Bock was seemingly the first lawyer to openly deny the Holocaust in such a case, but he was not the first to question the legitimacy of war crimes prosecutions. Kurt Franz's lawyer, Hans Joachim Gohring, claimed that West Germany's current judges had “cooperated closely with the Gestapo and the other Third Reich organizations for the crimes committed during those years.” He expressed the view that death camp personnel were scapegoats for the men who were now passing sentence against them. In another trial, defence lawyer Gerd Heincke "told the court that Hitler had believed he was fulfilling a “sacred mission” in the destruction of European Jewry and that those who carried out his orders were not guilty of murder. A statesman, who kills other people because he believes they are destroying his own people does not act from malicious motives, he argued."
These facts demolish the view of the West German legal process that deniers rely upon, in which there had to be a consensus between politicians, judges, prosecution and defence that the legitimacy of war crimes prosecutions was sacrosanct. For example, in MGK's Sobibór, Graf insists that West Germany was merely a "puppet state" whose "leaders ordered the judiciary to fabricate the evidence for the mirage of the murder of millions of people in gas chambers, for which not a single shred of evidence survived – if it ever existed (p.171)." Such a mass fabrication could not have taken place if the different organisations involved in the process were antagonistic and liable to go off script, as occurred with Bock and Gohring.
Graf has to sweep many inconvenient facts under the rug to make this argument. He ignores the fact that, under the Basic Law, the judiciary was independent of the federal government. He also fails to mention that, during the 1950s, the Adenauer government secured the release of war criminals convicted at Nuremberg (NMT) from Allied (US) captivity, whilst rehabilitating many of the judges and civil servants of the 1933-45 period, thereby implicitly reversing the Allies' policies towards the criminal legacy of the Third Reich as a set of corrupting institutions. Moreover, the West German trials were mostly not about crimes against Jews: there were 103,823 criminal investigations concrerning the Nazi period by 1992 but these produced only 472 cases that resulted in convictions for crimes against Jews (Matthaeus, pp.192-193).
The separation of courts from politicians can be illustrated in a number of war crimes cases. In 1968, the Chancellor of West Germany, Kurt Georg Kiesinger, was "subpoenaed to testify in the war crimes trial of a former diplomat [Adolf Beckerle] who was charged with arranging transportation for 11,343 Bulgarian Jews to German death camps." Kiesinger's denial of having had knowledge of the death camps until near the war's end was condemned by the AJC. Beckerle's lawyer was Egon Geis, who had previously represented Georg Heuser by going to such extraordinary lengths as visiting Minsk to view documents and interrogate witnesses. Geis never attempted to persuade Heuser to deny his crimes, and Heuser accepted full responsibility for his crimes.
Heuser was another example of an SS officer who regained police employment in West Germany after the war. Heuser had believed that his successful police career would protect him from arrest and prosecution as a war criminal. This is impossible to reconcile with Graf's delusional image of a puppet West German state ordering its judges to hunt down SS personnel who served at gassing sites. Even after his conviction, Heuser seems to have settled for a fate in which he served "a little over six-and-one-half years of his sentence." Graf would have us believe that this is because Heuser co-operated with the prosecutors, but the far more likely explanation is that Heuser could convince the judges that he was just a bureacratic killer rather than a sadist, as this explanation was accepted by West German courts in numerous cases. As Pendas notes:
Rebecca Wittmann, in her brief but sweeping overview of German Nazi prosecutions from 1960 to 1980, points to what she sees as a generational conflict between "young, and eager prosecutors and older, more conservative, largely former Nazi judiciary" (p. 211). In a context where the legislature failed to provide an adequate or clear statutory basis for prosecuting Nazi crimes (and indeed, with legislative reform concerning the statute of limitations in 1969, actually effected a de facto amnesty for many Nazi criminals), conservative judges triumphed over activist prosecutors. The result was a largely exculpatory jurisprudence in which only the most extreme and sadistic Nazi defendants faced anything like adequate punishment for their crimes.
