The Prosecution of National Socialist Homicidal Crimes before Courts in West Germany and the Federal Republic, 1945-1997

A short introduction on statistics and priorities.

Since 1945, a total of 912 trials were held involving 1875 defendants accused of homicidal crimes committed during World War II in the service of National Socialism. These trials resulted in 14 death sentences, 150 life sentences and 842 timely sentences (1). The five postwar decades of prosecution activity can be cut down into 7-year periods, with the following statistical results:

1945-1952

During the first seven years of the postwar era, approximately 740 defendants appeared before courts in 343 NS-trials. Thus, close to 40% of all those tried for Nazi homicidal crimes after the war in West Germany were tried during this early phase. During this time, the prosecuting authorities mainly focussed their attention on the category of the so-called 'tatnahen Täter', meaning those criminals at the very end of the command-line who had actually - physically - perpetrated the crimes. By contrast, the representatives of the policy making level, the so-called 'Schreibtischtäter' - i.e. the higher and top-ranking representatives of the ministerial bureaucracy, the industry, the Wehrmacht, the judiciary, the police and the NSDAP, who had generally escaped trial by the Allies - were almost totally absent in the West German prosecution statistics of these early years. In fact, only five trials were held during this time against twelve such 'desk perpetrators' (2).
Much the same applied with regard to the 18 so-called 'Euthanasia' trials held during this period. Their main target formed the perpetrators of the executionary level - doctors, nurses and (lower) administrative staff - and - rarely - representatives of the mid-level administrative apparatus. No one from the Berlin 'Euthanasia' head-office appeared in any of the Westgerman docks. Similarly, not one of the former employees of the Reichssicherheitshauptamt - the very operational heart of the mass murderous policies of the Nazi state - was indicted and tried during these years.

The majority of the trials (over 51%) conducted in these first seven years dealt with homicidal crimes committed by Germans on Germans during the final months and weeks of the war ('Endphaseverbrechen', or 'final phase crimes'). Even though, by far the most serious of the crimes of the Nazi State (both in quality and in quantity) had been committed outside Germany, only a mere 12% of the trials addressed such crimes. Trials involving the killing of against Jews numbered 19% of all court cases in this first seven-year period. Compared to later years, a relatively high number of trials (46) involved crimes of the Wehrmacht. However, the bulk of these 'Wehrmacht-trials' again concerned 'Endphaseverbrechen'. The same applied to the category of so-called 'Justizverbrechen'-trials (i.e. trials involving homicidal crimes committed by judges, public prosecutors or other judicial functionaries in the administration of justice).

This one-sided focus on the prosecution of crimes against German victims committed on German soil is generally explained by reference to the limited jurisdiction of German courts imposed upon them by Allied rules immediately after the war. For years to come, this limited jurisdiction did not allow German courts to try crimes committed against victims who had been citizens of the Allied states. Other arguments in this respect include the unfamiliarity of the German judiciary with Nazi crimes committed abroad, as well as the extraordinary difficulties associated with serious criminal investigations in foreign countries at the time. These prohibitive circumstances were indeed of importance during this first seven-year phase. However, as the available documentation clearly shows, they only form a partial explanation for the one-sidedness of the prosecution record. For, despite jurisdictional limitations, a considerable number of trials involving Allied victims did take place before German courts (3). And trying crimes committed abroad was obviously also not totally impossible for the German judiciary. Thus, trials were held during this time which dealt with homicidal crimes committed in such countries as France, Greece, Italy, Estonia, Latvia, Lithuania, Norway, Poland, Russia and the Czech republic (4). A number of these trials concerned Jewish victims and some addressed the 'liquidation' of Jewish ghettos ('Ghettoräumungen'), such as those in Minsk, Riga, Rudki and Lemberg (5). And finally, the massacres at Treblinka (6) and Sobibor (7) formed the subject of another three trials during these years. What had happened in the East, therefore, had evidently not entirely escaped the attention of the German judiciary in the late nineteen-forties.

