of document examination was permissible where documents had been submitted to the court, and historians could assist the prosecution in establishing how the evidence related to the defendants. Hummerich's latter concession is underscored by the concluding sentence of his report in which he offered his fellow judges the following counsel: 'The extent to which [the prosecution] make use of suitable experts internally is of no

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importance to the court, provided they do not enter the courtroom/ 84 Bauer's hope that historical Gutachten would form a centrepiece of the trial could scarcely be further from Hummerich's depiction of historians knocking in vain at a locked courtroom door. Thus, on the eve of the trial's evidentiary phase, earmarked by the prosecution as one to be dominated by the input of historians, two vastly divergent positions had emerged from two key individuals on the role that historians were to play in Frankfurt. Bauer, preceded by reputation as one who doggedly pursued justice for Nazi crimes, had become a towering figure of West German jurisprudence. Though a junior member of the judicial panel, Hummerich would be at least partially responsible for the ultimate finding of guilt or otherwise of Nazi criminals, and for deciding whether evidence given in the trial could be considered admissible. The first of the Gutachten, lauded by Bauer as the central means of preserving the trial's integrity, was greeted by the judicial panel with sufficient concern to warrant a request for a written legal opinion. The finding was a damning one, which by no means ruled out - and, arguably, recommended - the exclusion of historians from the trial. In Hummerich's estimation, historians' role should not be merely peripheral: they should be banished altogether. The pressing question, to which this book now turns, is whether the reality of historians' courtroom experiences more closely reflected Bauer's optimistic vision, or Hummerich's prediction of anarchy. At the time of Hummerich's report in January 1964, however, it was unclear whether the historians' planned courtroom incursion would take place at all.

CHAPTER 3

Giving Evidence: The Historians' Court? Or, Historians Caught?

The main trial was officially declared open on 7 February 1964. On that first morning, the court declared that no witnesses would be heard, a statement that was met by a prosecution announcement. Hans Grofimann, the senior prosecutor at the Frankfurt Auschwitz trial, called his own witness to give evidence: Hans Buchheim. With no objections emanating from defence lawyers, Dr Buchheim took the witness stand. The expert witness was also reminded by the court of his 'obligation to tell the truth', and to offer his testimony 'impartially and to the best of [his] knowledge'.1 Buchheim was the first historian to give evidence at the trial. His experiences - and those of his three fellow expert witnesses, Krausnick, Broszat and Jacobsen - are the focus of this chapter. It draws on newspaper reportage, and other trial documents, to reconstruct the content of historians' courtroom testimony and their subsequent questioning. Though difficult and necessarily partial, the reconstruction provides a means of scrutinising how historians and their Gutachten were treated by the court, the prosecution, the defence and the judges. The Frankfurt Auschwitz trial was the largest and most comprehensive trial by jury in German legal history up to that point. Those on trial were accused of collectively murdering 45,962 of the no fewer than 1.1 million people killed at Auschwitz.2

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The pre-trial investigation began in early 1958, during which at least 950 former camp functionaries were investigated, 22 of whom ended up in the Frankfurt dock.3 The written indictment detailing the alleged crimes totalled precisely 700 pages.4 The more than 200 journalists present on day one, and their concomitant 12 television crews, began the daily onslaught of sensationalised (and eagerly received) headlines.5 The trial itself commanded the German public's attention with over 20,000 curious onlookers (predominantly school students) occupying the gallery.6 Well-known attendees included Theodor Adorno, Gunther Grass, Karl Jaspers, Eugen Kogon, Inge Deutschkron, Henry Miller, Peter Weiss and Hannah Arendt.7 Of the 1500 witnesses approached to testify, 356 took the stand, 168 of whom came from West Germany, and 188 from 17 other countries, during the 183 days in court.8 Much of their testimony is preserved in the form of recordings, stretching to 450 hours, recently (and painstakingly) transcribed to become 13,279 pages of text.9 The oral judgement delivered in court at the close of the trial is 107 pages long, while the subsequent written judgement stands at 918 pages.10 Although the ultimate punishments by no means fitted the crimes, of the 17 defendants found guilty, six received life sentences, three were acquitted, while the remaining eight were sentenced to a combined total of 96 years.11 The trial spawned the publication of scores of books and articles on the subject, the showing of a successful play, screening of an awardwinning documentary, founding of a research institute and export of an internationally acclaimed film.12 These impressive figures and outcomes reveal a sense of the trial's scope and magnitude as an historical event in its own right. Numbers and names alone, however, do not capture its immediate or longterm significance. The Frankfurt Auschwitz trial did not merely raise awareness of Nazi crimes, but forced the German public to come face to face with atrocities committed during the war. The survivors who took the stand in Frankfurt to testify and recount their torment could not be easily ignored.13 It was not only the general public who found themselves engrossed in the trial's theatrics. The various authors previously listed constituted a veritable who's-who of journalism,

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social commentary and philosophy in West Germany at the time, and included several famous international writers. Miriam Wenzel argues that this convergence of intellectuals in the Frankfurt courtroom bred not only 'a very public attempt to grapple with the Nazi past', but that these authors' meditations and written commentary informed the ensuing public discourse. 14 Nonetheless, within this dialogue on a judicial confrontation of the past, one that continues to be held in scholarly literature and popular representations, the historians who appeared as expert witnesses make no cameo appearances, and barely register as footnotes. This chapter reverses the decades-long trend of casting the historical experts in a minor role. And the first to take the stand was Buchheim. 'AN HISTORICAL SEMINAR': BUCHHEIM, 7 FEBRUARY 1964 When we arrived at the Frankfurt 'Romef on the day we were invited [...] we had to wait in the hallway so that our arrival was not noticed by the court. Not until some time had passed were we asked to enter the courtroom [...] A disagreement smouldered between Bauer and the court. Bauer wanted the trial to also be understood as a contribution to public understanding of Nazi crimes, while the court wanted to concentrate exclusively on the guilt or innocence of the individual defendants. Bauer thus feared that the court may decide to forego the expert witness reports. To prevent this, he used a courtroom trick: according to the Code of Criminal Procedure, a court is obliged to take note of 'evidence present' - and that was us, sitting in front of the door.15 The above is Buchheim's written account of his arrival at the Frankfurt court on 7 February 1964, a mere 12 days after Hummerich submitted his unfavourable report. The image of Bauer and Buchheim first lurking in the courthouse hallway, before unceremoniously entering the court, and skulking by the door, hardly seems befitting of the occasion. It marked the start of the evidentiary phase of the most famous West German trial of Nazi criminals, run by the most prominent West German prosecutor, attended by a respected historian from the most reputable research centre of contemporary history in the country - and it began with both

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men hiding from the judges. The version of events is supported by the recollections of Gerhard Wiese, the last surviving prosecutor of the trial, who also contributed to the drafting of the indictment. Over 50 years since that morning in February 1964, Wiese was able to describe the judges' reaction to the news that an expert witness was present and ready to testify in a few words: They were not amused!' 16 Whether chicanery or not, the tactics worked. Notwithstanding Hummerich's exhortations, Buchheim became the first historian to give evidence at the trial.17 Had Hummerich not witnessed Buchheim's testimony for himself and instead relied solely on the following day's newspaper reports to gain a sense of how historians would contribute their expertise, the Substitute Judge would have panicked at the headlines alone. The Auschwitz trial becomes an historical seminar' ('Auschwitz-Prozess wird zum historischen Seminar') was an announcement heralded by more than a few newspapers in response to Buchheim's appearance. These were accounts that, given his instruction to avoid 'academic lectures', would have similarly given Bauer equal cause for concern had he not been present in court.18 Indeed, the example is one that highlights the somewhat problematic task of assessing the impact of historians in the Frankfurt courtroom. Aside from Buchheim's brief written recollection, 30 years later, of his concealment alongside Bauer on that first day, he did not recount his time on the witness stand in the intervening years.19 Further, since historians' testimony amounted to a summary of the corresponding Gutachten, which had already been submitted to the court as evidence, it was not recorded in detail, let alone verbatim. Subsequent eyewitnesses, however, whose testimony formed the main sources of evidence in evaluating the defendants' culpability, spoke without reference to written material. What they said from the witness stand, as a result, needed to be recorded. Possibly stemming from Hummerich's recent admonishments, the decision not to record the historians' testimony leaves any attempt to reconstruct their courtroom experiences reliant on two incomplete and problematic sources: West German newspapers; and the recollections of the East German Joint Plaintiff Friedrich Karl

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For their part, the West German newspapers quickly recognised the astonishing degree of public interest in the trial and its commensurate profitability. Admittedly, the predominant characteristic of this newspaper reportage was one of sensationalism, a trend limited not exclusively, or even primarily, to the historians' testimony. Lurid headlines attempted to capture the most graphic elements of the day's courtroom drama and, with it, the attention of a voracious readership. Nonetheless, bearing this journalistic prerogative in mind, the extensive coverage of the historians' testimony, though largely descriptive and necessarily selective, provides the most effective means of assessing the experts' courtroom impact. In contrast to the trial's main judicial actors, journalists in court listened to historians' testimony without the ability to refer to the written Gutachten. It is therefore likely that the content they outlined and, at times, examined, in their newspaper articles closely reflected what historians said on the stand, and the questions they faced. While the complexities of Hummerich's report on the suitability of historians in court fell outside the scope of news articles, had the courtroom tumult the Substitute Judge predicted might result from historians' participation become reality, journalists would have doubtless seized upon such a story. That no such accounts emerged from the trial suggests Hummerich's worst fears were not realised. Moreover, cross-referencing the multitude of news reports that emerged from various agencies, with differing perspectives and foci, reveals a general consistency in the historians' experiences, and magnifies the credibility of newspapers as evidence. One journalist trumpeted Buchheim's testimony on 7 February 1964 as a 'two-and-a-half hour long lecture of extraordinary intensity'. 21 Drawing on his comprehensive Gutachten, Buchheim explained the structure, chains of command and organisation of the SS and Security Police, with particular focus on the influence of the Higher SS and Police Leader.22 Local newspaper the Frankfurter Neue Presse devoted particular attention to Buchheim's day in court, dedicating an editorial and considerable space to a comprehensive and insightful overview.23 The resultant article made no assessment

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of Buchheim's performance as an expert, though was praiseworthy of his endeavour and ability to respond to questions. No accusation of a theoretical diatribe was levelled at Buchheim; instead, his presentation was described as 'peppered with evidence and quotes from regulations, laws and personal statements from leading SS personnel', thereby reflecting his Gutachten generally.24 Moreover, some outlets recognised the relevance of Buchheim's Gutachten for the trial. It is almost certain that Buchheim himself would have refrained from highlighting the judicial pertinence of his report when he gave evidence in court. Yet, whether through statements by the prosecution or through Buchheim's impact as a witness, the prosecution's concept of a trial centring around the role of the SS the organisation to which, after all, the majority of defendants belonged - was not lost on at least two journalists covering the day's events.25 Buchheim traced the early years of the Third Reich and outlined what he described as an unintended, two-way interaction between legality and illegality. According to Giinther von Lojewski, writing in the Frankfurter Allgemeine Zeitung, Buchheim's interpretation set the scene for a conflict between the defence and the prosecution. Whereas the defendants argued that they had 'believed in the legality of their orders and their acts', von Lojewski foresaw the prosecution's counter-position, supported by Buchheim's claim, that law and despotism co-existed in Nazi Germany.26 By and large, von Lojewski's observations in this regard pre-empted what became a contested legal battleground throughout the trial. Since a conviction for murder under German law necessitated that an individual's 'base motives' be proven along with the act itself, the defendants' possible motivation for killing came under intense scrutiny. For his part, and possibly with this legal requirement in mind, Buchheim directly referred to two pieces of evidence: a letter from SS leader Heinrich Himmler; and from an unspecified 'Higher SS Leader'. In both documents SS personnel were 'reminded' that concentration camp inmates should not be arbitrarily killed, and that doing so could result in punishment. 27 The evidence suggests that, upon questioning, Buchheim confirmed that there were 'no known cases' in which

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concentration camp personnel had ever been executed as a consequence of refusing orders to kill. Whether from the judges, defence or prosecution, the question not only anticipated an imminent courtroom confrontation over this issue, it also extended the discussion beyond the scope of Buchheim's first Gutachten.28 Kaul, for his part, was unimpressed by Buchheim's testimony, both in content and delivery. His report back to East German party bosses on 8 February 1964 described Buchheim as appearing 'unprepared' and having given an 'unprofessional impression'. According to Kaul, questions from a prosecutor (who is not named), from Joint Plaintiff Henry Ormond, and from himself, proved 'all in all unproductive'. 29 Kaul's assessment was stinging: 'as a result of his own inner uncertainty, the expert dodged the tough questions and failed to provide a clear answer.'30 Moreover, reports from the day hint at a degree of tension between Kaul and Buchheim. Seeming to delight in its own political point-scoring, of which Kaul himself was no amateur, the Frankfurter Neue Presse described an acerbic exchange between the two men during Buchheim's questioning, in which Kaul sought to establish the significance of the Military Criminal Code for SS courts. Buchheim's response that '[t]here were rules from higher authorities, as in all authoritarian states', was, in the journalist's view, met by the East German Kaul with 'a face, as though he did not understand the jibe'. 31 In Kaul's view, Buchheim's incompetence reached its apogee under questioning from individual defence lawyers, who wanted to hear the expert state that 'within the SS there were "superior orders".' 32 Ultimately, and in the very next sentence, Kaul contradicted his own statement that Buchheim foundered under defence questioning, confirming the Frankfurter Neue Presse's claim that Buchheim had stated there was no known case in which an SS man was executed for refusing orders to kill.33 Though prone to exaggeration, Kaul saved his most poignant observation for the end of his report - that there was a legal problem surrounding the question of 'superior orders', one that, 'above all, we must objectively and precisely tackle [...] from a legal perspective.'34 Unwittingly, Kaul alluded to a critical point: Buchheim's Gutachten

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on the SS had not been devised to counter the anticipated 'following orders' plea from the defendants. Its purpose was to outline the structure of the SS and Police, to explore its legal bases and to explain how power was exercised within these organisations. Yet, when Buchheim had finished his testimony, and the opportunity to pose questions began, it appears the discussion immediately (re)turned to the specifics of a murder trial. Recognition that the question of 'superior orders' would continue to dominate proceedings triggered Buchheim's commissioning for a second Gutachten, to address the question directly, and flagged the historian's imminent return to the court's spotlight. One other feature of Buchheim's initial courtroom foray and his post-testimony questioning looms large: Auschwitz itself. Peripheral in Buchheim's Gutachten, Auschwitz was accorded, in von Lojewski's view at least, the same priority before the court. In his article, von Lojewski observed that Buchheim spoke of the camp itself 'only briefly', and in the context of discussing chains of command. The claim is supported to some extent by the Frankfurter Neue Presse's account of a question from Joint Plaintiff Ormond, who sought clarification on the relationship between the 'political department' and camp commandant Rudolf H6fi.3S Again, given that six of the 20 individuals on trial had served within the political section in Auschwitz, Ormond's line of questioning was perfectly logical. His intention was quite clearly to reframe the discussion from one of general chains of command within the SS, to the isolated example of Auschwitz. Von Lojewski noted that Buchheim's main focus in this respect was on Hofi, who claimed to have received his orders specifically those to commence the mass killings - from Himmler.36 As in the case of Buchheim's Gutachten, the historian's central point of reference in guiding this discussion was Hofi's recently published memoir. 37 It was a work that, as will be shown, owing to its direct relevance for the operation of Auschwitz, and its command structures, was repeatedly mentioned throughout the trial and identified as an important source of evidence. Its bearing on the charges under consideration before the court - murders committed in Auschwitz by SS men - accorded it greater weight during

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the course of the trial than the broad, contextual treatises proffered by the four historians. Similarly, Substitute Judge Hummerich, whose most extreme concerns had likely abated by this stage, nonetheless could not resist bringing the historian back to the subject of Auschwitz. Hummerich wished to explore a line of argument conveyed by some defendants that they were forced to join the WaffenSS against their will and, subsequently, found themselves transferred to the extermination camp. Buchheim confirmed that, in fact, from the middle of 1943 such recruitment had been 'partially involuntary' - a concession not missed by journalists present. 38 Since the question of defendants' 'base motives' hinged on the nature of their recruitment to the Waffen-SS, Hummerich's enquiry was obviously relevant. Despite his less-than-propitious entry to court that day, available accounts of Buchheim's testimony on 7 February 1964 reveal an expert who acquitted himself capably. His summary of the complex administrative and bureaucratic structures of the SS appeared germane to the judicial matter under consideration - a point noted by journalists. Their endorsement of Buchheim's testimony, and the next day's attendant media coverage, would have additionally pleased Bauer. Even Kaul, who, despite his characteristically hyperbolised narrative, in the very least highlighted the pertinence of Buchheim's contribution. Yet, a pattern emerged that would be repeated throughout the trial: once the historian's testimony ended, questions from the court invariably turned to legal matters of direct relevance, frequently outside the scope of the summarised Gutachten. Even Hummerich, who had feared Buchheim's engagement would be a courtroom catastrophe, took the opportunity to pose a question to the historian. Moreover, that the defence lawyers saw no reason to engage with the core of Buchheim's report - which they surely would have had its contents threatened their clients' liberty - suggests that while his Gutachten warranted public attention, the defendants saw in it no reason to quake. The first historian's testimony in the trial created a public stir, reassured at least one judge, half-pleased an Attorney-General, though made minimal judicial impact.

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THE DIRECTOR'S DRAMA: KRAUSNICK, 17 FEBRUARY 1964 Ten days after Buchheim's testimony, the director of the IfZ Helmut Krausnick took the stand. It may be that the public's excitement over the trial had reached fever pitch by this stage, and travel to the courtroom had become more difficult, since on this morning Krausnick found himself stuck in traffic and was late for his nominated timeslot to give evidence.39 It would be the first of a number of challenges Krausnick faced on this day. Correspondent for Die Welt Walter Pfuhl noted the prosecution had announced to the court that Krausnick's testimony would be 'a history lesson for everyone', and a chance to learn about 'National Socialist Jewish policies'.40 According to Pfuhl, the court was told that Krausnick's testimony would make use of quotes from books, speeches, transcripts and court documents. After finally navigating his way to court, Krausnick took the stand and proceeded to outline a brief history of National Socialist anti-Jewish policies and their relationship to Jewish persecution - from the earliest antisemitic laws in Nazi Germany to the systematic extermination of Europe's Jews. Explaining firstly the origins of Nazi antisemitism, Krausnick reflected that 'Hitler was no chance accident of history', a statement that formed a number of headlines the following day. 41 Krausnick tendered what von Lojewski described as a 'catalogue of Jewish suffering' - tracing the gradual and uneven degradation of German Jews' rights. 42 Particular emphasis was placed on the 1935 Nuremberg Laws, which enshrined into law the Nazi definition of Jewishness, and 'signalled a tolerable end to Nazi anti-Jewish policies' for many Germans.43 Nonetheless, Pfuhl proclaimed that 'most of it was not new'. 44 Pfuhl, who on no fewer than seven occasions wrongly denoted the historian as 'Professor Krausnick', postulated that 'Krausnick's audience inside and outside the courtroom were given some consolation: foreign observers attested to the fact that broad segments of German society had disapproved of the persecution of Jews.'45 The Frankfurter Rundschau's Horst Hachmann was somewhat more enthusiastic than Pfuhl, recounting how 'in a few words he [Krausnick] analysed the vicious system of Jewish persecution [and set out] [...] the entire period of disaster'.46

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Available newspaper reports were consistent with Pfuhl's claim that Krausnick 'dug out matters of fact on a large-scale that did not only include the acts of the 22 defendants/ 47 From all accounts, it can be gathered that Krausnick rarely approached the topic of Auschwitz directly. Likely prompted only by a member of the court, Krausnick estimated that between 1 and 1.5 million people were murdered in Auschwitz.48 Krausnick's calculation took into account the fluctuating and, consequently, problematic, figures given by Hofi in his memoirs, which again featured centrally in the trial. 49 Whereas Buchheim had been similarly reticent to mention Auschwitz, his Gutachten and command structure of the SS, even to journalists present, could at least be logically connected to the judicial questions before the court. While 'base motives' could be demonstrated where murder was motivated by antisemitism, the relevance of post-1933 anti-Jewish legislation and the Nuremberg Laws to the matter sub judice was missing from the following days' newspaper reports. Krausnick's 'history lesson' fell short, but there was much worse to come. Krausnick's experience in court followed a similar pattern to that of Buchheim. After his testimony, which summarised his lengthy Gutachten over several hours, questioning began. Again, the opportunity was seized by all to explore matters beyond the already broad scope of Krausnick's Gutachten, and both defence and prosecution sought to draw on Krausnick's expertise to strengthen their legal arguments. A consistent theme in newspaper reports is the fierce confrontation and barrage of questions that followed, from all sides. Fortuitously, unlike the other IfZ historians' testimonies, there is a partial transcript of Krausnick's exchange, written by one trial participant. It details Krausnick's catechisation at the hands of an unnamed lawyer, who doubted the historian's assertion that a conflict emerged between the German bureaucracy and the administrative activities of the SS, specifically over the matter of anti-Jewish legislation in the early years of the Third Reich. The 1935 Nuremberg Laws, and 1941 decree that forced some German Jews to adopt the first names 'Israel' and 'Sara', represented particular areas of contention:

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Trial

Lawyer:

Well, Herr Expert Witness, in your written report, you made a claim, the formulation of which did not appear in your oral testimony. Krausnick: Yes, please, what is it then? Lawyer: One moment... I will read it out to you. The Nuremberg Laws led away from Auschwitz'. As I stated, you did not mention it in your oral report - but it can only mean that the so-called ministerial bureaucracy, through the racial laws it created, wanted to prevent the objective that the SS openly strove towards from day one - namely, the establishment of Auschwitz and its gas chambers. Did you wish to say that? Krausnick: Yes, yes, in a certain sense one can express it that way. In any case, these laws were supposed to create a legal situation that had to be respected. The living space left to Jews, although limited and considerably reduced, should at least be protected. Lawyer: Hmm. Would you also include as a legal measure that Jews within the Reich were forced to take the first names 'Israel' and 'Sara'?? Do you believe that the use of this disgraceful regulation was actually to legally protect their confined living space? Or was this law not much more likely used to mark Jews in preparation for the Final Solution?! Krausnick: Well, I would not see it in such absolute terms. Though the relevance of this exchange to the particulars of a murder trial is vague, it is nonetheless revealing of the difficulties Krausnick may have faced as a witness. According to this document, the fallacious argument that German Jews were aided by the German 'ministerial bureaucracy' and Nuremberg Laws, which 'protected' Jews' remaining legal rights, fell to pieces w h e n Krausnick was confronted with subsequent 'legal' measures that directly led to Jewish 'deportation'. Once the pugnacious lawyer had ceased his hectoring, Substitute Judge Hummerich stepped in to clarify one matter: whether the 'ministerial bureaucrats' had in fact 'opposed the excesses of Hitler's exterminationist policies from within'. 'Of course, naturally - that was without doubt the case', Krausnick responded, citing the 'perceptible resistance' in particular to Hitler's order to eliminate the 'incurably ill.' At this juncture, the combative lawyer enjoyed one final attack against the hapless Krausnick. 'Herr Doctor',

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he began, 'you are correct when you say that there was genuine resistance to the murderous actions against the so-called incurably ill - but why was there a complete lack of resistance when it came to the extermination of Jews?' The historian met this question with a long pause, a shrug of his shoulders and an unconvincing response: 'Well, that is difficult to say - the population became closer to those who were sick than they did to the Jews/ Overall, the transcript, and the depiction of Krausnick's courtroom experience, makes for uncomfortable reading. As a piece of historical evidence, however, the document is incredibly problematic. 50 Its author is Kaul, who fancied himself, amongst other vocations, as a television script writer. The preceding transcript is derived from what was envisaged to be the second instalment of a five-part series with a planned screening over ten days: 'Impressions from the Trial' ('Impressionen von der Hauptverhandlung'). Though it is unclear whether the production was ever completed, or went to air, the proposed drama was communist propaganda of the highest order and, as a result, its relationship to what actually transpired in court is highly questionable. Krausnick's alleged defence of the 'ministerial bureaucracy' and the Nuremberg Laws as a means of safeguarding Jewish rights was pure invention. His Gutachten contained no claim even approximating this unsubstantiated argument, one devised by Kaul to, at least in part, implicate Krausnick as a Nazi apologist. The statement that 'the Nuremberg Laws led away from Auschwitz' was, unsurprisingly, nowhere to be found in Krausnick's Gutachten. Most critically, however, Kaul confused historians' names, falsely attributing the entire exchange, not to Krausnick, but to Buchheim. Moreover, since Kaul made this error on several other occasions in his written reports it can be surmised that it was a simple case of mistaken identity, rather than a deliberate misconstruing for propagandistic effect. Though it is tempting to dismiss Kaul's script as a distorted, error-laden contrivance, there may actually be a Fleck or two of truth in the proposed television drama. Almost every available newspaper report attested to the contemptuous dialogue between Krausnick

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and Kaul. Whether Kaul hoped to insert 'actor' into his growing vocational repertoire, he unmistakably intended his depiction of the unnamed lawyer to mirror the confrontation that likely did take place between himself and Krausnick. News stories speak of Kaul answering 'like a shot' when the judge signalled the start of Krausnick's questioning, aiming a series of 'captious' and 'provocative' questions at the historian, which led to a 'fierce exchange of words'. 51 For the GDR lawyer Kaul, the chance to score political points in a West German courtroom was eagerly seized. 'The Nuremberg Laws were his cue', trumpeted one newspaper.52 By the time the trial commenced, Kaul had repeatedly advertised the fact that West German Chancellor Konrad Adenauer decided to appoint Hans Globke as head of the West German Office of the Chancellor (Bundeskanzleramf). Globke was a man whose deeply troubling Nazi past hung over him. Despite his postwar assertions to the contrary, Globke had been a key contributor to the drafting of numerous anti-Jewish laws, including the 1935 Nuremberg Laws, and of the decree that some German Jews take the name 'Israel' or 'Sara'. Asserting that Globke was a compromised individual, Kaul could hardly resist tapping into this controversy, with Krausnick as his mouthpiece. Kaul demanded to know the relationship between the actions of responsible individuals in the 'ministerial bureaucracy', and the mounting persecution of Jews. Specifically, Kaul's line of argument was that the 'legal' restrictions imposed on Jews represented an essential prerequisite to their extermination. Kaul's prodding, which one newspaper described as a 'trap', was an attempt to extract the name 'Globke' from the unsuspecting historian. 53 Newspaper reports describe Krausnick multifariously as 'evasive', 'caught in the lawyers' crossfire' and having 'misunderstood' the question. Krausnick's response - a single word 'yes' - failed to appease Kaul, who shouted in frustration 'I am talking about Globke!', or an exclamation to that effect.54 It seems that the judges' intervention alone prompted Krausnick to 'quietly' add that the bureaucracy was prepared 'only to reduce Jewish influence, rather than to commit acts of violence and extermination.' 55 Kaul's trap briefly ensnared the historian,

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the former boasted afterwards of having 'secured a confession from the expert' that the Nazi ministerial bureaucracy 'shared a common cause with the murderous SS gangs'. 56 Krausnick, according to Kaul, was 'rescued at the last second' by Substitute Judge Hummerich, whose intervention Krausnick met with a 'sigh of relief as he began to grab at 'this life jacket thrown at him/ 5 7 Though of questionable accuracy, Kaul's description of events that day certainly had Krausnick caught in more than just traffic. One could easily forget that, in court at least, Krausnick and Kaul were supposed to be on the same side. While much of Kaul's proposed tele-drama can be dismissed out of hand as fantastical, the stoush over the 'ministerial bureaucracy' and Globke's wellpublicised culpability - both of which form key aspects of the television courtroom scene - were extensively covered by West German newspapers. This coverage adds more than a shred of credibility to Kaul's dramatisation as one based, however loosely, on actual events. The line in which Krausnick remarks that Germans felt 'closer to those who were sick than they did to the Jews' at least vaguely reflects an authentic exchange in court. Admittedly, it was one which saw Krausnick argue that the so-called 'euthanasia' killings were simply more widely known than the subsequent murder of Jews.58 Courtroom histrionics, propagandistic tele-dramas and colourful newspaper reports aside, the lively exchange between Kaul and Krausnick, it has to be noted, was of no decided relevance to the proceeding and the defendants' alleged crimes. Once Kaul resumed his seat, however, legal questions were at last considered. Though their precise identity is unclear, one defence lawyer recognised Krausnick's report as an opportunity to lay the foundations for what became a prominent, and spurious, argument. In response to the question as to whether 'every deportation [to Auschwitz] in 1941 was undertaken with the intention of killing', Krausnick responded in the affirmative, 'without any reservations.'59 Although Krausnick's answer may have been reported inaccurately he almost certainly did not suggest the entire span of 1941 - in the context of a murder trial, in which the defendants' motive was

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central, Krausnick's response was significant. Inadvertently he had left the door open for what became a last-ditch attempt by the defence in their closing arguments to cast their clients as rescuers, rather than murderers. If it were the case, as Krausnick contended it had been, that all deportations to Auschwitz from 1941 onwards were slated for extermination, anyone who spared Jews from death at the selection ramp - and almost all of the defendants had - it could be argued, had saved lives. The necessary vagueness of Krausnick's statement would have doubtlessly encouraged the defence to further pursue this final act of sophistry. The defence question, nonetheless, sought not to challenge the content of Krausnick's report, but to prepare for their own future counter-arguments. Trumpeted beforehand as a 'history lesson' for the court, from available accounts Krausnick's testimony was anti-climactic and of scant legal relevance. Although his report would feature most prominently in the Lead Prosecutor's closing arguments, the relevance of his Gutachten and testimony to the determination of guilt or innocence of the 20 men standing in the dock eluded the journalists present.

'COMPASSION HAS NO PLACE': BROSZAT, 21 AND 28 FEBRUARY 1964 Martin Broszat was the next historian to take the stand, and had, in fact, begun his testimony on National Socialist policies in Poland in the immediate aftermath of Krausnick's laborious encounter. Had Broszat himself witnessed his director's interrogation - and he may well have, since he was next in line on the same day - the 37-year-old historian may have felt a sense of foreboding. Broszat's appearance in court on 17 February 1964 was but a brief postscript to Krausnick's struggle.60 He would return on 21 February 1964 not to complete his testimony on Poland, but to begin his more substantial Gutachten on the evolution of Nazi concentration camps. 61 Unlike Krausnick and Buchheim, however, the oral summary of Broszat's Gutachten and his questioning by the court would be separated by over a week, with the historian returning on 28 February for the latter purpose. Two factors make it difficult to

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establish the precise chain of events around Broszat's testimony: the descriptive nature of newspaper accounts; and the opacity of Kaul's report on the day's events. Unlike the media coverage that greeted Krausnick's, and to a lesser extent Buchheim's, testimony, news stories reveal little about the questions Broszat faced, and still less do they mention open conflicts of the kind Krausnick endured. It seems, for example, that in Broszat's presence, and in relative terms, Kaul behaved himself. The GDR lawyer stated in his regular report that on 28 February 1964, Broszat - which he repeatedly misspells 'Brodschat' - was questioned about his Gutachten on concentration camps. 62 Most likely, this was a continuation of questions Broszat faced on 21 February. The fact that the day's newspaper reportage focussed on the grotesque images of Nazi brutality that Broszat's report conveyed, without mention of a single question, adds weight to Kaul's claim that Broszat was questioned on 28 February when he returned to deliver his testimony on Polenpolitik. That reports of 28 February pay no attention to Broszat's questioning on concentration camps may be attributed to two reasons. First, from all available accounts, Broszat's testimony on Nazi policies in Poland graphically captured their honor, expressing the unimaginable scale of death and destruction. Naturally enough, the newspaper headlines and story content reflected this sensational material. 63 Second, immediately following Broszat's questioning on his initial Gutachten, a rousing conflict ensued between Kaul and several defence attorneys over the former's intention to call his own expert witness - the East German historian Jlirgen Kuczysnki - to the stand. 64 Between the horrors of Poland, and the cut-and-thrust that took place between Kaul and defence lawyers, Broszat's questioning on the topic of concentration camps went missing in the next day's newspapers. This journalistic oversight was worsened by the fact that Broszat summarised his Gutachten a week earlier, and faced questions without reporters enjoying the benefit of this immediacy. As a result of this chain of events, there is less to say about the questions Broszat faced on the stand with respect to his first Gutachten. Broszat's summary, provided on 21 February, from all

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available accounts closely reflected his written report in both content and structure. Key events are identified: the emergency decree of 28 February 1933; the establishment of Dachau in March 1933; the critical role played by Theodor Eicke; the November 1938 pogrom and outbreak of war as escalating factors; and the integral roles played by Himmler and Hofi.65 Central to Broszat's analysis, and useful in combating defence claims that those accused were acting within the bounds of, if not directly in response to, their orders, was the evolution of instructions from both Eicke and Himmler that concentration camp personnel were to avoid unnecessary acts of brutality. Predictably, newspaper articles largely ignored Broszat's reiteration of these critical instructions, focussing on their horrific nature rather than utility in a murder trial. 'Compassion has no place' ('Mitleid ist fehl am Platz') was a common quote attributed to Broszat, while the emergency decree was labelled 'the disastrous hour in which the concentration camp was born'. 66 Reflecting the content of his Gutachten, the outbreak of World War II marked a shift in Broszat's testimony, which he described as the start of the 'catastrophic phase'. 67 From the news reports, at least, there is no indication that Broszat mentioned Auschwitz directly in his testimony. Given the editorial tendency to advertise the most barbarous elements of Broszat's account, details about Auschwitz would have appeared in the following days' newspapers had the subject received considerable attention in court. That it did not suggests Broszat toed the prosecutorial line to bypass the main subject of the trial - and, in so doing, considerably diminished the legal relevance of his evidence. One newspaper did, however, enter into a brief discussion of Broszat's questioning on 21 February. The Frankfurter Allgemeine Zeitung, though unwilling and likely unable to avoid the temptation of a sensational headline - in this case, 'Prisoners sold for four and six marks per day' ('KZ-Haftlinge fur vier und sechs Mark pro Tag verkauft') - provided some insight into Broszat's courtroom impact. 68 After his summary, discussion turned to the subject of slave labour. As had been the case with Krausnick five days earlier, the topic of Auschwitz was raised and, it appears, led to some rumblings

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in court. Broszat's description of Auschwitz as a site of both forced labour and extermination, evidently, prompted further questions. The reporter Kurt Emenputsch did not identify the party seeking detail on this apparent 'contradiction', only that 'the Frankfurt court was currently attempting to clarify' the point, 'with Broszat's assistance'. 69 Yet, despite more than likely having witnessed Krausnick's torment over a similar question the previous week, Broszat held his position. He presented documents from 1942 which detailed instructions to reduce mortality rates amongst prisoners, and highlighted the clash between two competing SS objectives at the time: the extermination of Jews; and preservation of a slave labour force. Broszat's statement indisputably contradicted Krausnick's argument that deportations to Auschwitz from 1941 onwards meant certain death. In failing to present a united front, both men left this door ajar for the defence lawyers, and their sensibilities as historians required nothing less. According to Emenputsch, Broszat was unable to confirm 'as a result of a lack of evidence' at what point it was decided that mass transports of Jews to Auschwitz were to be no longer immediately gassed, rather, individually selected according to their ability to work.70 Ernenputsch's description points to the strong likelihood that Broszat's statement was in response to a question, possibly emanating from the defence. Broszat formed a view that Jews capable of working had an increased chance of survival depending on the need for such a workforce.71 Once Broszat finished providing a summary of his written Gutachten, questions again flowed in relation to matters that were, at best, peripheral to the historians' reports, though central to the trial's legal imperatives. It is, however, difficult to ascertain whether Broszat's next court appearance on 28 February followed the same routine. Though questioning concluded on Broszat's first Gutachten, it received no news coverage, overshadowed perhaps by Broszat's subsequent testimony on Poland, with all its horrors. 'Poles were mere numbers' ('Polen waren nur Nummern') and other such phrases dominated the headlines. 72 Broszat's testimony outlined the destruction of the Polish state and enslavement of its population. The role of Auschwitz was connected to the mounting demands for

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Polish slave labour. Those unable to work owing to advanced age or illness, who were 'of the lowest racial value' and could not be 'Germanised', were ultimately sent to Auschwitz. 73 Broszat's testimony on the development of concentration camps and the destruction of Poland both culminated in the utilisation of Auschwitz as a centre for mass killing. Auschwitz was not the cynosure, but the end point. Interestingly, although Broszat's reported testimony addressed in some detail the complex relationship between slave labour and extermination that existed at various times in Auschwitz, there is no evidence that the defence sought to exploit this ambiguity for their clients' benefit, as they had previously attempted. The reconstruction of Broszat's questioning is again left to the problematic reports by Kaul.74 It had been Kaul's intention to call his own expert witness, Kuczysnki, to the stand immediately following Broszat's questioning on his first Gutachten. In Kaul's view, Kuczynski's report on the intertwining of German industrial conglomerate IG Farben's role in the establishment and operation of Auschwitz was one that should have followed Broszat's questioning on the subject of concentration camps. Raul's announcement was met with defence objections and indecision by the judicial panel. According to Kaul's account, Broszat approached him during a break following the discussion over Kuczynski's admission, stating that he 'clearly knew what I was trying to prove by linking IG Farben to Auschwitz', namely 'the typical Marxist view that National Socialism was simply capitalism's last chance'. According to Kaul, Broszat boldly asserted that 'history had proven this to be false.'75 Though the exchange likely took place, given its author the accuracy of its content can by no means be taken for granted. Whatever was discussed, it is clear that Kaul was unimpressed, as reflected by his subsequent condemnation of Broszat's report on Poland, which he described as 'flat'. More critically, Kaul alleges that Broszat 'attempted to pass all guilt on to dead Nazis while exculpating the Nazi judiciary and Wehrmacht, a tendency which became fundamentally obvious in this trial.' 76 Kaul's scathing criticism of Broszat's testimony did not end there.

