Germany’s first Nazi hunter

Germany enjoys the reputation of having confronted its Nazi past with impressive forthrightness, its cities filled with memorials to the victims of the Holocaust. But when it came to bringing former Nazis to justice, the Federal Republic amassed a pitifully thin record. It wasn’t until 1963, with the opening in Frankfurt of a trial of twenty-two former functionaries of Auschwitz, that it managed to mount a Holocaust trial of significance. Sixty years on, the trial, which lasted through the summer of 1965, remains the most famous prosecution of Nazi mass atrocities ever staged in West Germany.

This breakthrough might never have happened had it not been for the tireless efforts of Fritz Bauer, the attorney general of the German state of Hesse. Born in 1903 and raised in Stuttgart, Bauer, who was Jewish, gay and a socialist, had served as a judge during the Weimar Republic, but had been forced to flee Germany in 1936. After thirteen years in Danish and Swedish exile, he returned to Germany in 1949, convinced that the Federal Republic’s fledgling democracy could not thrive without a frank reckoning with the crimes of the Nazi regime.

Bauer’s life story, and the role he played in orchestrating the Auschwitz trial in Frankfurt, is the focus of Jack Fairweather’s gripping new book, The Prosecutor: One man’s battle to bring the Nazis to justice. The author has waded into somewhat crowded waters, with two fine German biographies of Bauer appearing in English translation in recent years – Irmtrud Wojak’s Fritz Bauer 1903-1968: The prosecutor who found Eichmann and put Auschwitz on trial (2018), and Ronen Steinke’s Fritz Bauer: The Jewish prosecutor who brought Eichmann and Auschwitz to trial (2020). English audiences have also had a chance to watch two well-received feature films dramatizing Bauer’s life: Labyrinth of Lies (2014) and The People vs. Fritz Bauer (2015). Finally, readers of German may be familiar with Werner Renz’s shorter but equally noteworthy study, Fritz Bauer und das Versagen der Justiz (2015).

After his return to Germany, Bauer was stunned by the willingness of his compatriots to dismiss the crimes of the Third Reich as the acts of a small number of leaders. His commitment to bringing former Nazis to trial was borne, then, of an interest both in seeing justice done and in advancing the project of Vergangenheitsbewältigung – the work of engaging with the past. His ambitious plan for the Auschwitz trial, which took five years to organize, reflected these goals. By design, the case would place on trial a broad cross section of Auschwitz functionaries, from the camp’s adjutant down to an ordinary guard. In so doing, it would make clear that Auschwitz had functioned as a unified criminal complex designed to implement the state’s policy of genocide. Regardless of function, anyone who had served in this exterminatory machine was, at the very least, guilty of complicity in murder.

In preparing this case, Bauer encountered many obstacles, some legal. Jurists in the early days of the Federal Republic had rejected “crimes against humanity” – the charge pioneered at Nuremberg – as an article of “Allied law” that violated the bar in Germany on ex post facto law. This forced prosecutors to use as their charging instrument the German murder statute, a domestic law designed to deal with ordinary killings committed out of base motives such as greed or bloodlust – not with the complexities of state-sponsored genocide. No less problematic was the simple fact that postwar Germany’s police, intelligence agencies, prosecutorial units and courts were filled with former Nazis.

Fairweather illuminates skilfully Bauer’s bruising struggle with the legacy of Nazism by interweaving a parallel story about the career of Reinhard Gehlen, the Wehrmacht’s former head of military intelligence for the eastern front. After the war, Gehlen avoided trial as a war criminal by plying the Americans with information about the Soviet Union. Later, he became the head of the Bundesnachrichtendienst, West Germany’s intelligence service, overseeing a staff that included an unseemly number of deeply tainted former SS men. Meant to gather intelligence about the Eastern Bloc, Gehlen’s BND devoted equal energy to spying on and discrediting West Germans deemed enemies of Konrad Adenauer’s conservative government. Bauer had ordered the arrest of a BND agent implicated in the wartime murder of Lithuanian Jews, and had begun investigating Adenauer’s top adviser, Hans Globke, who had written the official commentary on the Reich’s Nuremberg race laws. For Gehlen, these actions proved Bauer’s “anti-German tendencies”, so he had the prosecutor placed under surveillance.