1953-1959 (8)

During the next seven years the first postwar prosecution wave petered out. Many of the trials conducted during this time were 'chance hits', or 'leftovers' from the preceding period. In contrast to the first seven years, the number of trials diminished by one-half and the number of defendants plummeted by two-thirds. Trials against 'Schreibtischtäter' were completely absent, while the number of cases involving crimes committed abroad or against Jewish victims increased by 10%. Due, probably, to the effect of the 1954 Amnesty Law (9), the number of cases involving 'Endphaseverbrechen' now only covered 26% of all Nazi trial proceedings. The number of defendants who were acquitted or whose case was stayed rose by 10% to 58%.

1960-1966 (10)

The third seven-year period witnessed a new wave of Nazi trials prompted by a clearly noticeable reorientation of prosecuting priorities which were to set the tone for future years as well. This reorientation was caused by a change in generations and spiritual climate, coupled by a renewed interest in the subject of Nazi crimes and their prosecution. At the judicial level, the new spirit was reflected by the activities of the Hessian public prosecutor Fritz Bauer, as well as by the comprehensive and systematic preliminary investigations of the 'Zentralen Stelle der Landesjustizverwaltungen in Ludwigsburg. Prompted by the notions gained as a consequence of the so-called 'Ulmer Einsatzgruppenprozess' (11), the Ludwigsburg investigative office was formed in 1958. To date, it has conducted almost 7000 preliminary investigations regarding Nazi crimes. Its efforts not only resulted in a great many new and highly important and sensational trials, but also in the prosecution of criminal complexes which, over the years, had been ignored almost completely (12).

1967-1987 (13)

Until the late nineteen-fifties, Nazi trials had predominantly dealt with crimes committed inside Germany against German citizens, and which had - except for the 'Euthanasia' crimes - taken place outside the scope of the Nazi annihilation programs. Starting in the fourth seven-year period, this situation changed substantially. Whereas up till then 43% of all trials had concerned Endphaseverbrechen and only 15% had involved mass extermination crimes, from 1966 onwards, these mass extermination crimes came to form the subject of nearly 60% of the NS-trials. The percentage of trials concerning crimes against Jewish victims rose from 29 to 76. The nationality of the victims involved in these cases also shifted dramatically from mainly German - until 1966 62% - to predominantly non-German (86%). A similar shift took place concerning crime locations: whereas until 1966 72% of these locations were situated in Germany, after 1966 the percentage of foreign locations rose to 83. Most of these foreign locations were situated in Poland (41%) and the former Soviet-Union (31%). As before, the prosecution of crimes committed in the former German occupied territories in Western and Southern Europe and the Balkan area remained limited, however.

Important shifts in focus were also noticeable regarding the perpetrator categories. Trials against members of the Einsatzgruppen rose from 2% (until 1966) to almost 11%, while those against guard units of concentration, extermination and forced labor camps climbed from 20% to 31%, and those against members of the Police from 27% to 44%. The number of trials against representatives of the policy making level - the Schreibtischtäter - , however, remained small: 14 cases against a total of 27 defendants. Trials concerning crimes committed by members of the German army were almost completely absent: since 1967 four defendants were tried but none of them received a jail sentence. Much the same applied to the cases against former nazi judges and public prosecutors involving the manipulation of justice ('Rechtsbeugung').
Whereas the percentage of defendants whose trial ended without punishment remained more or less constant (45-48%), the number of cases which resulted in a life sentence rose from 5,5% (until 1966) to 13%.

As of the early nineteen-sixties, the prosecution of Nazi crimes became mainly limited to the crimes of murder ('Mord') and complicity in murder ('Beihilfe zum Mord'). The prosecution of all other homicidal crimes had by then become barred due to the German statute of limitations. With regard to the crime of murder this limitation was first extended - in 1965 and 1969 - and then finally lifted in 1979. Still, the prosecution of a great many cases of complicity in murder failed due to an alteration of the law in October 1968. (14) Many Schreibtischtäter profited from this legal revision. This is because all cases in which prosecution procedures had only started in the nineteen-sixties - such as, e.g., with regard to members of the Reichssicherheitshauptamt (15)- had to be suspended, as the indicted complicity in murder had by now come to fall under the limitation statue. (16)

From 1987 onwards

As of the late nineteen-eighties, the prosecution on Nazi crimes gradually comes to a halt: until 1997 only 14 trials were held against a total of 15 defendants. In 1995 and 1996 no trails ended with a final verdict.

