Indicting Auschwitz? The Paradox of the Frankfurt Auschwitz Trial

During the late 1950s, the German authorities in the publicprosecutor's office of the state of Hesse in Frankfurt beganto organize what would become the Frankfurt Auschwitz Trial1963–5 of twenty people alleged to have been responsiblefor some of the worst crimes at the Auschwitz concentrationcamp. The trial opened with a seven-hundred-page indictment,an extraordinary document that included the testimony of twohundred and fifty-two witnesses (both survivors and former SSofficers) and a two-hundred-page history of the camp writtenby experts. In the mind of its principal organizer, the trialwas to put the entire ‘Auschwitz Complex’ beforethe court. This concept, ‘Auschwitz on trial’, isat the core of German public confrontation with the Nazi pastin the 1960s. But legal constraints, I argue, created the paradoxical situationin which the prosecution initially attempted to put Auschwitzon trial, but instead had to use some of the conventions ofthe Nazi regime in order to show the personal initiative ofthe defendants and convict them of perpetrating murder. By elucidatingthe origins and exigencies of the West German penal code, andby examining both the historical background section and thecharges against the suspects in the 1963 indictment, I showthat the decision to use the German penal code for prosecutingNazi crimes created a paradoxical situation for the state attorney'soffice in Frankfurt: they had to use Nazi orders and regulationsto show that the defendants had acted above and beyond the ordersof the SS in Berlin.     

Politics by other means? The virtual trials of the Khmer Rouge tribunal

This article argues that more emphasis should be placed on the political aspects of international tribunals, which are often in the business of reshaping politics as well as simply administering justice. By examining the hybrid Extraordinary Chambers in the Courts of Cambodia (ECCC), popularly known as the Khmer Rouge Tribunal, the article develops arguments previously advanced by Victor Peskin in respect of Rwanda and the former Yuogoslavia. Peskin has suggested that courtroom war crimes trials are paralleled by ‘virtual trials’, in which international and domestic political actors struggle for power and control over the form and outcome of proceedings. He terms these virtual trials ‘trials of cooperation’, in which governments of states where war crimes have been committed seek variously to help or hinder legal proceedings to address those crimes. Such virtual trials now loom extremely large in the Cambodian case; the Hun Sen government, while exploiting the ECCC to deflect domestic and international attention from the endemic corruption and growing authoritarianism over which it presides, has sought tightly to limit the Tribunal's room for manoeuvre. One trial has been completed, another is about to start, and the international investigators and prosecutors are planning a couple more—but Prime Minister Hun Sen has personally declared his opposition to any further cases going ahead. If the ECCC succeeds in trying only five defendants from the murderous 1975–79 Khmer Rouge regime, justice will not have been done; and wider questions will emerge about the future viability of hybrid tribunals. The Cambodian case demonstrates that where war crimes tribunals are concerned, backroom ‘virtual trials’ need as much academic, policy and media attention as the actual courtroom trials of key defendants.     

'More carrot than stick', British Economic Warfare and Spain, 1941-1944

During the Second World War, economic factors became a centralaspect of Spain's relations to both Britain and Nazi Germany.In 1940, when the Franco regime was on the brink of joiningthe war on the side of the Axis, Britain tried to use Spain’sdependence on imports from the west to convince Franco to retainhis country's neutrality. Although, at the time, British ‘economicappeasement’ was not a major factor in the failure ofGerman-Spanish negotiations, it contributed to Spain's verygradual detachment from Nazi Germany over subsequent years.Between1941 and 1944, the focus of British policy towards Spain movedfrom keeping the country out of the war to restricting the servicesSpain rendered to the German war economy. Franco's sympathiesfor the Nazi regime and the economic and financial benefitsof continuing trade with Germany made British and US economicwarfare activities however only a partial success.     

Sins of memory: reflections on the lack of an Italian Nuremberg and the administration of international justice after 1945

This article reconstructs the history of the major trial that the Allies planned to institute against the entire military command of the Nazi armies operating in Italy from 1943 to 1945. The trial was prepared on the same juridical and technical bases as the Nuremberg Tribunal, but it never took place. The reason was that it would have jeopardized the re-integration of the Federal Republic in the European community, and would also have risked placing the Italian government in the embarrassing position of having the Italian army prosecuted for crimes committed in the countries occupied by the Rome?–?Berlin axis. For those reasons, the trial was abandoned and instead only legal proceedings were taken only for some marginal cases, creating the impression that these were simply isolated cases of individual responsibility. The enigma of this missing trial and an explanation of the limits of international justice can only be understood in terms of the political situation in post-war Europe, the relations between Italy and the Allies and the double game played by the Italian government. These events served, however, to give rise to highly selective memories of totalitarianism and the war.     

