Autor/Autorin
Anne Frank or Wilhelm Harster, we have to decide, a peaceful coexistence is impossible. So said Attorney General Dr Fritz Bauer in 1963 in his speech on the birthday of Anne Frank, who was murdered by the Nazis. Until recently, Wilhelm Harster, who was responsible for the deportations of Jews from the Netherlands until 1943, was still working as a senior government councillor in Munich. The two co-defendants, Harster’s „Jewish advisor“ Wilhelm Zöpf and the accountant Gertrude Slottke, organised the deportations to the end. Christian Ritz has written an article about the Harster trial in Munich, which came to an end 50 years ago, and its significance for the legal debate on Nazi crimes. (Editor’s note)
Fifty years ago, on 24 February 1967, the jury court at Munich Regional Court II sentenced Wilhelm Harster (1904-1995) to fifteen years in prison for aiding and abetting murder in 82,854 cases. [ 1] As commander of the Security Police and Security Service (BdS), the „police lawyer with a passion“, as he characterised himself, was Reinhard Heydrich’s deputy in the occupied Netherlands from 1941 to 1943 and thus shared responsibility for the deportation of the majority of Dutch Jews. His area of responsibility included the establishment of an institution modelled on the Reich Security Main Office (RSHA) in Berlin as well as the transfer and enforcement of the Nazi regime’s anti-Jewish laws and decrees to the occupied Netherlands. In a leading position, he was jointly responsible for organising the process of systematic exclusion and disenfranchisement of the Jewish population and ultimately the deportations to the extermination camps.
Sentenced to 12 years in prison by a special Dutch court in 1949, he was released early to the Federal Republic of Germany in 1955. In 1956, as a so-called late returnee, he obtained a civil servant position in the Bavarian Ministry of the Interior. In 1963, having been promoted to senior government councillor, he finally took early retirement under pressure from the results of the public prosecutor’s investigation. Also charged were the lawyer Wilhelm Zöpf, Harster’s former direct subordinate and head of The Hague’s ‚Jewish Department‘ IV B4 and thus Adolf Eichmann’s representative, and the former police employee Gertrud Slottke. They were sentenced to nine and five years‘ imprisonment respectively.
Although the proceedings before the Munich District Court were always overshadowed by the Frankfurt Auschwitz trials initiated by Hessian Attorney General Fritz Bauer, both in the public eye and from the perspective of contemporary history research, it was nevertheless an extraordinarily important trial for the further course of the legal and social debate on the Nazi past.
For the first time, middle to senior functionaries involved in the planning and implementation of the „Final Solution of the Jewish Question“ with direct links to the closest leadership circle of the Nazi regime were sentenced by a West German court. Whereas in the Frankfurt Auschwitz trials, it was primarily the ranks who were directly involved in the killing process on site who were on trial, the proceedings before the Munich District Court were the first time that the entire radicalisation process, from systematic stigmatisation, social and economic exclusion, ghettoisation and robbery to the deportations to the extermination camps, was presented in detail to the German and international public.
At the centre of the investigation, which lasted almost eight years and was followed by an attentive international public from 1963 at the latest, was the problem of proving that the defendants knew about the systematic murder of the Jews deported „to the East“ and thus that far larger circles than the personnel of the extermination camps were aware of it.
II.
The proceedings had an international dimension from the outset. The starting point was a note verbale from the Dutch government to the German government on 1 July 1959 to initiate criminal proceedings against Wilhelm Zöpf. The former head of the Jewish department in The Hague and in this function coordinator of all anti-Semitic measures carried out in the occupied Netherlands and the organiser of the deportation transports of Dutch Jews to the extermination camps in Poland“ had „evaded prosecution by the Dutch judiciary“ after the war, but his current whereabouts in Murnau in Upper Bavaria were known to the Dutch authorities. [2]
The importance the Dutch government attached to the case is clear from a reference by the Attorney General at the Dutch Supreme Court to a case in which a subordinate of Zöpf’s had been sentenced to death by the Dutch Special Court in 1947 and then pardoned to life imprisonment in the subsequent appeal proceedings; Zöpf’s higher rank is explicitly emphasised in this context. The memorandum explicitly emphasises that the Dutch side is refraining from opening its own proceedings for the time being due to the German legal situation, which makes it impossible to extradite the former „Judenreferent“ to the Netherlands. [ 3] If a trial in Munich did not lead to Zöpf’s conviction, the documents could be better used in a trial against Zöpf in absentia in the Netherlands, which was „still possible now“. [4]
From the outset, the Dutch side had thus formulated a remarkably clear expectation of the German prosecution authorities. The Munich proceedings were subject to the proviso of special Dutch court proceedings, and the result was, as it were, a touchstone for the hesitant prosecution efforts of the German judiciary, which were observed with scepticism by the Dutch government and the public.