Notes

1) Cf. Prof.Dr. C.F. Rüter und Dr. D.W. de Mildt, Die westdeutschen Strafverfahren wegen nationalsozialistischer Tötungsverbrechen 1945-1997. Eine systematische Verfahrensbeschreibung mit Karten und Registern (Amsterdam-München 1998), p. 316 ff.
2) All were acquitted: cf. the Lfd.Nr.022, 080, 123, 260 und 310.
3) Cf. the cases under Lfd.Nr.025, 035, 081, 099, 104, 106, 114, 115, 128, 130, 133, 139, 144, 146, 149, 152, 158, 159, 161, 166, 176, 178, 179, 181, 184, 186, 188, 192, 194, 197, 199, 200, 202, 204, 213, 214, 219, 222, 223, 224, 225, 227, 229, 231, 232, 235, 237, 238, 240, 245, 246, 247, 250, 252, 253, 255, 257, 258, 259, 260, 264, 265, 266, 267, 268, 269, 270, 273, 274, 275, 277, 280, 286, 288, 289, 290, 291, 292, 293, 294, 296, 298, 299, 300, 301, 303, 305, 307, 308, 309, 310, 311, 312, 313, 314, 316, 321, 322, 323, 324, 327, 328, 330, 333.
4) Cf. the cases under Lfd.Nr.003, 060, 099, 115, 130, 146, 149, 158, 159, 165, 166, 183, 184, 186, 190, 192, 193, 204, 212, 218, 227, 231, 233, 237, 239, 240, 244, 247, 249, 265, 266, 270, 275, 277, 280, 288, 289, 292, 298, 305, 307.
5) Cf. the cases under Lfd.Nr.166, 298, 307.
6) Cf. the case under Lfd.Nr.270.
7) Cf. the cases under Lfd.Nr.212 und 233.
8) During these years 156 trials against 264 defendants took place.
9) This law amnestied homicidal crimes (excluding murder), committed 'under the influence of the extraordinary circumstances of the disintegration during the time from 1 October 1944 to 31 July 1945 under the assumption of an administrative, service or legal duty, in particular on the basis of an order' if  'on the basis of his position or judgmental ability, it could not have been expected from the perpetrator to refrain from committing the crime and if  no heavier sentence than an imprisonment of up to three years' was to be expected. Cf. BGBl. I p.203.
10) During these years 144 trials against 341 defendants took place.
11) Cf. the case under Lfd.Nr.465.
12) E.g. the Auschwitz-, Chelmno-, Majdanek-, Mauthausen-, Sachsenhausen- and Treblinka trials, trials against members of the Einsatzgruppen and   -kommandos, of  Police battalions, of the Sipo Lemberg, Stanislau and Tarnopol and the Grenzpolizei Neu-Sandez, trials concerning the massacre at Babi-Yar and the Warsaw Ghetto, and trails against a number of  leading Schreibtischtäter (cases under Lfd.Nr.645, 697, 733, 858, 870 und 904).
13) During these years 254 trials against 507 defendants took place.
14) Einführungsgesetz zum Ordnungswidrigkeitengesetz vom 24.Mai 1968 (BGBl. I S.503) zur Änderung des (damaligen) §50 StGB. According to this law the penalty of an accomplice who could not be shown to have acted out of base motives (niedrigen Beweggründen), such as racial hatred, himself, was to be mitigated 'in accordance with the regulations concerning the penalty for attempt'. Thus, the maximum penalty for complicity in murder in these cases is now still only 15 years, instead of a life sentence as before. This meant that the statute of limitations for crimes with a maximum penalty of a life sentence (in 1968 still 20 years) was no longer applicable to such cases of complicity in murder, but that, instead, a limitation period of still only 15 years applied.
15) Cf. e.g. the case under Lfd.Nr.707.
16) Cf. BGH, judgment from 20.5.1969, 5 StR 658/68, Lfd.Nr.667.