If the West German state had prioritized the punishment of Nazi criminals, it would have reformed the "statutory basis for prosecuting Nazi crimes" by, for example, not allowing the statute of limitations for manslaughter run out in May 1960. As Friedlander argues here, "The language used by the courts at times also shows a lack of sensitivity to Nazi criminality. Two examples:
1. The Federal Court (Bundesgerichtshoj) condemned the activities of a German civil servant who aided Jews in contravention of Nazi laws as a "violation of official duties" (Amtspflichmerletzung).24
2. In sentencing a concentration camp administrator for killings committed in Sachsenhausen, the District Court in Nuremberg-Furth concluded: "The Court did not find sufficient reason to revoke the defendant's civil rights, because it could not be proven that, as an SS officer, he lacked honorable character."25"
Friedlander further notes that the precedent set by the 1940 Bathtub Case enabled the courts to interpret direct particpation in murder as merely aiding and abetting:
This so-called subjective interpretation enabled the courts to convict as an accomplice someone who had personally killed. In the immediate postwar years, some courts still rejected this interpretation. They refused to classify Nazi killers as accomplices; they saw the "degree of personal interest" as only one criterion of how to judge participation. These courts convicted the killers as perpetrators.61 But eventually most courts accepted the subjective interpretation of the Bathtub Case.62 After 1948, this interpretation was applied more and more often to almost all Nazi criminals; thus commanders of Einsatzgruppen, senior officers of the extermination camps, and chiefs of the Gestapo were convicted as the accomplices of the senior perpetrators: Hitler, Goering, Himmler, and Heydrich. All this had become accepted practice long before the highest federal court, the Bundesgerichtshof, reaffirmed this interpretation in its 1962 Staschynski decision.63
Even conviction as an accomplice did not automatically prevent the imposition of a stiff sentence. A life sentence was permissible; a reduction from the mandatory sentence of perpetrator was only suggested- not required-for the accomplice. Even if the possible life sentence was not imposed, a fifteen-year prison term could be pronounced. This, however, was not the trend. The courts rarely imposed such heavy sentences. Usually only a few years, often less than five, were imposed as punishment for an accomplice in the murder of thousands. The reasons advanced to explain this leniency were often bizarre. For example, in one case a court ruled as follows:
In passing sentence, the Court considered as a mitigating circumstance that the defendant suffered protracted psychological stress because, fearful of unjust punishment and extradition to foreign powers, he concealed himself for years in his apartment.64In 1968 a change in the law made conviction far more difficult. By that time, the statute of limitations had expired on all Nazi crimes except murder. Each time the statute of limitations threatened to expire on murder, the legislature extended it after long debates. But the statute does not mention murder or manslaughter. Instead, it defines murder as a crime punishable by life imprisonment and manslaughter as a crime punishable by fifteen years imprisonment. The statute of limitations on the latter expired in 1960. The former, which has not expired, applies to the perpetrator; it also applied to the accomplice, who seldom received a life sentence but who could have received it. In 1968, a change in §50 of the Penal Code made the reduction of sentence mandatory for the accomplice if he did not share the base motives of the perpetrator. Such a reduction to no more than fifteen years meant that the statute of limitations would have expired in 1960 for this kind of accomplice to murder.65
The result was that the prosecution was not able to obtain life sentences for simply aiding and abetting murder. Thus in the Heuser trial, the prosecution had sought a life sentence for Heuser, but the jurors stipulated a maximum term of fifteen years, which would include the time Heuser had already spent in detention since 1959. Only the the sadist and fanatical antisemite Franz Stark received a life sentence. In the Sobibor trial, the unrepentant sadist Frenzel was given life, as was Kurt Franz for Treblinka, although this did not prevent Franz later making admissions concerning gas chambers.
Such sentences pose huge problems for Graf and his colleagues, as I show in Part 2.