III.
The scepticism was not unfounded. The proceedings before the Munich Regional Court took place in the context of a dynamisation of the prosecution of Nazi crimes that began at the end of the 1950s, after the Allied and German efforts at prosecution that began immediately after the fall of the regime had come to an almost complete standstill after just a few years. [ 5] In view of extensive Western Allied amnesties in the face of increasing East-West polarisation and the Federal Republic’s progressive ties to the West, from the end of the 1940s onwards, the Federal Republic’s own approaches to prosecuting Nazi injustice seemed almost anachronistic to large sections of the population. At a political and social level, there was a tendency to let the recent past rest, to draw a line under it and, above all, to find normality. Normalisation here means not only a focus on reconstruction and the comprehensive safeguarding of central areas of life, but in many cases also a retrospective smoothing of one’s own biography: until well after 1933, the boundaries between national conservatism, which was deeply rooted in the bourgeois camp, and radical National Socialism were often blurred. After 1945, many of those who had ultimately supported the regime, helped it or held a position, claimed to have „remained decent“ inwardly and sometimes to have prevented worse things from happening. This retrospective cleansing of biographies took place while sharply distancing themselves from the defunct National Socialist leadership.
Involvement in National Socialist crimes became a „fateful entanglement“, allegedly without internal participation and without any fault of their own. Affirmation and support of National Socialism was supposed to have been blindness and seduction while at the same time demonising the Nazi leadership. The mass crimes could no longer be denied, but inner approval, participation, elements of profiting and more or less fragmentary knowledge about the Holocaust were relativised. The mass crimes were supposed to have been crimes committed by the leadership. In 1948, 57 per cent of West Germans thought that National Socialism was a „good idea“ that had been poorly implemented. The official end of the denazification measures also signalled that there was no longer any need for individual confrontation and that the chapter was closed. Last but not least, Adenauer’s dictum that there must finally be an end to the Nazi rumours reflected the widespread sentiment and acted as a carte blanche.
This prevailing tendency corresponded at the political level with a cross-party consensus in favour of the reintegration of former functionaries of the „Third Reich“ into West German institutions, including the judiciary. Apart from a few exceptions, they were re-employed in the administration and ministries of the Federal Republic below the political, state secretary level. By 1953, 60 per cent of department heads were former members of the NSDAP, and almost 15,000 posts in the ministerial bureaucracy were filled by civil servants dismissed by the Allies after 1945. By the end of 1954, the functionaries of the „Third Reich“ had been almost completely transferred to the state administration.
At the Federal Court of Justice, the supreme court of appeal in civil and criminal cases and therefore also the last instance with jurisdiction and authority over Nazi proceedings, 80 per cent of the judgeships in the criminal divisions were filled with former Nazi judges in 1962. [ 6] This general reintegration policy did not only include nominal party members, fellow travellers and those with minor offences. Increasingly, representatives of the Nazi prosecution authorities and the Reich Security Main Office were also reintegrated, including former Gestapo employees and members of the SS Security Service.