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Ignoring all but the final question put to Broszat by Prosecutor Kiigler about 'the links between the use of Polish labour by IG Farben', Kaul alleged that the historian, again, 'used this response to provide a lengthy exculpation of IG Farben'.77 Some 20 minutes later, in what Kaul viewed as a pre-emptive response to Kuczysnki, Broszat finished his response to Kugler's question. During this time, recalled Kaul, Broszat not only ridded IG Farben of guilt, but 'raised the Marxist criticism of the links between industry and Nazi institutions [...] referred] to work camps in the Soviet Union, and the Katyn massacre'.78 Kaul's already twice-employed tactic of attempting to extract the name 'Globke' from the IfZ historians was met without a struggle from Broszat, who allotted the West German State Secretary a share of guilt 'without being asked'.79 Thereafter, according to Kaul, the defence levelled a number of politically charged questions at Broszat, relating to the division of Poland and the Nazi-Soviet non-aggression pact. Kaul's depiction of events has all sides of the court drawing their respective political swords during Broszat's questioning. Without the benefit of cross-referencing newspaper reports - none of which covered this aspect of the trial - it is difficult to assess the accuracy of Kaul's report. Despite some feeble criticisms of Broszat, Kaul's account did suggest the historian performed strongly in court, and the Broszat's arguments certainly found voice in the written judgement. It drew on Broszat's expertise to clarify the ambiguity around Auschwitz's dual role - one detailed in his report, and pertinent to the trial. By the time Broszat took the stand, however, the journalistic obsession with the most barbarous elements of the daily proceedings had become well-honed. This tabloid prioritisation meant that aspects of Broszat's testimony considered overly prosaic stood no chance of receiving media attention over the coarse exchanges between Kaul and the defence, or the bloodstained recounting of Nazi actions in Poland. Yet, in the final estimation, represented by the written judgement, in comparative terms Broszat's Gutachten featured prominently. Even with the difficulties he faced, if there was a story of success to be told of historians' role in the trial, it was Broszat's.

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BUCHHEIM RETURNS, 3 JULY 1964 On 3 July, Buchheim was back in court to present his second Gutachten - that relating to the question of 'superior orders'. 80 It had been a common argument mounted by the defence - that their clients were merely following orders, including in their treatment of Auschwitz prisoners. Although the topic of his first Gutachten had been the structure of the SS and Police, the questions Buchheim faced primarily related to the existence of 'superior orders'. Prompted by this exchange, Buchheim's second courtroom appearance would represent the sole instance in the Frankfurt Auschwitz trial in which questions from the defence related directly to the Gutachten presented - which, in turn, corresponded to the legal matter under consideration. Buchheim himself admitted, at least in his written Gutachten, that there were no definitive answers in establishing the existence of 'superior orders'. Instead, the argument was based ostensibly around an absence of evidence to show that any SS man had ever been executed for refusing orders to commit murder. In court, as in history, the unanswerable nature of the question left it open to endless discussion. And despite its high degree of legal relevance, or perhaps because of it, BuchheinVs second Gutachten proved the least judicially impactful of all. In his oral evidence, Buchheim stressed that the concept of 'superior orders' cannot be equated with those a soldier or bureaucrat received. Employing theoretical terminology, Buchheim distinguished between the operational 'normative realm' and the 'non-normative realm', the latter of which was ideologically, and not legally, grounded. Those SS personnel who took part in mass killing operations felt a 'duty of allegiance', not a legal obligation. Buchheim ultimately stressed that SS men could refuse such ideological orders without fear of execution. 'No commander of the SS had a right to shoot down a subordinate', he noted. 81 Characteristically, Kaul was underwhelmed by Buchheim's testimony, which he characterised as 'long-winded', criticising the historian's penchant for overly theoretical terminology. Buchheim was, in Kaul's judgement, 'torturing himself through use of 'strange expressions' that he saw fit to 'rain down on the terrified

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audience/ 82 Kaul was, if nothing else, consistent in his critical observations of the IfZ historians. Notwithstanding Kaul's unforgiving, and more than likely exaggerated, recollection of Buchheim's second court appearance, at least part of his account is corroborated by a Frankfurter Neue Presse article published the following day. 83 While Buchheim is personally spared deprecation, the (unnamed) journalist notes that the exchange between the historian and defence lawyers took place over 'several hours', and, for much of the time, occurred 'at crosspurposes'. No agreed-upon definitions for terms such as 'order', 'superior order' or even 'ideology' emerged from the lengthy discussion, 'in either an historical or legal sense'. The content flitted from 'individual situations to general circumstances', while attempts to 'distinguish between guilt and responsibility' were unproductive. 84 Circular and contentious, both newspaper reports and Kaul's inherently problematic account suggest that Buchheim's second appearance in the witness box, prima facie, had no meaningful effect on the trial. Although there is no evidence that the portentous conclusions of Substitute Judge Hummerich's report were relayed to the prosecution, the example of Buchheim's second act of testimony in part corresponded with Hummerich's recommendations. The Subsitute Judge had concluded that historians should only give evidence on specific matters deemed relevant by the court, not at the whim of prosecutors. While Buchheim, as with the other historians who gave evidence, had indeed been called to the stand by the prosecution, it came in direct response to a legal argument that had been repeatedly mounted by the defence - not least of all during Buchheim's first attempt to give evidence in early February. News reporters, similarly, understood the apparent salience of Buchheim's testimony. Headlines the next day included: 'They knew they were committing wrongs' ('Sie wufiten, dafi sie Unrecht taten'); 'The Fuhrer's orders were not legal' ('Fuhrerbefehle waren nicht rechtsverbindlich'); and 'The Crimes of Hitler's Regime' ('Die Verbrechen des HitlerRegimes').85 In a murder trial at the core of which lay the question of motive, and the defendants' denial of individual agency, what

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Buchheim had to say might appear to be critically important. Yet, although the court of history ultimately judged the historians' Gutachten kindly - specifically, their published form in Anatomy - the Frankfurt court, in the end, were less impressed with Buchheim's second Gutachten. THE LAST CHAPTER: JACOBSEN, 14 AUGUST 1964 On 14 August, the last historian gave evidence in the trial.86 Hans-Adolf Jacobsen's Gutachten focussed on the mass execution of Soviet prisoners-of-war and the Nazis' murderous 'commissar order'. Though the briefest of all the Gutachten, Jacobsen's report and testimony managed to catalogue the unimaginable horrors of Nazi atrocities committed, primarily, against Soviet forces and prisoners. As previously noted, Jacobsen's own appearance in the Frankfurt courtroom was only due to the sudden and unexpected passing of Heinrich Uhlig - an IfZ historian present at the November 1962 meeting, and slated to give evidence on the same subject.87 The tragic development was announced in court on 16 February 1964. Already earmarked for prominence by this time, Jacobsen was Director of the Research Branch of the German Council on Foreign Relations (Deutsche Gesellschaft fiir Auswartige Politik), and represented an obvious choice.88 In addition to his academic qualities, Jacobsen had himself been a prisoner-of-war, having spent five years in Soviet captivity, during which time he developed both an affinity for the Russian people and fluency in their language.89 While it appears that Jacobsen took little convincing to become an expert witness, available news reports allow only a partial reconstruction of his actual time on the witness stand. 90 Perhaps fatigued by the appearance of yet another historian, though more likely distracted by the horrific content of his testimony, journalists had little at all to say about Jacobsen's performance as an expert witness. Confronted by the mass execution of Soviet prisoners-of-war, and Jacobsen's unsentimental statement that over three million were murdered, it is little wonder the nitty-gritty of courtroom questioning was overlooked in news

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reports. At the centrepiece of his report was the commissar order, a criminal directive issued on 6 June 1941 in preparation for the looming ideological war of annihilation Nazi Germany was to wage against the Soviet Union. While this order prioritised the execution of political commissars attached to the Red Army, it would foreshadow a brutal plan to repopulate captured territory in the East with ethnic Germans, Norwegians, Swedes, Danes and Dutch settlers. Of the remaining Poles and Russians, 75 per cent would be expelled to Siberia, while a life of slavery awaited those who survived.91 The next day's headlines reflected the unfathomable enormity of Jacobsen's testimony, including 'Only One-Third Survived: Four Million Soviet Prisoners-Of-War Died' ('Nur ein Drittel iiberlebte: Vier Millionen kriegsgefangene Sowjetsoldaten fanden den Tod'), and 'Hitler Ordered "The Most Brutal Measures": Expert Recounts The Murder of Commissars' ('Hitler forderte "brutalste Gewalt": Sachverstandiger iiber die Ermordung der Kommissare').92 One news report, however, stated that Jacobsen gave 'precise answers to all of the defence's questions'. 93 Although there were no further details provided, it can be assumed (as with other historical experts who gave evidence) that successful attacks by the defence on the credibility of the expert's Gutachten would have attracted some of the media's attention. The example of Krausnick demonstrates that even where the testimony itself is newsworthy, courtroom conflicts made for equally dramatic reading. That none were recalled suggests that none took place. Moreover, the relevance of Jacobsen's testimony was recognised by at least one reporter, who noted that a number of the defendants were accused of taking part in the mass killings of Soviet commissars that took place within extermination camps other than Auschwitz.94 Based on available evidence, it can be established Jacobsen performed admirably in court. His departure from the witness stand signalled the end of historians' contribution to the trial. As this chapter demonstrated, although all four historians faced a degree of scrutiny in the Frankfurt court, and at times, heated questioning - with Krausnick's treatment at the hands of Kaul serving

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as the most illustrative example - their experiences did not square with those described by Rothman and Melton. There was no courtroom 'bludgeoning' of historical experts, nor did the judges intervene to rule aspects of Gutachten, or the evidence relied on to inform them, to be inadmissible. The judicial panel had the power to decide whether a person before them can be considered a 'subject matter expert' i^Sachverstdndigef) on the basis of their professional credentials. As ultimately proved to be the case with Kaul's East German trump card Jiirgen Kuczynski, the court may rule on an expert's 'impartiality', where a motion claiming bias is raised by one party.95 There were certainly moments of high drama and discord between the experts and the defence lawyers. For the most part, however, their questioning in the witness box was sedate rather than confrontational. Historians were free to express or emphasise doubt and ambiguity, and to refuse to provide categorical answers where they could not. As Broszat demonstrated in Frankfurt, the witness box did not hinder his ability to maintain the nuance of complex historical interpretation - in his case, the dual purpose of Auschwitz as a centre of extermination and source of labour - however contradictory such a view appeared to the defence. Uncertainty did not equal inadmissibility. The historians in the trial, moreover, recognised that they would play a supporting role in court, to both their already tendered Gutachten, and to the prosecution's overall case. Recognition of these limits and knowledge of the demarcations between history and law aided the historians in their quest to avoid ensnarement in defence lawyers' questions, or the debasing of their historical interpretations. Broszat, writing in 1976, made it clear that he viewed the function of his testimony and historical report as enabling the Frankfurt court to 'place the individual cases within the overall context of events' and to 'raise the awareness of judges and jurors on the use of terms to describe general criminality', while highlighting their applicability to 'the ideologically induced mass crimes of the Nazi regime.'96 Broszat argued that historians best served the court's pursuit of 'truth and reaching a fair judgement' by avoiding the 'schematism' of legal terms. Instead, according to Broszat, historians had to 'remain oriented' to the language of their profession - hinting at the strategy he employed

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in the trial.97 Buchheim, too, knew of the potential courtroom perils he faced. A year after the Frankfurt Auschwitz trial concluded, in September 1966, the historian was present at a meeting attended by various state prosecutors, including Grofsmann.98 Indeed, the latter presented a lecture on his experiences in the Frankfurt Auschwitz trial, with direct reference to Buchheim and countering defence arguments of 'superior orders'. Following the lecture, Buchheim took the opportunity to summarise his task, as he saw it, in the witness box. As Broszat similarly outlined a decade later, Buchheim recognised that his task had been 'to sketch the historical landscape in which the crimes took place', though for the specific benefit of the jurors and the defendants, rather than for the professional judges.99 In Buchheim's view, his purpose was a didactic one in which an 'introductory course' was given in court, one that was mindful of defendants' and jurors' intellectual aptitudes, and that addresses the 'many things [that] were already in the mentality of ordinary people at that time.' 100 Buchheim also expressed an aversion to the infiltration of legal jargon into historical testimony, noting that the defence lawyers had criticised his 'non-legal' terminology. Kaul, too, had privately accused Buchheim of 'torturing himself through overuse of abstract language. At the 1966 meeting, Buchheim stated simply that 'it is better for an historian to understand little about the world of legal expressions, since there is a great danger in their misuse.'101 Moreover, Buchheim made it known that historical scholarship 'is one of understanding and interpretation', with historians obliged to 'capture all of the nuances' of a given subject.102 As a result, historical terminology is 'altogether different' from the language used by lawyers, with historians sometimes forced to express themselves 'in theoretical and abstract ways'. Historians 'can not, therefore, be unambiguous', even when faced with defence lawyers requesting certainty.103 One lawyer present at the September 1966 meeting was unmoved by Buchheim's insistence that historians could make positive contributions to trials without undermining either the proceeding, or historical testimony. The lawyer, listed only as 'Probationary [Gerichtsassessor] Holzner', expressed a view that there must be caution exercised when consulting expert witnesses, arguing

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that 'the knowledge of prosecutors is usually sufficient/104 In response, Buchheim returned to his point that jurors, who 'often lack the most basic requisite knowledge', benefited from an historian's expertise and the opportunity to pose questions.105 While not all prosecutors shared Bauer's enthusiasm for historical expertise in court, in their post-trial recollections, both Buchheim and Broszat demonstrated an understanding of their role in court, of the pervasive differences between history and law, and the ways to circumvent many of the hazards presented by courtroom testimony. Aided by a legal system that favoured inquisition over interrogation, and a determination not to succumb to the legal lions', the experts' competence as professional historians was never in question.106 Certainly, none of the four historians could anticipate the significance of the trial, nor what would become of their Gutachten.107 As they recommenced their professional lives, the trial went on, and the prosecution, defence and judicial panel would continue to use their Gutachten, each passing judgement on the legal salience of these reports.

CHAPTER 4

Judgement Day: Hofmeyer Reaches a Verdict

One day shy of the twentieth anniversary of Nazi Germany's surrender on 7 May 1965, Lead Prosecutor Hans Grofimann gave his closing argument (Pladoyef) in Frankfurt.1 With the judges leading the investigatory charge throughout the trial, prosecutors did what they could to keep the proceeding on a favourable track, but could not directly support their case until their closing arguments. This chapter examines these concluding stages and immediate aftermath of the trial. Along with the prosecutors' and defence lawyers' closing arguments, the final judgement forms the basis of this chapter. It reveals not only the verdict of guilt or innocence with respect to the defendants, but the value and relevance of the four historians' expertise to the judicial outcome. Importantly, Grofimann did his best to inject material from the historians' reports into his final speech to the court - over 12 months after the experts gave evidence. To a certain extent, however, the historians and their Gutachten were marginalised in the Frankfurt courtroom and in the ultimate judgement. The significance of the impending date may have been lost on Grofimann, though the historical importance of the Frankfurt Auschwitz trial was not. In many senses, his closing speech was an indictment of Nazi Germany for its crimes against humanity, of which the defendants were part. If Auschwitz was peripheral in the historians' Gutachten, so too were the defendants in Grofimann's

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Pladoyer. The work of the expert witnesses featured repeatedly, though by no means centrally. The particular complexities around the issue of 'superior orders', which drew on Buchheim's Gutachten, were amplified by Grofimann. As had been the case in the main trial hearing, the closing arguments were marked by repeated and contested discussion of this line of defence, often with references to Buchheim's two Gutachten. For Grofsmann, however, whose indictment of National Socialism accounted for the entire Nazi period, and in particular crimes against Jews, it was Krausnick's Gutachten that received most attention. Charging his junior colleagues with the closing arguments relating specifically to individual defendants, Grofsmann's last speech in the trial was arguably, in a legal sense, the least directly relevant made by any prosecutor throughout the entire proceeding. 'Why the Auschwitz trial?' was one question he posed to the court. It was a ploy not missed by the judicial panel. In Grofsmann's view, although the trial hinged on legal questions, knowledge of historical events was 'essential', and the historians' Gutachten - which Grofsmann listed - provided the required context. Without this background, argued Grofsmann, 'the cause and effect of the offences, as well as their timing, will remain unknown'. Grofsmann's praise for the historians' contribution is thus high indeed, albeit tempered by an insistence that the importance of historical Gutachten 'by no means contradicts' his previous assertion of the trial's 'legal priority'.2 Since the historians could not insist themselves that their reports were 'essential' evidence for the trial, the case was left for Grofsmann to argue. Notwithstanding Grofsmann's obligatory deference to the trial's legal prerogative, he seized the opportunity to use his closing argument to thematically link historians' Gutachten in a way the historians themselves did not, and could not. Krausnick's report was a logical starting point, with its focus on early anti-Jewish measures, which, Grofsmann argued, 'laid the foundations for the deprivation of Jewish rights, removal from their positions, and their country, and ultimately, their physical destruction.' 3 In his very next sentence, Grofsmann identified the perpetrators of Jewish extermination - the SS - and referred to Buchheim's Gutachten on the organisation's structure and origins.

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Missing altogether in this section, his name appearing only once in Grofimann's closing argument, is Broszat. The omission is a curious one, particularly given Grofimann's emphasis on the various legal decrees the Nazis introduced to crush political opposition and, thereafter, deprive German Jews of their rights - both of which relied on the extensive use of Broszat's primary focus: concentration camps. Although Grofimann's linking exercise is reasonable, albeit unconvincing, the lines he drew from the Gutachten to the trial were blurry, indirect and implied. The defendants themselves were, for the most part, spectators in the broader indictment of National Socialist crimes. Thus, as was the case in the main hearing, the Gutachten of most relevance to the trial received the closest attention in Grofimann's closing argument: Buchheim's reports on 'superior orders' and the mentality of the SS. In anticipation of what would be the defence's main argument, one mounted throughout the trial, Grofimann summarised the prosecution's case, which held that SS men could have refused orders to commit murder and themselves faced no threat of execution. The subject filled much of Grofimann's closing argument, and although Buchheim's name and that of his report were mentioned, the prosecutor failed to draw on the historians' in any meaningful or effective way. Buchheim's Gutachten were essentially used as footnotes to which Grofimann referred in supporting his argument. It was not until near his conclusion that Grofimann employed a direct quote from one of the historians, though his choice was an unexpected one. While arguments surrounding the existence of 'superior orders' featured prominently, Grofimann opted instead to remind the court of Krausnick's widely reported statement that 'Hitler was no mere accident of history'. By adding 'Auschwitz' to the list of 'accidents', however, he effectively misrepresented Krausnick. 'The court', says Grofimann, 'is not charged with deciding this question. But the question remains'. 4 Despite the Lead Prosecutor's assertion that historians' Gutachten proved critical, his observation that the court's role was not to engage with Krausnick's statement inadvertently called into question the value of historians in the courtroom generally.

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The court was no more to decide on the 'accidental' nature of Hitler and Auschwitz than it was on Broszat's particular interpretation of the evolution of Nazi concentration camps, Buchheim's argument on the dual nature of Nazi legal systems or Krausnick's pronouncements on Social Darwinism. Yet all three questions were similarly raised in the trial. PARTING SHOTS: KAUL AND LATERNSER Possibly the most eloquent and effective advocacy for the historians' contribution came from an unexpected source: Kaul. His closing argument, given on 20 May 1965, was a combination of legal reasoning and political point-scoring, each supported through direct references to the historians' Gutachten. With a history lesson of his own, he reminded the court that immediately preceding the experts' testimony, on 30 January 1964, the defence had objected to the Gutachten, denying any connection between the charges against their clients and the subjects of the historians' reports. 'We now know, after the Gutachten have been heard, and the evidence given, how wrong these assertions were.'5 Bearing in mind the often private, and sometimes public, reproaches of the historians, Kaul's statement is remarkable not merely for its disingenuousness. The praise, however, was limited, and reasoned. Kaul acknowledged, though did not detail, the 'differences in opinion' he had with the historians, but stressed his belief that the Gutachten would be 'crucially important' in reaching a verdict.6 In particular, the historians showed unequivocally that 'the defendants were not alone in their murderous acts, rather, they were the henchmen of higher ranking co-perpetrators and supporters, at the highest levels of the Nazi state and party'. 7 Not one to miss a chance, Kaul concluded this statement by pointing out that the highranking individuals were also 'active [...] in the economy'. 8 Through 'innumerable pieces of documentary and other evidence', the historians showed that concentration camps - with Kaul emphasising that Auschwitz was the largest - 'were integral to the realisation of oppression and extermination'. 9 The purpose of

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Broszat's report, though Kaul failed to mention it in this context, was made abundantly clear. Kaul's overarching view was that the establishment and function of Auschwitz, including the murderous crimes committed there, were 'an essential component of National Socialist policies generally' which could only be assessed through the background knowledge provided by the Gutachten - a claim not made even by Lead Prosecutor Grofimann.10 In typical fashion, however, Kaul balanced his praise by reminding the court of Broszat's conclusion that there was a strong correlation between the establishment of concentration camps and the exploitation of slave labour. 11 Kaul managed to shelve the open contempt of the historians' performances at the trial, as he had previously expressed to his superiors, and occasionally in court. The same criticisms appeared in Kaul's closing argument, though devoid of the mocking tone he adopted in his reports back to the party. The overly theoretical explanations Kaul had observed Buchheim use to 'torture himself on the stand were replaced by recollections of a polite disagreement with the historian's treatment of the evidence. Crucially, Kaul was keen to dispel any possibility that the weaknesses he detected in Buchheim's report could be exploited by the defence. The rather public confrontation Kaul enjoyed with Krausnick - inspiration for a tele-drama, no less - was transformed some 18 months later into an exchange in which the historian 'very eloquently' addressed the relationship between the 'ministerial bureaucracy' and the SS.12 Indeed, although the two men came to verbal blows in court, it seems that Kaul's closing speech would have included much more detail from Krausnick's report had Grofimann not, in Kaul's view, already 'carefully' done so. 13 With reflection on his behaviour in court (as reported by West German news outlets), and reports back to party headquarters, his closing argument adds a further, problematic layer to Kaul as an accurate source of historical evidence. The truth may be somewhere in the middle, though there is a considerable gap between them. In any case, while it may be reasonable to accuse Kaul of spreading mistruths, the trial transcript is no fabrication. Although he scarcely names the defendants in his closing argument, where

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Kaul refrained from political slandering he could provide some useful insights into the historians' trial contributions. In his post-trial account, defence lawyer Hans Laternser was scathingly dismissive of the historians' contribution to the trial. He was a man who, according to Kaul, had pointed out 'within the first minute' that he had defended clients at the trial of major war criminals in Nuremberg, who came into conflict with audience members, and who adopted an 'almost insufferably arrogant' tone in his grilling of prosecution witnesses, often survivors of Auschwitz.14 A firebrand whose political convictions only narrowly border on apologia, Laternser claimed that the 'Gutachten were given in a vacuum', while the questioning from prosecutors 'was not at all connected to a judicial purpose.' 15 Laternser's view is that the German Code of Criminal Procedures 'does not recognise the giving of lectures for ignorant jurors or other trial participants.' 16 He decried Krausnick's Gutachten as a mere 'time-filler' which had 'no legal value whatsoever'.17 Outrageously, in his closing statement Laternser argued that his clients' actions in conducting selections in Auschwitz had saved lives. Closing arguments mounted by the defence, around half the recordings of which survived, were by no means as openly hostile as Laternser's post-trial attack, though accord the historians' Gutachten scarcely any attention. Thus, the defence perceived no need to counter the evidence presented by Buchheim, Krausnick and Broszat, nor the arguments mounted by the prosecution that may have drawn on the historians' Gutachten. One defence lawyer, Rainer Eggert, took exception to Buchheim's argument that since joining the SS took place on a voluntary basis, its members were willing to follow 'illegal orders'. Eggert said simply: 'I do not think I need to make the separate point that this historian's deduction has nothing to do with the law.' 18 Eggert's strategy was consistent with the defence's generally apathetic and occasionally confrontational attitudes to the Gutachten throughout the proceeding. Although Buchheim's report on the question of 'superior orders' provoked a number of defence lawyers into attempting brief and unconvincing counter-arguments, the historians' Gutachten were by no means shot to pieces. Indeed, they

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were barely in the defence's firing line. Each of the trial's players thus attempted to employ the historians' Gutachten to suit their own needs, and in so doing reached vastly different conclusions on the reports' validity in a legal setting. For the prosecution, represented by Grofimann, the Gutachten were indispensable, and their omission would have created a trial devoid of historical context. One other member of the prosecution's team, Kaul, disingenuously praised the Gutachten in court after routinely and regularly lambasting the reports in private. The defence, when the opportunity came, disregarded the historical accounts and attempted to construct a chimeric version of events designed to exculpate their clients from wrongdoings. Once all closing arguments had been given, however, the historians' Gutachten would be subjected to one final, irrevocable round of legal scrutiny. HOFMEYER'S FINAL JUDGEMENT After a period of 20 months, including 183 days in court, on the final two days of the trial, 19 and 20 August 1965, Presiding Judge Hofmeyer delivered his oral verdict.19 Setting the tone immediately, Hofmeyer declared that it was not the court's job to 'come to terms with the past'. He directly referred to Grofimann's rhetorical 'why the Auschwitz trial?' question posed during the Lead Prosecutor's closing argument. Indeed, Hofmeyer stressed that even if the expression 'Auschwitz trial' spread beyond Germany's borders, the court would only recognise the matter as a 'criminal trial against Mulka and others'. 20 While the historians who appeared before Hofmeyer featured prominently at the beginning of the trial, in the end the verdict reminded all of the trial's purpose: to consider charges of murder and manslaughter. This reminder was a consistent message throughout the oral judgement, recorded as a 200-page written document. Despite its length, and Bauer's pre-trial hopes that historians would 'provide the essential background' necessary for the court to reach its verdict, Hofmeyer did not refer to the historians or their Gutachten on a single occasion. Instead, Hofmeyer turned his mind to the evidence presented in court that directly condemned the

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accused for their actions. For the most part, this was comprised of eyewitness testimony. In fact, the closest any of the historians came to receiving a mention was a reference Hofmeyer made to Rudolf Hofi's memoirs - a book edited by Broszat.21 This point is itself telling. Whereas Hofi's memoirs contain information about Auschwitz that could be, and was, used by the judges to assess the veracity of prosecution charges and defendants' counter-claims, the broad historical context of the Gutachten could not. Laternser's vitriolic post-trial claim that the Gutachten were devoid of 'any significance to the court's decision', though exaggerated, can by no means be disputed by the oral judgement alone. 22 Although focussed predominantly on establishing the guilt or innocence of the 20 defendants, and reasoning thereof, the subsequent, written judgement also reached a verdict on historians' contribution to the trial. After detailing the findings of guilt, the judgement opens its 'reasoning' ('Urteilsgrunde') with 80 pages of historical context - 13 pages dedicated to the 'establishment and development of concentration camps within the Nazi state', and the remaining 60 pages to the 'Auschwitz concentration camp'. 23 One basis for this context was identified as the historians' Gutachten, which were individually listed and collectively praised for offering 'well-founded and convincing explanations', with which the court 'fully concurs'. 24 The historians' reports were wholly accepted, without a hint of doubt expressed as to their reliability, nor to the historians' status as experts. As may have been anticipated, Broszat's report featured prominently within the first section, which for the most part corresponded to his Gutachten on concentration camps. Core elements of Broszat's interpretation found their way into this section of the trial judgement, such as: the implementation of 'protective custody' ('Schutzhaff); the evolution of Dachau as a future model for subsequent concentration camps; and the influential role of individuals such as Himmler and Eicke in establishing camp regulations. Without direct reference to historians' Gutachten - a consistent practice throughout - the judgement reached the same conclusions as Broszat in identifying and separating 1934 to 1937, and the year 1938, as periods in which the numbers of those arrested

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increased, and camps proliferated. Importantly, the judges were convinced by Broszat's finding that once the war began, the Nazis' demand for slave labour led to orders that mortality rates in concentration camps be reduced. In addition to Broszat's Gutachten on concentration camps, several pages of his report on Nazi policies in Poland featured in the judgement, specifically those that provided background into the relevant murder scene: Auschwitz.25 At this point in the judgement, the historical narrative's heavy reliance on Broszat's Gutachten came to a sudden halt. The detailed circumstances around the establishment of Auschwitz, its geographical location, individual 'Blocks' and, in particular, the function and position of its sub-camps (Birkenau and Monowitz), were derived from the prosecution's indictment. 26 In every sense this reflected the division of labour between the prosecution and the historians. The latter were obliged to marginalise Auschwitz in their report - creating the so-called 'weifier Fleck' that was to be filled by the indictment. The sketching of Auschwitz occupied over a third of the 80 pages dedicated to historical context. In the final estimation, then, it can be shown that the indictment was every bit as important as the historians' Gutachten in informing the judgement's historical component. Its focus, however, on both the development of concentration camps generally, and of Auschwitz specifically, left little room for Buchheim. Although his report on 'the SS as an instrument of domination' was by far the longest, its use in the judgement was limited to the few instances in which complex chains of command, or the importance of particular regulations, needed explanation. The pertinence of the indictment and Broszat's Gutachten for the exercise at hand - tracing the evolution of concentration camps squeezed out Buchheim's theoretical expositions into the paradox of Nazi legality and illegality. The most startling absence from the judgement, however, is Buchheim's second Gutachten on the question of 'superior orders'. The report's place in the trial was unique: it was commissioned by the prosecution directly to counter defence arguments; and generated vigorous courtroom discussion within the scope of its content. Yet, the report is not mentioned at all in the final judgement. Furthermore, the rebuttal of defendants' claims to have

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merely followed orders under duress - mounted in one form or another by almost every defendant - took place throughout the judgement, without a single reference to Buchheim's Gutachten on the subject. Clearly, historians' expertise could be safely drawn on where the matters remained limited to historical context. Legal decisions, on the other hand, were made on the basis of defendants' individual claims, scrutiny of relevant evidence and specific circumstances. Although the shortest of all Gutachten, the relevance of Jacobsen's report to the trial was revealed in the judgement. His focus on the mass execution of Soviet prisoners-of-war, who were amongst the first victims of the Auschwitz gas chambers, received considerable attention.27 This may be unexpected given that Jacobsen's trial preparation consisted of mere months, and that much of his brief Gutachten detailed primary documents. Similarly, though for altogether different reasons, Krausnick's Gutachten does surprisingly well. While the director of the IfZ arguably had the hardest time in court - with his loudly trumpeted 'history lesson' failing to impress and raising Kaul's ire in particular - his Gutachten ultimately proved useful. Once the historical narrative reached the point of the 'Final Solution', the judges drew on Krausnick's report to trace the historical background leading to its genesis. The Nazis' earliest anti-Jewish legislation, the 1935 Nuremberg Laws, the impact of Kristallnacht in 1938 and Hitler's January 1939 'prophesy' that war would lead to Jews' destruction all featured in considerable detail.28 Even the historiographically contentious argument that Hitler decided to implement the 'Final Solution' in the year 1941 'at the latest', as maintained by Krausnick, was incorporated wholesale into the judgement, such was the reliance of its authors on the historian's Gutachten.29 Thus, Krausnick's 'history lesson' was well and truly salvaged, imperfections and all. JUDGING HISTORY, MAKING LAW: HOW THE HISTORIANS FARED If the success of historians' contributions to the trial, in a legal sense, can at all be graded, the final judgement represents the experts' report card. As with the historians' stints in the witness stand, the reviews

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were mixed. Buchheim, for all the depth and sophistication of his two Gutachten, fared the worst. His report on the structure of the SS, though forming the veritable spine of the successful post-trial book, the title of which serves only to highlight the prominence of the SS in its analysis, failed to leave a judicial mark in Frankfurt. Oddly enough, at the conclusion of its historical narrative relating to the development of concentration camps, the judgement acknowledges both Buchheim's Gutachten on the SS and Broszat's on concentration camps as its basis. The story told within, however, is dominated by Broszat's report. All of the historical Gutachten, save for one, are credited with informing the second section of the judgement relating specifically to Auschwitz, at which point the reports are described as 'well-founded' and 'convincing'. The exclusion of Buchheim's report on the question of 'superior orders' is glaring not merely for its apparent judicial relevance: unlike every other Gutachten, it receives no award for its 'well-founded' and 'convincing' qualities. Since the legal salience of Buchheim's second Gutachten is indisputable, it can only be assumed that the report was intentionally bypassed for commendation. Indeed, it would not be unreasonable to postulate that the judges may have had cause to substantially disagree with Buchheim's findings, or considered that grappling with the report's claims within the confines of a verdict was a pointless exercise. In reality, the judgement reveals that, in all instances, the judicial panel was able to dismiss the defendants' flimsy arguments that they were operating under 'superior orders' on the basis of its definition under German law - specifically §52 - without further recourse. These defence counter arguments were, therefore, scuttled not through reference to historical expertise, but provisions in German law. The Gutachten most mindful of its legal utility also proved the least judicially relevant in Frankfurt. It is unlikely that this decision was made on the basis of any conclusion that Buchheim's scholarship was faulty, even if his report was overlooked for praise in the final judgement. It may be that Hofmeyer and his fellow judges were more comfortable in using the historians' reports to inform historical context relevant to the case, rather than in the assessment of a defendant's claims or in reaching a verdict. The evidence does

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not suggest a likely explanation one way or the other. It can be established, however, that in the end Buchheim's report on the question of 'superior orders' was not used by the court. The remaining Gutachten all found their way into the final judgement's historical narrative, to varying degrees. The evolution of concentration camps, Nazi anti-Jewish policies leading to the 'Final Solution' and the mass execution of Soviet prisoners-of-war in Auschwitz - were respectively informed by Gutachten from Broszat, Krausnick and Jacobsen. The last, during the courtroom version of a guest appearance as an expert, left a solid impression. Broszat, for his part, stood his historical ground well, and despite Kaul's agitations, aptly parried the Joint Plaintiffs attempts to damage his testimony. He may even have seized the opportunity to make his feelings known during a terse out-of-session exchange with the East German lawyer. Broszat's courtroom triumph was carried into the final judgement. The literal stuff of drama, Krausnick's day in court was preceded by a struggle against Frankfurt's traffic, and culminated in a less-thanimpressive shouting match with Kaul. This conflict dominated headlines - and Kaul's tele-drama - diminishing commentary on the relevance, even the content, of Krausnick's Gutachten in the next day's news reports. The judges were less convinced by Krausnick's unnecessarily long history of antisemitism. Yet, Krausnick's argument that Nazi anti-Jewish policies led to the 'Final Solution', and ultimately to Auschwitz, ensured that his report's place in the judgement was guaranteed. The historians' success, however, must be kept well in perspective. As pointed out by Wolfgang Scheffler, the most experienced historian expert witness, a final judgement 'contains only that which the court considers necessary to reach a verdict [...] [from] a legal perspective.'30 It was not, therefore, the judges' prerogative to use the trial judgement as a means to reconstruct an historical narrative for its own sake, irrespective of whether it was informed by historians' Gutachten. Rather, as Dirk de Mildt notes, the written sentence is 'the reflection of a carefully circumscribed and selective judicial exercise, with a particular focus on individual defendants and the accusations filed against them'. 31 This 'judicial exercise' is one that, according to

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Michael Stolleis, requires the judges to draw 'judicial conclusions', not historical ones. 'It is up to him [sic]', claims Stolleis, 'which parts of those provided by the historian he accepts as "relevant" in his own historical narrative. If there are several historians' reports, he will evaluate the reports, cut parts out or summarise other parts.' 32 In short, the extent to which the historians' Gutachten and courtroom testimony proved important - or relevant - in reaching a verdict in the trial would have, as a matter of course, been reflected in the final judgement and its treatment of this historical evidence. This advice from Scheffler, de Mildt and Stolleis reveals much about the legal relevance of historians' reports in the Frankfurt Auschwitz trial. For all the prominence accorded to their Gutachten in the beginning of the trial judgement, once praised for their 'convincing' reports, historians disappeared entirely from the remaining 829 pages of Hofmeyer's decision. While the judges were generous in their praise, beyond page 80 of the written judgement - a 918-page document - there appeared not a single mention of the historians' Gutachten. Critically, the remainder of the judgement dealt specifically with establishing the guilt or otherwise of the defendants, referring to eyewitness testimony and documentary evidence. Despite the 700-page indictment, myriad statements made by the 356 witnesses who gave evidence, and the counter-arguments mounted by the defence, at no point did the judicial panel identify a need to test the veracity of legal arguments or witness statements through reference to the historians' reports. The reduction of the Gutachten - which cumulatively approximate the length of the indictment - to a mere 90 pages in the trial judgement itself attested to the reports' value in reaching a decision to acquit or assign guilt. The bulk of the written judgement was dedicated to the assessment of claims and counter-claims of each individual defendant and the evaluation of eyewitness testimony - without a single reference to the historians' reports. In many ways, however, this should not be surprising. It was not the historians' responsibility to determine guilt or innocence, nor to directly assist judges in reaching their verdict. Indeed, their explicit instructions from Bauer were to avoid such an exercise. Historians gave

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extensive written and oral testimony at an early stage of the trial. Thereafter and in between, eyewitnesses took the stand usually to provide testimony of what they had seen and experienced in Auschwitz. Primarily, this eyewitness evidence formed the case against the defendants. The treatment of historians' Gutachten in the final judgement arguably reflected their purpose in the trial: to provide historical background, not to consider the criminal charges under investigation. Despite proving inessential in reaching a verdict, the historians' contribution to the trial was, nonetheless, an important and valued one. There was no fragmentation of the trial's historical narrative as Bauer had feared, and defence efforts to attempt such a strategy failed. This outcome can in no small part be attributed to the input of historians and their Gutachten. It is important to bear in mind, too, that the historians represented just four out of the 356 witnesses who took the stand: or just over 1 per cent. Looked at another way, over the course of the 20-month period of the main trial, historians were in the witness box for only six of the entire 183 sitting days in court: or one-thirtieth of the trial period. Despite this relatively brief contribution, historians' expertise was recognised within almost onetenth of the written judgement. Within the historical image that emerged from the trial, historians' testimony represented a few tiles within a far larger mosaic. Inasmuch as a picture of the past was formed, its creators were chiefly those who had suffered at the hands of - in many cases literally - the sadists who occupied the dock in Frankfurt. And the determination of defendants' guilt ultimately hinged on the testimony of these eyewitnesses.33 It is worth noting that the judges were by no means procedurally bound to avoid referral to historians' Gutachten in their deliberations. Although rare, there were nonetheless occasions in which the Frankfurt judges saw reason to use other Gutachten presented in court to support their final decisions, specifically in relation to juvenile law.34 Yet, beyond the judgement's opening historical narrative, an historian's name appears on a single occasion, and the context is revealing. In stressing the critical piece of evidence that was Hofi's memoirs, and outlining its reasoning for accepting this document's authenticity, the court stated that it was convinced by the expertise