Punishing wars of aggression: conceptualising Nazi State criminality and the US policy behind shaping the crime against peace, 1943-1945

This paper refocuses attention on what has been seen as one of the most important limbs of the Nuremberg Charter – the crime against peace, or aggressive war. It looks at the legal and political dimensions that motivated such a characterisation by figures behind the debate, and the various, at times uncertain steps, in bringing forth the designation based on breaches of the Kellogg–Briand Pact within the milieu of other traditional offences. Particular attention is given to the philosophical underpinnings of the crime against peace regarding individual German guilt, notably members of the Nazi leadership, with an examination of influences that proved critical in creating a punishable crime at international law. This paper argues that, despite being of continuing interest to civic groups, such an offence continues to trouble legislators and lawyers, rooted as it is in the focus on war as itself criminal.     

'Away From Tokyo': The Pacific Islands war crimes trials, 1945-1949

Over the years, a certain mantra has arisen in academic circles involving the post-World War II war crimes trials. Nuremberg, it is said, was a needed display of 'allied justice' and 'democratic fair play'. The Tokyo and Pacific region trials were exercises in 'victor's justice' and 'racism'. Accenting the determined, precedent-setting work of the Pacific Islands war crimes trials on Guam, 'Away from Tokyo' argues that justice was served well there. Evil should never go unpunished. Based on archival research at the Micronesian Area Research Center the US Territory of Guam, Stanford University and the Douglas MacArthur Memorial Archives, this paper examines the good work of both the prosecution and defence teams on Guam. Few trial participants viewed their efforts as part of a larger conspiracy of revenge and racism. In fact, that conspiracy never existed. 'Away from Tokyo' attempts to set the record straight, and re-examines some dramatic cases at the same time.     

“I Was Following Orders”: An Ancient Greek Archetype of Modern War Crime Legislation

Abstract

This article discusses Lysias’ Against Eratosthenes as an ancient Athenian instance of the superior orders plea, a line of defence made notorious during the Nuremberg trials, which in turn became the cornerstone of modern war crime legislation. Whereas the pre-Nuremberg jurisdiction largely embraced the principle of superior responsibility, whereby a subordinate executing criminal orders was not to be held liable for them, the trials of the Nazi war criminals brought about a complete reversal of this doctrine. While remaining faithful to the spirit of the Nuremberg jurisdiction, the subsequent legislative acts (which dealt, among other things, with the atrocities committed in the former Yugoslavia) sought to further elaborate its underlying principle of absolute liability, in order to precisely determine the question of guilt and innocence. I argue that despite the close relationship between modern legal systems and Roman law, which fully embraced the doctrine of superior responsibility, it is in the juridical thought of ancient Athens that one finds the archetype of contemporary war crime legislation.     

Deutsch als Weltsprache? Franz Thierfelder, the Deutsche Akademie in Munich and the Promotion of the German Language Abroad, 1923-1945

The Deutsche Akademie (DA) in Munich was founded in the contextof a general upsurge in cultural diplomacy in Germany afterthe First World War and it was the precursor of today's GoetheInstitute. After a difficult start, by the early 1930s the DAhad become the leading institution in the promotion of the Germanlanguage abroad. The emergence of the DA's language policy wasclosely intertwined with the general development of German culturaldiplomacy, which was largely financed by the AuswärtigesAmt but executed by private associations. It was also influencedby the discussions in the 1920s about the role of language inshaping German national identity, by contemporary developmentsin German linguistics and language teaching, and by the discourseof the socalled ‘conservative revolution’. FranzThierfelder, secretary-general of the DA, managed to forge thesedevelopments into a coherent argument as to why Germany shouldintensify its language policy, centre it around the DA, anddirect it mainly towards the Balkan countries. The languagepolicy of the DA remained largely undisturbed by the Nazi seizureof power until the outbreak of war, even though the emphasiswas now on race rather than language as the determining factorin German national identity. The reason for this was, firstly,that the cultural diplomacy of the Auswärtiges Amt andits private institutions such as the DA continued to be dominatedfor some time by non-Nazis and, secondly, that Germany's culturaldiplomacy was dictated more by the constraints and dynamicsof international politics and by economic necessities than byideology. It was only after the outbreak of war that the expansionof the DA's language programme became closely linked to theracially motivated ‘new order’ for a Europe underNazi rule.     