Harster also benefited from this development. The conviction by the court in The Hague for his involvement in the deportations appeared in Harster’s personnel file after his reinstatement in 1956 merely as an ordinary „prisoner of war“ [7] , as a judicial act of the victors; the final conviction for Nazi crimes was concealed. A legal report submitted by Harster in the course of his reinstatement to the civil service came to the conclusion that „Harster’s conviction [in the Netherlands] was essentially based on his ‚departmental responsibility'“, „apart from the accusation arising from his functional responsibility“, no „personal accusations“ had been made against [him]. An entry in his personnel file at the Bavarian Ministry of the Interior from 1956 also identifies him as having „no criminal record“. [8]
While it was assumed in the mid-1950s that the social, political and judicial confrontation with the Nazi past was essentially complete, the founding of the Central Office of the State Justice Administrations in Ludwigsburg in 1958, the central preliminary investigation and coordination body in the course of a wave of proceedings that was now beginning, can be attributed not least to social and political change processes that also changed the framework conditions of the Nazi proceedings. The supposedly gloomy 1950s are not replaced by a bright decade of enlightenment; rather, the proceedings are embedded in a tense relationship between continuity and change, exculpation and confrontation, concealment and removal of taboos. A further determining factor in this area of conflict is also the state of the young discipline of contemporary history research at the time, which, based on Hitler as a strong, dominant figure, finds its expression in the expert reports prepared by the Institute of Contemporary History on Fritz Bauer’s initiative for the first Frankfurt Auschwitz trial. [ 9] The results of the expert reports were also available to the Munich public prosecutor’s office and were ultimately incorporated into the indictments against Harster, Zöpf and Slottke.
Increased prosecution activity, which was now slowly gaining momentum, was accelerated not least by a change in media reporting, which initially attracted attention, particularly on the occasion of the Eichmann trial in Jerusalem, by placing the victims of the Shoah at the centre of attention for the first time. The prosecution efforts of this phase were characterised by a progressive systematisation and coordination of investigative work [10] , partly in view of the impending statute of limitations on Nazi crimes and growing criticism from abroad of previous failures. Accordingly, the focus of criminal prosecution shifted to Nazi crimes that had been committed outside the so-called Old Reich borders, in occupied territory behind the front, and thus primarily to the extermination camp complex.
The first Frankfurt Auschwitz Trial (1963-1965), initiated by Fritz Bauer, was at the centre of international contemporary attention and research, in which it was primarily the ranks of the extermination camp who were on trial, the systematic nature of the extermination was demonstrated in detail for the first time and the Federal Republic of Germany in the 1960s was confronted with the reality of Auschwitz. [ 11] Through the proceedings before the Munich Regional Court, the logistics of the deportation, which were coordinated from a desk, became another aspect of criminal prosecution and public perception. For the first time, representatives of the middle to higher functionary elite were to be sentenced by a federal German court.
The prevailing tendency to convict defendants in trials for National Socialist crimes of murder as accomplices goes back to the case law of the Federal Supreme Court, which also formed the guideline for the Munich Regional Court. The public prosecutor’s office did not consider a charge of perpetration; with regard to the sentence and length of imprisonment, the judgement was also in line with the general extraordinary leniency towards Nazi perpetrators. [12]
IV.
Due to the clearly articulated interest on the part of the Netherlands in the progress of the proceedings, the public prosecutor’s office at the Munich II Regional Court initially attached central importance to the Zöpf case: The proceedings „against Wilhelm Zöpf for involvement in the murder of 110,000 Dutch Jews“, said the investigating authority at the end of 1959, [was] „one of the most important proceedings currently pending in the Federal Republic of Germany. […] Precautions had to be taken „to ensure that the public prosecutor’s office and the criminal investigation department could under no circumstances be exposed to the pretence that the investigation, which was important for the reputation of the Federal Republic, had been conducted with inadequate resources.“ [13]
Nevertheless, the proceedings subsequently stagnated for four years. In order to be able to bring charges of accessory to murder, the public prosecutor had to prove that the defendants had known the fate of the deportees; it was necessary to refute the protective assertion cultivated in relevant circles that it had been assumed that they had actually been „deployed for labour in the East“. The proceedings went round in circles on this issue when the Dutch government learnt from the press in 1963 that Zöpf had been at large for some time and that no start had been made on drawing up an indictment four years after the proceedings had been initiated. The clerks at the Munich public prosecutor’s office at Munich II Regional Court assumed that such evidence would be almost impossible to provide; the investigations had come to a standstill.