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of Broszat, who compiled the book and, specifically, was familiar with Hofi's handwriting. Thus, the sole instance in which the historians' expertise was specifically drawn on in the judgement and, effectively, throughout the entire trial - to reach a legal decision was in the role of document examiner. Though historians' testimony - pace Hummerich - did not endanger the practice of law, the Substitute Judge did correctly prophesise that the experts' most useful contribution would be in the evaluation of documentary evidence. While undoubtedly important, however, the ultimate position of the Gutachten, and the contribution of the historians, became peripheral to the exclusively judicial considerations of a murder trial. The Frankfurt court impelled a sweeping investigation in search of the full facts, but in no way were its judges obliged to provide a complete history of Nazi atrocities, the Holocaust, Auschwitz as a site of extermination, or even biographies of the defendants. The court's duty was only to reach a just verdict based on the evidence unearthed and scrutinised during the trial, a judgement that may or may not necessitate a reconstruction of past events. Its members did not share, and in the end explicitly dismissed, Bauer's view and aspiration that the trial medium could and should teach Germans about their recent past. Nor could the judges allow the trial to meet this need even had they agreed with Bauer's impassioned and public entreaties along these lines. In certain respects, an inquisitorial judge trying a murder charge faces the reverse task of the expert witness historian. Where the latter's weifier Fleck - the defendants - remain out of bounds, in the former's mind, they are the only Flecke that matter. Indeed, it can be shown that were it within the power of Hofmeyer to control the future direction of West German Nazi crimes trials, the place of the Frankfurt Auschwitz trial in history would be even more unique. In delivering his judgement to the court, in August 1965, Hofmeyer made known his view that the trial was not designed to 'confront the past', nor to offer a means for apportioning the public with digestible insight into Nazi atrocities. A full consideration of evidence, finding of guilt or innocence with respect to the charges and, where necessary, determining a custodial sentence, were the exclusive domains of the court. The Judge handed down a far more

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caustic verdict of large-scale trials, however, at a meeting of German jurists in 1966. Published the following year, Hofmeyer reportedly objected to the prosecution of 'complexes of mass murder' - as had been the case in the Frankfurt Auschwitz trial - rather than individual defendants. The political background should be kept in mind, he argued, though the alleged crimes of those accused must be assessed as per any conventional criminal trial. Hofmeyer acknowledged that such a reconfiguration would cause the 'entire scheme of historical events' to command less attention in court, but that it was the only way to 'get a grip' on these trials. Moreover, it was not the court's purpose to yield 'historical documentation' from its proceedings.35 Clearly, the Judge was not in a position to air similar misgivings during the Frankfurt Auschwitz trial itself, if he indeed held them, since such an action would have called into question the court's integrity and ability to reach a carefully weighed verdict. Hofmeyer's preference, then, would be for a trial that not only excluded historians but one that, to the fullest possible extent, was devoid of history. Moreover, the irresistible conclusion is that the 'historical documentation' to which Hofmeyer referred and from which he distanced his court were the historians' Gutachten that became Anatomy of the SS State - a work that, at the time of his comments, was well on its way to becoming a bestseller. In all likelihood, Hofmeyer's wish to circumvent the singleminded attempts by Bauer and others to appropriate West German courtrooms for public education of recent history stemmed from a desire to preserve what he considered to be the true function of a court. In Hofmeyer's view, the courtroom was a place of law, in which history would serve its function, and not the reverse. His obiter dictum made to judicial colleagues following the trial by no means disclosed a view that history and law were wholly incompatible. A murder trial involving a single defendant is amply complicated and of grave consequence. In the case of the Frankfurt Auschwitz trial, the murders were committed 20 years earlier during World War II, and its alleged perpetrators were members of the SS operating in an extermination centre (the 'complex of mass murder'). The challenge was, in Hofmeyer's own publicly expressed

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view, one that stretched the capabilities even of West Germany's most seasoned judges. Clearly, the first half of Bauer's balancing act - the essential role that historians would play in a legal sense - was overstated. Simultaneously extolling the virtues of experts in preventing the defence-led fragmentation of the proceedings, Bauer's pre-trial heralding of a time in which 'experts reign', at least with respect to the Frankfurt Auschwitz trial, was premature. The defence was confronted by the intricacy and erudition of the indictment, which damningly catalogued their clients' heinous transgressions, while providing the court with a lettered and pertinent historical narrative of its own. By all means strengthened by the historians' reports, the indictment - the prosecution's version of an historical Gutachten served in no small way as a buffer against the historical fragmentation of the trial Bauer so feared. Toward the trial's closing, Lead Prosecutor Grofknann strenuously mounted the argument that historians' Gutachten had been vital pieces of their case against the defendants. Ironically, though, it was the prosecution's indictment - a legal document - that arguably made the most significant historical impact. In fact, despite any trace of evidence, the indictment's quality of scholarship has convinced more than a few contemporaries that IfZ historians must have had a hand in its composition. 36 With its focus on an historical narrative relating immediately to events in Auschwitz, and on the individual crimes allegedly committed within this historical context, it is no wonder that the indictment was the most successful and important historical report produced for, and used in, the Frankfurt Auschwitz trial. Although the historians and their Gutachten achieved limited judicial validation in the trial, paradoxically, their reports were transformed into what became a cornerstone of postwar West German historiography. While its scholarly accolades are deserved, there is a marked inequality between the historiographical impact of Anatomy and the peripheral judicial role its four historian authors, and their Gutachten, ultimately played in the trial. The equivalent degree of judicial success in Frankfurt would have seen the historians' Gutachten become the veritable 'smoking gun' - decisive pieces of evidence that

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sealed the defendants' fate and proved their complicity beyond any doubt. Moreover, as was the case with the historiographical impression left by Anatomy•, a comparable judicial outcome would mark the trial as a precedent for judges and prosecutors to follow in subsequent Nazi crimes trials. Historians would have become integral to all such future trials, and a permanent fixture in prosecutors' offices - in the same manner that Anatomy found itself on the shelf of virtually every contemporary historian in West Germany. This legal paradigm shift did not take place, and with the historians forced to marginalise Auschwitz in their Gutachten, in the end they found themselves clinging to the margins of judicial relevance. Still, few could have known, perhaps not even the historians themselves, how quickly their post-trial fortunes would change. In the form of Anatomy, the trial Gutachten travelled effectively from the judges' chambers to the printing press. It entered the historiographical fray, judicial warts and all. Its public and scholarly reception was virtually unmatched by any postwar book on Nazi Germany, while its influence on subsequent works and interpretations was profound.

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With few exceptions, those who made a request for their own personal copy of the Gutachten did so without having had an overview of the reports' contents, other than hearing what the historians' had said in the witness box (and had been selectively reported in the press). Despite this limitation, the immediacy and volume of requests show that the innovative qualities of the Gutachten had been recognised even before the historians' time in court was up, along with the advantages of securing a copy of the reports before academic competitors. In relative terms, the trial itself had barely commenced as requests flooded the IfZ, while both Jacobsen and Buchheim were yet to make their first and second appearances in court, respectively. With few exceptions, however, the requestors were left emptyhanded, informed by Broszat in April 1964 that no copies of the trial reports would be forthcoming. The rationale was not that the ongoing trial could be prejudiced through the reports entering public and scholarly domains. Instead, Broszat - who was the main respondent - repeatedly signalled that the Gutachten were to be made available in a collected paperback edition within the following six months (Autumn 1964).3 Enquiries for Gutachten were met with a suggested price tag of 30 Deutschmarks, to cover service costs and, most likely, to discourage further requests. 4 Not even the United Nations High Commissioner for Refugees Dr Laszlo Schirilla could procure a copy of the Gutachten.5 Based on this early demand, it may have been clear that a published version of the trial Gutachten likely would be met with enthusiasm from members of the public and academia. The initial rebuff of requests from academic counterparts and high-ranking officials marked a phase in which the trial Gutachten were transformed into chapters, and became Anatomy. THE PAPERBACK GUTACHTEN Bauer's resolute determination expressed at the 7 November 1962 meeting between historians and prosecutors to see the Gutachten published 'as a paperback', immediately after the trial, came into

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fruition.6 Interestingly, on the same day of this seminal pre-trial gathering - though it is unclear whether before or after - Broszat and Heiber also met with members of the Fischer publishing house in Frankfurt. A file note, written by Fischer, recognised that the two historians' primary reason for visiting Frankfurt had been to meet with prosecutors in order to discuss the possibility of writing Gutachten for upcoming Nazi crimes trials.7 According to this file note, however, the IfZ historians saw fit to 'seize this opportunity to canvass a publishing plan, one that members of the Institute had been discussing for some time', and that had itself been drafted in response to an earlier expression of interest in collaboration flagged by Fischer. The plan, set out in substantial detail by the IfZ historians and discussed at length, foresaw 'a detailed representation of the interwar period, a political history of the war, and a summary of the postwar period up to 1950', with ten planned volumes in total. Thus, the IfZ historians saw fit to advocate an expansive research plan to a publisher on the very same day Anatomy was conceived by Bauer as a post-trial work. The two plans appear to be unconnected, however, save for the date of the meetings and the fact they took place in Frankfurt. The wider Fischer project differed markedly from what would become Anatomy, with only one of the ten volumes remotely resembling the latter's content, slated to examine the role of the SS within the Nazi system of rule. For reasons unknown, the proposed collected edition with Fischer never eventuated. In contrast, the speed and course of Anatomy's development was astonishing. In early 1964, Bauer personally arranged contractual discussions between the IfZ and Anatomy's ultimate publisher, the Swiss-based Walter-Verlag. This interaction was mentioned in a letter from Hans-Dieter Muller, the head of Walter-Verlag's contemporary history programme, who contacted Krausnick on 1 March 1964. The correspondence related to payment details and royalties for the first 6000 copies of Anatomy? This contact took place just two days after Broszat gave evidence from the witness box in Frankfurt. The speed of this transition from trial reports into the chapters that formed Anatomy was frenetic, and caught the IfZ's regular, Stuttgart-based publisher Deutsche

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Verlags-Anstalt off-guard. On 24 July 1964, its representative Felix Berner contacted Krausnick and appeared to be oblivious to the negotiations already taking place with another publisher. In the context of a discussion around further collected editions of Gutachten - as had appeared in 1958 - Berner suggested the inclusion or separate publication of the trial Gutachten as quickly as possible. On this correspondence, however, there is one statement that its recipient, Krausnick, saw reason to single out with a visible question mark next to it. Berner reminds Krausnick - with the words 'as you will no doubt recall' - that when he last visited their office shortly after giving evidence in Frankfurt (February 1964), the director spoke of his intention to see the trial Gutachten published.9 Though it is unclear whether Krausnick personally broke the news to Berner that a competitor would profit from the book's expected success, word soon reached Deutsche Verlags-Anstalt. On 14 August 1964, Berner wrote to Krausnick to express his 'deep regret' that Walter-Verlag had secured the exclusive book rights. 10 According to Berner, they considered it a 'great loss' this work would not be 'a publication of the Institute' - a title that other works presumably enjoyed through Berner's firm.11 Whether relationships were strained or mended, it should be stressed that these circuitous discussions took place within the period of the historians' participation in the trial. The tempo of negotiations alone - initiated by Bauer, then between the IfZ and two publishing houses - suggests the rapid pace in which Anatomy came into being. In fact, Jacobsen and Buchheim had not even written their first and second reports, respectively, when in February 1964 the rights were sold to Walter-Verlag for their publication. With publishers clamouring for Gutachten, which had only weeks earlier been read into evidence, and remained within Presiding Judge Hofmeyer's grasp as the trial continued, there was no possibility of the historians revisiting their findings, or redrafting their Gutachten into revised chapters. It was a state of affairs that did not please Anatomy's authors. Aware that the situation was pressing, and troubled by the possibility of his Gutachten bypassing him on the way from the courtroom to the

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publisher's office, Broszat contacted Walter-Verlag in April 1964. Writing directly to Miiller, Broszat included with his correspondence a copy of his now much-coveted Gutachten, the text of which he described as 'completely unaltered'. 12 But the historian also stressed to Miiller that this Gutachten, despite having been submitted to a state murder trial as evidence, could not be published in its current form. Broszat sought to recommend that a new introduction to his chapter in Anatomy be written - presumably by himself - to replace the one which prefaced his Gutachten. This was not Broszat's only request, however. He also suggested that numerous abbreviations, which are 'not so fine-sounding', be removed, and that the text of his Gutachten be 'smoothed out' to ensure the removal of any 'linguistic errors'. According to Broszat, these shortcomings were the consequence of a 'relatively hurried transcription process'. This short letter to Miiller is by no means an ultimatum, rather, Broszat's means to emphasise that there was still work to be done. The copy had been passed on simply as a collegial gesture, to allow Miiller to read it, and to 'assist with [publishing] arrangements'. 13 Thus, Miiller was able to survey the draft manuscript of a book chapter that his firm had already agreed to print, as Broszat set about making the adjustments he considered necessary. Through a comparison of Broszat's original, 150-page Gutachten with its corresponding chapter in Anatomy, it becomes clear that changes to the actual text were, indeed, no more than cosmetic. Despite the urgency of Broszat's letter to Miiller, which essentially advocated a re-drafting of the Gutachten on its way to becoming a chapter, the end result differed little from the version submitted to court. Time may have proven to be, yet again, the main impediment to rewriting plans. While there would be no re-draft, Broszat did write a new introduction to his chapter in Anatomy, as he had signalled would be necessary in his correspondence with Miiller. Tellingly, the revised introduction is markedly different from that which originally prefaced Broszat's Gutachten, and represents the most significant change made to any of the reports in their transition to book form. In many respects, the word 'introduction' is a misnomer. Within it Broszat reaches a number of unequivocal conclusions; none of which

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can be found within the chapter that follows. He states, for example, that '[t]here was no planned system of concentration camps from the start. It was only gradually that the camps grew into a permanent, expanding institution of the Hitler State/ 14 Despite the clarity of this statement, there is no such argument around the evolving nature of concentration camps within the chapter itself. Even Broszat's simple acknowledgement that his account 'is not itself a fully comprehensive history of National Socialist concentration camps' finds no place in his chapter. 15 There is an obvious divide, then, between the introduction Broszat wrote to his chapter in Anatomy, and the chapter itself. It is an editorial decision that, in the very least, suggests the Gutachten and its original introduction could not adequately convey and recapitulate his core findings. It is possible that the alteration may have stemmed from an overall dissatisfaction with the report itself, one that could not be fully amended prior to publication, but was steered in a more assuaging direction through rewritten introductory comments. Broszat was not alone in his editorial desires. With the frenzy of the trial receding, Buchheim took the opportunity to compose a new preface to the first volume. 16 One of the most often quoted parts of Anatomy - particularly for those reviewing the book - was the introduction Buchheim wrote to the first volume of Anatomy. Given its significance, it is essential to consider Buchheim's remarks at length: For some the whole Third Reich business can be summed up in the word Auschwitz; they are incapable of seeing further than the stark fact that this hell on earth actually happened. As a result they lose sight of the historical truth as a whole. Their answer to the question [of] how this horrifying phenomenon could occur and why it was tolerated consists solely of generalized moral and cultural philosophizing, leaving the intellectual and political background out of [the] account [...] When presenting the history of the National Socialist period to a Court of Justice, a special effort must be made to do so rationally and dispassionately, for the facts presented are not merely the subject of an historical analysis which commits no one, but may have a decisive influence on the fate of the accused. Those taking part in public discussion before a Court are in duty bound to weigh their words, and

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this is to the good in that it constitutes an effective counterweight to the widespread habit of painting a highly emotional picture of the past in order to highlight certain major truths, but at the price of historical exactitude regarding facts and circumstances. Since Hitler's dictatorship is so obviously to be condemned from all points of view, people are tempted to think too little about it. The superficiality of many works on the subject is no more than a reflection of the popular tendency; people prefer vivid writing (and it is difficult not to write vividly about Auschwitz); people try to evade the rationalism of the historian and prefer moralistic emotional theorizing. The current phrase is 'conscience awakening'. But a sleepy conscience is like a sleepy man: if a man is shaken hard enough he will wake up - and then after one or two half-waking moments will quickly go to sleep again. That which man's intellect once grasps however will remain and will not disappear. So in order to come to terms intellectually with National Socialism and its era, the Germans have need not of emotionalism or some moral evangelistic movement but of sober work combined with intelligence and common sense. Otherwise we run the risk of drawing the wrong lessons from the past. The strict rules of the judicial proceeding point the way to a standard of rationalism of which we are in dire need. This was the standard which the authors of these submissions strove to maintain. 17 Thus, Buchheim's introduction sets the tone for the chapters that follow, and suggests h o w Anatomy should be viewed and received by the audience. It was imperative, in Buchheim's mind, for historians to transcend the all-pervasive moralism that had infested German historical works o n the Nazi period. Buchheim, however, also took the opportunity to explain h o w Anatomy sought to rectify the lamentable state of historical scholarship o n the Third Reich, and to promote the rational investigation even of horrendous crimes such as those committed in the 'Final Solution'. Buchheim detailed the book's relationship to the trial as one that was of benefit to both justice and history. His opening remarks in Anatomy have been the starting point of b o t h scholars and journalists in their analysis and critique of the book. There were n o press releases or conferences reuniting the four h i s t o r i a n s w i t h t h e i r prosecutorial colleagues, d e d i c a t e d t o a n n o u n c i n g t h e release of Anatomy. News of the book's release barely registered with t h e Advisory Board. W i t h i n the IfZ's own

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in-house quarterly journal, the Vierteljahrshefte fur Zeitgeschichte, there was no mention of Anatomy until almost 12 months after its publication. And then, in July 1966, a brief description appeared on the journal's back cover: 'the Frankfurt Auschwitz trial Gutachten, presented with comprehensive appendices [...] the most careful investigation ever conducted of the structure and instruments of rule that enabled Hitler to establish and exercise total power, leading to the crime of genocide/ 18 What would become the flagship publication for the IfZ in the 1960s was met with little fanfare from the Institute itself. Yet, 50 years later, Anatomy remains one of the most important historical works ever written in postwar Germany. Though released simultaneously, for almost 30 years Anatomy was published in two separate volumes. The first volume contains Buchheim's two trial reports in the form of chapters, reflected through its two-part subtitle: The SS - Instrument of Rule. Command and Compliance {Die SS - das Herrschaftsinstrument Befehl und Gehorsam)}9 Interestingly, both the book's subtitle and the two chapter titles are vastly different in syntax compared to those heading the trial Gutachten, though not in overall meaning. The original, convoluted title of Buchheim's second Gutachten for the trial was The Problem of Superior Orders in Crimes Authorised by the National Socialist Regime: an Historical View' ('Das Problem des Befehlsnotstandes bei den vom nationalsozialistischen Regime befohlenen Verbrechen in historischer Sicht'). It made sense to adopt a more concise subtitle when it came time to publish the book. The second volume contains three chapters, each written by Broszat, Jacobsen and Krausnick, and is respectively sub-titled Concentration Camps, Commissar Decree, Jewish Persecution (Konzentrationslager. Kommissarbefehl. Judenverfolgung).20 Broszat's chapter is titled simply 'National Socialist Concentration Camps 1933-1945' ('Nationalsozialistische Konzentrationslager 1933-1945'). It is unknown whether the title of Krausnick's chapter in Anatomy matched that of his original Gutachten, since the latter cannot be located. Jacobsen's trial report contained no designation other than 'Gutachten', and in Anatomy adopted the uncontroversial chapter

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title 'The Commissar Decree and the Mass Execution of Soviet Prisoners-of-War' ('Kommissarbefehl und Massenexekutionen sowjetischer Kriegsgefangener'). It was not until 1994 that both volumes were first published in a single 684-page edition, with eight reprints as of 2005. 21 As the 18-month trial that had captivated millions of West Germans came to its dramatic close in mid-1965, advertisements for the upcoming release of Anatomy began to appear in the press. It is little wonder that those promoting the book sensed an opportunity to capitalise on this height of public interest, and to emphasise Anatomy's inextricable link to the Frankfurt Auschwitz trial. WalterVerlag saw fit to use Anatomy as the inaugural publication of a new series - one promoted as early as June 1965, and which aimed to 'inform present-day social and political contexts, as well as literary issues'. 22 Announcements received coverage in magazines such as Der Spiegel - one of West Germany's most circulated periodicals, with no fewer than 500,000 copies at the time. 23 On 12 August 1965, precisely one week before Presiding Judge Hofmeyer delivered his verdict in court, Der Spiegel announced that 'historians Hans Buchheim, Martin Broszat and Helmut Krausnick are publishing their Gutachten from the Frankfurt Auschwitz trial under the title Anatomy of the SS State'.24 With this well-timed advertising campaign in place, an already fascinated public and future readership in waiting, and explicit links made between the book and soon-to-be concluded trial, there were a number of ingredients that virtually guaranteed Anatomy would be popular. Driven by the personality and influence of Bauer, embraced by the historians as an opportunity to widely disseminate their work, the book would be enthusiastically received and lauded by a new generation of history buffs and established scholars alike. This opportunism extended to the magazines, newspapers and other regular periodicals that featured reviews of new and popular books. Indeed, the first written commentaries on Anatomy's substance and potential contribution to historical scholarship came not from historians or other scholars, but journalists and literary commentators.

CHAPTER 5

Publishing Anatomy: Gutachten to Chapters

The three IfZ historians who gave evidence at the Frankfurt Auschwitz trial returned to Munich in early March 1964. The courtroom exploits of Buchheim, Krausnick and Broszat were known beyond the media's colourful headlines and the general public's curiosity. Scores of requests for copies of the trial Gutachten from both fellow West German historians and prominent academics abroad greeted the historians upon their return - met often with polite appeals for their safe and prompt return. 1 The Gutachten became Anatomy of the SS State. It was first released in German (under the title Anatomie des SS-Staates) around September 1965 and made an immediate impact. The first batch of copies were sold out within months. By October 1993, over 50,000 copies of Anatomy were in circulation, and historians received a large slice of the profits.2 This chapter investigates the transformation process - from evidence at a murder trial to bestselling work of history - and examines the first reviews of the book to consider its reception shortly after publication. The book's production was characterised by haste. Publishers fought over the rights to the book, and the public scrambled for copies. These time constraints necessitated that the trial Gutachten quickly became published chapters. Transcending their utility as trial evidence, the scholarly value of the historians' Gutachten was at once acknowledged by other experts.

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'A GUIDE TO BARBARISM' Throughout October and November 1965, journalistic reviews of Anatomy appeared in local and national newspapers. Varying in length and detail, the commentary ranged from single paragraphs detailing the authors and chapter titles, to full-page critiques of each author's respective contribution. Their verdict of this new work was overwhelmingly positive. Anatomy was held up as a pioneering and overdue contribution to scholarship. Its relationship to the trial was not concealed by reviewers, but highlighted and put to one side. Men of law such as Forsthoff may have publicly expressed their disquiet over the threat historians posed to the Frankfurt proceeding. Faced with the reverse of this question - whether the trial skewed the content of a book about to enter the public domain - however, reviewers of Anatomy found no cause to riot. 'It is only when you read Buchheim's report on the question of "superior orders",' wrote one reviewer, 'that you realise the entire work is a collection of Gutachten for a court'. 25 A number of reviewers sought to assure prospective readers that Anatomy was not simply a published edition of court reports overladen with technical and specialist jargon. 'Gutachten are rarely a good read', wrote one reviewer, before stressing the extent to which Anatomy defied this rule. 26 Indeed, several implored their readers to see virtue in the book's original purpose as a means to inform the Frankfurt court. At the same time, it was stressed that Anatomy's content was 'not exclusively a guide for jurists', but '[t]he representation of facts, the interpretation of processes [...] [which] should be comprehensible to anyone', and was 'expected to reach a broader audience.' 27 Thus, judges and members of the jury aided by the historians' Gutachten were likened to the general public, and there was no assumption of prior historical knowledge. Dietrich Strothmann, whose review of Anatomy appeared in the highly respected Die Zeit, likened the book to a travel guide series popular in Germany - Baedeker - one aimed at holidaymakers to foreign countries. With his review titled 'Baedeker der Barbarei', or 'A Guide to Barbarism', Strothmann's comparison was somewhat fitting. Anatomy was effectively a map into an unknown world for both

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the courtroom and the general public. According to Strothmann, Anatomy was 'not specialist literature that will only be of interest to experts [...] and disliked by the layperson', but the presentation of a comprehensive and intelligible overview for public and scholarly consumption. 28 Although the two were carefully separated, it was also a common practice for these early reviewers of Anatomy to editorialise on the significance of both Anatomy and the Frankfurt Auschwitz trial for contemporary issues facing West Germany at the time. This was particularly the case for one reviewer, Jtirgen Kramer, who argued that Anatomy should have been essential reading for all participants in the recent discussion over a possible amnesty of Nazi criminals that took place in the West German parliament (Bundestag).29 Revealing not only the scope and brutality of Nazi crimes, many of which were still unpunished by the mid-1960s, in Kramer's view Anatomy offered a means not only to invalidate arguments for an amnesty, but through its detailed examination of the SS provided 'an objective assessment of personal guilt' that could be used in future trials. 30 In fact, Kramer was completely open in his suggestion that West German judges should consult Anatomy in subsequent proceedings against Nazi criminals. According to Kramer, the book 'should by no means be limited to the judges in Frankfurt'. In Kramer's view, judges overseeing similar trials at the time 'cannot properly assess the responsibility' of the defendants 'without the irrefutable knowledge from this two-volume work, Anatomy.'*1 While commending the historians' achievement, and noting the book's future judicial utility, Kramer also lamented the 20-year period of inaction by lawyers and historians alike. Justice went unpursued, in Kramer's view, for the same reasons that history went unwritten. 32 The earliest reviews of Anatomy recognised the book's qualities as an original, accessible and comprehensive piece of history. Yet, it was common for the journalists tasked with reviewing Anatomy to address instead how its publication might impact what was most familiar to them: contemporary social and political issues. The trial itself had raised a number of vexing and unsavoury questions, particularly for a

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younger generation of West Germans. What had taken place at Auschwitz and other places of atrocity had been, for the first time, openly discussed. Approaching maturity, the children whose parents had fallen under Nazism's spell were discovering the full extent of its destructive force. The publication of Anatomy took place within this context. Reviewers' attention was directed towards the aspects of Anatomy (and the Frankfurt Auschwitz trial) relevant to the most topical issues - ongoing trials and, importantly, the mentality of perpetrators. One unauthored article that appeared in the prominent Suddeutsche Zeitung, titled T h e Truth about Auschwitz' ('Die Wahrheit iiber Auschwitz'), acknowledged the challenge and hinted that it was one Anatomy would be unable to meet. '[N]o one who did not witness the [Nazi] period for themselves', it read, 'is able to impart an understanding of how people could commit the most heinous crimes [...] that have up to now gone unpunished'. 33 The chapters contributed by Broszat, Jacobsen, Krausnick and, in the case of the SS, Buchheim - as well as the trial itself - did much to inform the question of what happened, but served only to feed the equally complicated question of how. It was the very one posed by the anonymous author in the Suddeutsche Zeitung. In Anatomy, the partial answer came via Buchheim's chapter on 'superior orders'. The Gutachten of most interest to the defence lawyers, and of least significance for the verdict, returned as a chapter to command much attention in the first reviews of Anatomy. There was, however, no challenge mounted to Buchheim's 'superior orders' interpretation in these earliest commentaries, nor, it should be added, to a single historical argument contained in the book's chapters. Indeed, there is a sense that Anatomy's first critics were overwhelmed by the very prospect of attempting a counterargument. To be fair, it could hardly be otherwise. The West German historical profession had given their journalistic colleagues few opportunities to review books on the subject of Nazi Germany prior to the publication of Anatomy in 1965. Moreover, it was the task of reviewers to summarise the contents, highlight perceived strengths and weaknesses of a new book, and to comment on its readability. Yet, as may be suggestive of the early impact Anatomy

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had, its novelty, and sheer size, commentators resorted to providing lengthy summaries of each of its five chapters rather than scrutinising the arguments within them. Buchheim's chapter on 'superior orders' simply received more of this descriptive attention, with lengthy quotes, and the historian's distinction between 'official orders' and 'ideological orders' recapitulated. 34 The fixation on this chapter is understandable given the questions that Germans were asking of themselves at the time. 35 What the authors of Anatomy had to say about concentration camps and structures of the SS did not dispute the still frequently parroted argument that criminal orders had to be obeyed. It is logical that, as a result, the first reviewers of Anatomy were instinctively attracted to Buchheim's chapter. They simply had more comment to make about it than any other. Though predictably unable to recognise the historiographical impact Anatomy would have in coming decades, the first reviewers of the book still could appreciate the quality of its scholarship. The historians' achievement was described variously as 'comprehensive [...] the most in-depth study of the Nazi regime's mechanisms of power', 'the fascinating results of extensively documented, wellstructured and serious historical research' and 'unparalleled in its detail'. 36 Admittedly buried within paragraphs of description and snippets of political commentary, praise for Anatomy is, nonetheless, hefty. Where criticism was made, it was tempered by acclaim. One unnamed reviewer noted that although the expert witnesses carried out their role in court effectively and 'with flying colours', there was a sense that 'the superlative representation of the SS State had yet to be written'. 37 Although the point was only vaguely made and not explored further, this was one of the very few instances in which a reviewer alluded to the inhibiting role the trial may have played in stunting the development of Anatomy as a work of history. In Gunther Bortsch's view, the horrors that became public during the trial would have caused those following the proceeding to experience a sense of shock and disbelief. He described Anatomy as 'not pleasant, but necessary, reading.' 38 Bortsch argued, however, that 'this barrage of emotions must be

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followed by intellectual analysis', for which Anatomy 'lays the foundation'. 39 None of the initial reviews predicted that the book's scholarship would remain unmatched over coming decades - nor should they have been reasonably expected to reach this conclusion in the first few years of the book's release. Instead, Anatomy was acknowledged as an impeccably researched text that brought together, for the first time, unexplored and related topics, and examination of critical documents, under the same cover.40 Journalists consistently urged potential readers to separate Anatomy from the trial, attesting to the book's quality as objective, well-founded historical scholarship. Despite the event of the trial continuing to reverberate throughout West Germany, and bringing with it a wave of interest in Anatomy, reviewers rode less on its coattails than might be expected. In any case, it is not what reviewers said, but what they neglected to comment on that alludes to Anatomy's own unique history of development. For example, reviewers reached no conclusions on the overall interpretative thrust of Anatomy with respect to Nazi Germany, or the 'SS State', nor on the contribution by each author to these themes. Possibly, there was simply no comment to make. There is no introduction in the book by one author, let alone by an overseeing editor, outlining its thematic and exegetical ambitions. Likewise, the absence of any unifying motif between authors leaves reviewers prone to summary and description, rather than analysing how each chapter contributed to the exploration of the book's overarching topic. Moreover, Anatomy has no concluding remarks by any author neither at the end of chapters, nor in a separate section at the end of the book. Indeed, the chapters themselves maintain the identical structure of Gutachten: with no introduction to outline the chapter's content or scope; and no conclusion summarising or synthesising the authors' findings. Even Buchheim's lengthy preface to the first volume of Anatomy is largely detached from the chapters that follow. In no way do Buchheim's introductory comments endeavour to connect the chapters, nor set out the book's common objectives. Any post hoc attempt to present loosely related trial

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Gutachten as united a n d related chapters, u n d e r a shared title, m a y

have proven futile without a substantial redraft, and reconceptualisation of the entire project. Yet, reviews of the book did not highlight what were glaring differences between Anatomy and every other historical text published at the time. That task would be left to those writing the first scholarly reviews of Anatomy, though they did not prove entirely up to the task.

CHAPTER 6

Responding to Anatomy: Scholars React

The publication of Anatomy was a crowning achievement for the IfZ in the mid-1960s. It seems, however, that not all West Germans approved of the Institute's activities. One of the most radical expressions of displeasure took place in the early hours of 30 March 1965, when a few disgruntled citizens hurled several large projectiles through four of the Institute's windows.1 While the damage was limited to a few panes, the IfZ members knew that this was no random act of vandalism. The unknown author of a meticulous file note wrote: '[i]t is quite obvious that the incident is politicallymotivated'. 2 The act suggested a connection between the deliberate hurling of rocks, and the assumption that IfZ historians would be returning to the witness box in future Nazi crimes trials - as they had in Frankfurt one year earlier. In fact, the incident took place as the trial continued to dominate headlines, only reaching its conclusion in August 1965. Notwithstanding this isolated incident - one that can be seen as the most extreme public response to the Institute's recent attempts to confront the Nazi past - most members of the general public and scholarly community expressed their verdict of Anatomy not through actions, but in words. The journalistic reviews that dominated the previous chapter found an audience through their respective periodicals and newspapers. Likewise, academics opted to articulate their views of Anatomy - whether critical or

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reverent - in writing, and did so through publication in various historical journals. This chapter examines these book reviews, to explore how Anatomy was initially received by scholars through academic journals. It is perhaps remarkable that the book was not subjected to the intense criticism a published version of expert witness reports might have been expected to receive. The corruption of history at the hands of law that some predicted was not identified, at least not within the pages of Anatomy. Nor did its publication ignite an immediate and collective response from historians as may have been the case had the book lacked scholarly rigour - actions which West German historians had proven themselves more than capable of mounting in preceding years. Even after disappearing from the pages of newspapers and periodicals and finding their way into scholarly journals, reviews of Anatomy continued to emphasise the book's link to the trial, while simultaneously highlighting its various claims to originality. Key historical themes raised in Anatomy - around the structure of the Nazi state, and the relationship between antisemitism and the extermination of Jews, to give two examples - were identified in these early reviews. These themes, and the concurrent historiographical problems they raised, dominated historical research on Nazi Germany in subsequent decades. Within these early reviews of Anatomy the issues were broached, their innovation noted, and they were left open for other scholars to explore in greater depth. REVIEWING ANATOMY: ENGLISH TAKE THE LEAD In the years leading up to the publication of Anatomy in 1965, contemporary historians had shown an almost vociferous response to what were seen as distortions of German history perpetrated by other authors. The responses to publications by Fritz Fischer and David Hoggan, both in 1961, more than amply testify to the profession's willingness to unify against a common cause.3 Rebuttals were defiantly expressed at public speaking events, and in print. This pattern of earlier years, then, is instructive when it comes to assessing the relative silence that followed the release of Anatomy. Neither

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the appearance of the historians in court nor the book's release provoked sufficient disquiet to engender a united response, such as that Fischer and Hoggan had encountered from the West German historical community. This recent habitude suggests that Anatomy was, in the very least, uncontroversial. Books such as those produced by Fischer and Hoggan stirred controversy, challenged the historiographical status quo and necessitated an immediate and very public response from historians. Such examples are anomalous, however. In the normal course of scholarly engagement, new works are gradually absorbed, reviewed, discussed and eventually taken into account when producing subsequent historical tracts. The process is lengthy, and its exact course cannot be envisaged in advance. The famous British historian A. J. P. Taylor's quip that historians should not attempt to predict the future, since they 'have enough trouble predicting the past', applies to his own field of history and the direction of its scholarship.4 Formal reviews can take years to appear in historical journals, and an appreciation of a book's ultimate influence may not be known for decades. Notwithstanding this typical cycle in which new works are reviewed and received, Anatomy was both exceptional and an exception. Its origins were tied to one of the few events in the history of West Germany that kept its citizens engrossed for several years. Neither the spotlight of the trial, unprecedented circumstances of the book's construction, historians entering court nor the manifold journalistic reviews that followed its publication induced an immediate scholarly response from West German historians. The book did not enjoy a level of immediate attention even approximating that directed towards the trial that gave rise to its creation. Still, even many years after the release of Anatomy - more than sufficient time for the appearance of book reviews - West German historians had not yet delivered a verdict on the book's future or present historiographical value. In part, at least, this silence can be attributed to the ongoing struggle faced by contemporary history to win respect as a field of study. At this time, no West German university had a Chair in Contemporary History. At least one prominent German historian, Franz Schnabel,

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openly regarded the task of undertaking contemporary history as 'impossible'. 5 Yet, neither the authors of Anatomy nor the Munichbased Institute that sported the discipline's name within its title represented comtemporary history's sole advocates. There was no shortage of contemporary historians in West Germany, with numerous historical journals to air their views on newly released books. Nonetheless, the obvious choice for a journal of contemporary history - the IfZ's own Vierteljahrshefte fur Zeitgeschichte - did not review books, and could not very well dedicate space to a work written by three of its own historians. Moreover, a positive evaluation of the book by this journal may have led to accusations of preferential treatment, however impartial it appeared. By contrast, an overly negative review may have undermined the scholarly integrity of the Institute's own scholars, and of the very journal in which it appeared. Certainly, the non-appearance of formal reviews from German historians within the initial years of its release was by no means a sign that Anatomy had somehow gone unnoticed. As the next chapter will reveal, at the same time that West German journalists featured Anatomy in their review pages, historical counterparts were beginning to internalise the book's content, analyses and structural argumentation. As this process of internalisation continued, the task of reviewing Anatomy was one taken up and monopolised by scholarly journals in the English language. Though suitable for a non-specialist audience with a reasonable command of German, realistically, the original German version of Anatomy was accessible only to a narrow field of experts. With no translation immediately forthcoming, only a few academic reviews appeared in Englishlanguage periodicals. Nevertheless, though small in number, these reviews offered perceptive insights into the strengths and weaknesses of Anatomy as a scholarly work. Moreover, as might be expected from academic reviews, these commentaries differed from those written by journalists in the weeks following the publication of Anatomy. The tendency to reflect on how the book might inform current social and political discourse - difficult when it came to West Germany and the subject of the Nazi past - was