PARADES,PUBLIC SPACE,AND PROPAGANDA: THE NAZI CULTURE PARADES IN MUNICH

As the birthplace of the Nazi Party and the official Capital of the Movement, Munich assumed a high profile within the party's propaganda apparatus. While Berlin became the political and foreign policy centre of Hitler's Reich and Nuremberg the site of massive displays of national power during the annual party rallies, national and local party leaders launched a series of cultural initiatives to showcase Munich as the Capital of German Art. Munich hosted numerous festivals proclaiming a rebirth of German art and culture, as well as the regime's supposedly peaceful intentions for domestic and international audiences. To help achieve these goals, Nazi leaders staged a series of extravagant parades in Munich celebrating German cultural achievements. The parades provided an opportunity for the regime to monopolize Munich's public spaces through performances of its particular vision of German history, culture and national belonging. While such mass public spectacles had obvious propaganda potential, several constraints, most prominently Munich's existing spatial layout, limited the parades’ effectiveness.     

Pictures of Atrocity: Public Discussion of Der gelbe Stern in Early 1960s West Germany

This article discusses Der gelbe Stern by Gerhard Schoenberner,a book of Holocaust photodocumentation appearing in West Germanyin 1960, and analyses its reception in the contemporary WestGerman press. Both the work and its public discussion are placedin context of Aufarbeitung der Vergangenheit (‘comingto terms with the past’) and of what historian Habbo Knochhas termed ‘the return of the pictures’, in otherwords, atrocity pictures of the kind that the Allies forcedGermans to see right after the war, that Germans tended to shunthereafter, but that came back into public view in the late1950s. The reception of Schoenberner's book included reviewsfrom a wide range of West German newspapers and magazines. Thesereviews were overwhelmingly favourable and in considerable agreementon the book's importance. There was consensus that its pictureswould stir viewers emotionally and lead them to ‘the truth’about the Third Reich and its crime against the Jews. In addition,there were moral, historical and political reflections, includinga discussion of German ‘guilt’ concerned not onlywith specific crimes but with the general acquiescence of Germansociety in persecution of Jews in the 1930s. There was alsoappreciation of the role of pictures in conveying historicalunderstanding and, it was hoped, in educating West German youth.In addition, some reviewers considered Der gelbe Stern to bea prod to greater public discussion and thus to an enlargementof democratic culture. There was a marked reticence in the reviewsto indicate that awareness generated by this book would contributeto public outcry against the employment of men with a Nazi pastas high officials of the Federal Republic, or to defend Schoenberneragainst the charge that was sure to come from the Right: sincesome of his photos were from Communist Eastern Europe they wereof dubious origin and no doubt part of a plot to distract theWest from the fight against Communism. It is suggested thatsilence on either issue would have had the effect of keepingreaders focused on the pictures and their moral, historicaland democratic implications.     

“Genocide is Fascism in Action”: Aron Trainin and Soviet Portrayals of Genocide

ABSTRACT

This article examines the Soviet legal scholar Aron Trainin’s evolving writings on international law. Initially, Trainin formulated aspects of his concept of “crimes against peace” as a sort of Soviet alternative to Raphael Lemkin’s crimes of barbarity and vandalism. Crimes against peace both converged with the larger international movement to outlaw aggressive war, provided a Soviet alternative to proposed international crimes that they believed would threaten Soviet sovereignty, and provided a Soviet response to Lemkin’s proposals to outlaw mass killings. During World War II, Trainin articulated the Nazi extermination of the Jews as “crimes against peaceful civilians,” linking the Nazi atrocities to his concept of crimes against peace. Trainin’s concept of “crimes against peaceful civilians” encompassed the atrocities of the Holocaust while also asserting that the Soviet experience of the war – most notably Soviet sacrifice and suffering – meant that the Soviets should determine how international criminal law punished the war’s perpetrators. After World War II, when it became clear that genocide, rather than “crimes against peace” or “crimes against peaceful civilians,” was becoming the primary concept in international law to understand mass killings, Trainin portrayed the concept of genocide according to the perspective of Soviet propaganda, opposing an international criminal court for genocide, supporting the concept of cultural genocide, and portraying genocide as an inevitable outcome of capitalism. At the same time, Trainin and the Soviets never abandoned his concept of “crimes against peace,” portraying capitalism as inherently bound up with war and genocide. Trainin was the most significant genocide scholar in the Soviet Union, and his work exemplifies both the ways in which Soviet approaches to international law converged with other approaches, and the ways in which the Soviet Union diverged from non-Soviet international law.     