The Neue Züricher Zeitung reported on „laborious investigations against one of Eichmann’s accomplices“ and „delaying manoeuvres by German judicial authorities“, concluding its commentary with the question of whether the responsible authorities in Bonn had already considered the extent to which the behaviour of German authorities could have repercussions on the popularity ratings of Germans abroad. [ 14] A summary letter from the Foreign Office to the Federal Ministry of Justice at the end of April 1963 documents the intergovernmental significance and federal political dimension of the proceedings: the Dutch press had „once again taken up the Zöpf case.“ According to the Foreign Ministry, there was „surprise that no charges have yet been brought“. „The trial has been delayed for years […] although there is sufficient material and witnesses available.“ [15]
A turning point in the investigation, which in the meantime had expanded to include Zöpf’s former superior Harster [16] , was marked in 1963 by a personnel change in the Munich public prosecutor’s office, which was to be of central importance for the further course of the trial: Benedikt Huber, born in 1926, came from a family of philologists and grew up at a critical distance from National Socialism. He was two years old when Harster submitted his legal dissertation to the University of Erlangen. He was enrolled at school when Harster set the course for his career in the political police, which he was able to accelerate after 1933, not least by soon becoming a member of the SS. Benedikt Huber was 19 years old when National Socialism collapsed; he graduated from high school while the former BdS had to answer to a Dutch special court. In 1964, the now 38-year-old public prosecutor faced the now 60-year-old lawyer Harster. [17]
His superior, Senior Public Prosecutor Weiß, had been a „cultivated atheist“ who had occasionally dropped by to discuss philosophical questions of principle. He had shown little interest in the Nazi proceedings of his subordinate. Weiss himself was incriminated, he had been involved in a death sentence in 1942 as a prosecutor at the Special Court Munich I and could no longer hope for further promotion. This was probably one of the main reasons why he kept completely out of the Nazi trials of his subordinates. [ 18] It was essential for the progress of the proceedings that public prosecutor Huber was not obstructed by any higher official or political authority.
In contrast to Fritz Bauer, who clearly pursued a socially enlightening intention with the trials, the concept of the Munich public prosecutor’s office remained limited to the criminal procedural dimension of the proceedings. Benedikt Huber had already demonstrated consistency in the prosecution of Nazi crimes in the course of his indictment against Karl Wolff [19] , Himmler’s temporary aide-de-camp. His factual orientation formed the basis for an unprecedented co-operation between the Munich prosecution authorities and historians from the Dutch Reich Institute for War Documentation (RvO, RIOD).
While the public prosecutors had previously only concentrated on individual anti-Jewish actions, public prosecutor Huber now expanded the subject of the investigation to include the complex process of the systematic exclusion and disenfranchisement of Dutch Jews, including the organisation and execution of the deportations. He included the lines of command leading to the Reich Security Main Office in the analysis and thus focussed on the overall context of the Holocaust in order to delimit the individual responsibility of the defendants.
Huber’s basic conceptual orientation and the fact that he was given a free hand by higher authorities at every stage of the proceedings are of central importance for the course and outcome of the trial. Huber succeeded in putting the relationship with the Dutch side on a basis of personal trust and thus dispelled the mistrust in the prosecution by the German authorities due to the well-known failures.
On this basis, the structure of the occupation administration was worked out in co-operation with the historians of the Amsterdam Reich Institute, the competences of the accused were determined, the lines of command reconstructed and the respective responsibilities defined. All stages from the first anti-Jewish measures in the Netherlands to the successive disenfranchisement of the Jewish population and their systematic deportation to the extermination camps were reconstructed and assigned to the respective areas of responsibility of the accused. The original narrow focus on individual anti-Jewish measures involving the accused, set by Huber’s predecessors, was extended to the overarching context of systematic extermination. Lines of command to Berlin emerged just as clearly as individual responsibility on the ground. The indictment was the result of a joint, interdisciplinary and cross-border process of establishing the truth on the basis of the Amsterdam Institute’s sources, many of which were analysed for the first time in the course of the trial. However, it was not until 1965 that the Dutch historians succeeded in proving on the basis of documents that Harster, Zöpf and Slottke had known the fate of the deportees. While those sentenced to death by the occupying regime, including Jews who had violated anti-Jewish regulations, were still deported to Mauthausen in 1941, these victims were transferred to the transports to the extermination camps in the east from July 1942, when the systematic deportations began. Mauthausen was synonymous with death, the threat of transfer to this camp was an instrument of deterrence used by Harster’s security police apparatus. Under pressure from the documents presented, he was forced to change his previous defence strategy and make a confession.
