Autor/Autorin
„One shudders to think that those sitting in the dock have been regarded as the elite of the German people for twelve years,“ said lawyer Henry Ormond, representing the joint plaintiffs, in his closing statement at the end of the Auschwitz trial. One was ashamed of the German nation for having accepted such a thing. Without the trial, the unteachable would have continued their attempts to trivialise the Nazi crimes. The fact that this was no longer possible would be seen as the lasting merit of this exemplary trial, alongside the punishment of the guilty.
Contrary to Henry Ormond’s expectations, however, the attempts to trivialise the Nazi crimes have continued. 54 years after the conclusion of the trial, the Süddeutsche Zeitung newspaper of 26 April 2019 came to the conclusion that National Socialism had lost its horror in parts of German society. It referred to the results of a study by the Friedrich Ebert Foundation on the spread of right-wing extremist attitudes. Back in 2003, a survey conducted by Bielefeld University revealed that 69.9 per cent of Germans no longer wanted to be reminded of Nazi crimes.
Years ago, Friedrich Merz was one of those in favour of drawing a line under the past. He and his generation no longer wanted to be held responsible for Auschwitz and the Nazi crimes, he said as chairman of the CDU/CSU parliamentary group in the German Bundestag. With the exception of Paul Spiegel from the Central Council of Jews in Germany, no one publicly contradicted him at the time. Spiegel described the statement as a „slap in the face of the victims and survivors of the Nazi regime“. By shirking responsibility for the lessons of history, right-wing extremist slogans and xenophobia were being made acceptable. (AP , 31 March 2000). Meanwhile, a party with 91 members sits in the Bundestag whose chairman Alexander Gauland trivialises the Nazi era as a „bird’s-eye view“ compared to more than a thousand years of „successful German history“.
From a legal perspective, the Auschwitz trial was also not a milestone in coming to terms with Nazi crimes. The view held by the court and confirmed by the Federal Court of Justice that only specifically proven offences could be punished proved to be a carte blanche for many of those involved in the events of the Nazi era. In the meantime, the praise for the exemplary conduct of the trial has also taken on a bitter flavour. It turned out that the presiding judge Hans Hofmeyer was one of the pillars of the regime whose most gruesome crime, the factory killing of people, was to be judged in the trial he presided over. This was discovered by a research assistant at Cologne University named Matias Ristic. He wanted to honour Hofmeyer’s merits in his dissertation, but came across documents in the Hessian State Archives that put his idol in a completely new light.
According to these documents, Hofmeyer, as a judge at the Hereditary Health Court in Giessen, had people made infertile against their will. This was done on the basis of a law on the „prevention of hereditarily diseased offspring“, with which the Nazi leadership wanted to gradually eliminate „unworthy life“. The mentally disabled, mentally ill, epileptics, blind and deaf people and even alcoholics were affected by this inhumane programme. Around 400,000 people were forcibly sterilised by order of the hereditary health courts. Around 5000 did not survive the procedure and Hofmeyer is said to have interpreted the law rigorously in individual cases to the detriment of the victims concerned. As the Gießener Anzeiger newspaper wrote on 3 April 2019, citing Ristic, Hofmeyer belonged to eight Nazi organisations during his time in Giessen, including the NSDAP, for which he had submitted an application for membership.
At the beginning of the Second World War, Hofmeyer was initially deployed as an intelligence officer, but then quickly made a career in army justice. There he made it to the rank of senior staff judge. According to Ristic, Hofmeyer was at the centre of the department responsible for setting up so-called flying courts martial. These courts passed countless death sentences and were a feared instrument of terror to combat war weariness among soldiers and civilians. The department was headed by the Chief of Army Field Justice Otto Grünewald.
The public learned about all of this from a full-page article in the Frankfurter Allgemeine Sonntagszeitung on 31 March 2019 entitled „The judge and his secret“. The article states that Hofmeyer was „extremely discreet“ about his closeness to Grünewald and his work in his department after the end of the war. Grünewald was one of the few lawyers from the „Third Reich“ who were initially not allowed to work in the civil service of the Federal Republic of Germany due to their involvement in crimes. Hofmeyer, however, knew how to present his own past in a favourable light. In a one-on-one conversation with the survivors‘ lawyer Ormond, he had named another superior from the war instead of Grünewald: Karl Sack. The Frankfurter Allgemeine Sonntagszeitung quoted Matias Ristic as saying that the mere mention of the name was enough to insinuate that he was close to the resistance.
