Atrocities on Trial: Historical Perspectives on the Politics of Prosecuting War Crimes

By Patricia Heberer; Jürgen Matthäus | Go to book overview

Tainted Law
The West German Judiciary and
the Prosecution of Nazi War Criminals

REBECCA WITTMANN

When we think of trials of Nazi criminals, two major proceedings come immediately to mind: the Nuremberg Trial of the Major War Criminals in 1945 and the Eichmann Trial in 1961. Both trials were public affairs, and both affected how the international community deals with war crimes and crimes against humanity now. It is surprising to many to discover that in West Germany an enormous number of Nazi-and regime-supporting defendants were brought to trial—over 6,000, in fact. Many more—about 100,000—were investigated but never tried. The defendants sat in court accused not of crimes against humanity but of regular murder, as defined by the German penal code in 1871. In this essay I would like to shed light on these trials, and particularly on the extraordinary difficulty prosecutors had in bringing former Nazis to trial, in getting them convicted, and, finally, in ensuring that they served their sentences in full.

Focusing on the period between 1960 and 1980, I argue that there was a massive divide between the young and eager prosecutors and the older, more conservative, largely former Nazi judiciary. There is no clear-cut picture of complicit jurists; in nearly every state in West Germany there was a young, committed, and probing prosecution. But they had to work within a system that was defined by the generation of jurists who had come before them and who still wielded extraordinary influence over the West German judicial system; in some states, 100 percent of Nazi judges had maintained or returned to their former posts. These judges sent a message to the public—through their interpretation of the laws—that the Nazi past was being dealt with properly. They developed the notion of the middleman as neutral, and therefore innocent; this representation of Nazi crime, reinforced time and again by trial verdicts, created a society in which there was little public will to punish Nazism fully. This is what Joachim Perels has called a normalization of the ns (Nazi) system from the

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