Reckonings: Legacies of Nazi Persecution and the Quest for Justice

34594

By Professor Mary Fulbrook  

OUP: 2018 (Wolfson History Prize 2019) |

ISBN 9780198811237

Reviewed by Patrick O'Connor QC


Reckonings is a masterpiece of historical research and commentary, which earned the prestigious Wolfson prize for 2019. Post-war ‘justice’ for Nazi atrocities resonates now with the 75th anniversary of the main Nuremberg trial.

We all think that we ‘know’ what happened. In fact, the vast statistics of victims and perpetrators are numbing and incomprehensible. There were 42,500 locations for these atrocities. Professor Fulbrook introduces some case studies from places ‘below the radar’, which convey a human scale. She traces the origins of the many different mechanisms of the Holocaust.

Post-war ‘transitional’ justice is then assessed, and the conclusions are bleak and shocking. Only snapshots of her analysis are possible here. Criminal justice for perpetrators was deeply compromised in West Germany. By contrast with East Germany, proportionately, there were fewer prosecutions and convictions: and much lighter sentences. Denazification of the judiciary failed abjectly. By 1951, 75% of judges and lawyers had worked under the Third Reich: and even by 1961, 40% of judges.

400,000 suspects benefitted from amnesties. Various statutes of limitations intervened. ‘Murder’ had a highly restrictive legal definition. An effective organisation called ‘Stille Hilfe’, for coordinating defence strategies for ex-SS men, was run by Himmler’s daughter. A series of surprising factors were accepted as a defence by the West German courts: for example, transporting Roma people to Auschwitz was treated as a genuine ‘crime prevention’ measure.

The majority of sentences, even the relatively lenient, were commuted to very early release, especially in the early 1950s. Shooting civilian victims more accurately, ‘to lessen their suffering’, was recognised as mitigation. Josef Oberhauser, convicted of complicity in the killing of 300,000 victims in Belzec death camp, was sentenced to 4½ years’ imprisonment, and released after serving half. A Dr Pfannmüller, overseer of 3,000 euthanasia killings of children, was found in 1951 not to have acted ‘maliciously’, since the children were successfully deceived and did not know they were slowly being poisoned. He was ultimately sentenced to two years’ imprisonment for manslaughter, and soon released for ‘medical’ reasons.

Edmund Bartl, one of the vast numbers of ‘slave labourers’ employed by Heinkel industries, sued for compensation. The German Supreme Court in 1959, struck out his claim on ‘limitation’ grounds, with costs, thus shutting out all similar claims. Austria does not register on any scale of accountability at all.

Lawyers were critical to the functioning of this dictatorship. In 1938, of all the local Gestapo chiefs, 87% had studied law and 50% had doctorates in law. There were about 1,900 laws governing the treatment of Jewish people in Germany and the occupied territories. 60-80,000 people were sentenced to death by the courts under the Third Reich. They were instruments of terror. All of these measures required the close involvement of countless legally qualified civil servants, lawyers and judges for drafting and implementation. Save for the 10 convicted at the so-called Nuremberg ‘Justice Trial’, none were held accountable.

The series of 13 Nuremberg trials themselves failed to penetrate the consciousness of the defeated German people. They accepted the lines of defence deployed: victors’ justice; retrospective crimes; ‘tu quoque’, by reference to the fire bombing of Dresden and other German cities; and obedience to the ‘actual existing’ laws. A further comparative study with the tribunals investigating the Cambodia and Rwanda genocides would be instructive.

Rather courageously, Professor Fulbrook explores the experiences of perpetrators as well. The categories of ‘victim’, ‘bystander’ and ‘perpetrator’ were amorphous and sometimes fluid; the gradations of complicity very fine. She recognises a great variety of motivations, and of later responses to guilt.

On the level of formal justice in law, Reckonings is essential reading for all lawyers. It comes close to suggesting that the greater the scale of atrocity and of involvement by state agencies, the less possible is accountability to the law. Professor Fulbrook expands the very concept of ‘justice’ to encompass establishing historical facts, acknowledgement of responsibility, and memorialisation. In light of the enormity of Nazi atrocities, she reflects upon: ‘The impossibility of adequate retribution, recompense or even representation... this discomfort, this failure to achieve resolution, remains with us today.’ This is a sobering work on a profoundly serious issue. 

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Patrick O’Connor QC

Patrick O’Connor QC, of Doughty Street Chambers, has been a leading human rights practitioner for many years, specialising in criminal trials and appeals, public inquiries and inquests. He has written several well-regarded articles on criminal law, constitutional law, and neo-liberal ideology.