The deceptive manoeuvre succeeded. Any doubts about Hofmeyer’s suitability as chairman of the Auschwitz trial were thus dispelled. Karl Sack, former head of the Army Law Department at the Army High Command, was one of the conspirators in the assassination attempt on Hitler on 20 July 1944. Together with other resistance fighters, he was sentenced to death by a summary court in April 1945 and executed in the Flossenbürg concentration camp. The summary court was presided over by the chief judge at the SS and police court in Munich, Otto Thorbeck. A trial against Thorbeck for accessory to murder ended in 1956 before the Federal Court of Justice with an acquittal.
After Hofmeyer opened the Auschwitz trial on 20 December 1963, the SED newspaper Neues Deutschland accused him the next day of having been involved in death sentences during the Nazi era as a senior staff judge. In the West, this was regarded as communist propaganda. But what would have happened if the details that have now become known had come to light back then? Hofmeyer would hardly have survived an application for bias. When it became known that his fellow judge Hans Forester, who was originally intended to preside over the trial, had Jewish relatives who had been persecuted during the Nazi era, those involved feared an application for recusal and appointed Hans Hofmeyer, who was intended to be an associate judge, in his place.
He had a completely different idea of the court’s task than the Hessian Attorney General and initiator of the trial, Fritz Bauer. He was not so much interested in punishing individual perpetrators, but rather in investigating the reasons for the German people’s descent into the barbarism of Nazism in order to prevent similar disasters in the future. Without questioning the roots of evil, there is no salvation and no healing, Bauer told 800 students at Frankfurt University on 5 February 1964. The topic of his lecture was the question of whether the trials of Nazi perpetrators served political enlightenment. „If you ask me now whether they will fulfil this purpose, I hesitate. Even at the risk of arousing a storm of indignation, let it be said – the past, present and future are far from being ‚dealt with‘. All pharisaism is misplaced. The trials are a bitter medicine; we all have to swallow it.“
Without mentioning Fritz Bauer’s name, Hofmeyer firmly rejected the demands of the Hessian Attorney General in the grounds for the judgement. „The court was not called upon to deal with the past,“ he said. „It did not have to examine whether this trial was appropriate or not.“ The demand for a comprehensive account of the events leading up to the catastrophe at Auschwitz had been met by numerous expert reports. The court’s task had been to determine criminal guilt as defined by the Criminal Code. Even if all defendants were sentenced to life imprisonment for complicity, this would never lead to just atonement in view of the number of victims.
This was also directed at Fritz Bauer. Towards the end of the trial, he had pressed in vain for the defendants to be held accountable for aiding and abetting or complicity, even without concrete proof of the offence. The crimes committed in Auschwitz could not have been committed without the co-operation of a large number of people. 43 years later, Bauer’s legal opinion was partially realised in the trial against the former Ukrainian guard at the Sobibor extermination camp, John Demjanjuk. He was found guilty of aiding and abetting the murder of 28,060 Jews without concrete proof of the offence. In the opinion of the Munich Regional Court, a guard in a camp like Sobibor was automatically an accessory to murder. None of this damaged Hofmeyer’s reputation. What he said in the grounds for his judgement touched many people’s hearts: „There will probably be many of us who will not be able to look into the happy and believing eyes of a child for a long time without the hollow, questioning and uncomprehending, fear-filled eyes of the children who went their last way there in Auschwitz appearing in the background and in their minds.“
Is this how someone speaks who has learnt nothing from his own mistakes? „Grey, dear friend, is all theory and green the golden tree of life „. (Faust 1 ). In 1962, when the Federal Administrative Court was to rule on an application by the Federal Government to ban the Association of Persecutees of the Nazi Regime, a visitor accused the president of the court, Fritz Werner, of having been a member of the NSDAP on the second day of the hearing. The accused reacted in an unexpected way. In a decision, the 1st Senate, which he chaired, asked the government to consider whether its arguments were sufficient for a ban. The idea of atonement, which underlies the constitutional order and the realisation of which is one of the most important tasks of the Federal Republic, requires a consideration of whether an organisation of persecuted persons may be banned with the associated criminal sanction.
Hardly ever has a federal government been more harshly criticised. The Federal Administrative Court refused to set a date for the continuation of the proceedings. The process ended without a sound in 1964 when a new law on associations came into force. What has become known about the behaviour of Judge Hans Hofmeyer during the Nazi era does not alter the historical significance of the Auschwitz trial. As Fritz Bauer had wished, he gave the murdered victims and survivors of Auschwitz a voice that will never fall silent and will act as a warning in the future.