The informer, the lover and the gift giver: female collaborators in Pau 1940-1946

In July 1940 the Armistice Commission sent a German delegationto Pau in south-western France. The delegation included AndréMüller, a Nazi who also worked for the German SecurityPolice. Müller's twenty-nine letters to a female collaborator,alongside the testimonies of those who knew the two friends,provide an unusual opportunity to recapture a sense of day-to-dayrelations between the occupied and occupiers. The Nazi officer'sletters reveal his reflections on the war, his hopes and, aboveall, his material needs. The cycle of epistolary exchange thatlinked the two friends entailed a unidirectional flow of giftsfrom the female collaborator to Müller. The letters, goodsand services they exchanged raise important questions aboutthe location of power, indebtedness and gratitude in Franco-Germanpartnerships; they also provide an opportunity to test assumptionsabout the inequality of such relationships in occupied France.The court testimonies in Pau also offer rare insights into femaleinvolvement in collaborationist movements, which were primarilya male sphere of activity and influence.     

Phases in the postwar German reception of the "Euthanasia Program" (1939-1945) involving the killing of the mentally disabled and its exploitation by neuroscientists

The killing of disabled patients with mental diseases during 1939-1945 is regarded as the precursor to the Holocaust. Although known at least since the Nuremberg Doctors Trial (1946-1947), the reception accorded these crimes against humanity varied (and evolved through time) depending on the parties: the old establishment, the younger generation, the different political interests, and the jurists, the theologians, the historians, the medical authorities. I attempt to distinguish five phases in the debate in light of the political background between 1945 until the present.     

Pushed into Pragmatism: British Approaches to Science in Post-War Occupied Germany

One of the most important dilemmas facing the British authorities when they occupied their zone of Germany at the end of the Second World War was what to do with German science. The contributions made by scientists and engineers to the Nazi war machine, in fields such as rocketry and submarines, meant that German science was both revered and feared, and was therefore closely linked to concerns about a post-war military resurgence in Germany. This article aims to chart the changing approaches which the British occupation officials adopted towards German science in this period. While the initial intention was to prevent Germany from ever waging war again, through demilitarisation, denazification and dismantling, the focus changed as British enmity shifted from a former adversary, Germany, to a former ally, the Soviet Union. Policy reflected this shift as technology transfer and the reconstruction of domestic German science won greater favour. This article aims to show that, in the face of growing hostility from the USSR and in the deeply suspicious climate of the early Cold War, Britain was forced to abandon its moral mission towards German science and adopt a far more pragmatic strategy instead.     

The Shifting Fortunes of War: Patronage of the Wurttemberg Hofkapelle during the Thirty Years War

German courts have long been renowned for their support of music.How long could this support continue in times of war? This articleconsiders the fate of the Württemberg Hofkapelle duringthe Thirty Years War (1618-48), a conflict that forced manydistinguished Hofkapellen to close their doors for much of thewar's duration. The Hofkapelle (literally ‘court chapel’or music ensemble) was the focus of much music patronage atearly modern German courts, and typically consisted of an orchestraof strings, horns, and percussion, as well as adult male singersand a boys’ choir. Based on an analysis of church councilaccounts that list all expenditure for court music throughoutthe war, the article asserts that demand for music during religiousservices under both Protestant and Catholic control of the duchyremained relatively constant. This demand enabled the Hofkapelleto continue musical performances, despite the enormous constraintsthe war placed on court expenditure. Music patronage was significant in several ways. Payment forperformers and composers could be highly competitive among Germancourts, with the best musicians earning salaries often far exceedingthose of other officials. Foreign musicians were much in demandin Württemberg as elsewhere, such as English lutenist JohnPrice, who founded a group of English lutenists at the Württembergcourt in 1618 that lasted until the death of Duke Johann Friedricha decade later. While the hardship of wartime effectively endedthe payment of large salaries, forcing many top performers toleave, members of the court still called for music at church,even if they had to pay for performances themselves. A studyof music patronage during the Thirty Years War thus revealsnot only the extent to which the court sought to support thearts, but also how that support reflected the shifting fortunesof war.     

'You Cannot Hate the Bastard Who is Trying to Kill You...'Combat and Ideology in the British Army in the War Against Germany, 1939-45

During the Second World War the British Army faced a difficulttask when it tried to transform recruits who were mostly peace-lovingcivilians, into men prepared to kill. This article examineshow it went about doing so and how front-line soldiers respondedto the demand that they kill their German (and Italian) oppositenumbers. It also analyses the extent to which front-line soldiersin the British Army retained a sense of a shared common humanitywith their enemies that transended the political divisions ofthe war. It does so by analysing the ways in which they treatedtheir enemies when they were completely at their mercy, eitheras prisoners of war or as civilians in occupied territory. ¹N.McCallum, Journey with a Pistol (London,1959), 105.     