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expunged from scholarly reviews. Additionally, as weeks became months, there began a shift from an excessively descriptive treatment of the book to the analysis of its content. Tellingly, though, the first academic reviews to appear were not written by historians. DISSECTING ANATOMY: THE FUTURE OF THE PAST One of the first such reviews appeared in the October 1966 edition of the journal International Affairs.6 It was written by Ian Fitzherbert Despard Morrow, an experienced German-to-English translator who also dabbled in history.7 Produced by the eminent London-based Royal Institute of International Affairs, this journal devoted much of its energy to more contemporary issues of international consequence. Matters of history were, in comparative terms and within the issue featuring Morrow's commentary, relegated to four pages of the 100 dedicated to book reviews. While such limited print space led Morrow to engage in some description, his comments were nonetheless pertinent and revealing. Morrow's praise for the book's scholarship was virtually boundless, beginning and ending his review with the statement that Anatomy 'make[s] an outstanding contribution to knowledge of the SS as an instrument of domination [...] [and] bears permanent scholarly witness to the evil nature of National Socialism as revealed in its works/ 8 Morrow does not follow the pattern set by the earliest reviewers, some of whom sought to divorce Anatomy from the Frankfurt Auschwitz trial and to highlight it as a scholarly achievement free of legal vitiation. All four authors of Anatomy wrote with what Morrow described as 'a judicial lack of passion', one that was, however, 'very far from indifference or callousness', and served to heighten 'the cumulatively horrifying effect upon the reader'.9 At the same time, Morrow partly erred in his remark that this mode of analysis was one of 'self-imposed restraint' - overlooking the complex interaction between Bauer's pre-trial instructions and the historians' own ingrained practices of 'restraint'. In any case, the 'judicial lack of passion' that Morrow identified as a characteristic of the book's analysis does not, in the reviewer's mind,

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diminish its scholarly credentials. Although he largely overlooks Broszat for individual praise, the other three authors received acclaim for their respective chapters. Buchheim's contribution on the SS was, in Morrow's view, the 'most important volume', and was both a 'masterly exhaustive account' and 'an acute analytical inquiry'. Krausnick, in turn, offered a 'perceptive and impartial account' of Hitler's role, while Jacobsen supports his chapter with 'an invaluable collection of documents'. 10 Likewise, Morrow noted the relationship between the title of the book, and the method of its authors as being 'engaged on [sic] a dissection', one undertaken 'in the detached scientific spirit of anatomists'. 11 Possibly owing to the miserly space the journal dedicated to historical reviews, there was no further exploration of this argument, nor of the specific manner in which the practice manifested itself in the chapters of Anatomy. Nonetheless, from the recognition of this 'anatomical' approach Morrow was able to convey - arguably, for the first time by any reviewer - a sense of the future significance of Anatomy. Topics that came to dominate the historiographical landscape in coming decades were pinpointed by Morrow as original, though their importance was not fully recognised. The subjects included the genesis of the 'Final Solution', the gassing of Soviet prisoners-of-war, and the development of concentration camps, to name only a few. It was not the discipline of history that Morrow had in mind, but the general audience, when he claimed that Anatomy conveyed 'the full impact of the monstrousness of this vast administrative organisation, deliberately planned, organised and disciplined for the enslavement and, in the case of the Jews and Russians, extermination of millions of human beings.' 12 Admittedly, parts of this conclusion were fodder for historical dispute. Even some of the book's authors would likely have interrogated Morrow's use of the phrase 'deliberately planned', and labelling of 'Russians' as targets of extermination. These frailties notwithstanding, Morrow singled out evidence and themes in Anatomy that were to inform future historical research, and that will be explored in greater detail in the next chapter. Although Morrow could possibly lay claim to the status of amateur historian, one scholarly review of Anatomy to appear was

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penned by the Frankfurt-based Giinther Dux: a prominent West German sociologist with a qualification in jurisprudence. 13 Where journalists reviewing Anatomy had seen an opportunity both to review an already famous book, and to use it to inform commentary on current events, Dux brought his own intellectual priorities to the role. Writing for Social Research, a US-based journal, Dux's article was published in late 1966 and remains one of the most detailed reviews of Anatomy. Even a casual read of it suggests that the scholar's interests were less history than law and society. The article, therefore, accurately reflected Dux's expertise. While this represents a different strain of the same ailment that plagued earlier reviews of Anatomy, Dux was remarkably astute in what he had to say about the book's strengths. In contrast to the journalists whose reviews of Anatomy preceded his, Dux was not tethered by either the daily news cycle, nor by editors' expectations. He left no trace of the contemporary reflections that proved overly tempting for journalists. Dux's legal training, moreover, enabled him to better understand the historians' duty as experts in court and its relationship to Anatomy. Though generally praising its scholarship, Dux appeared blind to the rich historical analysis that emerged in Anatomy, and its value for the historical profession. He summarised Anatomy as 'a thorough survey of reliable information', but one that did 'not offer any particularly surprising facts, nor are there opened up [sic] any new perspectives for historical or political research.'14 This comment was not necessarily intended to be critical, however uninformed it appeared, and incorrect it was. Rather, it seems that Dux's knowledge of legal matters, and ignorance of the state of historical research, led him to this false conclusion that Anatomy had little to offer contemporary history. Noting their participation as experts in the trial, Dux pointed out that the clarification the historians provided the court around structure and personal responsibility were 'of great importance'. What he termed the 'confusion of competition' between various Nazi institutions, in his view, could have 'allowed the accused to exonerate themselves and to fix the responsibility on others.' 15 Thus, Dux identified that Anatomy highlighted

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the competitive nature of Nazi institutions, without recognising the implications of such an interpretation. Despite his claim that the book contained no 'new perspectives' for historical research, the administrative and institutional jostling that Broszat and Buchheim examined in Anatomy, and that Dux alluded to in his review, were original and seminal contributions to structural history focussed on the Nazi period. Moreover, as the next chapter reveals, it was this 'new perspective' and emphasis on structure that generated much of the discussion on Nazi Germany in the years following the publication of Anatomy. It is clear that although Dux's legal expertise gave him an edge on other reviewers, the same knowledge clouded his judgement of Anatomy. Having stated, for example, that the historians' objective was to piece together a factual rather than theoretical analysis, Dux's very next sentence revealed a poor understanding of what constitutes historical interpretation. 'In the nature of the case', wrote Dux, 'the experts were not concerned with the particular deeds on trial but with the political settings in which these acts occurred.' 16 Given this situation, he argued, the experts did not engage in 'any historical, psychological or sociological theories and generalizations, but rather aimed to bring out facts.'17 Few could deny that the four historians constructed one of the hitherto most comprehensive investigations of how Nazi Germany functioned, its administrative and institutional structures, the use of concentration camps and role of antisemitism, amongst other subjects. Yet, none of these complex historical questions - let alone the entire work of Anatomy - can be merely described as 'fact-finding'. The task of outlining for the court the relevant 'political setting', in the case of the Frankfurt Auschwitz trial, was a matter of constructing wellsupported historical interpretations: not a catalogue of 'facts'. More critically, this title of 'fact-finder' that jurists such as Dux commonly apply to historians misunderstands that their discipline is one in which a scholar's views are not accepted as 'facts', but are scrutinised and contested. For Dux, the authors' contributions to Anatomy were not, as had been the case with earlier reviews, set out in excessive detail, but

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themselves cast as exercises in mere description. Virtually all Dux's criticisms were reserved for Buchheim's two chapters: particularly the historian's argument that the merging of the SS and Police led to a disempowerment of the latter; and the usefulness of Buchheim's distinction between 'official orders' and 'ideological orders'. In mounting what was the only weighty criticism of Anatomy, then, Dux's focus was drawn to matters on which he was most qualified to comment - society and law. It can be observed that Dux's assessment of Anatomy reflected that of his legal colleagues in the Frankfurt courtroom: the focus of his review turned immediately to the book's most judicially relevant parts, particularly the question of 'superior orders'. THE 'BURNING QUESTIONS': HERZFELD AND AINSZTEIN One of the first scholarly articles to feature Anatomy was written by prominent West German historian Hans Herzfeld. The article was published in an edition of the newly created Journal of Contemporary History in January 1967, and was titled 'Germany: After the Catastrophe'. 18 It was not a review, per se, but examined the various attempts of contemporary historians to tackle the Nazi past since 1945 - including Anatomy. After detailing previous works, Herzfeld introduced Anatomy to the reader not as the latest groundbreaking work to enter the field, but as part of the IfZ's engagement with contemporary historical research. This should come as no shock given the author's background. As was the case with Rothfels, Herzfeld had been removed from his university position by the Nazi regime in the 1930s as a result of Jewish ancestry. As well as this shared fate, Rothfels and Herzfeld sat alongside each other as members of the IfZ Advisory Board throughout the 1960s.19 Indeed, Herzfeld has far more to say about the Institute's contributions to historical research than about its most important work, Anatomy, to the same cause. Within a 14-page article, Herzfeld dedicated barely half a page to Anatomy. In the context of a general article on German contemporary history, this would be understandable were it not the case that other individual works received a good deal more

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attention. Furthermore, in Herzfeld's piece Anatomy was used not as a central and recent example of how contemporary historians had broken new ground, but as a means to defend the IfZ from criticisms of inaction. Membership of the Advisory Board since 1958 had exposed Herzfeld to the many demands placed upon the Institute, particularly the imposition and growth of requests for Gutachten. It was a point that Herzfeld was keen to stress in his article, alongside highlighting a recent shift in the IfZ's focus to events beyond 1945. Despite its prominence, Herzfeld did not explicitly mention the trial nor its relationship to Anatomy, stating only that the book was 'based on the extensive evidence of four specialists'. Beyond this statement, Herzfeld added equivocally that Anatomy - which he superfluously referred to as 'The Anatomy' - 'probably represents the most thorough treatment of such burning questions as the ultimate responsibility for giving and obeying of orders in the SS; the running of concentration camps, the execution of the "commissar order", and the extermination of the Jews/ 20 It is a sentence that suddenly and jarringly ended both the section and Herzfeld's commentary on Anatomy. It was also arguably the first written assessment of the book by an historian, or anyone, that recognised Anatomy's potential historiographical value. The 'burning questions' that Herzfeld identified shortly thereafter became pivotal and contested areas of contemporary history. And each were to be found within respective chapters of Anatomy. Bringing far more expertise to the task than Morrow and Dux, Herzfeld's viewed Anatomy not purely as a source of information or description, but a significant contribution to historical enquiry. It is a great shame that Herzfeld's article did not focus solely or primarily on Anatomy, given his level of expertise and personal insights as a member of the IfZ Advisory Board. Yet, it may well be that this very position within the IfZ hierarchy limited what Herzfeld could say about the book. A review that excessively praised Anatomy, celebrated its predicted influence, or excessively detailed the IfZ's research, may not have been favourable for Herzfeld, personally, or the Institute, politically. Although it may be seen as an act of reputational self-preservation, Herzfeld's decision to use

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the Journal of Contemporary History as his vehicle to comment on Anatomy and other works was consistent with the generally muted response to the book within West German historical journals - even as the public bought thousands of copies. In reality, Herzfeld may have been motivated by any number of reasons to select what was (and remains) the English-language equivalent of the Vierteljahrshefte to air his views. What is clear, however, is that the editors of scholarly journals such as those used by Morrow, Dux and Herzfeld recognised that Anatomy was significant enough to warrant attention, despite only remaining accessible to those with a command of German. Moreover, the release of a singlevolume English translation in 1968 increased the book's reach and triggered renewed attention. 21 Again, though, non-Germans took the lead. Reuben Ainsztein, a Polish Jew who escaped Continental Europe - and later flew over it as part of Royal Air Force Bomber Command - wrote a review of Anatomy in April 1969.22 Appearing in the acclaimed journal International Affairs, Ainsztein opened his review with the statement: 'I know of no other work that presents in such a lucid and concise manner the origins and nature of Hitler's Third Reich as the [sic] Anatomy of the SS State/ 23 Ainsztein further advised that the book 'should prove indispensable to all English students of the Nazi period'.24 He singled out Krausnick's chapter which shifted from its place as the final chapter in the German version, to the opening chapter in the English translation - for praise, contending that '[n]o serious historian may in future deal with the problem of Jewish ghettos [...] without taking into account' Krausnick's work.25 Ainsztein, a respected journalist and amateur historian, was not only able to recognise Anatomy as innovative, but also identified the novelty of its interpretations. In particular, the conflicting arguments that saw the exterminatory will of leading Nazis (such as Himmler) triumph eventually over those who considered Jews under Nazi dominion to be a source of valuable slave labour. Notably, Ainsztein did not extend his analysis any further, nor consider the implications for historiography. The handful of reviews written after Ainsztein's were highly laudatory, but need only be briefly surveyed. For Brian Chapman, Anatomy was

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'a ferocious example of institutional combat', while according to British historian Michael Foot, the strength of Anatomy lay in its analysis of the 'connections between political theory and historical practice [...] [which] are seldom set down with such devastating clarity/ 26 These later reviews of Anatomy certainly move beyond the description-laden commentaries that first appeared, and those that praised the book in general for its scholarship. The shift from journalistic to scholarly reviews of Anatomy was marked by the identification of the book's robust analysis. Even so, it is reasonable to argue that the first reviews of Anatomy were, generally, underwhelming. This is particularly the case given the prominence of historians and their Gutachten in the still quite recent trial, and the subsequent interest expressed by scholars and other parties eager to obtain any available copies of the reports in the weeks immediately following the historians' testimony from the witness box. There was not only considerable public engrossment in the trial, but scholarly attention drawn to the quality of historians' testimony in court, even without the benefit of knowing exactly what each Gutachten contained. The quality and number of formal reviews of Anatomy, however, did not reflect this degree of public and scholarly enthusiasm for the work - at least in the immediate period following the book's publication. Unquestionably, the journalists and scholars who initially commented on the book could not be expected to foresee its ultimate influence. This could only be assessed several decades later, not predicted at the time Anatomy was released. Historians, for their part, are not rushed to judge a book or article unless it has provoked or will provoke exceptional controversy, and clearly saw no reason to do so in response to Anatomy. Nonetheless, the word 'pioneering' was one favoured by journalists and scholars in the years following the book's publication, and many reviews did manage to identify the originality of its subject matter (if little else). The earliest reviews, however, continued to place emphasis on the link between Anatomy and the trial that led to the book's creation, rather than on the work's potential significance. Description of the content was replaced by its examination, and a vague sense conveyed that Anatomy was a

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valuable addition to historical knowledge. Although the extent to which reviewers anticipated the book's longer-term importance differed, some were able to identify themes destined both to become matters of heated dispute, and to provide impetuses for future research. A breakthrough work, Anatomy acted to support and inspire these investigations, and, in so doing, proved its own worth as an historical text. Moreover, it was not simply the case that the book stimulated further historical investigations. Anatomy - indeed, the Frankfurt Auschwitz trial itself - contained the elements of debates that would come to dominate study of Nazi Germany for many years to come.

CHAPTER 7

Receiving Anatomy: How the Book Made History

One critical point overlooked by those who reviewed Anatomy, and observed in the trial - and by scholars since - is the level of disagreement between historians' testimony in court, and how this was reflected in the book's chapters. Evident in each are the beginnings of later historiographical controversies, in which its historians would play important roles. Specifically, the trial revealed that there was no consensus on precisely when the 'Final Solution' had been authorised to commence, and both Krausnick and Broszat came up with very different answers from the witness box in response to such questions. According to Krausnick, deportation to Auschwitz was a death sentence from March 1941 onwards. In Broszat's mind, the answer was more complex given what he saw as a duel between the often competing demands of slave labour and an unrelenting drive to exterminate. Though the outcome was unclear, as noted in Chapter 3, even the judges sought clarification from Broszat on his answer. More than a silent conflict between two witnesses, their disparate responses became part of Anatomy. The issue around the timing of the 'Final Solution' raised in the Frankfurt courtroom, however, reveals just how far ahead of their time the historians' Gutachten, and Anatomy, proved to be. Raised though by no means explored in court, the discrepancy that arose between Krausnick and Broszat represented a germinal stage of historiographical disputes

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that were to consume the study of Nazi Germany in subsequent decades. This chapter examines how Anatomy ultimately shaped the writing of history. It focuses on key examples that are emblematic of the book's considerable impact. It also aims to give a sense of how Anatomy was treated by historians - including those who wrote it - as the book entered, became a part of, and was ultimately held as a fundamental text within, historical discourse. LATERNSER'S LIES One individual present in the Frankfurt courtroom did seek to take advantage of the historians' uncertainty: Hans Laternser. The most vociferous of all the defence lawyers, Laternser's eleventh-hour bid to absolve defendants of wrongdoing led to a scandalous distortion. Participation in the 'Final Solution' through the selection of new arrivals for the gas chambers or work camp was, according to Laternser, the 'obstruction of murder', and acted to reduce the number of killings. Not content with this level of perversion, Laternser proclaimed that these 'acts of mercy' not only 'averted total extermination' but 'sabotaged the plan to liquidate all Jews in Europe.'1 Those on trial were not murderers but 'life-savers', not agents of the 'Final Solution' but its saboteurs, even while denying knowledge of its perpetration. With hindsight, it seems remarkable that the closing argument he made on 9 August 1965 did not lead to open public outrage, or, at least, become more than a few incensed headlines. Laternser's ploy was as disingenuous as his claims were outrageous. Nonetheless, his closing argument hints at how the disagreement over decision making and the 'Final Solution' appeared in embryonic form in the courtroom, and in Anatomy. Other issues that in subsequent years began to monopolise historical discussion included the structure of the Nazi regime, the role of antisemitism in Hitler's worldview, the evolving utilisation of concentration camps, the significance of Soviet prisoners-of-war as early victims of mass gassing and the mindset of German perpetrators. Each of these

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subjects - and invariably their very roots - can be found on the pages of Anatomy, years before their historiographical magnitude began to be felt. Unresolved and unnoticed in court, the courtroom discrepancy that emerged between Krausnick's and Broszat's views on when the destruction of European Jews commenced can be seen to represent a minute kernel of what was to dominate historical research in the coming decades: the debate between intentionalists and structuralists. It represents the most significant dispute in Holocaust historiography. The two positions are starkly different. Intentionalists stress Hitler's direct involvement, longer-term planning and personal antisemitism as the driving forces behind Nazi Germany's extermination policies. The structuralist interpretation, on the other hand, emphasises the incremental radicalisation of anti-Jewish measures from lower-ranking Nazi functionaries, with the structure of the Nazi regime itself constituting the main impetus ultimately leading to genocide. And, while Krausnick and Broszat had been on the same side in the Frankfurt courtroom, almost exactly 20 years later, in 1984, they found themselves on opposite sides of this divisive and polarised debate. THE ROAD TO AUSCHWITZ At this point it is worth revisiting in greater detail the positions taken by Krausnick and Broszat on the stand in Frankfurt in 1964. For the defence, the question of whether the 'Final Solution' had been authorised at the time of the alleged 'saving' of lives was critical in establishing defendants' willingness to defy orders to kill. The tactic, however, led to an unresolved tension between Krausnick's and Broszat's respective views on the most likely answer. It was not merely that the dates each specified were different: their answers reflected their almost divergent interpretations on how the progressively escalating anti-Jewish measures undertaken by Nazi Germany led to ultimate extermination. In court, and in Anatomy, Krausnick emphasised the relationship between 'modern' or pseudoscientific antisemitic concepts, Nazi ideology and Jewish persecution. Its culmination is the decision to murder European Jews. Krausnick's

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chapter was divided into two halves, geared towards illuminating what he described as 'the road to the so-called ''Final Solution".' The first half of his report traced the evolution of 'racial' or 'modern' antisemitism in Europe, and its expression by the Nazis through the persecution of German Jews up to the outbreak of war. Drawing on its findings from the first half, the second focussed exclusively on the genesis and development of the extermination of all European Jews. The invasion of the Soviet Union in June 1941 and the Wannsee Conference in January 1942 were viewed as critical in determining how various plans for the removal of Jews from Europe evolved into their physical annihilation. The transformation of Auschwitz from a concentration camp to a forced labour and death camp was plotted within this context. The metaphoric 'road' to Auschwitz used by Krausnick became a popular image adopted by subsequent historians, particularly during the intentionalist/structuralist debate, to represent their view as to how the Holocaust took place. Each interpretation, or 'road', was attributed various characteristics - twisted, straight or paved.2 While Krausnick made no claims as to whether his 'road' was serpentine or sealed, his chapter does encourage the view that all paths, irrespective of their qualities, led to Auschwitz and other death camps. Just days following Krausnick's testimony, Broszat's position in court on the same question differed considerably. He highlighted the pragmatic and improvised development of concentration camps, the varying purposes they served, the circumstances of their creation and ongoing utility, with no consistent or uniform approach to their construction or administration. There is no equivalent to Krausnick's 'road to the "Final Solution'" in Broszat's report, whose interpretative path was not only winding, but hastily built and continuously re-built to serve multipurpose camps such as Auschwitz. The report was the first work in which Broszat considered, in detail, central elements of the Third Reich: its functions; the nature of decision making; and gradual radicalisation of measures against enemies. The result was an exposition on Nazi concentration camps that emphasised opportunism, pragmatism and improvisation in the escalation of measures against Jews and other victims of Nazism.

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Broszat argued that concentration camps were established wherever there was a need for prisoners to be housed, determined by geographical convenience and available resources. Camps were constructed in response to localised circumstances, grew and shrank, were not uniformly administered and served varying purposes. Broszat's views expressed in Anatomy, arguably, represent an early form of the arguments mounted by structuralists: an interpretation that Broszat came to champion throughout the subsequent debate. Thus, the positions taken and conclusions reached by Krausnick and Broszat in their expert reports could scarcely be further apart. Yet, they featured as evidence within a single trial, and as chapters within a single book. THE DEBATE BEGINS: KRAUSNICK VERSUS BROSZAT Though continuing to publish important research on the topic of Nazism, the post-trial years saw Buchheim and Jacobsen leave history behind and carve out careers in political science.3 Krausnick and Broszat, on the other hand, became eminent historians and between them led the IfZ for a cumulative period of 30 years. Broszat published his magnum opus The Hitler State (Der Staat Hitlers) in 1969, in which he disentangled the inner workings of the Nazi state, and its jungle of administrative functions and bureaucratic processes.4 There is much common ground between Broszat's testimony in Frankfurt, his Gutachten and chapter in Anatomy, and arguments in The Hitler State. Within each, Broszat highlighted the escalating nature of anti-Jewish measures, in addition to the pragmatic, opportunistic decision making of high-ranking Nazis. It can be argued, however, that the interpretation Broszat first set out in Anatomy was further developed and enhanced in The Hitler State. For example, the role of Heinrich Himmler featured prominently within Broszat's chapter on the evolution of concentration camps, though scarcely appeared in Broszat's various pretrial works. It may be that the prosecution's need for 'background' led Broszat to identify Himmler as a leading figure in the camps' development within the expert witness report and, ultimately,

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Anatomy. The focus on Himmler, in turn, may have brought to Broszat's attention that individuals (epitomised by Himmler) enjoyed immense power beyond their nominal positions, corresponding to the strength of their personal connection to Hitler. It was an argument further developed in The Hitler State, in which Broszat maintained that this structural nuance, together with the constant spawning of new appointments, created a situation in which a 'direct relationship' with Hitler was sought. Power flowed via this exchange once the individual had earned Hitler's trust. In explaining how concentration camps evolved - the task allocated to him by prosecutors - Broszat identified Himmler as a crucial agent and a means to explain how power was exercised in Nazi Germany. The latter became the interpretative core of The Hitler State. Broszat had little directly to say about the 'Final Solution' in Anatomy. As with its establishment, Broszat did not attribute the expansion of Auschwitz to its intended or eventual role as a site of mass extermination. Broszat contended that after the winter of 19412, the 'availability of labour became the dominant factor, determining the future numerical and internal development' of concentration camps.5 Inmates were seen as a useful source of labour for ambitious National Socialist building programmes. According to Broszat, Himmler also saw the mobilisation of camp labour as a way for the SS to 'indirectly' influence the war industry, and to strengthen the SS's 'economic potential' once the war had been won. 6 With reference to SS building sites, Broszat pointed out the distinctions between the various sources of labour, noting that Jews were enslaved alongside prisoners of war and foreign workers.7 Instead, '[a] determining factor' in the extension of Auschwitz 'was the proximity of the industry of Eastern Upper Silesia where many of the prisoners were employed'.8 Jews were not the camp's initial victims. Broszat also considered that the availability of cheap (forced) labour was a 'decisive factor' in the construction of the notorious IG Farben factory in the vicinity of Auschwitz in spring 1941.9 In Anatomy, Broszat did not mount an argument that the use of Jews as forced labour was motivated by ideology, rather by a perceived necessity. It was a view reminiscent of

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one he forcefully expressed over a decade later, which sparked a contentious and important historiographical debate. While 'embarrassing' is not a word historians ordinarily employ in reviewing counterparts' books, in 1977 Broszat chose to use this word in describing the thesis put forth by British author David Irving. Broszat was no stranger to controversy nor to scathing attacks on historians' work - not least his own. In the case of Irving, however, a line clearly had been crossed, one that extended beyond an historian's scholarly disagreement and requisite criticism. Broszat was so affronted that he launched a scathing and devastating rebuke of Irving's perverse conclusions on Hitler's role in the 'Final Solution' - specifically, that Hitler neither authorised nor knew of the extermination programme. By no means did Broszat restrict himself to a pointed and erudite destruction of Irving's shoddy historical scholarship, however. With affront came opportunity. Although he reserved his most scathing rebukes for Irving, Broszat also used his article as a vehicle to criticise mainstream, reputable historical publications. He questioned historians' attempts to trace the 'logical' progression of Hitler's early antisemitism into a rational, pre-determined programme of Jewish annihilation. 10 According to Broszat, historians' focus on Hitler and the 'pre-determination' of the Holocaust had bred a failure to recognise the ad hoc nature of the mass killing. Hitler's dogmatic ideologies, stressed Broszat, 'were not independent of [...] time and events.' 11 Anti-Jewish measures gradually escalated, became systematic and led to the final, murderous outcome. When, by autumn and winter of 1941, owing to stubborn Soviet resistance a German victory appeared less certain, sporadic liquidation measures began against Jews in lieu of mass deportation. The 'extermination process' that began in the late autumn of 1941 through the use of gas vans in Chelmno was not aimed at total extermination. The goal, claimed Broszat, was one of 'reducing the number of Jews', noting that 'there existed no real capacity to absorb the mass deportations which everybody urged'. 12 Jews had to be 'exterminated somehow', and mass killing centres would provide the 'simplest' means to achieve this goal. 13 'The liquidation of Jews,'

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he writes, 'once initiated and established, gained predominance and evolved in the end into a comprehensive "program".' 14 Although the subject matter differs from that of his expert witness report and Anatomy, both the genocide and the development of concentration camps are attributed not to a single, overarching decision, nor to a long-term, organised plan. The approaches emphasised the importance of structure, pragmatic decision making and the incremental escalation of measures. While the link between Broszat's Gutachten from the trial and his article written 12 years later should not be overstated, in the very least, Anatomy did nothing to reduce and likely much to reinforce the historian's affinity for explanations at the institutional and polycratic level. This observation is lent further weight through the recollection of Bauer's initial instructions to historians in November 1962. Bauer had stressed that it was important to 'establish when the decisive actions [the "Final Solution"] became known to persons beyond the inner circle of its architect', and seek to head off any claim that 'an act in question was a sudden idea of Hitler's or another official'. The 'weifier Fleck' - the victims and perpetrators - remained missing in Broszat's The Hitler State, and in the many subsequent works the book influenced. It is reasonable to suggest, then, that the approach Bauer directed the historians to take in piecing together their Gutachten for the trial may have shaped and reflected Broszat's own historiographical instincts. And that it was a direction that Bauer not only encouraged, but urged him to take. What should not be understated, however, is the effect of Broszat's article on the course of subsequent historical enquiry. His reproach of Irving in 1977, and historian Christopher Browning's 1981 critique of Broszat's article, mark the beginning of the intentionalist/structuralist debate. It raged for decades, and polarised historical discussion on the Holocaust, effectively segregating historians into one position or the other, with little common ground. 15 Broszat's 1977 article was a seminal contribution to the structuralist interpretation, and represented the opening shot of the debate. In West Germany, the dispute came to a head in May 1984, as historians from around the world met in

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Stuttgart. The first international conference on the Holocaust ever to be held, the theme for discussion was The Murder of European Jews in World War II: Decision Making and Implementation' ('Der Mord an den Juden im Zweiten Weltkrieg: Entschlussbildung und Verwirklichung'). 16 Broszat took his place at the conference alongside other preeminent historians including Raul Hilberg, Yehuda Bauer, Saul Friedlander, Hans Mommsen and Eberhard Jackel. Described by historian Sybille Steinbacher as 'a milestone in the scholarly examination' of the Holocaust, Broszat and his fellow structuralists held firm against intentionalist colleagues as the disagreement intensified.17 The minutes from this conference, published in 1984, capture the ferocity of the ensuing discussion.18 Although Broszat did not give a presentation, he was active in the ensuing plenary session.19 Broszat was also in a unique position amongst attendees, identified - and thanked - as the historian responsible for initially questioning whether Hitler planned and directed the murder of Jews. 20 With his typical precision, Broszat made an impassioned plea: 'I believe we must confront the complex image of the monstrosity of this [Nazi] rule, and not be content with the simplified, and, in my view, improperly stylised image of an absolute power wielded by Hitler/ 21 As he had in his 1977 article, Broszat argued that the murder of Jews did not proceed in a straight line, rather, it was far more complicated than previously assumed. For Broszat, an excessive focus on Hitler's intentions as the primary explanation for the Holocaust was not only misguided, but acted to impede the deepening of historical knowledge on the topic. Though Broszat and his thesis featured prominently at the Stuttgart conference, he would find his views sitting opposite to those of one historian, espousing a distinctly intentionalist counterargument: Helmut Krausnick. Twenty years after the discrepancy between Broszat and Krausnick became quietly apparent in the Frankfurt courtroom, and made its way into Anatomy, the two historians' views clashed at the Stuttgart conference. Unlike Broszat, Krausnick presented a lecture at the conference, titled 'Hitler and the Orders to the Einsatzgruppen in Summer 1941' ('Hitler und die Befehle an die

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Einsatzgruppen im Sommer 1941'). Like Broszat, however, what Krausnick had to say differed only slightly from his courtroom testimony in 1964 and his chapter in Anatomy. In the latter, he had contended that 'the nearer Hitler's plan to overthrow Russia as the last possible enemy on the continent of Europe approached maturity, the more he became obsessed with the idea [...] of wiping out the Jews in the territories under his control.' 23 The date of this decision, according to Krausnick, 'cannot have been later than March 1941.' In 1984, Krausnick does not deviate from this argument, though he added much nuance to his interpretation as a result of his own research in the intervening years. His long-awaited work on the Einsatzgruppen (mobile killing squads) - one 23 years in the making - was finally published in 1981, titled (though never translated into English) The Soldiers ofHitler's World-View (Die Truppe des Weltanschauungskrieges) . 24 Krausnick's most significant work, in it he maintained that the 'Final Solution' had been authorised prior to the invasion of the Soviet Union. It is this point - on the timing of the order to exterminate all European Jews, including women and children - that generated much controversy at the Stuttgart conference. Krausnick insisted that Himmler had received direct authorisation from Hitler in the first half of March 1941 to carry out his 'special mission' in the East: mass shootings conducted by mobile killing squads. Historians who claimed the programme of extermination was not authorised until July or August 1941, in Krausnick's view, mistook the extension of the killing of Jewish men to include Jewish women and children as the beginning of the 'Final Solution'. This development, Krausnick proclaimed in Stuttgart, 'merely represented an extension of the order - a fundamental one - that had already been issued.'25 The interpretation was one that placed Krausnick on the intentionalist side of the debate. By contrast, Broszat argued that the 'Final Solution' represented an 'escape route out of a dead-end into which the Nazis had manoeuvred themselves', initiated by lower-level functionaries as the tide of war turned against Nazi Germany in 1942. 26 For Krausnick, its origins lay in Hitler's own authority prior to the invasion of the Soviet Union in June 1941. This polarisation of views

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between Krausnick and Broszat - one that reflected the debate generally - was fleshed out at the Stuttgart conference in 1984. The seed of this disagreement, however, can be seen to have been inconspicuously planted at the Frankfurt Auschwitz trial in 1964, as Krausnick and Broszat sought to clarify questions raised by the court. When the 'Final Solution' was authorised and commenced was relevant in determining an individual's guilt or innocence, and in countering the scurrilous defence plea that their clients saved lives at the Auschwitz selection ramp. For historians, however, the question had implications far beyond the courtroom, and went to the heart of understanding how the Holocaust happened. CREATING HISTORY, INFORMING RESEARCH It did not take until the 1984 Stuttgart conference, nor the appearance of Broszat's 1977 article, for West German historians to begin unravelling the fundamental problem of how and when the Jewish extermination took place. The late 1960s saw the publication of several detailed works that attempted to comprehensively analyse how the Nazi state functioned, and to place the systematic destruction of Jews and other atrocities within this structural context: much of which was informed by Anatomy. As early as 1965, for example, Andreas Hillgruber picked up Krausnick's argument in Anatomy that the end of March 1941 represented 'the final, though legitimately possible chance for Hitler to cancel his plans to unleash a war in the East'.27 For Karl Dietrich Bracher, it was not the question of timing raised by Anatomy, but the closely related structural arguments and evolution of anti-Jewish measures that were most appealing. Rivalling Broszat as a doyen of West German contemporary scholarship, Bracher's 1969 book, The German Dictatorship: The Origins, Structure and Effects of National Socialism {Die deutsche Diktatur: Entstehung, Struktur, Folgen des Nationalsozialismus) was one of the few works that wielded an influence in the late 1960s comparable to Anatomy. Moreover, The German Dictatorship was supported by central arguments that originated in the preceding

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work. From Buchheim's chapter, Bracher adopted the point that the amalgamation of political police with the SS ultimately denned how the Nazi regime and its bureaucracies operated.28 Moreover, Bracher concurred with Broszat's argument around the significance of Dachau within the history of Nazi concentration camps, and the war as an event that both led to expansion of the camp system, and to radicalised measures against 'racial enemies'. 29 It was a contention supported by Broszat's chapter in Anatomy. Bracher also borrowed Krausnick's argument that the persecution of Jews was characterised by an interaction between 'formal' (legal) and 'informal' (intimidatory or violent) measures.30 Two important works that acted to stimulate the debate between intentionalists and structuralists emerged in the late 1970s. Both drew directly on material from Anatomy, though reached altogether different conclusions. In his 1972 book Anti-Jewish Policies in the Third Reich (Judenpolitik im Dritten Reich), Uwe Dietrich Adam stressed the haphazard nature of anti-Jewish measures. Supported by Broszat's and Krausnick's chapters respectively, the evolving and spasmodic development of concentration camps, and the feasibility of plans to deport and 'resettle' Jews elsewhere, are used to support this contention. 31 From such material, Adam ultimately concludes that 'there was never an overall plan detailing the nature, content and scope of Jewish persecution' and that 'in all probability, mass killing and extermination were not conceived as political goals in Hitler's mind prior to their execution.' 32 For Lucy Dawidowicz in her 1975 book, The War Against the Jews, the same evidence presented by Krausnick and Broszat in Anatomy led to a diametrically opposed finding. The establishment of Dachau concentration camp within weeks of the Nazi ascension to power, formal anti-Jewish measures taken thereafter and the escalation of Hitler's threats of Jewish extermination prior to the outbreak of war were used by Dawidowicz to support her thesis that Hitler had long intended to carry out his programme of mass killing.33 According to Dawidowicz, Hitler's antisemitism was his 'central and most compelling belief, one that Ted him, very early in his life' to the 'fixed idea' of murdering Europe's Jews.34 Thus, the division between Krausnick and Broszat

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that revealed itself in court - though remained untouched in Anatomy - had begun to translate into print almost a decade later through the work of other historians. Anatomy had acted to energise and bolster this innovative research by Adam and Dawidowicz. Their books were to become formative works in the ensuing historiographical conflict, the division of which reflected the distance between Adam's and Dawidowicz's views. Anatomy not only proved itself capable of supporting two opposing positions on a single, albeit complicated, issue, but investigations into a diverse range of historical subjects. One legacy of the book's judicial origins was that it included copies of orders, decrees and correspondence - documents that supported the historical analysis of its chapters. This material, which essentially became appendices in the expert witness reports, was the focal point for many historians still deprived of access to primary evidence in the 1960s. As a result, historians' initial engagement with Anatomy did not see much grappling with the book's interpretative claims. Rather, scholars drew on Anatomy to inform their own work, and to show they were familiar with the most recent addition to the discipline. Many of these early treatments of Anatomy appeared in West Germany's premier journal of contemporary history, the Vierteljahrshefte. As the previous chapter revealed, the flagship journal of contemporary history in West Germany did not review books, and was not about to begin with a book written by three of its historians. But there were no impediments to using Anatomy as a scholarly text to inform articles, no fewer than ten of which were published in the Vierteljahrshefte from 1965 to 1970. Their authors drew variously on the primary documents, individual facts and historical narratives contained in Anatomy. The impressive array of previously unexplored subjects included Nazi university policies, Jehovah's Witnesses in the Third Reich and the extermination of Dutch Jews in Auschwitz.35 Nor was the attention limited to West German scholars. Notably, the translation of Anatomy into English in 1968 coincided with, if not enabled, the publication of articles in English-language journals engaging with the book's contents. Following the pattern set by their West German counterparts, these latter historians also relied less on

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the interpretative substance of Anatomy than on its documentary appendices. Likewise, their achievements blazed similarly new and multifarious trails of investigation, including population policy in Danzig-West Prussia, Himmler's adolescent years and Germans and the Holocaust.36 Though the authors of Anatomy may have had little or nothing directly to say about these well-defined topics, their chapters nonetheless acted to stimulate historical research in these and other directions. For example, Krausnick's chapter on Jewish persecution is a scholarly robust, though necessarily sweeping, investigation. In arguing that anti-Jewish measures permeated every aspect of German society, and were relentless in their escalation, Krausnick's chapter suggested and informed productive lines of further research for subsequent historians. While Krausnick fleetingly detailed Nazi antisemitic policies in German universities, for example, he provides comprehensive context, relevant chronology and original documents to support his findings - all of which guided future research in other directions. Similarly, Buchheim's and Broszat's emphases on the rise and role of Himmler within the Nazi apparatus drew historians' attention to the SS and Gestapo leader's biographical details, his expansionist policies in western Poland, and the radicalisation of measures against perceived enemies at home. 37 And, although by far the shortest contribution, Jacobsen's chronology of atrocities against Soviet prisoners-of-war with its rich collection of original documents provided fertile ground for further research. One such example was Christian Streit's 1978 book No Comrades: The Wehrmacht and Soviet Prisoners-of-War 1941-1945 (Keine Kameraden: Das Wehrmacht und die sowjetischen Kriegsgefangenen 1941-1945), which detailed how the German armed forces treated Soviet prisoners - as victims of starvation, ill-treatment and as experiments for mass gassing in Auschwitz.38 An influential work, No Comrades was the first thorough survey of this gruesome topic. Indeed, Jacobsen's chapter, with its focus on the 'commissar order' and treatment of Soviet prisoners, exemplified the significance of Anatomy in cultivating historical knowledge outside the parameters imposed by the trial setting. Given that the scene of the crimes was

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Auschwitz, and the victims were primarily Jewish, it is easier to see how Krausnick's chapter on the role of antisemitism, for example, may have assisted the Frankfurt court. Jacobsen's chapter, however, proved significant for historians such as Streit and provided a foundation for No Comrades, itself a groundbreaking work on the treatment of Soviet prisoners. Overall, Anatomy helped to open, and hold open, many of these first doors of historical enquiry, knowledge on which has deepened with the passage of time, through access to new material and growth in scholarly interest. Moreover, Anatomy has withstood immense historical scrutiny since its publication. As late as the 1990s, many of its chapters remained the most sophisticated works ever written on their respective subjects. At this time, moreover, the book continued as a model for historical research, and prevailed as an important - almost canonical reference for new areas of historiographical contention. Two examples highlight the legacy and enduring influence of Anatomy, even 30 years since its release in the mid-1990s. Firstly, Broszat's chapter on Nazi concentration camps has arguably only recently been eclipsed as a standard work on the topic. 39 Yisrael Gutman and Michael Berenbaum's 1994 edited collection, and Karin Orth's 1999 work, with their respective foci on Auschwitz specifically, and concentration camps generally, owe much of their structure and interpretation to Broszat's chapter in Anatomy.40 Both works adopt the same periodisation as Broszat, recognise Eicke as a key figure and emphasise the radicalising influence of the war on camp functions. The complexities of forced labour and extermination, and ever-changing function of camps - articulated by Broszat almost 35 years earlier - are similarly reinforced by Orth. Moreover, ever since the publication of Anatomy, historians have viewed concentration camps not as a single, monolithic organisation headed by one individual, but stressed the multiplicity of the camps' organisation. Furthermore, the controversy that erupted around Daniel Goldhagen's 1996 book Hitler's Willing Executioners: Ordinary Germans and the Holocaust was one that indirectly prospered from Buchheim's chapter in Anatomy, which demolished any residual claims that 'superior orders' were in effect.41 Itself partially a response to

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Christopher Browning's 1992 work Ordinary Men: Reserve Police Battalion 101 and the Final Solution in Poland, both books tackled the thorny question of what motivated 'ordinary' men (or Germans) to murder Jews.42 Buchheim's task as an expert witness had been specifically to exclude a single motivating factor claimed as a defence: that members of the SS could not refuse orders to kill without risk to life and limb. As a result, Buchheim's corresponding chapter in Anatomy helped to ensure that future discussions of perpetrator motivation would centre not around legal compulsion, but psychological and ideological reasoning. The ensuing debate was fierce, and unceremoniously lost by Goldhagen who found little support and a great deal of hostility from the historical establishment.43 As an example the Goldhagen controversy serves to illustrate how, even as the depth of scholarship in Anatomy began to be challenged, the book taught important lessons to successive historians on the most fruitful approaches to complex research. It is true that the immediate years following the release of Anatomy did not see West German historians dramatically increase their engagement with the subject of Nazi crimes. At least two historians Nicolas Berg and Robert Gellately - have lamented Anatomy as 'too successful', and that through its designation as a 'standard work' it acted to 'paralyse further research.'44 The Frankfurt Auschwitz trial, too, did not lead to a wave of contemporary historical research, despite some expectations to the contrary.45 Yet, the argument that Anatomy acted not to stimulate but to stifle further research on Nazi crimes is odd and speculative: there had been no shortage of 'paralysis' amongst West German historians prior to 1965 when the book came out. Moreover, the observation that Anatomy somehow weakened any existing research impulses, or merely failed to inspire new ones, overlooks the historiographical influence that the book ultimately came to wield. The standard that Anatomy set was certainly high, though this achievement ensured the book would serve to inform historical research for years to come. As a seminal work, it was a starting point and solid foundation of knowledge to build upon for those historians with their own research ambitions. The book shaped interpretations and energised contentious discussion - even over 50 years since its publication.