„[…] After a certain time, however, I had to realise that the Jews sent to the East were going to their deaths. If I did not draw the only possible conclusion at this point and leave my post, it was for reasons that are difficult to analyse in detail.
The first may well be that I simply left the responsibility for the atrocious events to those who had ordered them, that I continued to see myself as part of a concept of police duty in a habitual obedience that did not allow the thought of leaving – regardless of the consequences that would follow. In addition, a period had dawned in which life decisions were being made for the entire German nation and in this context so much loss and destruction was taking place around us that respect for other people’s right to exist was no longer upheld to the necessary extent. The general degradation of Judaism caused by propaganda certainly played a role in this. In addition to the external destruction, there were also internal changes that led to a blunting of moral standards and caused corneas to form over the sensory organs for right and wrong – especially for the justifiability of certain measures.
When I look at the psychological processes described above today, I would like to come to the conclusion that I became certain of the fate of the Jews at the beginning of the first transports to the East [15 July 1942, C.R.]. If, at this point in time, the sources of information available to one, such as foreign radio reports, products of the illegal resistance press, the propaganda of one’s own command centres aimed at combating the Jews and the news leaking from the East about the Jewish measures being carried out there, were brought together and then, at this point in time, the order was given to send the Jews to these eastern territories, then someone in my position could have no other conclusion than that these people there, at least to a large extent, were heading for their physical annihilation sooner or later.“ [20]
Although Harster’s admission may have been partly due to an internal process of confrontation – prosecutor Huber probably saw elements of genuine remorse – it was primarily the result of tactical procedural considerations aimed at mitigating the sentence in view of the documentary evidence presented. What is particularly striking is the linguistic distance he placed between the extermination of the Jews and his co-responsibility.
V.
The Dutch press reported extensively on the pronouncement of judgement. As an example, the German Embassy in The Hague quoted from a commentary in the Telegraaf that „there is little point in discussing whether the sentences are not far too light. The crimes committed by these three are so monstrous that no punishment could atone for them anyway.“ The „significance of the trial in Munich lies in the fact“, the diplomatic mission added, that „these war criminals were prosecuted by a German public prosecutor and convicted by German courts“. [21]
The Dutch public and politicians attached far greater importance to credible efforts by the West German judiciary to prosecute and clarify the case than to the judgement and sentence. [ 22] And in Germany, the trial was accompanied by lively media and public interest. The Munich trial personalised the abstract figure of over 100,000 Jews deported from the occupied Netherlands through the fate of Anne Frank. She and her family had been deported under Zöpf’s responsibility as late as 1944; her father took part in the trial as a joint plaintiff. Almost all reports on the main hearing in the Munich Palace of Justice showed a picture of the girl whose diary had been published a few years earlier. [23]
Even more than the meticulous presentation of the systematic nature of anti-Jewish measures in the Netherlands, Harster’s career in two systems was at the centre of public debate. The Münchner Abendzeitung newspaper spoke of „bookkeepers of death“; Harster was always „a loyal servant of the authorities. Whether democracy commanded him to do something or dictatorship ordered him to do something – Wilhelm Harster […] was always the model of a civil servant, ambitious, only concerned with the cause.“ [24] Harster himself explained in the main trial that he had fulfilled an administrative task and had followed the guidelines of the Reich Security Main Office and the Reich Commissioner for the Occupied Netherlands.
The „man who built up the well-functioning administrative apparatus for the final solution of the Jewish question in the Netherlands with great diligence and faithful fulfilment of duty still knows how to give the impression today that he was never anything other than a talented, bourgeois civil servant with a conservative, middle-class education. A well-behaved civil servant who always carried out directives and orders from above uncritically, quickly and with the precision and reliability of an administrative specialist.“ [25]
The image of the civil servant who was obedient to authority, adaptable and able to make a career in any system became concentrated in the person of Harster; the civil service as a whole became the centre of criticism. The Munich trial fuelled a debate about a civil service that served any order and was also part of the apparatus of extermination. Harster became an exemplary representative of this apparatus. As a result of the Munich trial, public discourse focussed on spectacular cases, but a critical examination of the reintegration of functionaries of the „Third Reich“ into West German offices, society and politics was probably still lacking the necessary distance.
