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.