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As a source of collected primary documents and insightful analysis, Anatomy helped to initiate and sustain an impressive upsurge of original historical research on a plethora of unexplored topics, about which far more is currently known as a result. The main strength of Anatomy lies in its authors' evidence-based, panoptic explications of how the Nazi state functioned. While this was precisely what Bauer and his team of prosecutors expected the historians' Gutachten would deliver for the courtroom, in the form of chapters in Anatomy the same material imparted future historians with a detailed understanding of the regime's intricacies. Over subsequent decades, this knowledge acted to progress historical research on Nazi Germany and the Holocaust. The book acted to inform two, polarised sides of the main historiographical debate in contemporary German history, underpinning several key works that helped to set the early parameters of the dispute. As this debate began to cool in the mid- to late 1980s, historians again returned to the empirical findings of Anatomy.46 In the end, the 'sober' analysis and quality of scholarship that Buchheim exalted in his preface to Anatomy, as well as the unavoidable disconnect between chapters, allowed subsequent historians to view the book as a source of historical evidence in itself. Despite the lawyers' strict instructions, a judicial imprint and courtroom marginalisation, a work of history constructed for a legal purpose and rushed into print became not just a 'standard' work, but one of the most historiographically significant books in postwar Germany.

Conclusion

The Frankfurt Auschwitz trial and the creation of Anatomy of the SS State is both a history-making story, and a story of making history. This book began by recognising the extraordinary circumstances of four historians' engagements as expert witnesses in the trial, the incredible achievement that is Anatomy, its inextricable link to the trial, and the universally acknowledged standard the book set as a work of history. For the most part, this summary also represents the extent of scholarly engagement on the relationship between the Frankfurt Auschwitz trial, the historical experts and Anatomy. It was the most famous trial in West German history, at which the country's leading contemporary historians gave evidence, and from which came one of the most influential books on Nazi Germany. Yet, the relationships between the trial, the historians and Anatomy have never been fully investigated. This book represents such an undertaking. Much of the trial's enduring fame is owed to historians' ongoing fascination with it as a significant event, or as the reaching of a judicial summit within the many recent discussions of the life and times of Fritz Bauer. That historians appeared in court as experts is a predictable - and brief - inclusion in virtually all such works, with Anatomy invariably relegated to a footnote. Where historians' exploits in the Frankfurt court receive greater attention, it is common for the pre-trial meeting with Bauer in November 1962 to be

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recounted, and details of their Gutachten limited to the reports' titles. Praise for Anatomy, though lofty, invariably represents the end-point of analysis. Typically, the trial itself or Bauer feature centrally, with the historians and Anatomy on the narrative sidelines. Where Anatomy, its authors and its impact become the focus, and the trial one element of the picture - as in this book - the perspective is broadened considerably. The historians are not confined to their Institute desks, nor are they a mere and fleeting peculiarity in the courtroom, one that led to a bestselling book. Rather, their practice of contemporary history in the decade leading to the trial is laid bare, including the particular activity of creating historical reports for an official purpose. The meeting between Bauer and the historians is not simply important in a chronological sense, but critical in how the historians conducted their research, and wrote their Gutachten. Their testimony from the witness box is no longer silenced, but lent a voice, their impact on the trial's outcome carefully evaluated. Anatomy is not just held as a 'standard' work without elaboration, but the story of its publication is told, and its actual historiographical influence measured. The previous chapters reveal how this piece of history was created, received in a court of law and in the court of scholarly opinion. What also emerges from this shift in viewpoint is a startling paradox: the expert reports for the trial were deliberately restricted by Fritz Bauer, tailored to meet a legal purpose, and retained its imprint - though proved far more historiographically than judicially important. Prosecutors' instructions and the court setting were impediments to historians' natural curiosity - though were ultimately venerated for the 'sobering' qualities lent to the reports produced. Moreover, the individual parts of the narrative that support this overarching conclusion are equally paradoxical. Broadly it is the clash of two partially conflicting disciplines. History, a practice that relies on interpretation, ambiguity and a perpetual revaluation of its findings, meets law, with its need for certainty, facts and a final verdict. Its authors were a group of contemporary historians, from an institute established in West Germany to investigate Nazism - yet the worst of its crimes were first examined

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by jurists. Historians at this institute were obliged to devote their energy to the frustrating and seemingly unprofitable but obligatory task of Gutachten - one that ultimately drove research on unexplored topics and honed fruitful methodological approaches. The law's emphasis on primary evidence triumphed over history's penchant for interpretative analysis - but ensured that Anatomy became the first collected edition of critically important material made widely accessible to scholars. The rush to publish Anatomy left its chapters with little thematic unity - a characteristic that appears to have enhanced, rather than hindered, new streams of historical research. There was tangible public and considerable scholarly interest in the trial, the historians' courtroom exploits, and recognition of the 'pioneering' quality of their work - though there was no overwhelming flood of book reviews following the publication of Anatomy. Expert reports were commissioned by prosecutors for a handful of planned Nazi crimes trials - but could be used to support two opposing sides of a polarising historiographical debate and informed varied streams of innovative research on original topics in subsequent decades. Anatomy was not a mere derivative of historians' participation as experts in the Frankfurt Auschwitz trial. Nor was it just another book amongst many produced by the IfZ in the 1960s. The Institute's pretrial history - more specifically, its historians' engagement in meeting request for Gutachten - is inextricably linked to Anatomy in a manner unique to any other work produced by its historians before or since. Legislative changes, initiated during a period in which West Germans' collective will to persist with de-Nazification evaporated, allowed for the rehabilitation of individuals previously found to have committed Tesser' offences under Nazism: the so-called '131ers'. A form of judicial atonement, the public agencies suddenly burdened with this assessment process found themselves ill-equipped. It required them to have an objective means to judge the responsibility and past actions of those wishing to be reinstated. The most qualified to provide this information in 1950s West Germany were contemporary historians, and as a public institution it was an obligation the IfZ was obliged to meet. Still, though

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presenting a distraction from intended research, constructing these reports forced the IfZ historians down previously unexplored avenues of enquiry, expanded their analysis beyond the individual or institution in question and drew attention to context. Explanations of various facets of the Nazi regime at a structural, institutional and bureaucratic level emerged, unravelling complex administrative functions and chains of command. The Institute's growing scholarly reputation in the late 1950s, combined with a published volume of Gutachten in 1958 and Krausnick's appearance as an expert witness in Ulm, did much to position the IfZ as the leading centre of contemporary history in West Germany, if not Western Europe. Galvanised by the discovery of Nazi murderers in their midst, and encouraged by the intrepidity of jurists such as Bauer, public attitude shifted once more in the early 1960s: from rehabilitation to prosecution. Trials of Nazi criminals proliferated, and lawyers found themselves confronted with the task of writing their own versions of contemporary history - within detailed and lengthy indictments. The importance and complexities of this exercise, as well as the scale of the alleged crimes, necessitated that legal teams sought historical advice. The IfZ historians found themselves at the behest of men like Fritz Bauer. And the rest became - quite literally - the stuff of history. An obvious starting point in other works on the Frankfurt Auschwitz trial, the November 1962 meeting between IfZ historians and Bauer's team of prosecutors was the keystone event in historians' engagement in the trial, and in the creation of Anatomy. On this day, Bauer instructed the historians on what to write, and what not to write: the subjects of their Gutachten, and the defendants on trial, respectively. Yet, the historians' approach to the task was not one adopted purely to complete Bauer's brief. What the Attorney-General needed from the IfZ historians differed from earlier Gutachten primarily in scale and subject, rather than style and substance. One notable difference, emphasised by Bauer in 1962, is that the Gutachten were intended to serve a dual purpose - judicial and educational - to inform both the court and a general public expected to be absorbed in the trial's courtroom theatrics. Though in

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hindsight achieving both goals equally presents as overly ambitious, Bauer's latter goal of historical enlightenment was one shared by the Frankfurt prosecutors and, at least on paper, by the IfZ. Still, it was only Bauer's intervention, the topics he requested and his insistence the Gutachten be published that emboldened the IfZ historians to take action and, finally, to confront Nazi atrocities through the release of Anatomy into public and academic hands. The forthcoming publication of Anatomy would be heralded as a triumph not only for the Institute's historical scholarship, but to counteract extremists seeking to cause them harm: whether they were hurling insults, or rocks. As a means of protection against such elements, Anatomy was welcomed by the scholarly community. The shield it provided, however, was one fashioned by men of law, not history. It was not the reactionary impulses of historians such as Rothfels, but the courage of Bauer and his team of prosecutors that led to this historic contribution. A closer look at the November 1962 meeting also reveals a situation more complex than Irmtrud Wojak's designation of the trial Gutachten as a 'fusion of history and criminology'.1 While the term has received a degree of academic credence, here it has been shown to be imprecise. Historians and prosecutors did not collaborate so closely as to intentionally produce reports that were a patchwork of historical interpretation and legal argument, as Wojak implies. Such a state of affairs would, unquestionably, have incurred the wrath of colleagues on both sides of the historical and legal divide. The reports were historical in nature and argument, built on a foundation of documentary evidence, previous work (in most cases), dispassionate interpretation and analysis. The difference between the historical Gutachten produced for the trial and research spun out by historians over the course of plying their trade was not that the authors ended up in the witness box. Yet, the trial did have a measurable influence on the historians' reports, and the post-trial book. Arguably the most decisive phase of the research cycle - historians' standard practice of allowing their instinctive curiosity to guide the pursuit of knowledge - was not followed in the case of Anatomy. Moreover, the crimes of the 20 men in the dock at Frankfurt determined the

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themes and scope of historians' reports. The perpetrators themselves were off-limits, the relevant background to defendants' alleged crimes was the focus. The Gutachten and resultant book were, thus, less a 'fusion' than an infusion of legal imperatives into the practice of history. It is this injection of law into historical practice that forms the most pointed and appropriate criticisms of Anatomy. Although public education weighed in as a determinant, the book's structure and content reflected the prosecution's view of the factors salient in establishing defendants' culpability. Editorial oversight of the project began and ended with Bauer's provisional list of report headings, and the historians' agreement to and delegation of the task. Thereafter, each historian wrote their Gutachten from different perspectives, material advantages and levels of knowledge. For the sake of ease and economy, historians divided up the Gutachten in accordance with their respective areas of expertise. Buchheim's introduction to Anatomy reveals a scholar for whom the 'strict rules of the judicial proceeding' imposed a much needed 'standard of rationalism' on the writing of history. Buchheim's assessment cannot be summarily dismissed, nor is it without support. Richard Evans, for example, has identified a connection between the 'neutral tone' of Broszat's historical contributions and his work as an historical expert witness in court - the latter of which, according to Evans, 'is by definition neutral.' 2 Douglas Littleneld, too, argues that the law's impact on historical practices has been positive. Acknowledging the distinctive rules and characteristics of history and law, to Littleneld, the courtroom imperative for precision, exactitude and accuracy engenders corresponding traits in a trial's historical reports. Indeed, Littleneld contends that courtroom history must be more rigorous and conducted with greater attention to detail than historical research done for 'traditional scholarly purposes.' 3 The example of Anatomy and the Frankfurt Auschwitz trial certainly demonstrates that historical writing for a court is not, perforce, unsophisticated or unscholarly. Historians' involvement in trials is thus not a zero-sum game. The utility of their expert reports for a judicial purpose does not necessarily detract from their scholarly qualities - nor does it

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axiomatically confer a 'rationalistic' standard upon the reports, either. For Broszat, confidence in the virtue of historians' methodologies has led him to rebuff any suggestion that history could somehow be hogtied by justice.4 Though he does not consider the trial as either an inhibiting or liberating factor for its historical experts, his defence of their methods and quality of their reports is pointed. Labelling arguments to the contrary as 'fundamentally mistaken', for Broszat, the 'scientific concept of history' is one grounded not in 'the selection of its themes and subjects', but 'in the precision of its critical methods and their disciplined application'.5 Broszat does not praise the law's intervention with the same forcefulness as Buchheim - nor does he denounce it as nocuous to historical scholarship. What, then, for history constructed for the purposes of a trial, with its strict confines, restricted scope and contrasting treatments of evidence? Undoubtedly, Forsthoff's bodement of history's demise at judicial hands in Frankfurt was misguided. The post-trial publication of Anatomy ensured that historians' reports from the trial would enter an historical discourse that remained (and continues to remain) 'unending'. Similarly problematic, however, is Haberer's presupposition that history was in no way 'disadvantaged' in its relationship with law. It has already been established that the arrangement was a broadly unequal one, with prosecutors subjected to the law's standards of proof and, accordingly, setting the boundaries for their historical 'handmaids' to conduct research. In the case of the Frankfurt Auschwitz trial, historians had no business pursuing investigations unrelated to the context of the alleged offences committed, nor those relating directly to the individual defendants. The terms 'murder', 'manslaughter' and 'complicity' as defined in the West German Criminal Code, as well as the geographical and organisational details of the alleged crimes and criminals, all formed threads of the judicial blindfold placed on historians conducting research for Nazi crimes trials. Putting aside for the time being the question of whether history reaped any reward from its courtroom application, the inverse of this proposition in the case of the Frankfurt Auschwitz trial leads to some unexpected conclusions. The core of this book is devoted to

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the relationship between the trial and Anatomy. It is an approach that necessitated an evaluation from both judicial and historiographical perspectives. It brought to life the historians' experiences from the witness box, to the extent that their reconstruction was possible through contemporaneous material. It also forced an appraisal of the historical contribution to the trial from a legal viewpoint. The written judgement represented the final opportunity for the judicial panel to reach a verdict - on both the question of defendants' guilt or innocence, and the materiality of the historians' Gutachten to the legal matter at hand. By no means were the historical reports thrown out of court. Rather, they were duly considered and informed much of the historical context that Hofmeyer pieced together and that became a small part of an extensive written judgement. Even so, with this book devoted as much to the reception of the historians' contributions as it is to their construction, the treatment of and value attached to the Gutachten by the Frankfurt courtroom comes into full view. What can be shown - as explored in Chapters 3 and 4 - is that historians played a less influential role in court than might be assumed. Questions thrown at them by both defence lawyers and the judicial panel invariably sought to explore points of law well outside the purview of their historical testimony. Historians were not mentioned by Hofmeyer in his oral judgement, and do not feature beyond page 80 of a 918-page final written judgement - a document that sets out how the judicial panel reached its verdict on the charges levelled against each defendant. It reveals, however, that the evidence historians introduced directly into the trial - verbally and in writing - was not identified by the judges as having swayed the determination of guilt or innocence. After the initial 80 pages of historical context, at least half of which is informed by the indictment, the historians and their Gutachten receive no mention. Their evidence was not crucial in placing defendants at the scene of their many crimes, nor did the historical reports prove in any way to be the decisive pieces of evidence needed to incriminate those on trial. The historians may have helped to avoid a fragmentation of the court's historical narrative that Bauer so feared, but it was

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through existing legal mechanisms and, above all, the probity of witness testimony that the charges were substantiated. It is vital to stress, however, that the simple acknowledgement of the limited role historians and their Gutachten played in enabling the court to determine guilt or innocence does not equal a disparagement of their contribution to the trial. In considering Bauer's intention that historians would 'educate' both the court and the West German public, their appearance in the witness box at the main trial's commencement in February 1964 did much to capture widespread attention. This second stage of Bauer's plan to enlist historians to his judicial cause was clearly the most successful. The point here is not that historians failed to make a sufficient impact in the trial, but that in contrasting how historians' reports were received - by the court in the form of Gutachten, and by the scholarly community in the form of Anatomy - the difference is stark. For the historians' Gutachten and testimony to have enjoyed a degree of influence in court approximating that subsequently wielded by Anatomy in scholarship over decades, the historical evidence would have needed to be instrumental in the reaching of a final verdict. It plainly was not. Acknowledging this point does not, however, diminish the scholarly achievement of Anatomy. The opposite effect, in fact, becomes observable. Historical reports were written for a murder trial, guided by judicial priorities, yet were barely useful judicially while en route to becoming historiographically influential. Moreover, the end of the trial did not see the historians revisit their findings and redraft their Gutachten into chapters. There was no time or evident intention to recast Anatomy as an edited work, intersect the chapters or fill in Bauer's 'weifier Fleck'. The haste to publish and sell Anatomy ensured it would remain a legal first draft without an historical rewrite. The circumstances of the book's inception and reception of the Gutachten in court make the scholarly achievement of Anatomy all the more remarkable. Although 50 years after the trial Hans Buchheim described his role within it as simply part of the 'routine of expert witnessing', there was nothing 'routine' about Anatomy's origins.6 There is no typical course historians follow in constructing

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a work of history eyed for publication. Well-established historians may have the privilege of selecting from a panoply of topics, their reputations alone capturing a publisher's attention. The head of a research institute may direct its historians to prioritise various fields of enquiry, with a view to publishing a monographic or collectively edited work. Citizens with a penchant for amateur history of all shades may sit alongside professional historians in the archive - to name but a few of the common ways in which historical works come into being. None of these scenarios - and few if any others can be conjured - see historians handed a brief from a prosecutor that guides construction of historical reports intended for both submission as evidence in a murder trial and for widespread publication as a book. These particulars alone make Anatomy of the SS State a unique achievement. In no way did its publication and success lead other historians to volunteer their expertise for legal means, presupposing a bestselling book would result, as proved the case in this singular instance. Moreover, not even the unparalleled experience of the IfZ historians could enable the feat of drafting reports that simultaneously met the prosecution's legal needs and, once published, remained untouched by these judicial requirements. With the topics mandated by Bauer and his team of prosecutors according to their legal needs, an obvious thematic disunity was left between Anatomy's chapters, while the voices of both survivors and middle-ranking perpetrators were muted. These characteristics were the direct result of restrictions imposed and instructions issued by Bauer - in turn determined by the relevant aspects of German law and its definition of murder. The odds were against any work of history produced under such circumstances becoming much other than an inconsonant mix of legal jargon and historical commentary. Anatomy, however, served as far more than a useful reference book for subsequent historians. Its relevance did not wane as might be expected of history produced for a courtroom. Instead, Anatomy influenced various strands of historical research and contributed to pivotal historiographical disputes over the course of decades. The early signs of these conflicts were evident in Anatomy and in

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the courtroom, most notably between Krausnick and Broszat. The embryonic disagreement that emerged between these two historical experts in Frankfurt was extended 20 years later as historians from around the world joined the increasingly heated debate, and converged in Stuttgart in 1984. In the case of the Frankfurt Auschwitz trial and Anatomy, history was not corrupted by law. Admittedly, the jury remains out as to whether the marriage in this instance was symbiotic, commensal or parasitic: whether prosecutors and lawyers alternately prospered equally, inequally or one suffered for the benefit of the other. Without the burden of legal prescriptions, a work such as Anatomy may have been even more powerful, drawn on a wider base of sources and filled in many of the spaces left by its emphases on structural explanation. On the other hand, a tighter collaboration between historians and prosecutors may have produced an indictment supported by expert historical knowledge that directly impugned the individuals on trial. Each of these possibilities, and all others, remain highly speculative. It would clearly be perilous to generalise about the relationship between historical experts in court and the potential for scholarly works to be extracted from this research, based on the single example of Anatomy and the Frankfurt Auschwitz trial. West Germany was still a new nation in the 1960s, one recovering from and seeking to understand atrocities committed two decades earlier, and with an established reputation of historiographical excellence. This set of circumstances, in which respected contemporary historians derived an authoritative piece of scholarship from reports for a domestic murder trial, are unlikely to be repeated. Peril aside, there are lessons to draw from the investigation of the Frankfurt Auschwitz trial and Anatomy, and a contribution to be made to ongoing discussions around the utility of historical expertise for judicial purposes. Where complex historical matters - whether contemporary or distant - need to be understood by courts of law, arbitration, compensation or reparation, historians' expertise will be sought. There are a number of feasible scenarios that might see this take

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place. Ongoing and future conflicts between groups and nations will conceivably lead to the prosecution of individuals for crimes against humanity and other offences by the Hague-based International Criminal Court, or other criminal tribunals. Proceedings may and likely will be brought against and by those seeking to deny the historical truth of the Holocaust or other events, or to defend their reputation from a similar charge. Claims may be lodged by groups sharing a common identity, whether to ownership of a geographical location, or financial recompense. All such circumstances, and countless others, could again see historians in the witness box as they were in Frankfurt. The type and force of criticism made by historians such as Henry Rousso that their practitioners should stay out of court may be exaggerated. Nonetheless, there is no question of a rift between historical and legal objectives, one that has widened as history embraces new approaches and directions that have no place in a court of law. As Ann Curthoys and Anne Genovese have noted, the twentieth century has seen this gap take on chasmic proportions as a result of the influence of Marxism, feminism, post-colonialism and post-modernism. 7 History has, according to Curthoys and Genovese, 'shift[ed] its attention away from a fact-telling enterprise [...] to a variety of practices that attempt to understand the past through reference to the margins of society, as well as its centre/ 8 Where historians find themselves in court, these approaches - which would prove wholly unhelpful in explaining an individual offence must be jettisoned. It takes little imagination to envision the carnage that would flow from a courtroom exploration of postmodernism's challenge to historical knowledge, instigated by an historian from the witness box, for example. Moreover, there is no reason to believe the twenty-first century will be any less productive in the advancement of new historiographical approaches and methodologies, a number of which may be at odds with the unambiguous, clinical expositions the courtroom demands from its expert historians. It is unknown precisely how the future will play out for history and law. What is striking, however, is the extent to which the trial of

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Holocaust perpetrators continues to stir emotions, even today. Beginning as recently as February 2016, the trial of 95-year-old former Auschwitz guard Reinhold Hanning created news around the world. Hanning, a former SS officer, was on trial in the German city of Detmold for accessory to the murder of 170,000 people in Auschwitz.9 Even with historical knowledge of the horrific events that took place having vastly increased since Buchheim and his colleagues took the stand in Frankfurt, this new trial prominently saw the engagement of Stefan Hordler as the historical expert witness.10 Most of the public discussion of Hanning's prosecution, however, invariably turned to the question of guilt and appropriate punishment given the defendant's age - not the propriety or possibility of historians again appearing in the witness box. 11 This public reaction to the latest (and, probably, last) round of trials against Auschwitz perpetrators reveals the degree to which the subject continues to rouse an emotional response. Similarly, the latest film portrayals of the trial centre on its place within West German confrontations of the past and the struggles of its main protagonists - not dispassionate portraits of the trial itself.12 Indeed, much of the scholarship that has appeared in the 50 years since Hofmeyer reached his verdict has been dominated by these themes. Even veneration of Anatomy and the historians' role as expert witnesses has largely been based on assumption. Rousso's admonition of historians for offering their expertise in court is, likewise, an argument supported by few examples other than his own. Through an evidence-based investigation of the Frankfurt Auschwitz trial and Anatomy as a case study, this book offers a more balanced view to the uneasy one expressed by Rousso and others. Its conclusions were reached on the basis of rational, not emotional, analysis, not unlike the judicially imposed 'standard of rationalism' that Buchheim so admired in his introduction to Anatomy. Whatever conclusions are reached here, historians will continue to provide their expertise in court and act to serve legal ends. These engagements will, at times, lead to the discovery and publication of new historical knowledge. On fewer occasions still, the gains on offer to the discipline of history will be substantial, even aided by the judicial limitations, while the legal and

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political benefits may be no less weighty. Ultimately, such outcomes will rely on individuals to take action - to show the same 'moral courage' that Fritz Bauer implored West German experts to find in the prosecution of mass murderers, and which historians at the Frankfurt Auschwitz trial admirably displayed.

Notes

INTRODUCTION 1. A copy of the minutes from this meeting is housed at the Fritz-BauerInstitut. See FAP1/BA-9, Vermerk iiber eine Besprechung der altpolitischen Dezernenten der Staatsanwaltschaft bei dem Oberlandesgericht und der Staatsanwaltschaften Frankfurt (M.) und Wiesbaden am 7. November 1962 bei Herrn Generalstaatsanwalt Dr. Bauer, 8 November 1962. 2. The dominance of Bauer at this meeting is reflected in the minutes and confirmed by their author Johannes Warlo, then a junior prosecutor. Interview with Johannes Warlo, 24 May 2014. 3. The book was originally published in German as a two-volume work titled Anatomie des SS-Staates. The first volume encompassed Buchheim's two Gutachten. See Hans Buchheim, Anatomie des SS-Staates Band 1. Die SS - das Herrschaftsinstrument Befehl und Gehorsam (Munich, 1965); Martin Broszat, Hans-Adolf Jacobsen and Helmut Krausnick, Anatomie des SS-Staates Band 2. Konzentrationslager. Kommissarbefehl. Judenverfolgung (Munich, 1965). 4. Other Nazi crimes trials took place alongside or shortly following the Frankfurt Auschwitz trial and saw the engagement of expert witness historians, though none have received close to the same degree of popular or scholarly attention. These included the Treblinka trial (October 1964 to September 1965), Belzec trial (August 1963 to January 1965), Sobibor trial (September 1965 to December 1966) and Bialystok trial in Bielefeld (March 1966 to April 1967). For more details about these trials, see Adalbert Ruckerl, Nationalsozialistische Vernichtungslager im Spiegel deutscher Strafprozesse: Belzec, Sobibor, Treblinka, Chelmno (Munich, 1977); and Freia Anders, Hauke-Hendrik Kutscher and Katrin Stoll (eds),

178

5.

6.

7. 8.

9.

10.

11. 12.

Notes to Pages 3-5 Bialystok in Bielefeld: nationalsozialistische Verbrechen vor dem Landgericht Bielefeld 1958 bis 1967 (Bielefeld, 2003). See p. 96 for the details of Buchheim's and Krausnick's contributions to the Bialystok trial in Bielefeld. The latter trial is also examined in Stoll, Die Herstellung der Wahrheit: Strafverfahren gegen ehemalige Angehorige der Sicherheitspolizei fur den Bezirk Bialystok (Berlin, 2012). On Scheffler see Dieter Pohl, 'Prosecutors and Historians: Holocaust Investigations and Historiography in the Federal Republic 1955-1975,/ in David Bankier and Dan Michman (eds), Holocaust and Justice: Representation and Historiography of the Holocaust (Jerusalem, 2009), pp. 117-29. Here pp. 123-9. Wolfgang Scheffler, 'Beitrag der Zeitgeschichte zur Erforschung der NS-Verbrechen - Versaumnisse, Schwierigkeiten, Aufgaben', in Peter Steinbach and Jiirgen Weber (eds), Vergangenheitsbewdltigung durch Strafverfahren? NS-Prozesse in der Bundesrepublik Deutschland (Munich, 1984), pp. 114-33. Here p. 123. Vermerk iiber eine Besprechung, 8 November 1962, pp. 2, 3. Hal Wootten, 'Conflicting Imperatives: Pursuing Truth in the Courts', in Iain McCalman and Ann McGrath (eds), Proof & Truth: the Humanist as Expert (Canberra, 2003), pp. 15-50. Here p. 22; Michael Marrus, 'History and the Holocaust in the Courtroom', in Ronald Smelser (ed.), Lessons and Legacies V: the Holocaust and Justice (Evanston, 2002), pp. 215-39. Here pp. 228-9. Norman J. W. Goda, 'Review Article: Law, Memory, and History in the Trials of Nazis', International History Review, 28/4 (2006), pp. 798-806. Here p. 803. An interesting comparison can be made, for example, with the inquisitorial trial's predilection for ferreting out the truth of a criminal event and that of various truth commissions that operate in states governed by Common Law. See Paul Bew, 'The Bloody Sunday Tribunal and the Role of the Historian', in Harriet Jones, Kjell Ostberg and Nico Randeraad (eds), Contemporary History on Trial: Europe Since 1989 and the Role of the Expert Historian (Manchester, 2007), pp. 62-80. Heinrich Reiter, 'Hearsay Evidence and Criminal Process in Germany and Australia', Monash University Law Review, 10/1-2 (March 1984), pp. 51-72. Here p. 57. Ibid. Devin Pendas, The Frankfurt Auschwitz Trial, 1963-65: Genocide, History and the Limits of the Law (Cambridge, 2006), p. 56. Manslaughter (Totschlag) fell outside the statute of limitations in 1960 and could not be used in the trial of Nazi crimes. See Marc von Miquel, Ahnden oder amnestieren?: Westdeutsche Justiz und Vergangenheitspolitik in den sechziger Jahren (Gottingen, 2004).

Notes to Pages 5-8

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13. Henry Friedlander, 'Nazi Crimes and the German Law', in Friedlander and Nathan Stoltzfus (eds), Nazi Crimes and the Law (Cambridge, MA & Washington, DC, 2008), pp. 15-34. Here p. 27. 14. Ibid., p. 28. 15. Goda, 'Review Article', p. 803; Donald Bloxham, 'From Streicher to Sawoniuk: the Holocaust in the Courtroom', in Dan Stone (ed.), The Historiography of the Holocaust (New York, 2004), pp. 397-419. Here p. 404. 16. Rebecca Wittmann's work Beyond Justice is fixated on the argument that this strategy created a paradox in which the court could only determine whether a crime had been committed through referral to Nazi regulations. Where actions had been taken in contravention of these regulations - which in of themselves were murderous - only then could it be shown that an individual had committed murder in accordance with its strict definition under the West German Criminal Code. See Rebecca Wittmann, Beyond Justice: The Auschwitz Trial (Cambridge, 2005). 17. Dirk de Mildt, In the Name of the People: Perpetrators of Genocide in the Reflection of their Post-War Prosecution in West Germany. The 'Euthanasia' and 'Aktion Reinhard' Trial Cases (The Hague, 1996), p. 41. 18. Pendas, The Frankfurt Auschwitz Trial, p. 90. See also John H. Langbein, Comparative Criminal Procedure: Germany (St Paul, 1977), p. 10. 19. Friedlander, 'Nazi Crimes and the German Law', p. 29. 20. Eric Haberer, 'History and Justice: Paradigms of the Prosecution of Nazi Crimes', Holocaust and Genocide Studies, 19/3 (Winter 2005), pp. 487-519. Here p. 497. 21. Broszat, 'Juristische und Zeitgeschichtliche Bewaltigung der Vergangenheit (1976)', in Broszat, Hermann Graml and Klaus-Dietmar Henke (eds), Nach Hitler: der schwierige Umgang mit unserer Geschichte (Munich, 1987), pp. 42-9. Here pp. 47-8. 22. Henry Rousso, The Haunting Past: History, Memory, and Justice in Contemporary France (Philadelphia, 2002), p. 86. 23. Ibid., p. 53. 24. Ibid., p. 49. 25. Carey B. Joynt and Nicholas Rescher, 'Evidence in History and in the Law', The Journal of Philosophy, 56/13 (1959), pp. 561-78. Here p. 566; Arnold I. Davidson, 'Carlo Ginzburg and the Renewal of Historiography', in James Chandler, Davidson and Harry Harootunian (eds), Questions of Evidence: Proof, Practice, and Persuasion across the Disciplines (Chicago, 1994), pp. 304-20. Here p. 307; Ann Curthoys, Ann Genovese and Alexander Reilly, Rights and Redemption: History, Law and Indigenous People (Coogee, 2008), p. 83.

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Motes to Pages

8-13

26. David Rothman, 'Serving Clio and Client: The Historian as Expert Witness', Bulletin of the History of Medicine, 77/1 (Spring 2003), pp. 25-44. Here p. 44. 27. Theodore F. T. Plunkett, A Concise History of the Common Law (Union, 2001), p. 253. 28. Douglas R. Littlefield, The Forensic Historian: Clio in Court', The Western Historical Quarterly, 25/4 (1994), pp. 507-12. Here p. 509; Paul Finn, 'Law and History in Four Parts', Law and History e-Journal (2005), pp. 23953. Here p. 243. 29. Jonathan D. Martin, 'Historians at the Gate: Accommodating Expert Historical Testimony in Federal Courts', New York University Law Review, 78 (October 2003), pp. 1518-49. Here p. 1524. 30. Ronald J. Allen, 'The Nature of Juridical Proof, Cardozo Law Review, 13 (1991-2), pp. 373-422. Here p. 387; Mark Dreyfus, 'Historians in Court', in McCalman and McGrath (eds), Proof & Truth, pp. 71-81. Here p. 78. 31. Martin, 'Historians at the Gate', p. 1535. 32. Peter Mandler, 'The Responsibility of the Historian', in Jones, Ostberg and Randeraad (eds), Contemporary History on Trial, pp. 12-26. Here p. 16. 33. Michael Wildt, 'Differierende Wahrheiten: Historiker und Staatsanwalte als Ermittler von NS-Verbrechen', in Norbert Frei, Dirk van Laak and Michael Stolleis (eds), Geschichte vor Gericht: Historiker, Richter und die Suche nach Gerechtigkeit (Munich, 2000), pp. 46-59. Here p. 51. 34. Martin, 'Historians at the Gate', pp. 1521, 1532, 1535, 1542. 35. For a dated though remarkably prescient summary of the two disciplines, see Joynt and Rescher, 'Evidence in History and in the Law'. Here p. 572. 36. Curthoys, Genovese and Reilly, Rights and Redemption, pp. 16-17. 37. Marrus, 'History and the Holocaust in the Courtroom', p. 231. 38. Raphael Gross, 'Machtiger als die Gerichte? Geschichte und historische Gerechtigkeit', in Frei, van Laak and Stolleis (eds), Geschichte vor Gericht (Munich, 2000), pp. 164-72. Here p. 165. 39. Joynt and Rescher, 'Evidence in History and in the Law', pp. 574-6. 40. Martin, 'Historians at the Gate', p. 1535. 41. Mandler, 'The responsibility of the historian', p. 16. The courtroom's 'why' might be considered in handing down a sentence, in the form of mitigating circumstances. 42. Wildt, 'Differierende Wahrheiten', p. 57. 43. Ibid.; Scheffler, 'Beitrag der Zeitgeschichte', p. 130. 44. Wildt, 'Differierende Wahrheiten', pp. 52, 57. 45. Ibid., p. 52. 46. Richard Wilson, 'Judging History: The Historical Record of the International Criminal Tribunal for the Former Yugoslavia', Human Rights Quarterly, 27/3 (August 2005), pp. 908-42. Here p. 913.