'For a Genuine and Noble Nakedness'? German Naturism in the Third Reich

This essay, based on primary sources from the privately-runInternationale FKK-Bibliothek and a growing body of secondaryliterature, examines some of the myths and misconceptions regardingthe fate of naturism in the Third Reich. It shows that despiteGoering's decree of 3 March 1933, which described the ‘nakedculture movement’ as ‘one of the greatest dangersfor German culture and morality’, naturism did not cometo an abrupt halt after the Machtergreifung. While officialhistories of German naturism talk proudly of the movement's‘persecution’ and ‘non-violent resistance’,there was little concerted effort to close down naturist associationsor to arrest individual activists. In fact, without a definitiveorder from the Führer, Germany's naturists existed in asemi-legal limbo for much of the 1930s. Many National Socialistsregarded the clothes-free lifestyle with contempt, but therewere elements within the Nazi state—and particularly theSS—which could see significant benefits from celebrating‘the instinct for bodily nobility and its beauty in ourVolk’. A mutual desire to de-eroticize nudity helped cementthe bond between Heydrich, Himmler and naturist leaders. Asa result, German Freikörperkultur passed some of its mostimportant landmarks in the years of Nazi rule, including itsvery first book with photographs in full colour, a full-lengthfeature film, and a new, more permissive Bathing Law. Thus whileGeorge Mosse's Nationalism and Sexuality claims the Nazis ‘forbadenudism after their accession to power’, a closer examinationof the fate of naturism after 1933 reveals a more complex picture,which serves to highlight not only the limits of the régime'stotalitarian aspirations, but also the naturist movement's owndisparate and problematic heritage.     

解析“东京审判史观”及其实质

“东京审判史观”是日本部分政治家和右翼势力虚构和炮制的历史观。随着日本政治的右倾化,诋毁和批判东京审判成为篡改历史教科书、否认日本战争罪行、官方参拜靖国神社等民族保守主义运动的重要组成部分,借以篡改侵略战争的历史,为战争罪犯翻案,进而消除日本国民的负罪意识,恢复日本民族的“自信”和“自豪”,以实现日本政治、军事大国化的战略目标。     

Charismatic Legitimation and Bureaucratic Rule: The NSDAP in the Third Reich, 1933-1945

This article deals with the history of the Nazi Party's officeof the Deputy Führer, Rudolf Heß, which after Heß'sflight on 10 May 1941 was renamed the Party Chancellery andled by Martin Bormann. It evaluates the structures and functionsof this important party office which had the exclusive rightto control government legislation. The Deputy Führer'sstaff was established before 1935/36. It consisted of severaloffices which influenced nearly all processes of legislationand tried to introduce Nazi ideology into all sectors of Germansociety. This was done by corresponding intensively with ministerialbureaucracy. Although the staff of the Deputy Führer andof the Party Chancellery acted in a very bureaucratic manner,the article argues that Max Weber's concept of ‘bureaucraticrule’ is not appropriate for analysing the radicalizationof the Nazi régime throughout the Second World War becausethis Weberian ideal type tends to neglect social practices.The same is true for Weber's concept of ‘charismatic rule’which only offers fruitful insights into the social relationsbetween Hitler and his followers.     

Left justified: The early campaign for an international law response to Khmer Rouge crimes

In April 1979, a mission of the International Association of Democratic Lawyers made a solidarity visit to Cambodia in the immediate aftermath of Khmer Rouge rule of the country. One of the mission members, John H. E. Fried, a former advisor to the United States' military trials at Nuremberg, was moved to subsequently advocate for United Nations recognition of the then ostracised Cambodian state. The crisis of post-Khmer Rouge Cambodia, and the political justifications made by early visitors there, illuminate late Cold War cultures of progressive international law scholarship and activism through their constitutive affects and material practices. While legal investigation of Khmer Rouge crimes is now largely understood through the frame of ‘transitional justice’, this paper rejects such a framing. It argues instead for attention to Cambodia's early experiences, in which left legal activism – calling for Nuremberg's lessons to be applied to the violence perpetrated in Vietnam and Cambodia – played an important role. For scholars interested in post-1979 Cambodia, the Tuol Sleng Genocide Museum historical visitor books, recently digitised, promise insight into the multiple actors, motivations and understandings of international ‘early responders’ to evidence of Khmer Rouge crimes.