What was significant was that almost twenty years after the fall of the Nazi regime, a high-ranking functionary of the extermination apparatus publicly admitted for the first time that he had known about the systematic extermination. Although the claim that they had assumed that labour had actually been used persisted in the defence repertoire of numerous defendants until the 1980s, it hardly held up in court. They could now fall back on the results of the co-operation between the Munich public prosecutor’s office and Dutch historians and limit themselves to deductions. [26]
Of decisive importance was the fact that Harster’s admission meant that the complicity of an entire society was up for discussion, but was not taken up in the media or by any other side, not even in the inner-German East-West debate. The time was obviously not yet ripe for this.
VI.
Barely seven months after the verdict was announced, on 17 November 1967, two thirds of Harster’s total sentence had already been served, taking into account the time spent in prison in the Netherlands and the time spent on remand in West Germany. On 16 July 1968, after just over a year and three months in prison, the former commander of the security police was released. Zöpf was freed on 29 July 1970, having served two-thirds of his prison sentence. Slottke was pardoned on 11 August 1971 by resolution of the Bavarian Ministry of Justice.
He was still in the „clutches of the unresolved past“, Harster complained on the occasion of another trial, which probably affected him personally much more deeply than the trial at the Munich district court because of the deportations. On 30 July 1969, the University of Erlangen’s Committee for the Withdrawal and Reconferral of Academic Degrees decided to withdraw Harster’s academic degree of Doctor of Law. [ 27] „Due to his behaviour as established in the criminal judgement,“ the decision of 6 August stated, Harster was „unworthy of holding an academic degree due to the severity and extent of the offence.“ His impeccable behaviour after the end of the war could not erase the earlier events. The doctorate was not exclusively a proof of performance, but also required the „grasp of the ethical and moral foundations of law“. Therefore, the former commander of the security police was no longer worthy of the academic title after the offences he had committed. In his appeal against this decision, Harster argued that, according to the grounds of the judgement, the „conviction cannot be equated with unworthiness and dishonourability.“ Moreover, he had also „accepted the atonement.“
The competent administrative court dismissed a corresponding complaint by Harster in November 1970. [ 28] According to the court, anyone who „no longer fulfils the qualifications that the general public still requires of the holder of such an academic degree“ is unworthy of holding the academic degree. This personal qualification, which goes beyond professional skills, is regularly expressed in irreproachable behaviour.“ The involvement of the former commander of the security police in the „supplying of victims for the insidious and cruel extermination organisation, which was conducted with base motives“ was „absolutely incompatible with the heightened ethical demands placed on the holder of an academic degree.“ However, it was precisely in a „borderline situation that the conscience and basic ethical stance of the academic dignitary should have spoken.“ In the opinion of the court, it is essential that Harster „failed at the time when he held his greatest power.“ The plaintiff had proved himself unworthy at the moment „when his behaviour was really put to the test“. [29]
The conviction for the deportations had not affected his substance and did not affect his civic existence. In the course of the normalisation of biographies, Harster found himself, as the saying goes, in good company. The revocation of his doctorate, on the other hand, affected him; it meant a loss of bourgeois acceptance and recognition and excluded him from the bourgeois normality to which he aspired.
Harster died in Munich on 25 December 1991. Zöpf’s and Slottke’s traces are lost.
VII.
The trial before the Munich Regional Court was an exceptional trial in the history of German law. For the first time, so-called „distant perpetrators“ were sentenced by a federal German court and the systematic administrative process of marginalisation, disenfranchisement and robbery, including deportation to the extermination camps, was made public. For the first time, confessions were made that confirmed the complicity of broad sections of the population in the Holocaust. In addition, cross-border co-operation between a German public prosecutor and Dutch historians had succeeded in creating a new basis of trust. The trial also – and this was of particular importance – shed light on the legal room for manoeuvre that would have made it possible to consistently punish Nazi crimes in the 1960s and could have called into question the common practice of charging defendants in Nazi trials with accessory to murder rather than perpetration.