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47. Martin, 'Historians at the Gate', p. 1524. 48. Richard J. Evans, 'History, Memory and the Law', History & Theory, 41/3 (October 2002), pp. 326-45. Here p. 330. 49. Helen Hornbeck Tanner, 'History vs. The Law: Processing Indians in the American Legal System', University of Detroit Mercy Law Review, 76 (1998-9), pp. 693-708. Here p. 694. 50. Buckner F. Melton, 'Clio at the Bar: A Guide to Historical Method for Legists and Jurists', Minnesota Law Review, 83 (1998-9), pp. 377-472. Here p. 452. 51. Wootten, 'Conflicting Imperatives', p. 19; Joseph M. Koussner, 'Are Expert Witnesses Whores? Reflections on Objectivity in Scholarship and Expert Witnessing', The Public Historian, 6/1 (1984), pp. 5-19. Here p. 15; Graeme Davison, 'History on the Witness Stand: Interrogating the Past', in McCalman and McGrath (eds), Proof & Truth, pp. 53-67. Here p. 57; Joynt and Rescher, 'Evidence in History and in the Law', p. 566. 52. Rousso, The Haunting Past, p. 66. 53. Ibid. 54. Ibid. 55. Ernst Forsthoff, 'Der Zeithistoriker als gerichtlicher Sachverstandiger', Neue Juristische Wochenschrift, 13 (1965), pp. 574-5. 56. Ibid. 57. Jiirgen Baumann, 'Die strafrechtliche Problematik der nationalsozialistischen Gewaltverbrechen', in Reinhard Henkys (ed.), Die nationalsozialistischen Gewaltverbrechen: Geschichte und Gericht (Stuttgart, 1964), pp. 267-322. For the discussion here see pp. 281-3. 58. Ibid. 59. Broszat, 'Juristische und Zeitgeschichtliche Bewaltigung der Vergangenheit', p. 48. 60. Ibid., pp. 46-7. 61. Broszat, Buchheim, Jacobsen and Krausnick, Anatomy of the SS State (London, 1968), p. xv. Original in Buchheim, Anatomie des SS-Staates Band 2, p. 8. 62. The Fritz-Bauer-Institut houses the original Gutachten: See Fritz-BauerInstitut, Abt. Dokumentation Auschwitz-Prozefi 4 Ks 2/63. Original titles of Gutachten with respective authors and dates of completion are: Buchheim, Die Organisation von SS und Polizei unter nationalsozialistischer Herrschaft, 19 December 1963; Broszat, Die Entwicklung der nationalsozialistischen Konzentrationslager (Gutachten), February/ March 1964; Broszat, Nationalsozialistische Polenpolitik, undated; Buchheim, Das Problem des Befehlsnotstandes bei den vom nationalsozialistischen Regime befohlenen Verbrechen in historischer Sicht, 5 June 1964; Jacobsen's Gutachten, also held at the Fritz-Bauer-Institut (FAP1BA17 Abt. Dokumentation Auschwitz-Prozess 4 Ks 2/63), is titled

182

63.

64.

65.

66.

67. 68. 69. 70.

Notes to Pages

18-19

Gutachten von Dr Hans Adolf Jakobsen [sic], 7 August 1964; Helmut Krausnick's original report, titled Judenverfolgung cannot be located, even within Krausnick extensive personal papers housed at the IfZ (see Nachlass Krausnick, IfZ ED 419). 'Fritz Bauer Institut Geschichte und Wirkung des Holocaust', Fritz-BauerInstitut, www.fritz-bauer-institut.de/institut.html (undated (accessed 27 January 2018)). Frei, 'Der Frankfurter Auschwitz-Prozefi und die deutsche Zeitgeschichtsforschung', in Fritz-Bauer-Institut (ed.), Auschwitz: Geschichte, Rezeption und Wirkung (Frankfurt am Main; New York, 1996) pp. 123-38. At the end of this chapter, Frei indicates that it is a reworked version of a lecture given in December 1993 (on the thirtieth anniversary of the Auschwitz trial's commencement). See p. 132. Broszat, 'Juristische und Zeitgeschichtliche Bewaltigung der Vergangenheit', pp. 47-8. On these pages, Broszat recounts in 1976 that 'historical expert witness reports, for example, those that were summarised across several days 12 years ago before the court during the Frankfurt Auschwitz trial, before any evidence was actually tendered, can allow for the individual cases under investigation to be appropriately placed in the general context of historical events. In that sense, they do not relate directly to the task of fact-finding in individual cases'; Buchheim and Graml, 'Die funfziger Jahre: Zwei Erfahrungsberichte', in Horst Moller and Udo Wengst (eds), 50 Jahre Institut fur Zeitgeschichte: EineBilanz (Munich, 1999), pp. 69-83. On page 74, Buchheim states that 'for our task it was much more the case that those participating in the trial were to be made aware of general facts and broad connections, in which the specific matter at hand was positioned; to deliver, as it were, an introductory course.' Frei, 'Der Frankfurter Auschwitz-Prozefi und die deutsche Zeitgeschichtsforschung', p. 131. Frei reiterated this comment alongside Rolf Bickel - a co-producer of the 1993 documentary, Auschwitz vor Gericht, at a podium discussion held by the Jena Center Geschichte des 20. Jahrhunderts on 11 December 2013, titled 'Der Frankfurter Auschwitz-Prozess - 50 Jahre danach'. For Bickel's documentary see Auschwitz vor Gericht: Strafsache 4 Ks 2/63 (Frankfurt, 1993). Haberer, 'History and Justice', pp. 487-519; Pohl, 'Prosecutors and Historians', pp. 117-29. Haberer, 'History and Justice', p. 505. Pohl, 'Prosecutors and Historians', pp. 122-3. Irmtrud Wojak, 'Die Verschmelzung von Geschichte und Kriminologie: Historische Gutachten im ersten Frankfurter Auschwitz-Prozefi', in Frei, van Laak and Stolleis (eds), Geschichte vor Gericht, pp. 29-45. An earlier version was published as a journal article in 1999, see Wojak, 'Herrschaft

Notes to Pages 19-23

71.

72. 73. 74.

75. 76. 77.

78.

79. 80. 81.

82. 83. 84. 85. 86.

87.

183

der Sachverstandigen? Zum ersten Frankfurter Auschwitz-Prozefi', Kritische Justiz, 32/'4 (1999), pp. 605-16. Pendas, The Historiography of Horror: The Frankfurt Auschwitz Trial and the German Historical Imagination/ in Jeffry Diefendorf (ed.), Lessons and Legacies VI: New Currents in Holocaust Research (Evanston, 2004), pp. 209-30. Ibid., p. 224. Fritz-Bauer-Institut (ed.), Auschwitz-Prozess 4 Ks 2/63 Frankfurt am Main (Cologne, 2004). Wittmann, Beyond Justice; Pendas, The Frankfurt Auschwitz Trial Pendas's work was translated into German in 2013: Pendas, Der Auschwitz-Prozess: Vblkermord vor Gericht (Munich, 2013). Wittmann, 'Indicting Auschwitz? The Paradox of the Frankfurt Auschwitz Trial', German History, 211A (2003), pp. 505-32. Pendas, The Frankfurt Auschwitz Trial, pp. 142-7. See Frei, 'Die Riickkehr des Rechts: Justiz und Zeitgeschichte nach dem Holocaust - eine Zwischenbilanz', in Arnd Bauerkamer, Martin Sabrow and Bernd Stover (eds), Doppelte Zeitgeschichte: Deutsch-deutsche Beziehungen 1945-1990 (Bonn, 1998), pp. 417-31. Here p. 428; Annette Weinke, Die Verfolgung von NS-Tatern im geteilten Deutschland: Vergangenheitsbewaltigungen 1949-1969, oder, eine deutsch-deutsche Beziehungsgeschichte im Kalten Krieg (Paderborn, 2002), here p. 237. Ulrich Herbert, Holocaust-Forschung in Deutschland Geschichte und Perspektiven einer schwierigen Disziplin, public lecture, Institut fur Zeitgeschichte Munchen, 9 April 2014. Ibid. Ibid. Herbert, 'Neue Antworten und Fragen zur Geschichte des »Holocaust«', in Herbert (ed.), Nationalsozialistische Vernichtungspolitik 1939-1945: Neue Forschungen und Kontroversen (Frankfurt am Main, 1998), p. 14. Frei, 'Der Frankfurter Auschwitz-Prozefi und die deutsche Zeitgeschichtsforschung', p. 131. See also Frei, 'Die Riickkehr des Rechts', p. 428. Harold Marcuse, Legacies ofDachau: The Uses and Abuses of a Concentration Camp, 1933-2001 (Cambridge, 2001), pp. 219-20. Haberer, 'History and Justice', p. 509. Pendas, 'The Historiography of Horror', p. 227 (footnote 21). Lorenz Schulz, 'Kollektive Erinnerung durch Festellen strafrechtlicher Verantwortung', in Anders, Kutscher and Stoll (eds), Bialystok in Bielefeld, pp. 18-53. Here pp. 18-19. Torben Fischer and Matthias Lorenz, Lexikon der »Vergangenheitsbewaltigung< in Deutschland: Debatten- und Diskursgeschichte des Nationalsozialismus nach 1945 (Bielefeld, 2007), p. 133.

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Notes to Pages 23-27

88. Sybille Steinbacher, 'Der 1. Frankfurter Auschwitz-Prozess 1963-1965: Eine historische Einfuhrung' in Gross and Werner Renz (eds), Der Frankfurter Auschwitz-Prozess (1963-1965): Kommentierte Quellenedition, Vol. 1 (Frankfurt am Main, 2013), pp. 17-54. Here p. 54. 89. Pendas, 'Political Tyranny and Ideological Crime: Rereading Anatomy of the SS State', Zeithistorische Forschungen: Studies in Contemporary History, 3/5 (2008). 90. As might be expected from an historical institute, the IfZ has taken to writing its own history at regular and, it appears, decennial, intervals. See Moller and Wengst (eds), 50 fahre Institut fur Zeitgeschichte: eine Bilanz (Munich, 1999); Moller and Wengst (eds), 60 fahre Institut fur Zeitgeschichte Munchen - Berlin: Geschichte, Verbffentlichungen, Personalien (Munich, 2009). CHAPTER 1 BACKGROUND TO FRANKFURT: THE IFZ, GUTACHTEN AND THE ULM TRIAL 1. Kevin John Heller, The Nuremberg Military Tribunals and the Origins of International Criminal Law (Oxford, 2011), p. 334. Within the western zones of occupation the Germans used their own recently de-Nazified judiciary to prosecute Nazi criminals, resulting in some 6,495 convictions. See Devin Pendas, 'Seeking Justice, Finding Law: Nazi Trials in Postwar Europe', The Journal of Modern History, 81/2 (2009), pp. 347-68. Here p. 354. 2. Despite the obvious difficulties, German authorities did pursue their own, limited attempts at justice between 1945 and 1949. See Martin Broszat, 'Siegerjustiz oder strafrechtliche "Selbstreinigung": Aspekte Vergangenheitsbewaltigung der deutschen Justiz wahren der Besatzungszeit 1945-1949', Vierteljahrshefte fur Zeitgeschichte, 29/4 (1981), pp. 477-544. 3. Norbert Frei, 'Der Frankfurter Auschwitz-Prozefi und die deutsche Zeitgeschichtsforschung', in Fritz-Bauer-Institut (ed.), Auschwitz: Geschichte, Rezeption und Wirkung (Frankfurt am Main & New York, 1996) pp. 123-38. Here p. 124. 4. Joachim Perels, 'Perceptions and Suppression of Nazi Crimes by the Postwar German Judiciary', in Henry Friedlander and Nathan Stoltzfus (eds), Nazi Crimes and the Law (Cambridge, MA & Washington, DC, 2008), pp. 87-99. Here p. 98. 5. Dieter Pohl, 'Prosecutors and Historians: Holocaust Investigations and Historiography in the Federal Republic 1955-1975', in David Bankier and Dan Michman (eds), Holocaust and Justice: Representation and Historiography of the Holocaust (Jerusalem, 2009), pp. 117-29. Here p. 117.

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6. Hermann W. von der Dunk, 'German Historians and the Crucial Dilemma', European Review, 14/3 (2006), pp. 373-84. Here p. 380. 7. Pendas, The Frankfurt Auschwitz Trial, 1963-65: Genocide, History and the Limits of the Law (Cambridge, 2006), pp. 16-18. 8. Bundesarchiv (hereafter BArch) Koblenz, Nachlass Rothfels N 1213/44, Satzung des Instituts fur Zeitgeschichte Munchen, 8 September 1950, p.l. 9. The original German title of this law was 'Gesetz zur Regelung der Rechtsverhaltnisse der unter Artikel 131 des Grundgesetzes fallenden Personen'. Robert G. Moeller, West Germany Under Construction: Politics, Society, and Culture in the Adenauer Era (Ann Arbor, 1997), p. 164; Michael R. Hayse, Recasting West German Elites: Higher Civil Servants, Business Leaders, and Physicians in Hesse between Nazism and Democracy (New York, 2003), p. 67. 10. The original German title was 'Bundeserganzungsgesetz zur Entschadigung fiir Opfer der nationalsozialistischen Verfolgung'. 11. Pohl, 'Prosecutors and Historians', p. 118. 12. IfZ, Gutachten 465, Letter from the Prasidenten des Hanseatischen Oberlandesgerichts to the IfZ, 2 June 1956. 13. Ibid., Letter from Hans Buchheim to the Prasidenten des Hanseatischen Oberlandesgerichts, 3 July 1956. 14. Ibid. 15. Ibid., Letter from the Prasidenten des Hanseatischen Oberlandesgerichts to Buchheim, 13 July 1956. 16. IfZ, Gutachten 609, Letter from Landgericht Karlsruhe Entschadingungskammer I, 24 April 1957. 17. Ibid., Letter from Broszat to the Landgericht Karlsruhe Entschadingungskammer I, 2 May 1957. 18. Broszat, 'Selektion der Juden in Auschwitz', in Institut fur Zeitgeschichte (ed.), Gutachten des Instituts fiir Zeitgeschichte (Stuttgart, 1958), pp. 231-3. 19. Buchheim and Hermann Graml, 'Die funfziger Jahre: Zwei Erfahrungsberichte', in Horst Moller and Udo Wengst (eds), 50 Jahre Institut fur Zeitgeschichte: Line Bilanz (Munich, 1999), pp. 69-83. Here pp. 73-4. 20. Kluke had been unexpectedly thrust into the top position after the untimely death of his predecessor, Hermann Mau, on 25 October 1952. In a chilling letter from Mau to Rothfels less than three weeks before his death, Mau outlined future plans for the Institute that he never lived to realise. See BArch Koblenz, Nachlass Rothfels N 1213/46, Letter from Hermann Mau to Hans Rothfels, 7 October 1952. 21. BArch Koblenz, Nachlass Rothfels N 1213/47, Ergebnisprotokoll uber die gemeinsame Sitzung von Kuratorium und Beirat, 15 December 1954, p. 3.

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Notes to Pages 33—37

22. Buchheim and Graml, 'Die funfziger Jahre: Zwei Erfahrungsberichte', pp. 72-3. 23. Ibid. 24. Patrick Tobin, No Country for Old Fighters: Postwar Germany and the Origins of the Ulm Einsatzkommando Trial, Master's thesis, University of North Carolina at Chapel Hill, 2009, p. 22. 25. Sabrina Miiller, 'Zum Drehbuch einer Ausstellung: Der Ulmer Einsatzgruppenprozess von 1958', in Sven Keller, Jiirgen Finger and Andreas Wirsching (eds), Vom Recht zur Geschichte: Akten aus NS-Prozessen als Quellen der Zeitgeschichte (Gottingen, 2009), pp. 205-16. Here p. 210. 26. Ibid. 27. Pohl, 'Prosecutors and Historians', p. 119. 28. Marc von Miquel, Ahnden oder amnestieren?: Westdeutsche Justiz und Vergangenheitspolitik in den sechziger Jahren (Gottingen, 2004), p. 153. 29. Gerald Reitlinger, The Final Solution: The Attempt to Exterminate the Jews of Europe, 1939-1945 (London, 1953). 30. von Miquel, 'Ahnden oder amnestieren?', p. 154; Dirk de Mildt, In the Name of the People: Perpetrators of Genocide in the Reflection of their Post-War Prosecution in West Germany. The 'Euthanasia' and 'Aktion Reinhard' Trial Cases (The Hague, 1996), p. 256. The international and intercontinetal split of German documents rapidly turned the study of contemporary German history into what Astrid Eckert terms a 'transnational undertaking'. See Astrid M. Eckert, 'The Transnational Beginnings of West German Zeitgeschichte in the 1950s', Central European History, 40/1 (March 2007), pp. 63-87. Here p. 70. 31. Miiller, 'Zum Drehbuch einer Ausstellung: Der Ulmer Einsatzgruppenprozess von 1958', p. 210. 32. IfZ, ID 103/50, Letter from Krausnick to Mettler, 13 January 1958. According to Patrick Tobin, on 9 November 1957 Mettler wrote a letter to Krausnick with a request: 'would you or one of your co-workers be able to serve as an expert witness in the trial for questions regarding the question of "superior orders" and the general function of the Einsatzgruppenl'. Krausnick, according to Tobin, replied indicating that he would need some time 'to go back over the material', but would assist as best as he could. Tobin claims that in late 1957, Mettler provided Krausnick with a copy of the indictment, an act Tobin argues was a 'significant gesture and vote of confidence' for Krausnick. Tobin, however, appears to overlook the January 1958 letter in which Krausnick informs Mettler that he will not take the stand in Ulm. See Tobin, Crossroads at Ulm: Postwar Germany and the 1958 Ulm Einsatzkommando Trial, PhD thesis, University of North Carolina at Chapel Hill, 2013. Here pp. 216-17.

Notes to Pages 37-40

187

33. IfZ, ID 103/38, Letter from Krausnick to Mettler, 7 December 1956; IfZ, ID 103/38, Letter from Mettler to Krausnick, 10 January 1957; IfZ, ID 103/38, Letter from Mettler to Krausnick, 27 March 1957; IfZ, ID 103/38, Letter from Krausnick to Mettler, 10 April 1957; IfZ, ID 103/38, Letter from Krausnick to Mettler, 13 September 1957; IfZ, ID 103/38, Letter from Mettler to Krausnick, 9 November 1957; IfZ, ID 103/38, Letter from Krausnick to Mettler, 6 December 1957; IfZ, ID 103/50, Letter from Krausnick to Mettler, 13 January 1958. 34. IfZ, ID 103/50, Letter from Krausnick to Mettler, 13 January 1958. 35. Ibid. 36. Hal Wootten, 'Conflicting Imperatives: Pursuing Truth in the Courts', in Iain McCalman and Ann McGrath (eds), Proof & Truth: the Humanist as Expert (Canberra, 2003), pp. 15-50. Here p. 22; Michael Marrus, 'History and the Holocaust in the Courtroom', in Ronald Smelser (ed.), Lessons and Legacies V: the Holocaust and Justice (Evanston, 2002), pp. 215-39. Here pp. 228-9. 37. John H. Langbein, Comparative Criminal Procedure: Germany (St Paul, 1977), pp. 64, 75; West German judges also had no powers to hold trial participants in contempt. Friedlander, 'Nazi Crimes and the German Law', in Friedlander and Stoltzfus (eds), Nazi crimes and the law, pp. 15-34. Here p. 25. 38. Pendas, The Frankfurt Auschwitz trial, pp. 100-1. 39. Ibid., p. 82. 40. Langbein, Comparative Criminal Procedure, pp. 64, 72. 41. Pendas, The Frankfurt Auschwitz trial, p. 95. 42. Langbein, Comparative Criminal Procedure, p. 115. 43. Pendas, The Frankfurt Auschwitz trial, p. 105. 44. Langbein, Comparative Criminal Procedure, p. 79. 45. IfZ, ID 103/47, Letter from Krausnick to Brill, 30 December 1958. Krausnick makes the same claim of his need to 'broadly' prepare for the trial in his letter of 23 December 1958 to Becker. See BArch Koblenz, Nachlass Rothfels N 1213/48, Letter from Krausnick to Becker, 23 December 1958. Here p. 3. 46. IfZ, ID 103/52, Letter from Krausnick to Schule, 23 June 1958. 47. IfZ, ID 103/52, Letter from Schule to Krausnick, 24 June 1958. 48. IfZ, ID 103/47, Letter from Krausnick to Brill, 30 December 1958. 49. Ibid. BArch Koblenz, Nachlass Rothfels N 1213/48, Letter from Krausnick to Becker, 23 December 1958. Krausnick's efforts in Ulm also received attention in the IfZ's annual report from December 1958, stating that his Gutachten for the trial 'played an important role', and, again, pointing out the media spotlight that Krausnick briefly enjoyed. See IfZ, ID 8/11, Tatigkeitsbericht vom Dezember 1957 bis Dezember 1958, undated.

188

Notes to Pages 41-42

50. Becker's privately held view of Krausnick, one expressed to Paul Egon Hiibinger, with reference to the vacant position of IfZ director in 1958 and Krausnick's possible candidacy, is that he 'has neither the outward interpersonal skills nor the ability to overcome his own problems'. This was the period in which Krausnick gave testimony in Ulm, and undoubtedly his success in Ulm did little to harm his chances of promotion. BArch Koblenz, Nachlass Rothfels N 1213/47, Letter from Becker to Hiibinger, 24 June 1958. 51. Letter from Krausnick to Becker, 23 December 1958; Letter from Krausnick to Brill, 30 December 1958. 52. Letter from Krausnick to Brill, 30 December 1958. 53. IfZ, ID 4/11, Ergebnisprotokoll der gemeinsamen Sitzung ... vom 13. Januar 1959, p. 3. 54. Freia Anders, 'Einleitung', in Anders, Hauke-Hendrik Kutscher and Katrin Stoll (eds), Bialystok in Bielefeld: nationalsozialistische Verbrechen vox dem Landgericht Bielefeld 1958 bis 1967 (Bielefeld, 2003), pp. 9-17. Here p. 12. 55. Frei, 'Die Riickkehr des Rechts: Justiz und Zeitgeschichte nach dem Holocaust - eine Zwischenbilanz', in Arnd Bauerkamer, Martin Sabrow and Bernd Stover (eds), Doppelte Zeitgeschichte: Deutsch-deutsche Beziehungen 1945-1990 (Bonn, 1998), pp. 417-31. Here p. 427; Annette Weinke, 'The German-German Rivalry and the Prosecution of Nazi War Criminals During the Cold War, 1958-1965', in Friedlander and Stoltzfus (eds), Nazi crimes and the law, pp. 151-72. Here p. 161. Other recent works continue to uphold the traditional argument that Ulm precipitated the Central Office's formation, see Rend Wolf, '"Mass Deception without Deceivers"? The Holocaust on East and West German Radio in the 1960s', Journal of Contemporary History, 41/4 (2006), pp. 741-55. Here p. 742; Riidiger Fleiter, 'Die Ludwigsburger Zentrale Stelle - eine Strafverfolgungsbehorde als Legitimationsinstrument? Gnindung und Zustandigkeit 1958 bis 1965', Kritische Justiz, 35/2 (2007), pp. 253-72; and Eric Haberer, 'History and Justice: Paradigms of the Prosecution of Nazi Crimes', Holocaust and Genocide Studies, 19/3 (Winter 2005), pp. 487-519. Here p. 495. Even Fritz Bauer made the connection between Ulm and the Central Office's founding, Fritz Bauer, 'Im Namen des Volkes: Die strafrechtliche Bewaltigung der Vergangenheit (1965)', in Perels and Irmtrud Wojak (eds), Die Humanitat der Rechtsordnung: Ausgewdhlte Schriften (Frankfurt am Main, 1998), pp. 77-90. Here p. 81. 56. de Mildt, In the Name of the People, p. 256. 57. Pohl, 'Prosecutors and Historians', pp. 119-21. 58. Wolfgang Scheffler, 'NS-Prozesse als Geschichtsquelle: Bedeutung und Grenzen ihrer Auswertbarkeit durch den Historiker', in Werner

Notes to Pages 42-46

59. 60.

61. 62. 63. 64.

65.

189

Bergmann and Scheffler (eds), Lerntag iiber den Holocaust als Thema im Geschichtsunterricht und in der politischen Bildung (Berlin, 1988), pp. 13-27. Here p. 16. Ibid. Broszat, 'Juristische und Zeitgeschichtliche Bewaltigung der Vergangenheit (1976)', in Broszat, Graml and Klaus-Dietmar Henke (eds), Nach Hitler: der schwierige Umgang mit unserer Geschichte (Munich, 1987), pp. 42-9. Here p. 44. de Mildt, In the Name of the People, p. 39; Haberer, 'History and Justice', p. 488. Haberer, 'History and Justice', p. 497. Eckert, Kampfum die Akten. Ibid., pp. 12-13; Broszat, 'Grenzen der Wertneutralitat in der Zeitgeschichtsforschung: Der Historiker und die Nationalsozialismus', in Broszat, Graml and Henke (eds), Nach Hitler, pp. 92-113. Here p. 103; Wojak, 'Zur Einfuhrung: der erste Frankfurter Auschwitz-Prozefi und die »Bewaltigung« der NS-Vergangenheit', in Wojak, Fritz-Bauer-Institut (eds), Auschwitz-Prozess 4 Ks 2/63 Frankfurt am Main (Snoeck, 2004), pp. 52-71. Here p. 57. Wojak, 'Zur Einfuhrung', p. 58. For an excellent overview of Ulm's significance, see Claudia Frohlich, 'Der "Ulmer Einsatzgruppen-Prozess" 1958. Wahrnehmung und Wirking des ersten grofien Holocaust Prozesses', in Jorg Osterloh and Clemens Vollnhals (eds), NS-Prozesse und deutsche Offentlichkeit: Besatzungszeit, friihe Bundesrepublik und DDR (Gottingen, 2011), pp. 233-62.

CHAPTER 2 THE LAW COURTS HISTORY: PRE-TRIAL PREPARATIONS 1. Werner Renz, 'Auschwitz vor Gericht: Zum 40. Jahrestag des ersten Frankfurter Auschwitz-Prozesses', Hefte von Auschwitz, 24 (Oswiecim, 2009), pp. 191-299. Here p. 194; Irmtrud Wojak, Fritz Bauer 1903-1968: Fine Biographie (Munich, 2009), p. 319; Devin Pendas, The Frankfurt Auschwitz Trial, 1963-65: Genocide, History and the Limits of the Law (Cambridge, 2006), p. 51. 2. Renz, 'Der 1. Frankfurter Auschwitz-Prozefi: Zwei Vorgeschichten', Zeitschrift fur Geschichtswissenschaft, 7 (2002), pp. 622-31. Here p. 624. See also Pendas, 'Der 1. Frankfurter Auschwitz-Prozess 1963-1965: Eine historische Einfuhrung', in Raphael Gross and Renz (eds), Der Frankfurter Auschwitz-Prozess (1963-1965): Kommentierte Quellenedition, Vol. 1 (Frankfurt am Main, 2013), pp. 55-85. Here pp. 58-9. 3. Renz, 'Der 1. Frankfurter Auschwitz-Prozefi', pp. 625-6.

190

Notes to Pages 46-49

4. Wojak, '»Die Mauer des Schweigen durchbrochen«. Der erste Frankfurter Auschwitz-Prozess 1963-1965', in Wojak and Fritz-Bauer-Institut (eds), »Gerichtstag halten tiber uns selbst...«: Geschichte und Wirkung des ersten Frankfurter Auschwitz-Prozesses (Frankfurt am Main, 2001), pp. 21-42. Here p. 22; Pendas, 'Der 1. Frankfurter Auschwitz-Prozess', p. 60. 5. Renz, 'Der 1. Frankfurter Auschwitz-Prozefi', pp. 628-9. Renz quotes the meeting minutes here. 6. Ibid., pp. 629-30. 7. Pendas, The Frankfurt Auschwitz Trial, p. 45. 8. Julie Wagner, 'The Truth about Auschwitz: Prosecuting Auschwitz Crimes with the Help of Survivor Testimony', German History, 28/3 (2010), pp. 343-57. Here p. 343; Wojak, '»Die Mauer des Schweigen durchbrochen«', p. 22; Wojak, Fritz Bauer, p. 320; Renz, 'Der 1. Frankfurter Auschwitz-Prozefi', p. 631. 9. Julie Wagner writes of the difficulties Kiigler and Vogel faced during their investigation, one that was unpopular with the prosecutors office generally, and financially undersupported: 'the financial means at their disposal were inadequate for an investigation of this scale and their office was poorly equipped. Whenever the prosecutors needed to send a fax, they had to ask the local greengrocer to send it. Kiigler recalled that when he travelled to another part of Germany to make arrests he usually stayed over at the local police station where they only charged 1.50 DM, as he could not afford a hotel room. In fact, their budget was so tight that they frequently used their own salaries to make ends meet. Once, towards the end of the month, Kiigler even spent a night on a park bench in the Berlin Tiergarten.' Wagner, 'The Truth about Auschwitz', p. 347. 10. Wojak, Fritz Bauer, p. 323. 11. Renz, 'Der 1. Frankfurter Auschwitz-Prozefs', pp. 632-4. 12. Wagner notes that Dux claims to have himself been obstructed by judicial counterparts, including more senior judges attempting to dissuade him from pursuing the matter further. Wagner, 'The Truth about Auschwitz', p. 347. 13. In fact, only 17 of the originally listed 24 defendants remained by the time the trial began in December 1963. For various reasons, seven were removed from the initial list of 24, and five were added, making 22 altogether. Pendas, The Frankfurt Auschwitz Trial, p. 50. 14. Three other defendants had their cases discontinued on the grounds of ill-health. Ibid., p. 98. 15. Peter Reichel, Vergangenheitsbewaltigung in Deutschland: Die Auseinandersetzung mit der NS-Diktatur von 1945 bis heute (Munich, 2001), p. 162; Ulrich Schneider, Auschwitz - ein Prozefi: Geschichte, Fragen, Wirkungen (Cologne, 1994), pp. 81-4; Robert K. Woetzel, 'Reflections on the Auschwitz Trial', The World Today, 21/11 (November 1965), pp. 494-8.

Notes to Pages 49-52

16.

17. 18.

19. 20.

21. 22. 23.

24.

191

Here pp. 494-5; Pendas, The Frankfurt Auschwitz Trial, pp. 99, 235. Much of Hermann Langbein's monumental work, Der AuschwitzProzess, focusses on the defendants, their charges, claims and verbatim testimony. Langbein's book extends to two volumes and over 900 pages. As was the case with Anatomy of the SS State, this work was published in the immediate aftermath of the trial. See Hermann Langbein, Der Auschwitz-Prozess: Fine Dokumentation (Vienna, 1965). Fritz-Bauer-Institut, Anklageschrift (p. 1-108), Auschwitz-Prozefi 4 Ks 2/63, 16 April 1963; Anklageschrift (p. 109-310), Auschwitz-Prozefi 4 Ks 2/63, 16 April 1963; Anklageschrift (p. 311-700), Auschwitz-Prozefi 4 Ks 2/63, 16 April 1963. Renz, 'Auschwitz vor Gericht', p. 214. Fritz Bauer, 'Im Namen des Volkes: Die strafrechtliche Bewaltigung der Vergangenheit (1965)', in Joachim Perels, Wojak (eds), Die Humanitdt der Rechtsordnung: Ausgewdhlte Schriften (Frankfurt am Main, 1998), pp. 77-90. Here p. 83. Ibid. Matthias Meusch, Von der Diktatur zur Demokratie: Fritz Bauer und die AufarbeitungderNS-Verbrechen inHessen (1956-1968) (Wiesbaden, 2001), p. 178. Ibid., pp. 178, 182. Susanne Meinl, Wojak (eds), Im Labyrinth der Schuld: Tdter, Opfer, Ankldger (Frankfurt am Main, 2003), p. 26. Dieter Pohl, 'Prosecutors and Historians: Holocaust Investigations and Historiography in the Federal Republic 1955-1975', in David Bankier and Dan Michman (eds), Holocaust and Justice: Representation and Historiography of the Holocaust (Jerusalem, 2009), pp. 117-29. Here p. 119. It is known that historian Hans-Giinther Seraphim provided a Gutachten and gave testimony in this proceeding. Seraphim was a contentious figure, whose early work and particularly his thesis that Nazi Germany's invasion of the Soviet Union had been a 'preventive' measure drew private scorn from Hans Rothfels and others as early as 1952. See BArch Koblenz, Nachlass Rothfels N 1213/47, Letter from Hans Rothfels to Fritz Epstein, 19 December 1952. The work that particularly aggrieved Rothfels was Hans-Giinther Seraphim, Die deutsch-russischen Beziehungen: 1939-1941 (Hamburg, 1949). Nonetheless, Rothfels was happy for the disagreement to play out in the IfZ's journal, the Vierteljahrshefte fur Zeitgeschichte, in 1954 (see Andreas Hillgruber and Seraphim, 'Hitlers Entschluss zum Angriff auf Russland', Vierteljahrshefte fur Zeitgeschichte, 3 (July 1954), pp. 240-54). Rothfels prefaced the article. Wojak, Fritz Bauer, p. 24; Meusch, Von der Diktatur zur Demokratie, p. 175.

192

Notes to Pages 52-55

25. Ibid., pp. 178-9. See also Johannes Warlo, 'NSG-Verfahren in Frankfurt am Main: Versuche einer justiziellen Aufarbeitung der Vergangenheit', in Horst Henrichs and Karl Stephan (eds), Ein Jahrhundert Frankfurter Justiz, Studien zur Frankfurter Geschichte 27 (Frankfurt am Main, 1989), pp. 155-83; Interview with Johannes Warlo, 24 May 2014. 26. Bauer, 'Im Namen des Volkes', p. 81. 27. Ibid., p. 82. 28. Hessisches Hauptstaatsarchiv, 37638/244, Vermerk, 29 March 1960. 29. Fritz-Bauer-Institut, Archiv Auschwitz-Prozess 4 Ks 2/63 Gutachten, Vermerk Grofimann, 3 May 1961. 30. Ibid. 31. IfZ, ID 4/12, 'Ergebnisprotokoll der gemeinsamen Sitzungs von Beirat und Kuratorium ... 4 November 1961', 7 November 1961, p. 2. Notwithstanding his powerful sense of German nationalism, Rothfels was perceived to be Jewish by the Nazis, stripped of his academic titles and forced to flee Germany for the USA. Well-connected, not even the support of Nazi Foreign Minister Joachim von Ribbentrop could prevent Rothfels's ongoing persecution and ultimate exile. Upon his return to Germany, Rothfels sought not to amplify his own persecution as a German Jew, nor to rehabilitate Nazism in any form, but to highlight both the status of Germans as victims of Nazism themselves, and the extent to which they resisted Nazi rule. Despite suffering persecution himself, Rothfels's priority was not one of commemoration, or even acknowledgement, of atrocities against European Jews, but the attestation of conservative resistance against Nazism. See Jan Eckel, Hans Rothfels: Eine intellektuelle Biographie im 20. Jahrhundert (Gottingen, 2005). 32. Hans Buchheim and Hermann Graml, 'Die funfziger Jahre: Zwei Erfahrungsberichte', in Horst Moller and Udo Wengst (eds), 50 Jahre Institut fur Zeitgeschichte: Eine Bilanz (Munich, 1999), pp. 69-83. Here pp. 78-9. 33. BArch Koblenz, Nachlass Rothfels N 1213/44, Ergebnisprotokoll der konstituierenden Sitzung des Wissenschaftlichen Beirats des Instituts fur Zeitgeschichte, 30 July 1962, p. 7. The works in question are, respectively, William Shirer, The Rise and Fall of the Third Reich: a History of Nazi Germany (New York, 1960); Fritz Tobias, Der Reichstagsbrand: Legende und Wirklichkeit (Baden, 1962); and David Hoggan, Der erzwungene Krieg: die Ursachen und Urheber des 2. Weltkriegs (Tubingen, 1961). 34. Ergebnisprotokoll der konstituierenden Sitzung des Wissenschaftlichen Beirats des Instituts fur Zeitgeschichte, 30 July 1962. 35. Vermerk liber eine Besprechung, 8 November 1962, p. 3. 36. IfZ, ID 103/91, Aktenvermerk von Dr H. Heiber, 16 October 1962.