Bauer’s rightful distrust of the German police – he became convinced that his staff included a BND mole – explains one of his most famous acts. In 1957, Bauer received a tip about the whereabouts of Adolf Eichmann, the SS officer responsible for deporting more than a million Jews to Nazi killing centres, who had fled to Argentina at the war’s end. Rather than share the information with German investigators, whom he feared might alert Eichmann – indeed, Gehlen had long known where he was living – Bauer secretly passed the information on to Mossad, the Israeli intelligence agency. This did not end his role in Israel’s capture and kidnapping of Eichmann, who was tried and convicted in Jerusalem in 1961. Frustrated with Mossad’s initial indifference to the tip – it was more concerned with threats from Israel’s Arab neighbours than with chasing former Nazis – Bauer insisted that it pursue the lead, threatening to leak his information to the international press.

Bauer brought a similar tenacity to orchestrating the Auschwitz trial in Frankfurt. The 763-page indictment named twenty-two defendants. Well over 300 witnesses from a dozen countries testified in court. More than 100 journalists from Germany and abroad covered the trial, and in Germany alone, nearly 1,000 articles on the proceedings appeared in print. For Bauer, however, who did not try the case himself, but left that to two talented younger prosecutors in his office, the trial became a source of bitter disappointment. The defendants showed virtually no remorse, viewed the witnesses with contempt and lied brazenly. Robert Mulka, the deputy commandant at Auschwitz, insisted that he had never set foot in either the main camp or Birkenau (the killing centre), and had only heard rumours that Jews were being gassed.

Equally disappointing were the verdicts. The court convicted Mulka as an accessory and gave him a fourteen-year sentence (of which he served three). Life sentences were handed down only in the case of the six defendants who had clearly engaged in “excessive” acts – such as killing with a cruelty unwarranted by the official policy of extermination. With these verdicts, the court rejected Bauer’s insistence that Auschwitz had operated as a unified space of genocide. Instead it treated the camp as a place where many discrete crimes had been committed, each one of which had to be proven.

For all its shortcomings, however, the trial had clearly galvanized the attention of the German public. If some Germans resented the focus on such distant unpleasantries, Fairweather is no doubt correct in observing that it contributed to a “quiet moral awakening” among a younger generation of Germans, who became dedicated to a more honest collective reckoning with the crimes of their elders.

The book’s strong, well-constructed narrative is unfortunately weakened by a number of annoying mistakes. Fairweather writes that “more than 250,000 [Germans] had served in the SS”, when the figure is closer to a million. He describes Hesse as “the biggest state in West Germany”, a claim that anyone familiar with the country must know to be wrong. He makes a hash of the body that renders judgment in a German criminal trial, referring at first to “six members of the jury”, then later to a “judge … and two junior colleagues” who guide “the two-person jury to a decision”, and later still to an eight-person jury at the Auschwitz trial in Frankfurt (judgment was, in fact, rendered by three professional judges and two “Schöffen”, or jurors, the standard body in such proceedings). And the book contains one very unfortunate typo when it states, “The problem with applying German law to the crimes of the Final Solution was that the German criminal code recognized state-sponsored mass murder” – when clearly the problem was that the criminal code did not recognize state-sponsored mass murder. (Later in the book, this is properly stated).

Except for these avoidable missteps, Jack Fairweather has produced an engrossing portrait of the kind of single-minded prosecutorial courage that is in all too short supply today. In 1968 – three years after the end of the trial to which he devoted his career and sacrificed his health – Bauer died in his sleep. He was sixty-four. In 2011, a court in Munich convicted John (Ivan) Demjanjuk, a former guard at the Sobibor killing centre, of complicity in the murder of 28,000 Jews. Although the prosecution had presented no specific evidence of Demjanjuk’s behaviour as a guard, the court reasoned that he must have been complicit in the destruction process because that, in essence, had been his job. A German court had finally embraced the theory of culpability that Bauer had framed in the Auschwitz case, nearly half a century earlier.

Lawrence Douglas’s books include The Right Wrong Man: John Demjanjuk and the last great Nazi war crimes trial, 2016

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