Notes to Pages 55-62

193

37. Ibid. 38. Ibid. 39. The minute taker Warlo, who was unaware of the historical significance of his minutes, also recalled that Bauer did most of the talking. Interview with Johannes Warlo; Vermerk iiber eine Besprechung, 8 November 1962. 40. Vermerk iiber eine Besprechung, 8 November 1962, pp. 2-3. 41. Ibid., p. 3. 42. Ibid. 43. Ibid., p. 2. 44. Ibid. 45. Ibid. 46. Rebecca Wittmann, 'The Wheels of Justice Turn Slowly: The Pretrial Investigations of the Frankfurt Auschwitz Trial 1963-65', Central European History, 35/3 (2002), pp. 345-78. Here p. 362. 47. Vermerk iiber eine Besprechung, 8 November 1962, p. 4. 48. Ibid. 49. Pendas, 'The Historiography of Horror: The Frankfurt Auschwitz Trial and the German Historical Imagination/ in Jeffry Diefendorf (ed.), Lessons and Legacies VI: New Currents in Holocaust Research (Evanston, 2004), pp. 209-30. Here p. 212. 50. Vermerk iiber eine Besprechung, 8 November 1962, p. 5. 51. Ibid., p. 3. 52. Ibid., p. 7. 53. Bauer, 'Herrschaft der Sachverstandigen: Eine Untersuchung iiber Schwachen des geltenden Rechts und ihre Auswirkungen', Frankfurter Rundschau, 10 January 1963. 54. Fritz-Bauer-Institut, FAP1BA9 Dokumentation Auschwitz-Prozess, Protokoll der 4. Arbeitstagung der Leiter der Sonderkommissionen zur Bearbeitung von NS-Gewaltverbrechen in der Zeit vom 9. bis 10. Oktober 1963 Wiesbaden, 21 October 1963, pp. 1-27. Here pp. 19-20. 55. Ibid., p. 21. 56. Ibid. 57. Ibid. 58. Ibid. 59. Ibid., p. 22. 60. Helmut Heiber, although an IfZ historian who took the minutes from the October 1962 meeting with prosecutors, and present at the November 1962 meeting, did not write a Gutachten for the trial. 61. Buchheim, 'Die Organisation der Sondergerichtsbarkeit der SS und Polizei', in Institut fur Zeitgeschichte (ed.), Gutachten des Instituts fur Zeitgeschichte (Stuttgart, 1958), pp. 343-9; Buchheim, 'Rechtsstellung und Organisation des Reichskommissars fur die Festigung deutschen

194

62.

63.

64. 65. 66.

67. 68.

69. 70. 71.

72.

Notes to Pages 62-65 Volkstums', in Ibid., pp. 239-79; Buchheim, 'Die organisatorische Entwicklung der politischen Polizei in Deutschland in den Jahren 1933 und 1934', in Ibid., pp. 294-307. Buchheim, 'Die SS in der Verfassung des Dritten Reiches', Vierteljahrshefte fur Zeitgeschichte, 3/3 (April 1955), pp. 127-57; Buchheim, 'Die Hoheren SS- und Polizeifiihrer', Vierteljahrshefte fur Zeitgeschichte, III A (October 1963), pp. 362-91; Buchheim, Die Aufnahme von Polizeiangehorigen in die SS und die Angleichung ihrer SS-Dienstgrade an ihre Beamtenringe (Dienstgradangleichung) in der Zeit des Dritten Reiches, unpublished Gutachten, Munich, September 1960; Buchheim, Die Grenzpolizei der Geheimen Staatspolizei, unpublished Gutachten, Munich, October 1954. Fritz-Bauer-Institut, Abt. Dokumentation Auschwitz-Prozefi 4 Ks 2/63 Gutachten Buchheim 07.02.1964 16. Verhandlungstag 'SS und Polizei' Broszat 17.02.1964 17. Verhandlungstag 'Polenpolitik', Buchheim, Die Organisation von SS und Polizei unter nationalsozialistischer Herrschaft, 19 December 1963, p. 3. Ibid. BArch Koblenz, Nachlass Rothfels N 1213/44, Tatigkeitsbericht fur die Zeit vom 1. Juli 1962 bis zum 30. Juni 1963. For a man whose personal papers (Nachlass) comprise one of the richest, publicly available sources on historians' involvement in the Auschwitz trial, copies of Krausnick's original Gutachten for the Auschwitz trial appear to have been universally mislaid. Martin Broszat, Nationalsozialistische Polenpolitik, 1939- 194S (Stuttgart, 1961). Broszat explains the relationship between the earlier book and subsequent Gutachten in a letter to Fritz Epstein, Professor, Curator of Slavic Collections, Indiana University, USA, in April 1964: 'In Frankfurt, I spoke in court to two expert reports: one on National Socialist policies towards Poland, which to a considerable extent was derived from my book, and which barely went beyond these particulars and, as such, was not to be published separately.' IfZ, ID 50/178, Letter from Broszat to Epstein, 10 April 1964. BArch Koblenz, Nachlass Rothfels N 1213/44, Tatigkeitsbericht fur die Zeit vom 1. Juli 1962 bis zum 30. Juni 1963, pp. 7-8. Fritz-Bauer-Institut, Archiv Auschwitz-Prozess 4 Ks 2/63 Gutachten, Letter from unnamed Staatsanwalt to Jacobsen, 24 June 1964. Ibid., For Uhlig's original Gutachten, see Fritz-Bauer-Institut, Archiv Auschwitz-Prozess 4 Ks 2/63 Gutachten, Letter and Gutachten from Heinrich Uhlig to Oberstaatsanwalt beim Landesgericht Frankfurt, 15 April 1963. Ibid., p. 14. This is quite a remarkable conclusion for an historian to reach in the early 1960s, and appears to preempt the 'clean Wehrmachf

Notes to Pages 65-72

195

controversy that came to a head in the 1980s and 1990s, an influential contributor to which was Krausnick. See Helmut Krausnick and HansHeinrich Wilhelm, Die Truppe des Weltanschauungskrieges: die Einsatzgruppen der Sicherheitspolizei und des SD 1938-1942 (Stuttgart, 1981). 73. Uhlig Gutachten, p. 14. 74. Renz, 'Auschwitz vor Gericht', pp. 221-2. 75. Pendas, The Frankfurt Auschwitz Trial, pp. 122-39. 76. Fritz-Bauer-Institut, Nachlass Hummerich NL 09/1, Stellungnahme von LDR Werner Hummerich zu Frage von Sachverstandigengutachten, 26 January 1964, p. 1. 77. Ibid. 78. Ibid. 79. Ibid. 80. Ibid. 81. Ibid. 82. Ibid., pp. 1-2. 83. Ibid., p. 2. 84. Ibid.

CHAPTER 3 GIVING EVIDENCE: THE HISTORIANS' COURT? OR, HISTORIANS CAUGHT? 1. Fritz-Bauer-Institut, Archiv Auschwitz-Prozess 4 Ks 2/63 Gutachten, Protokoll 7 February 1964, pp. 136-7. 2. Irmtrud Wojak, '»Die Mauer des Schweigen durchbrochen«. Der erste Frankfurter Auschwitz-Prozess 1963-1965', in Wojak and FritzBauer-Institut (eds), »Gerichtstag haltentiberuns selbst... «: Geschichte und Wirkung des ersten Frankfurter Auschwitz-Prozesses (Frankfurt am Main, 2001), pp. 21-42. Here p. 23; Franciszek Piper, 'The Number of Victims', in Michael Berenbaum and Yisrael Gutman (eds), Anatomy of the Auschwitz Death Camp (Bloomington, 1998), pp. 61-76. Here p. 62. 3. Dirk de Mildt, In the Name of the People: Perpetrators of Genocide in the Reflection of their Post-War Prosecution in West Germany. The 'Euthanasia' and 'Aktion Reinhard' Trial Cases (The Hague, 1996), p. 32. 4. See Chapter 2, note 16. 5. Thomas Wandres and Gerhard Werle, Auschwitz vor Gericht: Volkermord und bundesdeutsche Strafjustiz: mit einer Dokumentation des AuschwitzUrteils (Munich, 1995), p. 56. 6. Wojak, '»Die Mauer des Schweigens durchbrochen«', p. 23. 7. Mirjam Wenzel, Gericht und Gedachtnis: der deutschsprachige HolocaustDiskurs der sechziger Jahre (Gottingen, 2009), pp. 161-3. Other names Wenzel lists include Gunther Anders, Alfred Andersch, Heimrad Backer,

196

8. 9.

10.

11.

12.

Notes to Page 72 Horst Bienek, Hubert Fichte, Gerhard Mauz, Hans Erich Nossack, Marcel Reich-Ranicki, Wolfdietrich Schnurre, Grete Weil, Thilo Koch, Axel Eggebrecht, Bernd Naumann und Rudolf Hirsch, Marie Luise Kaschnitz, Robert Neumann, Horst Kriiger, Martin Walser and Hermann Langbein. Wojak, '»Die Mauer des Schweigens durchbrochen«', p. 23. The Fritz-Bauer-Institut, where the original recordings of the Auschwitz trial are kept, recently transcribed, digitised, and made freely available this material online: www.auschwitz-prozess.de. There is, however, no recording of the four historians' testimony available, and little chance one ever existed. This is likely because the historians were the first witnesses to appear, and the judicial panel had the benefit of the historian's written Gutachten before them - based on though significantly more detailed than their oral testimony. It is a matter of chance that recordings were made at all, and it took much luck and great determination for the evidence to be preserved. See Werner Renz, Tonbandmitschnitte von Prozessen als Quelle', in Jurgen Finger, Sven Keller and Andreas Wirsching (eds), Vom Recht zur Geschichte: Akten aus NS-Prozessen als Quellen der Zeitgeschichte (Gottingen, 2009), pp. 142-53. Here pp. 144-5. A copy of the oral judgement is housed at the Fritz-Bauer-Institut, see FAP1/HA153, Urteilsbegnindung in der Strafsache 4 Ks 2/63./. Mulka u. A., 19/20 August 1965. It can also be found online in as a recording and transcript in four parts at www.auschwitz-prozess.de. The written judgement was reprinted in 2010 and 2013; see respectively de Mildt, Christiaan F. Riiter, Justiz und NS-Verbrechen Bd.XXI (Amsterdam, 2010), pp. 381-837; and 'Urteil des Landgerichts Frankfurt am Main in der Strafsache gegen Mulka und andere vom 19./20. August 1965', in Raphael Gross and Werner Renz (eds), Der Frankfurter Auschwitz-Prozess (1963-1965): Kommentierte Quellenedition, Vol. 2 (Frankfurt am Main, 2013), pp. 575-1236. Wojak, 'Die Verschmelzung von Geschichte und Kriminologie: Historische Gutachten im ersten Frankfurter Auschwitz-Prozefi', in Norbert Frei, Dirk van Laak and Michael Stolleis (eds), Geschichte vor Gericht: Historiker, Richter und die Suche nach Gerechtigkeit (Munich, 2000), pp. 29-45. Here p. 33. A selection of material on the trial can be found in Gross and Renz (eds), Der Frankfurter Auschwitz-Prozess (1963-1965), Vol. 2, pp. 1379-84. Peter Weiss's play, titled Die Ermittlung, premiered in both East and West Germany in October 1965. See Peter Weiss, Die Ermittlung: Oratorium in 11 Gesangen (Frankfurt am Main, 1965); Wojak, Tm Labyrinth der Schuld: Fritz Bauer und die Aufarbeitung der NS-Verbrechen nach 1945', Susanne Meinl and Wojak (eds), Im Labyrinth der Schuld: Tater, Opfer, Ankldger (Frankfurt am Main, 2003), pp. 17-40. Here p. 31; Auschwitz

Notes to Pages 72-75

13.

14. 15.

16.

17. 18.

19.

20.

21.

22.

197

vor Gericht: Strafsache 4 Ks 2/63, Hessischer Rundfunk (Frankfurt, 1993). The film is Im Labyrinth des Schweigens (Hamburg, 2014). That it was Germany's foreign-language contender for the 2016 Academy Awards is further evidence of the trial's ongoing cultural value. Marc von Miquel, Ahnden oder amnestieren?: Westdeutsche Justiz und Vergangenheitspolitik in den sechziger Jahren (Gottingen, 2004), p. 144. See also Michael Greve, Der justizielle und rechtspolitische Umgang mit den NSGewaltverbrechen in den sechziger Jahren (Frankfurt am Main, 2001). Wenzel, Gericht und Geddchtnis, pp. 161-2. Hans Buchheim and Hermann Graml, 'Die funfziger Jahre: Zwei Erfahrungsberichte', in Horst Moller and Udo Wengst (eds), 50 Jahre Institut fur Zeitgeschichte: Eine Bilanz (Munich, 1999), pp. 69-83. Here pp. 74-5. The Frankfurter Romer is a fifteenth-century town hall in which the trial began in December 1963. In April 1964, the trial shifted to the larger Gallus Haus civic centre. Devin Pendas, The Frankfurt Auschwitz Trial 1963-65: Genocide, History and the Limits of the Law (Cambridge, 2006), pp. 122, 261. Wiese said, moreover, that 'we [the prosecution] were of the view that there was an urgent need for the gentlemen, who produced the Gutachten, to be heard. And that was what ultimately happened.' Interview with Gerhard Wiese, 16 September 2014. Protokoll 7 February 1964. Fritz-Bauer-Institut, FAPP14 Abt. Dokumentation 4 Ks 2/63 Prozessberichterstattung Deutsche Presseagentur (dpa) Bd. II, 'auschwitz-prozess wird zum historischen seminar', 7 February 1964; 'Die SS als Machtfaktor im Dritten Reich: der Auschwitz-Prozefs wird zum historischen Seminar', Fuldaer Zeitung / Hunfelder Zeitung / Kinzig-Zeitung, 8 February 1964. In personal correspondence dated 14 January 2014, Buchheim stated 'Please bear in mind that all of this was 50 years ago, and that I have been completely occupied by other subject matters throughout that 50 years.' Buchheim, Personal Correspondence, 14 January 2014. On Kaul, see Annette Rosskopf, Friedrich Karl Kaul: Anwalt im geteilten Deutschland, 1906-1981 (Berlin, 2002). For Kaul's papers, see Bundesarchiv (hereafter BArch) Berlin-Lichterfelde, Nachlass Kaul N 2503. A recent, East German-centric and highly problematic account of various aspects of the trial, written (it seems) with Kaul's Nachlass as the only source of evidence, devoid of critical analysis, is Ralph Dobrowa, Der Auschwitz Prozess: Ein Lehrstuck deutscher Geschichte (Berlin, 2013). Gunther von Lojewski, 'Der Historiker vor dem Auschwitz-Tribunal: Dr. Hans Buchheim iiber das Prinzip der Fuhrergewalt im NS-Staat', Frankfurter Allgemeine Zeitung, 8 February 1964, pp. 18-19. Here p. 18. 'Die SS war politische Kadertruppe des Dritten Reiches', Deutsche Presse Agentur, 8 February 1964; 'Nicht alle kamen freiwillig', Oberhessische

198

23. 24. 25. 26. 27.

28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39.

40. 41.

Notes to Pages 75-80 Presse, 8 February 1964; von Lojewski, 'Der Historiker vor dem Auschwitz-Tribunal', pp. 18-19. 'Die Zerstorung des Rechtsstaates: Gutachten im Auschwitz-Prozefi uber die Rolle der SS', Frankfurter Neue Presse, 8 February 1964. Ibid. Ibid.; von Lojewski, 'Der Historiker vor dem Auschwitz-Tribunal'. von Lojewski, 'Der Historiker vor dem Auschwitz-Tribunal'. 'Dylewski-Verfahren abgetrennt: Hauptverhandlung erst im Frankfurter Auschwitz-Prozefi', Frankfurter Rundschau, 8 February 1964; 'Die Zerstorung des Rechtsstaates'. 'Die Zerstorung des Rechtsstaates'. BArch Berlin-Lichterfelde, Nachlass Kaul N 2503/198, Bericht uber den Auschwitz-Prozess, 8 February 1964, p. 1. Ibid. 'Die Zerstorung des Rechtsstaates'. Bericht uber den Auschwitz-Prozess, 8 February 1964, p. 1. 'Die Zerstorung des Rechtsstaates'. Bericht uber den Auschwitz-Prozess, 8 February 1964, p. 2. 'Die Zerstorung des Rechtsstaates'. von Lojewski, 'Der Historiker vor dem Auschwitz-Tribunal'. Rudolf Hols, Kommandant in Auschwitz: autobiographische Aufzeichnungen (Stuttgart, 1958). 'Not all came willingly' headlined one particular article. ('Nicht alle kamen freiwillig'.) Fritz-Bauer-Institut, Archiv Auschwitz-Prozess 4 Ks 2/63 Gutachten, Protokoll 17 February 1964; Horst Hachmann, 'Krausnick schildert Phasen der Judenverfolgungen: Zweiter Sachverstandiger im Frankfurt Auschwitz-Prozefi. Antisemitismus von Hitler nicht erfunden', Frankfurter Rundschau, 17 February 1964. Walter Pfuhl, 'Hitler war kein Betriebsunfall der Geschichte', Die Welt, 18 February 1964. Ibid. The term Betriebsunfall, which translates loosely to 'chance accident' or 'operational accident', was to become familiar within West German historical circles by the end of 1964 - though in reference to World War I. At that year's West German Historikertag (or 'Historians' Day', a biannually held conference organised by the Verband der Historiker und Historikerinnen Deutschlands, or German Association of Historians), American historian Fritz Stern addressed criticism levelled against German historian Fritz Fischer, the latter of whom in his 1961 book Griff nach der Weltmacht: Die Kriegzielpolitik des kaiserlichen Deutschland, 1914/1918 (Germany's Aims in the First World War) controversially argued that blame for the beginning of World War I lay solely with Imperial Germany and its expansionist ambitions. It was a thesis that earnt Fischer harsh criticism.

Notes to Pages 80-85

42.

43. 44. 45. 46. 47. 48. 49. 50.

51.

52. 53. 54. 55. 56. 57. 58.

199

Stern, while not defending Fischer, contended that the counter-arguments he had heard - that all frailities and faults of German politics can be ascribed to a 'chance accident' - were even less satisfactory. 'War der Kriegsausbruch nur ein Betriebsunfall?', Der Spiegel, 21 October 1964, p. 50. Despite this development, evidence strongly suggests that the term 'Betriebsunfall' first emerged from Krausnick two years earlier, in a 1962 article he wrote for the weekly supplement Aus Politik und Zeitgeschichte (see Helmut Krausnick, 'Unser Weg in die Katastrophe von 1945', Aus Politik und Zeitgeschichte B, 19 (1962), pp. 229-40. This is also the view expressed in Astrid Eckert, 'Westdeutsche Zeitgeschichte als transnationales Projekt in den 1950er Jahren', in Ulrich Pfeil (ed.), Die Ruckkehr der deutschen Geschichtswissenschaft in die »6kumene der Historiker«: ein wissenschaftlicher Ansatz (Munich, 2008). Here p. 150, footnote 70. von Lojewski, 'Der Weg zur Menschenvernichtung: Sachverstandiger im Auschwitz-Prozefi zur Judenpolitik der Nazis', Frankfurter Rundschau, 18 February 1964. Ibid. Pfuhl, 'Hitler war kein Betriebsunfall'. Ibid. Hachmann, 'Krausnick schildert Phasen der Judenverfolgungen'. Pfuhl, 'Hitler war kein Betriebsunfall'. Kurt Ernenputsch, 'Uber funf Millionen Juden ermordet', Frankfurter Allgemeine Zeitung, 18 February 1964. Ibid.; von Lojewski, 'Der Weg zur Menschenvernichtung'. BArch Berlin-Lichterfelde, Nachlass Kaul N 2503/506, 'Expose: einer funfteiligen Folge von Vorgangen aus dem Auschwitz-Prozefi', undated. The quoted script is taken from p. 31-6 of the script, N2503/507, Tmpressionen von der Hauptverhandlung', undated. Fritz-Bauer-Institut, FAPP14 Abt. Dokumentation 4 Ks 2/63 Prozessberichterstattung Deutsche Presseagentur (dpa) Bd. II, 'sed-anwalt kaul stellte fragen', 17 February 1964; von Lojewski, 'Der Weg zur Menschenvernichtung'; Hachmann, 'Krausnick schildert Phasen der Judenverfolgungen'. von Lojewski, 'Der Weg zur Menschenvernichtung'. Ibid. Ibid. Hachmann, 'Krausnick schildert Phasen der Judenverfolgungen'. Pfuhl, 'Hitler war kein Betriebsunfall'. BArch Berlin-Lichterfelde, Nachlass Kaul N 2503/380, 'AuschwitzProzefi', Newspaper unknown, undated. Ibid. sed-anwalt kaul stellte fragen; Ernenputsch, 'Uber fiinf Millionen Juden ermordet'. Ernenputsch, here, wrongly attributes the exchange to a defence lawyer rather than to Kaul.

200

Notes to Pages

85-89

59. von Lojewski, 'Der Weg zur Menschenvernichtung'. 60. Hachmann, 'Krausnick schildert Phasen der Judenverfolgungen'; BArch Berlin-Lichterfelde, Nachlass Kaul N 2503/198, Bericht iiber den Auschwitz-Prozess - Sitzungstag vom 21.2.64, 22 February 1964. 61. Fritz-Bauer-Institut, Archiv Auschwitz-Prozess 4 Ks 2/63 Gutachten, Protokoll 21 February 1964. 62. BArch Berlin-Lichterfelde, Nachlass Kaul N2503/198, Bericht uber den Auschwitz-Prozess, 29 February 1964. 63. 'Die Polen waren nur Nummern: Sacherverstandiger im AuschwitzProzefi schildert Hitlers Rassenpolitik', Frankfurter Rundschau, 29 February 1964; Ernenputsch, 'Die polnische Intelligenz an Ort und Stelle exekutiert', Frankfurter Allgemeine Zeitung, 29 February 1964. 64. Bericht iiber den Auschwitz-Prozess, 29 February 1964. 65. von Lojewski, '"Fiir Zucht und Ordnung": Gutachter Dr. Broszat berichtet im Auschwitz-Prozefi iiber den Aufbau der Konzentrationslager', newspaper unknown, 22 February 1964. A senior leader of the SS, Theodor Eicke was critical in the development of concentration camps. Becoming commandant of Nazi Germany's first concentration camp, Dachau, in June 1933, Eicke restructured the camp hierarchy, established strict guidelines and prescribed physical punishments for indisrections. The ensuing system of terror became known as the 'Dachau Model', its success led to Eicke's promotion to the position of Inspector of Concentration Camps in May 1934 and the uniform implementation of its rules and structure across the entire concentration camp system. In his Gutachten, Broszat rightly identified Eicke as an influential figure in the evolution of concentration camps. For more detail on Eicke, see Niels Weise, Eicke: eine SS-Karriere zwischen Nervenklinik, KZ-System und WaffenSS (Paderborn, 2013). 66. 'Mulkas Anwalt fordert Einstellung: "Zur Last gelegte Auschwitz-Taten verjahrt". Noch keine Entscheidung', Frankfurter Rundschau, 22 February 1964; 'Hofi-Adjutant Mulka im Gerichtssaal verhaftet: der Stellvertreter des Auschwitz-Kommandanten unter Mordverdacht. Jetzt wieder 22 Angeklagte vor Gericht', Frankfurter Rundschau, 22 February 1964; 'Von Arbeits- zu Vernichtungslagern', Oberhessische Presse, 21 February 1964; '"Mitleid ist fehl am Platz'", Der Welt, 22 February 1964. 67. '"Mitleid ist fehl am Platz"'. 68. Ernenputsch, 'KZ-Haftlinge fiir vier und sechs Mark pro Tag verkauft', Frankfurter Allgemeine Zeitung, 23 February 1964. 69. Ibid. 70. Ibid. 71. Ibid. 72. See footnote 63 in this chapter.

Notes to Pages 90-94

201

73. 'Die Polen waren nur Nummern'; See also Ernenputsch, 'Die polnische Intelligenz an Ort und Stelle exekutiert\ 74. Bericht iiber den Auschwitz-Prozess, 29 February 1964. 75. Ibid., p. 3. 76. Ibid., pp. 3-4. 77. Ibid., p. 4. 78. Ibid. The Katyn massacre was the execution of approximately 14,500 Polish nationals (comprised of army officers, police and intelligentsia) by Soviet secret police in March and April 1940, following Soviet occupation of the western part of Poland after September 1939. The mass graves, near the forest of Katyn, were discovered by Nazi occupiers in April 1943. Goebbels attempted to use the massacre to propagandistic effect thereafter. It has remained a controversial event in Polish-Soviet relations ever since, with steps made to acknowledge Soviet culpability (and specifically, Stalin's role as authoriser) only since the fall of the Soviet Union. See Anna C. Cienciala, Natalia S. Lebedeva and Wojciech Materski, Katyn: A Crime Without Punishment (New Haven & London, 2007). 79. Bericht iiber den Auschwitz-Prozess, 29 February 1964, p. 4. 80. Fritz-Bauer-Institut, Archiv Auschwitz-Prozess 4 Ks 2/63 Gutachten, Protokoll2July 1964. 81. 'Historiker bejaht Mitschuld der SS an Verbrechen: Hans Buchheim als Gutachter im Auschwitz-Prozefi. Freiwilliger Eintritt schliefit Befehlsnotstand aus', Frankfurter Rundschau, 3 July 1964; Bernd Naumann, Auschwitz: Bericht iiber die Strafsache gegen Mulka und andere vor dem Schwurgericht Frankfurt (Frankfurt am Main, 1965). Here pp. 243-9. 82. BArch Berlin-Lichterfelde, Nachlass Kaul N 2503/683, Kamaraderie und Weltanschauung: Impressionen vom Auschwitz-Prozess, undated. 83. 'Sie wufiten, dafi sie Unrecht taten. Gutachter: Kein Befehlsnotstand fur KZ-Bewacher', Frankfurter Neue Presse, 3 July 1964. 84. Ibid. 85. See, respectively, Ibid; Naumann, 'Fuhrerbefehle waren nicht rechtsverbindlich', Frankfurter Allgemeine Zeitung, 3 July 1964; and 'Die Verbrechen des Hitler-Regimes', Neue Zurcher Zeitung, 4 July 1964. 86. Fritz-Bauer-Institut, FAP1/HA101, Protokoll 14 August 1964. 87. Fritz-Bauer-Institut, Archiv Auschwitz-Prozess 4 Ks 2/63 Gutachten, Letter and Gutachten from Heinrich Uhlig to Oberstaatsanwalt beim Landesgericht Frankfurt, 15 April 1963; von Lojewski, 'Der Weg zur Menschenvernichtung'. 88. Karl Dietrich Bracher, Manfred Funke and Hans-Peter Schwarz (eds), Deutschland zwischen Krieg und Frieden, Beitrage zur Politik und Kultur im 20. Jahrhundert: Festschrift fiir Hans-Adolf Jacobsen (Diisseldorf, 1991), p. 10. 89. Ibid.

202

Notes to Pages 94-97

90. Fritz-Bauer-Institut, Archiv Auschwitz-Prozess 4 Ks 2/63 Gutachten, Letter from unnamed Staatsanwalt to Jacobsen, 24 June 1964. 91. Ernenputsch, 'Die Beseitigung der jiidischen Intelligenz - fur das Heer unzumutbar', Frankfurter Allgemeine Zeitung, IS August 1964; 'Nur ein Drittel iiberlebte: Vier Millionen kriegsgefangene Sowjetsoldaten fanden den Tod', Frankfurter Rundschau, 15 August 1964; "Hitler forderte "brutalste Gewalt": Sachverstandiger iiber die Ermordung der Kommissare', Frankfurter Neue Presse, 15 August 1964. 92. See, respectively, 'Nur ein Drittel uberlebte'; and 'Hitler forderte "brutalste Gewalt'". 93. 'Hitler forderte "brutalste Gewalt"'. 94. Ibid. 95. The star witness for Kaul, Kuczynski was scheduled to provide his expertise on the role of business conglomerate IG Farben within Monowitz, a labour camp attached to Auschwitz. Kuczynski's testimony was ultimately thrown out of court as 'biased'. See Florian Schmaltz, 'Das historische Gutachten Jiirgen Kuczynskis zur Rolle der I. G. Farben und des KZ Monowitz im ersten Frankfurt Auschwitz-Prozess', in Wojak and Fritz-Bauer-Institut (eds), »Gerichtstag halten iiber uns selbst ... «, pp. 117-40. Kuczynski's Nachlass contains almost no details about his experience in the Auschwitz trial. See Nachlass Kuczynski, Zentral- und Landesbibliothek Berlin. Kuczynski's son, Thomas, confirmed that material his father kept relating to the Auschwitz trial was 'remarkably slim'. Thomas Kuczynski, Personal Correspondence, 13 June 2014. 96. Martin Broszat, 'Juristische und Zeitgeschichtliche Bewaltigung der Vergangenheit (1976)', in Broszat, Graml and Klaus-Dietmar Henke (eds), Nach Hitler: der schwierige Umgang mit unserer Geschichte (Munich, 1987), pp. 42-9. Here p. 48. 97. Ibid., pp. 48-9. 98. Hessisches Hauptstaatsarchiv, Zug. 21/03, ID-NR. 187123, 'Niederschrift iiber die Dritte Arbeitstagung der in der Bundesrepublik mit der Strafverfolgung von NS-Gewaltverbrechen befassten Staatsanwalte in Konstanz vom 27. bis zum 30. September 1966', pp. 173-90. 99. Ibid., p. 187. 100. Buchheim consistently used the term 'introductory course' ('Einfuhrungskursus') to describe his role as an expert witness - both at this meeting of prosecutors in 1966, and in a 1999 article. See Buchheim and Graml, 'Die funfziger Jahre', p. 74. 101. Hessisches Hauptstaatsarchiv, Zug. 21/03, ID-NR. 187123, Niederschrift iiber die Dritte Arbeitstagung der in der Bundesrepublik mit der Strafverfolgung von NS-Gewaltverbrechen befassten Staatsanwalte in Konstanz vom 27. bis zum 30. September 1966, p. 187. 102. Ibid.

Notes to Pages 97-106

203

103. 104. 105. 106.

Ibid., pp. 187-8. Ibid., p. 190. Ibid. Helen Hornbeck Tanner, 'History vs. The Law: Processing Indians in the American Legal System', University of Detroit Mercy Law Review, 76 (1998-9), pp. 693-708. Here p. 694. 107. Buchheim, Personal Correspondence, 14 January 2014.

CHAPTER 4 JUDGEMENT DAY: HOFMEYER REACHES A VERDICT 1. 2. 3. 4. 5.

6. 7. 8. 9. 10. 11. 12. 13.

Fritz-Bauer-Institut, FAP/StA I, Grofimann Pladoyer. Ibid., pp. 12-13. Ibid., pp. 29, 30. Ibid., p. 48. '160. Verhandlungstag, 20.5.1965 Pladoyer des Nebenklagevertreters Kaul zu Mulka, Hocker, Klehr', Fritz-Bauer-Institut, www.auschwitzprozess.de/index.php?show=RA-Kaul_Plaedoyer_zu_Mulka_Hoecker_ und_Klehr (accessed 28 January 2018). Ibid. Ibid. Ibid. Ibid. Ibid. Ibid. Ibid. Ibid.

14. Bundesarchiv (hereafter BArch) Berlin-Lichterfelde, Nachlass Kaul N 2503/1664, Das Auftreten des Rechtsanwalts Dr Hans Laternser Frankfurt/M. im Auschwitz-Prozess, undated, pp. 1, 5, 6. 15. Hans Laternser, Die undere Seite im Auschwitz-Prozess 1963/65: Reden eines Verteidigers (Stuttgart, 1966), p. 82. 16. Das Auftreten des Rechtsanwalts Dr Hans Laternser, pp. 82, 83. 17. Laternser, Die andere Seite, p. 83. 18. '163. Verhandlungstag, 31.5.1965 Pladoyer des Verteidigers Eggert fur Mulka, Hocker', Fritz-Bauer-Institut, www.auschwitz-prozess.de/download.php?file=RA-Eggert_Plaedoyer_fuer_Mulka_und_Hoecker.pdf (accessed 28 January 2018), p. 20. 19. Fritz-Bauer-Institut, FAP1HA153, Urteilsbegnindung, 19/20 August 1965. 20. Ibid. 21. Rudolf Hofi, Kommandant in Auschwitz: autobiographische Aufzeichnungen (Stuttgart, 1958). 22. Laternser, Die andere Seite, p. 84.

204

Notes to Pages

106-110

23. 'Urteil des Landgerichts Frankfurt am Main in der Strafsache gegen Mulka und andere vom 19./20. August 1965', in Raphael Gross and Werner Renz (eds), Der Frankfurter Auschwitz-Prozess (1963-1965): Kommentierte Quellenedition, Vol. 2 (Frankfurt am Main, 2013), pp. 575-1236. This published version contains annotations indicating where the original judgement's page numbers had been. The first part of the judgement, outlining historical context, runs from pages 9 to 89 in the original. The first section was titled The Establishment and Development of the Concentration Camp in the Nazi State' ('Die Einrichtung und Entwicklung der Konzentrationslager im NS-Staat'), and ran from pp. 9-22 in the judgement (pp. 593-602 in the published version). The second section was titled The Auschwitz Concentration Camp' ('Das Konzentrationslager Auschwitz'), and ran from pp. 23-89 in the judgement (pp. 603-49 in the published version). 24. Ibid., p. 85 in original judgement (p. 646 in the published version). 25. ibid., pp. 9-22 (published version pp. 593-602). 26. Ibid. pp. 23-89 (published version pp. 603-49); Fritz-Bauer-Institut, Anklageschrift (pp. 109-310), Auschwitz-Prozefi 4 Ks 2/63, 16 April 1963, pp. 162-85. 27. 'Urteil des Landgerichts Frankfurt am Main in der Strafsache gegen Mulka und andere vom 19./20. August 1965', pp. 67-72 (published version pp. 633-7). 28. Before the Reichstag on 30 January 1939, six years after the Nazis came to power, and in the midst of international tensions over Hitler's expansionist ambitions, Hitler declared himself a 'prophet', and threatened that 'if the international Jewish financiers in and outside Europe should succeed in plunging the nations once more into a world war, then the result will not be the Bolshevisation of the earth, and thus the victory of Jewry, but the annihilation of the Jewish race in Europe!'. As historical evidence, this 'prophecy' has been interpreted variously as clear evidence of Hitler's genocidal intentions prior to the commencement of war in Europe, or alternately as propagandistic bluster in which 'annihilation' likely referred to forced emigration from Europe rather than mass murder. For a balanced view, see Ian Kershaw, Hitler, the Germans, and the Final Solution (New Haven & London, 2008), pp. 104-11. 29. Ibid., p. 78 (published version p. 641). 30. Wolfgang Scheffler, 'NS-Prozesse als Geschichtsquelle: Bedeutung und Grenzen ihrer Auswertbarkeit durch den Historiker' in Werner Bergmann, Scheffler (eds), Lerntag iiber den Holocaust als Thema im Geschichtsunterricht und in der politischen Bildung (Berlin, 1988), pp. 13-27. Here p. 17.

Notes to Pages 110-115

205

31. Dirk de Mildt, In the Name of the People: Perpetrators of Genocide in the Reflection of their Post-War Prosecution in West Germany. The 'Euthanasia' and 'Aktion Reinhard' Trial Cases (The Hague, 1996), p. 45. 32. Michael Stolleis, 'Der Historiker als Richter - der Richter als Historiker', in Norbert Frei, Dirk van Laak and Stolleis (eds), Geschichte vor Gericht: Historiker, Richter und die Suche nach Gerechtigkeit (Munich, 2000), pp. 175-82. Here pp. 176-7. 33. Renz, 'Der 1. Frankfurter Auschwitz-Prozess 1963-1965 und die deutsche Offentlichkeit: Anmerkungen zur Entmythologisierung eines NSGVerfahrens', in Jorg Osterloh and Clemens Vollnhals (eds), NS-Prozesse und deutsche Offentlichkeit: Besatzungszeit, fruhe Bundesrepublik und DDR (Gottingen, 2011), pp. 349-62. Here p. 358. 34. The specific expert is Dr Helmut Lechler, whose opinion related to the defendants Stark and Schoberth. According to Pendas, both spent a period in Auschwitz during which they were considered juveniles. See Devin Pendas, The Frankfurt Auschwitz Trial 1963-65: Genocide, History and the Limits of the Law (Cambridge, 2006), p. 102. 35. Hans Hofmeyer, 'Prozefirechtliche Probleme und praktische Schwierigkeiten bei der Durchfuhrung der Prozesse', in Standige Deputation des Deutschen Juristentages (ed.), Probleme der Verfolgung und Ahndung von nationalsozialistischen Gewaltverbrechen, Verhandlungen des 46. Deutschen Juristentages Essen 1966, Vol. 2, Part C (Munich & Berlin, 1967), pp. 38-44. References here to Matthias Meusch, Von der Diktatur zur Demokratie: Fritz Bauer und die Aufarbeitung der NS- Verbrechen in Hessen (1956-1968) (Wiesbaden, 2001), pp. 196-8. 36. Specifically, Rebecca Wittmann, who has claimed on more than one occasion that Anatomy 'had as its blueprint the Auschwitz Trial indictment', see Rebecca Wittmann, Beyond Justice: The Auschwitz Trial (Cambridge, 2005), p. 106. The historical record on this point suggests that the indictment and expert reports were drafted independently of each other. See Renz, 'Auschwitz vor Gericht: Zum 40. Jahrestag des ersten Frankfurter Auschwitz-Prozesses', Hefte von Auschwitz, 24 (Oswiecim, 2009), pp. 191-299. Here p. 214. Correspondence between Prosecutor Vogel and Joint Plaintiff Henry Ormond on 20 August 1963 - four months after the indictment was lodged supports this point. Vogel listed the topics of the Gutachten that had been requested, and noted that '[u]p to now the writing of the above-mentioned Gutachten has not yet been finalised/ FritzBauer-Institut, Archiv Auschwitz-Prozess 4 Ks 2/63 Gutachten, Letter from Staatsanwalt Vogel to Rechtsanwalt Henry Ormond, 20 August 1963.

206 CHAPTER 5

Notes to Pages 117-119 PUBLISHING ANATOMY: GUTACHTENTO

CHAPTERS

1. Requests for Gutachten copies began almost immediately after the historians gave their testimony; see IfZ, ID 103/113, Letter from Helmut Krausnick to Horst Dieter Steinwart, 6 March 1964; Ruth Levine, 6 March 1964; Johannes Weidenheim, 13 March 1964; Hans Lennartz, 16 March 1964; Hermann Langbein, 8 April 1964; Inge Deutschkron, 9 April 1964; Dr J. Lessor, 9 April 1964; and IfZ, ID 50/178, Letter from Martin Broszat to Hans-Dieter Muller, 10 April 1964; L. Schirilla, 10 April 1964; Manfred Bornemann, 29 April 1964; Walter Hammer, 29 April 1964; and IfZ, ID 103/111 Manfred Wolfson, 19 August 1964. 2. Norbert Frei, 'Der Frankfurter Auschwitz-Prozefi und die deutsche Zeitgeschichtsforschung', in Fritz-Bauer-Institut (ed.), Auschwitz: Geschichte, Rezeption und Wirkung (Frankfurt am Main & New York, 1996) pp. 123-38. Here pp. 130-1, 133. Frei received these circulation figures from Dr Walter Kumpmann, publisher Deutscher Taschenbuch Verlag, on 27 October 1993. On 1 March 1964 - mere days after Buchheim, Broszat and Krausnick gave evidence - the book's ultimate publisher, Walter-Verlag, wrote to Krausnick, and reiterated the financial arrangement: Krausnick, Broszat and Buchheim would each receive 7.5% of total amounts from book sales, a figure that equated to 4000 Deutschmarks each for the first print-run alone, and a deal that would continue for the life of Anatomy. With 50,000 copies sold (at least), this is an extraordinary sum of money for the time, and one that was paid directly to the historians - not to the Institute. See IfZ, ID 103/109, Letter from Hans Dieter Muller to Helmut Krausnick, dated 1 March 1964. 3. IfZ, ID 50/178, Letter from Broszat to Fritz Epstein, 10 April 1964. 4. IfZ, ID 50/178, Letter from Broszat to Siegfried Rosenzweig, 27 April 1964. 5. Broszat's response to Dr L. Schirilla noted there were 'practically no surplus copies' available, that the Gutachten 'could not be written out again', and preferred the High Commissioner to wait. 6. It is worth noting that at this meeting Bauer flagged historians' involvement in four other trials. In fact, it was anticipated that the first of these trials would take place not against Auschwitz personnel, but perpetrators of the so-called Nazi 'euthanasia' programme - which saw the mass murder of individuals with perceived intellectual and physical disabilities - and would commence in January or February 1963. See 'Vermerk iiber eine Besprechung', 8 November 1962, pp. 6-7. 7. The minutes from this meeting between the Fischer and IfZ historians is available online at www.perlentaucher.de/cdata/K5/T29/A10155/hilberg-vortrag-und-dokumente.pdf (accessed 28 January 2018), on page 26. On a side note, this document forms part of a brief of evidence presented by controversial German historian-cum-journalist Gotz Aly against the IfZ at an international conference that took place on

Notes to Pages 119-122

8.

9. 10. 11.

12. 13. 14.

15. 16.

207

18 October 2017 in Berlin. Titled 'How and Why the Institut fur Zeitgeschichte Thwarted the Translation of Hilberg in 1964 and 1980' ('Wie und warum das Institut fiir Zeitgeschichte 1964 und 1980 die Ubersetzung des Hilberg hintertrieb'), Aly's paper alleges, among other things, that the IfZ was at least partly motivated by antisemitism in its decision not to recommend the translation of Hilberg's 1961 pioneering work The Destruction of the European Jews in the 1960s. Further investigation reveals the flaws in Aly's argument. See Mathew Turner, 'Historians' Disgrace?', Inside Story, http://insidestory.org.au/historians-disgrace (14 November 2017 (accessed 28 January 2018)). IfZ, ID 103/109, Letter from Hans-Dieter Miiller to Krausnick, 1 March 1964. Further details on Miiller are available at 'Hans-Dieter Miiller', Friedrich-Ebert-Stiftung, www.fes.de/archiv/adsd_neu/inhalt/nachlass/ nachlass_m/mueller-ha.htm (undated (retrieved 28 January 2018)). IfZ, ID 103/109, Letter from Felix Berner to Krausnick, 24 July 1964. The subject heading of this letter is Gutachtenband (4Gutachten volume'). IfZ, ID 103/109, Letter from Felix Berner to Krausnick, 14 August 1964. Ibid. Berner, further, informs Krausnick that had his office been aware of the plan to publish with Walter-Verlag at an earlier stage, it would 'certainly have been possible' for it to be 'redirected' to them for publication. Berner also takes the opportunity to reiterate the value he places in his company's ongoing relationship with the IfZ, understandably fearing this singular defection to Walter-Verlag would set an unfavourable trend for the future. IfZ, ID 50/178, Letter from Broszat to Miiller, 10 April 1964. Ibid. Broszat, Hans Buchheim, Hans-Adolf Jacobsen and Krausnick, Anatomy of the 55 State (London, 1968). Here p. 399. For the most recently published version of the original German text see Broszat, Buchheim, Jacobsen, Krausnick, Anatomie des SS-Staates (Munich, 2005), p. 323. Broszat, Buchheim, Jacobsen, Krausnick, Anatomie des SS-Staates (Munich, 2005), p. 323. As previously indicated, Anatomy was published originally in two volumes, the first of which encompassed Buchheim's two Gutachten, and was prefaced by his introduction. With the subsequent publication of a single volume, Buchheim's initial introduction served to preface the entire work, though it is not clearly attributed to him (see, for example, Irmtrud Wojak, 'Herrschaft der Sachverstandigen? Zum ersten Frankfurter Auschwitz-Prozefi', Kritische Justiz, 32/4 (1999), pp. 605-16. Here p. 607). This has led some scholars to ascribe the introduction to Broszat. In 2000, Buchheim wrote to the Fritz-Bauer-Institut's archivist, Werner Renz, confirming his authorship: T imagine (although after more than

208

17.

18. 19. 20. 21.

22. 23.

24. 25. 26. 27.

28. 29.

30.

Notes to Pages 122-127 35 years am not quite certain) that I wrote it/ See Fritz-Bauer-Institut, Archiv Auschwitz-Prozess 4 Ks 2/63 Gutachten, Letter from Buchheim to Renz, 7 September 2000. See Buchheim, Anatomie des SS-Staates Band 1. Die SS - das Herrschaftsinstrument. Befehl und Gehorsam (Munich, 1965), pp. 6-8. This English translation is derived from Broszat, Buchheim, Jacobsen and Krausnick, Anatomy of the SS State, pp. xiii-xv. Vierteljahrshefte fur Zeitgeschichte, 14/3 (July 1966), back cover. Buchheim, Anatomie des SS-Staates Band 1. Broszat, Jacobsen, Krausnick, Anatomie des SS-Staates Band 2. Konzentrationslager. Kommissarbefehl. Judenverfolgung (Munich, 1965). Broszat, Buchheim, Jacobsen, and Krausnick, Anatomie des SS-Staates (Munich, 1994); Broszat, Buchheim, Jacobsen and Krausnick, Anatomie des SS-Staates (Munich, 2005). It is common for Buchheim's name to be listed first on the cover of single editions, possibly as a legacy of the book's previous incarnations as a two-volume set, with Buchheim as the sole author of volume one. IfZ, ID 34/4, Rhein-Neckar-Zeitung, 4 June 1965. Frank Esser and Uwe Hartung, 'Nazis, Pollution, and No Sex: Political Scandals as a Reflection of Political Culture in Germany', The American Behavioral Scientist, 47/8 (2004), pp. 1040-71. Here p. 1051. IfZ, ID 34/4, 'Programme', Der Spiegel, 12 August 1965. IfZ, ID 34/4, 'Anatomie eines Massenmordes', newspaper unknown, 20 October 1965. Jiirgen Kramer, 'Wo soldatische Tradition auf die schiefe Ebene gerat', Schwarzwdlder Bote, 20 November 1965. Dietrich Strothmann, 'Baedeker der Barbarei: Gutachten, die geschichtliche Bedeutung behalten', Die Zeit, 10 December 1965. Strothmann was also present at the trial in January 1964, and wrote an extensive report for Die Zeit See Strothmann, 'Hinter verhangenen Fenstern: ein Tag im Auschwitz-ProzeE', Die Zeit, 31 January 1964. Strothmann, 'Baedeker der Barbarei'. The German Criminal Code, which had remained in place since German unification in 1871 and throughout the Nazi period, contained a 20-year statute of limitations for the crime of murder. Effectively, by 1965 any offences committed prior to the end of World War II in Europe (8 May 1945) would be exempt from prosecution. In March 1965, the Bundestag (German Parliament) engaged in a fierce and public debate on the question of an amnesty - one that ultimately led to an extension of the statute until 31 December 1969, at which time a further debate was held, and a further (ten-year) extension effected. See Karl Jaspers, Die Schuldfrage: Fur Vblkermord gibt es keine Verjahrung (Munich, 1979). Kramer, 'Wo soldatische Tradition'.

Notes to Pages 127-137 31. 32. 33. 34. 35.

36.

37. 38. 39. 40.

209

Ibid. Ibid. 'Die Wahrheit iiber Auschwitz', Suddeutsche Zeitung, 28 October 1965. Kramer, 'Wo soldatische Tradition'. With respect to Buchheim's chapter on 'superior orders', for example, Strothmann claimed that it would 'form the basis for every discussion on the willingness of people to become murderers'. Strothmann, 'Baedeker der Barbarei'. 'Organisation und Geist der SS: Gutachten im Frankfurter AuschwitzProzefi', Erlanger Tagblatt, 9 October 1965; 'Anatomie eines Massenmordes'. 'Auschwitz', Christ und Welt, 26 November 1965. Gunther Bortsch, 'Anatomie des SS-Staates', Das Parlament, 11 May 1966. Ibid. See for example, ibid., in which Bortsch notes that although the role of the Nazi Party itself was 'minimised' in Anatomy, 'the contributions are important for research into totalitarianism.'

CHAPTER 6

RESPONDING TO ANATOMY: SCHOLARS REACT

1. IfZ, ID 1/8, Vermerk, 30 March 1965. 2. Ibid. 3. Fritz Fischer, Griff nach der Weltmacht: Die Kriegzielpolitik des kaiserlichen Deutschland, 1914/1918 (Dusseldorf, 1961); David Hoggan, Der erzwungene Krieg: die Ursachen und Urheber des 2. Weltkriegs (Tubingen, 1961). On Fischer see Annika Mombauer, 'Guilt or Responsibility? The Hundred-Year Debate on the Origins of World War I', Central European History, 48/4 (December 2015), pp. 541-64. 4. R. J. Stove, 'A. J. P. Taylor Is History', The American Conservative, www. theamericanconservative.com/articles/a-]-p-taylor-is-history/(12 September 2013 (accessed 28 January 2018)). 5. Irmtrud Wojak, 'Nicolas Berg and the West German Historians: A response to his "handbook" on the historiography of the Holocaust', German History, 22/1 (2004), pp. 101-18. Here p. 107. 6. Ian F. D. Morrow, 'Anatomie des SS-Staates (review)', International Affairs, 42/4 (October 1966), pp. 675-6. 7. Chris Wrigley, A. J. P. Taylor: Radical Historian of Europe (London & New York, 2006). Morrow published a biography on Bismarck in 1943. Morrow, Bismarck (London, 1943). 8. Morrow, 'Anatomie des SS-Staates (review)', pp. 675, 676. 9. Ibid., p. 675. 10. Ibid., pp. 675, 676. 11. Ibid., p. 675.

210

Notes to Pages 137-148

12. Ibid., pp. 675-6. 13. Giinther Dux, 'Anatomie des SS-Staates (review)', Social Research, 33/4 (Winter 1966), pp. 641-4. On Dux see Wolfgang Efibach, 'Laudatio fur Professor Dr. Giinther Dux zu seineim 65. Geburtstag am 23.06.1998', Albert-Ludwigs-Universtitat Freiburg, www.soziologie.unifreiburg.de/ personen/dux/Laudatio-fuer-Professor-Dr-Guenter-Dux-zu-seinem-65Geburtstag-am-23061998 (31 May 1998 (accessed 28 January 2018)). 14. Dux, 'Anatomie des SS-Staates (review)', p. 644. 15. Ibid., p. 641. 16. Ibid. 17. Ibid., pp. 641, 643. 18. Hans Herzfeld, 'Germany: After the Catastrophe', Journal of Contemporary History, 2/1 (January 1967), pp. 79-91. 19. Irene Meichsner, 'Leitfigur einer Historikergeneration', Deutschlandradio Kultur, www.deutschlandradiokultur.de/leitfigur-einer-historikergeneration.932.de.html?dram:article_id= 129708 (16 May 2007 (accessed 28 January 2018)). 20. Herzfeld, 'Germany: After the Catastrophe', p. 83. 21. Martin Broszat, Hans Buchheim, Hans-Adolf Jacobsen and Helmut Krausnick, Anatomy of the SS State (London, 1968). 22. Merle Rubin, 'Memoir Explores One Man's Flight From Anti-Semitism' Los Angeles Times, http://articles.latimes.com/2002/jun/10/news/ lv-bookslO (10 June 2002 (accessed 28 January 2018)). 23. Reuben Ainsztein, 'Review of Anatomy of the SS State', International Affairs (Royal Institute of International Affairs 1944-), 45/2 (April 1969), pp. 290-1. Here p. 290. 24. Ibid. 25. Ibid. 26. Brian Chapman, 'Himmler's Apparat', Government and Opposition, 4/3 (1969), pp. 399-411. Here p. 403; Michael R. D. Foot, 'The Anatomy of the SS State', English Historical Review, 86/338 Qanuary 1971), p. 210. CHAPTER 7 RECEIVING ANATOMY: HOW THE BOOK MADE HISTORY 1. '166. Verhandlungstag, 10.6.1965 Pladoyer des Verteidigers Laternser', www.auschwitz-prozess.de/download.php7file =RA-Laternser_Plaedoyer. pdf (undated (accessed 28 January 2018)). 2. See for example Karl A. Schleunes, The Twisted Road to Auschwitz: Nazi Policy Toward German Jews, 1933-1939 (Urbana, 1970); Ian Kershaw, Popular Opinion and Political Dissent in the Third Reich, Bavaria, 1933-1945 (Oxford, 1983). Kershaw's well-known quote from this book (p. 277) is: 'The road to Auschwitz was built by hate, but paved by indifference.'

Notes to Pages 149-151

211

3. Though each continued to make contributions to general research on Nazism. For details on Buchheim, see Christl Blank and Oscar W. Gabriel, 'Vorwort', in Gabriel, Ulrich Sarcinelli, Berhard Sutor and Bernhard Vogei (eds), Der demokratische Verfassungsstaat: Theorie, Geschichte Probleme. Festschrift fur Hans Buchheim zum 70. Geburtstag (Munich, 1992), pp. v-vi. Here p. v. Buchheim advises Krausnick of his appointment to the Universitat Mainz on 25 July 1966. See IfZ, ID 103/119, Letter from Hans Buchheim to Helmut Krausnick, 25 July 1966. 4. Martin Broszat, Der Stoat Hitlers: Grundlegung und Entwicklung seiner inneren Verfassung (Munich, 1969), p. xiv. In 1972, at the age of 46, Broszat became director of the IfZ. In 2002, it came to light that Broszat (who passed away in 1989) may have applied to join the Nazi Party in 1944, sparking a controversial discussion of his legacy. See Nicolas Berg, Der Holocaust und die westdeutschen Historiker: Erforschung und Erinnerung (Gottingen, 2003). The counter-response was equally swift: Norbert Frei, 'Mitlaufergeschichten? Heute erscheint Nicolas Bergs Studie iiber die NS-Deutungen deutscher Zeithistoriker', Suddeutsche Zeitung, 8 May 2003, p. 16; Kershaw, 'Beware the moral high ground', Historisches Forum, 2 (2004); Alan E. Steinweis, 'West German Zeitgeschichte and the Holocaust: The Importance of an International Context', Historisches Forum, 2 (2004). 5. English quotes are derived from Broszat, Buchheim, Hans-Adolf Jacobsen and Krausnick, Anatomy of the SS State (London, 1968). Here p. 484. Original German is derived from Broszat, Buchheim, Jacobsen and Krausnick, Anatomie des SS-Staates (Munich, 2005). Here p. 422. 6. Broszat, Buchheim, Jacobsen and Krausnick, Anatomie des SS-Staates, (Munich, 2005), p. 429. Translated text on p. 491 of Anatomy of the SS State. 7. Broszat, Buchheim, Jacobsen and Krausnick, Anatomie des SS-Staates (Munich, 2005), p. 397. Translated text on p. 463 of Anatomy of the SS State. 8. Broszat, Buchheim, Jacobsen and Krausnick, Anatomie des SS-Staates (Munich, 2005), p. 41. Translated text on pp. 474-5 of Anatomy of the SS State. 9. Broszat, Buchheim, Jacobsen and Krausnick, Anatomie des SS-Staates (Munich, 2005), p. 412. Translated text on p. 476 of Anatomy of the SS State. 10. Coming under scrutiny in particular are historians Eberhard Jackel and Lucy Dawidowicz, and their respective works: Eberhard Jackel, Hitlers Weltanschauung (Tubingen, 1969); Lucy Dawidowicz, The War Against the Jews, 1933-1945 (New York, 1975). 11. Broszat, 'Hitler und die Genesis der "Endlosung": Aus Anlafi der Thesen von David Irving', Vierteljahrshefte fur Zeitgeschichte, 25/4 (1977), pp. 739-75. 12. Ibid., p. 756. 13. Ibid., pp. 755, 756.

212

Notes to Pages 152-154

14. Ibid., pp. 752-3. 15. Ian Kershaw described his impressions of a major conference held at the Cumberland Lodge (near London) in 1979, attended by 'practically all key German and British historians of the Third Reich', including Broszat. The exchanges between participants were, in Kershaw's words, 'heated, uncompromising and sharply polarized'. See Kershaw, The Nazi Dictatorship: Problems and Perspectives of Interpretation (London & New York, 2000), pp. 1-2. The debate proved to be a divisive contest, the heat of which only started to dissipate once historians positioned outside the cut and thrust of the original disagreement - mostly non-Germans - began to develop more synthesised historical accounts and find common ground between the two positions. See, for example, Christopher Browning, Fateful Months: Essays on the Emergence of the Final Solution (New York, 1985). An early German work of a synthesised (intentionalist) position is Peter Longerich, Die Ermordung der europaischen Juden: eine umfassende Dokumentation des Holocaust 1941-1945 (Munich, 1989). 16. Jackel and Jiirgen Rohwer (eds), Der Mord an den Juden im Zweiten Weltkrieg: Entschlussbildung und Verwirklichung (Stuttgart, 1985). 17. Sybille Steinbacher, 'Martin Broszat und die Erforschung der nationalsozialistischen Judenpolitik', in Frei (ed.), Martin Broszat, der 'Staat Hitlers' und die Historisierung des Nationalsozialismus (Gottingen, 2007), pp. 130-45. Here p. 131. 18. Ibid. 19. Ibid. 20. One of Broszat's most virulent opponents, Eberhard Jackel, in thanking Broszat at the end of the conference conceded that his fellow historian had not 'had an easy time of it'. See 'Allegemeine Schlufidiskussion' in Jackel and Rohwer (eds), Der Mord an den Juden im Zweiten Weltkrieg, pp. 225-47. Here p. 246. 21. Ibid., p. 240. 22. Krausnick, 'Hitler und die Befehle an die Einsatzgruppen im Sommer 1941', in Jackel and Rohwer (eds), Der Mord an den Juden, pp. 88-106. 23. Broszat, Buchheim, Jacobsen and Krausnick, Anatomy of the SS State, p. 60. Original text in Broszat, Buchheim, Jacobsen and Krausnick, Anatomie des SS-Staates (Munich, 2005), p. 609. 24. Krausnick and Hans-Heinrich Wilhelm, Die Truppe des Weltanschauungskrieges (Stuttgart, 1981). A 1977 article published in the Vierteljahrshefte mounts a similar argument. See Krausnick, 'Kommissarbefehl und "Gerichtsbarkeitserlass Barbarossa" in neuer Sicht', Vierteljahrshefte fur Zeitgeschichte, 25/4 (October 1977), pp. 682-738. Krausnick's 1981 book, however, was by far his most famous work, and acted to challenge the prevailing myth that the Wehrmacht had not been involved in mass killings. In the view of Benjamin Hett, Krausnick's past membership of

Notes to Pages 154-157

25.

26. 27. 28. 29. 30. 31. 32. 33. 34. 35.

213

the Nazi Party was used against him on at least one occasion, in which author Fritz Tobias allegedly threatened to make this knowledge very public if Krausnick refused to vindicate Tobias's research findings in relation to the burning of the Reichstag. The relevant works are, respectively Benjamin Hett, Burning the Reichstag: An Investigation into the Third Reich's Enduring Mystery (New York, 2013); and Fritz Tobias, Der Reichstagsbrand: Legende und Wirklichkeit (Baden, 1962). Krausnick passed away in January 1990, just three months after Broszat. Incredibly, over 26 years later, Buchheim and Jacobsen passed away within one month of each other, in November and December 2016, respectively. See 'Univ.Prof. Dr. Hans Buchheim', Johannes Gutenberg Universitat Mainz, https://innen.politik.uni-mainz.de/personal/univ-prof-dr-hans-buchheim/ (undated (accessed 29 January 2018)); Ludger Kuhnhardt, 'Zum Tod von Hans-Adolf Jacobsen: Militarisch fur den Frieden', Frankfurter Allgemeine, www.faz.net/aktuell/feuilleton/debatten/zum-tod-des-politologen-hans-adolf-jacobsen-14572845.html (14 December 2016 (accessed 29 January 2018)). Krausnick, 'Hitler und die Befehle an die Einsatzgruppen', p. 103. Heavily reliant on the postwar testimonies of high-ranking Einsatzgruppen leaders and other functionaries, including at the Ulm trial, Krausnick's position has been criticised by a number of historians. They counter-argue that claims of a general extermination order prior to the June 1941 invasion of the Soviet Union were nothing but a legal strategy employed by those facing prosecution, and should not be trusted. See Alfred Streim, 'The Tasks of the SS Einsatzgruppen', Simon Wiesenthal Annual, 4/9 (1987). Browning condemns both approaches as futile. See Browning, 'The Nazi Decision to Commit Mass Murder: Three Interpretations. The Euphoria of Victory and the Final Solution', German Studies Review, 17/3 (October 1994), pp. 473-81. Here pp. 474, 480. Broszat, 'Genesis der "Endlosung"', pp. 752-3. Andreas Hillgruber, Hitlers Strategie: Politik und Kriegsfuhrung 1940-41 (Frankfurt am Main, 1965), pp. 530-1. Karl Dietrich Bracher, Die deutsche Diktatur: Entstehung, Struktur, Folgen des Nationalsozialismus (Cologne, 1969), p. 387. Ibid., pp. 380-93. These pages contain various references to Anatomy. Ibid., pp. 396-400. Uwe Dietrich Adam, Judenpolitik im Dritten Reich (Diisseldorf, 1972), pp. 103, 249, 256-7, 305, 310. Ibid., p. 357. Dawidowicz, The War Against the Jews, pp. 81, 108, 134. Ibid., p. xix. See also pp. 126, 142. Albrecht Gotz von Olenhusen, 'Die "nichtarischen" Studenten an den deutschen Hochschulen: Zur nationalsozialistischen Rassenpolitik

214

Notes to Pages

157-158

1933-1945', Vierteljahrshefte fur Zeitgeschichte, 14/2 (April 1966), pp. 175-206; Michael H. Kater, 'Die Ernsten Bibelforscher im Dritten Reich', Vierteljahrshefte flir Zeitgeschichte, 17/2 (April 1969), pp. 181-218; Louis de Jong, 'Die Niederlande und Auschwitz', Vierteljahrshefte fur Zeitgeschichte, 17/1 (January 1969), pp. 1-16. The first article to appear was Giinther Plum, 'Staatspolizei und innere Verwaltung 1934-1936', Vierteljahrshefte fur Zeitgeschichte, 13/2 (April 1965), pp. 191-224. Other articles appearing in the Vierteljahrshefte that drew on Anatomy included: H. Peter Krosby and George H. Stein, 'Das finnische Freiwilligen-Bataillon der Waffen-SS: Eine Studie zur SS-Diplomatie und zur auslandischen Freiwilligen-Bewegung', Vierteljahrshefte fur Zeitgeschichte, 14/4 (October 1966), pp. 413-53; Hans Mommsen, 'Ein Erlafi Himmlers zur Bekampfung der Korruption in der inneren Verwaltung vom Dezember 1944', Vierteljahrshefte fur Zeitgeschichte, 16/ 3 (July 1968), pp. 195-309; Volker R. Berghahn, 'NSDAP und "Geistige Fuhrung" der Wehrmacht 1939-1943', Vierteljahrshefte fur Zeitgeschichte, 17/1 (January 1969), pp. 17-71; Hans Rothfels, 'Zur 25. Wiederkehr des 20. Juli 1944', Vierteljahrshefte fur Zeitgeschichte, 17/2 (July 1969), pp. 237-53; KlausJurgen Miiller, 'Zu Vorgeschichte und Inhalt der Rede Himmlers vor der hoheren Generalitat am 13. Marz 1940 in Koblenz', Vierteljahrshefte fur Zeitgeschichte, 18/1 Qanuary 1970), pp. 95-120; Ger van Roon, 'Graf Moltke als Volkerrechtler im OKW, Vierteljahrshefte fur Zeitgeschichte, 18/1 (January 1970), pp. 12-61. 36. Herbert S. Levine, 'Authority and the SS State: The Conflict over Population Policy in Danzig-West Prussia, 1939-1945', Central European History, 2/4 (December 1969), pp. 331-55; Peter Loewenberg, 'The Unsuccessful Adolescence of Heinrich Himmler', The American Historical Review, 76/3 Qune 1971), pp. 612-41; Charles W. Sydnor Jnr., 'The History of the SS Totenkopfdivision and the Postwar Mythology of the Waffen SS', Central European History, 6/4 (December 1973), pp. 339-62. Sydnor describes Anatomy as no less than 'a brilliant and powerful compendium and by far the most authoritative analysis of the SS that has yet appeared', p. 340. See also Lawrence D. Stokes, 'The German People and the Destruction of the European Jews', Central European History, 6/2 (June 1973), pp. 167-91; William Jannen Jnr., 'National Socialists and Social Mobility', Journal of Social History, 9/3 (Spring 1976), pp. 339-66; Wolfgang Wippermann, 'The Post-War German Left and Fascism', Journal of Contemporary History, 11/4 (October 1976), pp. 185-219. 37. Mommsen, 'Ein Erlafi Himmlers'; Miiller, 'Zu Vorgeschichte und Inhalt der Rede Himmlers'; Loewenberg, 'The Unsuccessful Adolescence of Heinrich Himmler'. 38. Christian Streit, Keine Kameraden: Das Wehrmacht und die sowjetischen Kriegsgefangenen 1941-1945 (Stuttgart, 1978).

Notes to Pages 159-167

215

39. Jane Caplan and Nikolaus Wachsmann describe Broszat's chapter in Anatomy as one that 'served as the gold standard of camp studies for several decades.' See Jane Caplan and Nikolaus Wachsmann, Concentration Camps in Nazi Germany: the New Histories (London, 2010), p. 4. Sarah Coates identifies Broszat's chapter as one in which 'the organisational history of the concentration camp system was detailed for the first time/ See Sarah Coates, Belsen, Dachau, 1945: Newspapers and the First Draft of History, PhD thesis, Deakin University, 2016. Here p. 14. 40. Michael Berenbaum and Yisrael Gutman (eds), Anatomy of the Auschwitz death camp (Bloomington, 1998), pp. 7-8; Katrin Orth, Das System der nationalsozialistischen Konzentrationslager: eine politische Organisationsgeschichte (Hamburg, 1999). 41. Daniel J. Goldhagen, Hitler's Willing Executioners: Ordinary Germans and the Holocaust (New York, 1996). 42. Browning, Ordinary Men: Reserve Police Battalion 101 and the Final Solution in Poland (New York, 1992). 43. The responses include Norman G. Finkelstein, A Nation on Trial: the Goldhagen Thesis and Historical Truth (New York, 1998); Geoff Eley, The Goldhagen Effect: History, Memory, Nazism. Facing the German Past (Ann Arbor, 2000). 44. Eley, The Goldhagen Effect; Robert Gellately, 'Situating the "SS-State" in a Social-Historical Context: Recent Histories of the SS, the Police, and the Courts in the Third Reich', The Journal of Modern History, 64/2 (June 1992), pp. 338-65. Here, p. 364. 45. Frei, 'Der Frankfurter Auschwitz-Prozefi und die deutsche Zeitgeschichtsforschung', in Fritz-Bauer-Institut (ed.), Auschwitz: Geschichte, Rezeption und Wirkung (Frankfurt am Main & New York, 1996) pp. 123-38. Here p. 131. 46. Torben Fischer and Matthias N. Lorenz, Lexikon der »Vergangenheitsbewdltigung« in Deutschland: Dehatten- und Diskursgeschichte des Nationalsozialismus nach 1945 (Bielefeld, 2007), p. 133. CONCLUSION 1. Irmtrud Wojak, 'Die Verschmelzung von Geschichte und Kriminologie: Historische Gutachten im ersten Frankfurter Auschwitz-Prozefi', in Norbert Frei, Dirk van Laak and Michael Stolleis (eds), Geschichte vor Gericht: Historiker, Richter und die Suche nach Gerechtigkeit (Munich, 2000), pp. 29-45. 2. Richard J. Evans, 'Introduction', Journal of Contemporary History, 39/2 (2004), pp. 163-7. Here p. 166. 3. Douglas R. Littlefield, "The Forensic Historian: Clio in Court', The Western Historical Quarterly, 25/4 (Winter 1994), pp. 507-12. Here pp. 507-508,512.

216

Notes to Pages 168-174

4. Martin Broszat, 'Juristische und Zeitgeschichtliche Bewaltigung der Vergangenheit (1976)', in Broszat, Hermann Graml and Klaus-Dietmar Henke (eds), Nach Hitler: der schwierige Umgang mit unserer Geschichte (Munich, 1987), pp. 42-9. Here p. 46. 5. Ibid. 6. Hans Buchheim, Personal Correspondence, 14 January 2014. 7. Ann Curthoys, Ann Genovese and Alexander Reilly, Rights and Redemption: History, Law and Indigenous People (Coogee, 2008), p. 85. 8. Ibid. 9. 'Auschwitz guard Reinhold Hanning goes on trial in Germany for accessory to over 170,000 murders', ABC News, www.abc.net.au/ news/2016-02-11 /auschwitz-guard-goes-on-trial-in-germany/ 7161748 (11 February 2016 (accessed 28 January 2018)); Melissa Eddy, 'Trial of Reinhold Hanning, Ex-Auschwitz Guard, Opens in Germany', New York Times, www.nytimes.com/2016/02/12/world/europe/reinhold-hanningtrial-auschwitz.html?_r=0 (11 February 2016 (accessed 28 January 2018)); 'Auschwitz trial: Ex-guard Reinhold Hanning in German court', BBC News, www.bbc.com/news/world-europe-35547032 (11 February 2016 (accessed 28 January 2018)); 'Gericht hort im Detmolder AuschwitzProzess weitere Zeugen', Frankfurter Allgemeine Zeitung, www.faz.net/ agenturmeldungen/dpa/gericht-hoert-im-detmoider-auschwitz-prozessweitere-zeugen-14065981.html (12 February 2016 (accessed 28 January 2018)). 10. 'Gerichtsverfahren gegen den ehemaligen SS-Mann Reinhold Hanning', Stiftung Gedenkstatten Buchenwald und Mittelbau-Dora, www.buchenwald.de/en/317/date/2016/06/17/gerichtsverfahren-gegen-den-ehemaligen-ss-mann-reinhold-hanning/ (undated (accessed 28 January 2018)). 11. Hanning was ultimately found guilty of accessory to the murders, and sentenced to five years in prison. He did not serve a day of his sentence, and died in June 2017. Alison Smale, 'Reinhold Hanning, Former Auschwitz Guard Convicted a Year Ago, Dies at 95', New York Times, www.nytimes.com/2017/06/01/world/europe/reinhold-hanning-deadconvicted-auschwitz-ss-guard.html (1 June 2017 (accessed 29 January 2018)). 12. For example, Im Labyrinth des Schweigens (Hamburg, 2014); Der Staatgegen Fritz Bauer (Munich, 2015).

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Interviews Johannes Warlo, 24 May 2014. Gerhard Wiese, 16 September 2014.

Personal Correspondence Hans Buchheim, 14 January 2014. Thomas Kuczynski, 13 June 2014.

Print Media Bauer, Fritz, 'Herrschaft der Sachverstandigen: Eine Untersuchung iiber Schwachen des geltenden Rechts und ihre Auswirkungen', Frankfurter Rundschau, 10 january 1963. Bortsch, Giinther, 'Anatomie des SS-Staates', Das Parlament, 11 May 1966. 'Die Polen waren nur Nummern: Sacherverstandiger im Auschwitz-ProzeB schildert Hitters Rassenpolitik', Frankfurter Rundschau, 29 February 1964. 'Die SS war politische Kadertruppe des Dritten Reiches', Deutsche Presse Agentur, 8 February 1964. 'Die Verbrechen des Hitler-Regimes', Neue Zurcher Zeitung, 4 July 1964. 'Die Wahrheit iiber Auschwitz', Siiddeutsche Zeitung, 28 October 1965. 'Die Zerstorung des Rechtsstaates: Gutachten im Auschwitz-ProzeB iiber die Rolle der SS', Frankfurter Neue Presse, 8 February 1964. 'Dylewski-Verfahren abgetrennt: Hauptverhandlung erst im Frankfurter Auschwitz-ProzeB', Frankfurter Rundschau, 8 February 1964. Ernenputsch, Kurt, 'Uber fiinf Millionen Juden ermordet', Frankfurter Allgemeine Zeitung, 18 February 1964. - - , 'KZ-Haftlinge fiir vier und sechs Mark pro Tag verkauft', Frankfurter Allgemeine Zeitung, 23 February 1964. - - , 'Die polnische 1ntelligenz an Ort und Stelle exekutiert', Frankfurter Allgemeine Zeitung, 29 February 1964. - -, 'Die Beseitigung der jiidischen lntelligenz- fiir das Heer unzumutbar', Frankfurter Allgemeine Zeiturrg, 15 August 1964. Frei, Norbert, 'Mitlaufergeschichten? Heute erscheint Nicolas Bergs Studie iiber die NS-Deutungen deutscher Zeithistoriker', Siiddeutsche Zeitung, 8 May 2003. Hachmann, Horst, 'Krausnick schildert Phasen der Judenverfolgungen: Zweiter Sachverstandiger im Frankfurt Auschwitz-ProzeB. Antisemitismus von Hitler nicht erfunden', Frankfurter Rrmdscl1au, 17 February 1964.

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'Historiker bejaht Mitschuld der SS an Verbrechen: Hans Buchheim als Gutachter im Auschwitz-ProzeB. Freiwilliger Eintritt schlieBt Befehlsnotstand aus', Frankfurter Rundschau, 3 July 1964. 'Hitler forderte "brutalste Gewalt": Sachverstandiger tiber die Ermordung der Kommissare', Frankfurter Neue Presse, 15 August 1964. 'HoB-Adjutant Mulka im Gerichtssaal verhaftet: der Stellvertreter des Auschwltz-Kommandanten unter Mordverdacht. Jetzt wil!der 22 Angeklagte vor Gericht', Frankfurter Rundschau, 22 February 1964. Kramer, Jfugen, 'Wo soldatische Tradition auf die schiefe Ebene gerat', Schwarzwa/der Bote, 20 November 1965. Lojewski, Gunther von, 'Der Historiker vor dem Auschwitz-Tribunal: Dr. Hans Buchheim uber das Prinzip der Fi.ihrergewalt im NS-Staat', Frankfurter Allgemeine Zeitung, 8 February 1964, pp. 18-19. - - , 'Der Weg zur Menschenvernichtung: Sachverstandiger im AuschwitzProzeB zur Judenpolitik der Nazis', Frankfurter Rundschau, 18 February 1964. "'Mitleid ist fehl am Platz"', Der Welt, 22 February 1964. 'Mulkas Anwalt fordert Einstellung: "Zur Last gelegte Auschwitz-Taten verjahrt". Noch keine Entscheldung', Frankfurter Rundschau, 22 February 1964. Naumann, Bernd, 'FuhrerbefehJe waren nicht rechtsverbindlich', Frankfurter Allgemeine Zeitung, 3 July 1964. 'Nicht alle kamen freiwillig', Oberhessische Presse, 8 February 1964. 'Nur ein Drittel iiberlebte: Vier Millionen kriegsgefangene Sowjetsoldaten fanden den Tod', Frankfurter Rundschau, 15 August 1964. 'Organisation und Geist der SS: Gutachten im Frankfurter Auschwitz-ProzeB', Erlanger Tagblatt, 9 October 1965. PfuhJ, Walter, 'Hitler war kein Betriebsunfall der Geschichte', Die Welt, 18 February 1964. 'Sie wuBten, daB sie Unrecht taten. Gutachter: Kein Befehlsnotstand fur KZ-Bewacher', Frankfurter Neue Presse, 3july 1964. Strothmann, Dietrich, 'Hinter verhangenen Fenstern: ein Tag im AuschwitzProzeB', Die Zeit, 31 January 1964. - - , 'Baedeker der Barbarei: Gutachten, die geschichtliche Bedeutung behalten', Die Zeit, 10 December 1965. 'Von Arbeits zu Vemichtungslagern', Oberhessische Presse, 21 February 1964. 'War der Kriegsausbruch nur ein Betriebsunfall?', Der Spiegel, 21 October 1964.

Websites '160. Verhandlungstag, 20.5.1965 Pladoyer des Nebenklagevertreters Kaul zu Mulka, Hocker, Klehr', Fritz-Bauer-Institut, www.auschwitz-prozess.de/ index.php?show=RA-Kaul_Plaedoyer_zu_Mulka_Hoecker_und_Klehr (accessed 28 january 2018). '163. Verhandlungstag, 31.5.1965 Pladoyer des Verteidigers Eggert fiir Mulka, Hocker', Fritz-Bauer-lnstitut, www.auschwitz-prozess.de/download.php?file

220

Historians at the Frankfort Auschwitz Trial

=RA-Eggert_Plaedoyer_fuer_Mulka_und_Hoecker.pdf (accessed 28 january 2018). '166. Verhandlungstag, 10.6.1965 Pladoyer des Verteidigers Latemser', www. auschwitz-prozess.de/download.php?file=RA-Laternser_Piaedoyer.pdf (undated (accessed 28 january 2018)). Aly, Gotz, 'Wie und warum das Institut fur Zeitgeschichte 1964 und 1980 die Obersetzung des Hilberg hintertrieb', www.perlentaucher.de/cdata/I