Eh bien eh bien...
D'abord, l'ouvrage de Rebecca Whittmann sera bientôt publié par Harvard University Press sous le titre:
Beyond Justice: The Auschwitz Trial, the Law and the Holocaust.
Ensuite, il y a bien un article disponible sur le web pour les institutions universitaires, et auquel j'ai accès grâce à mon université qui me fournit mon accès internet
. L'article fait 34 pages, aussi je ne le copierai pas ici, mais voici les conclusions de l'auteure, qui répondent, je crois, à quelques questions que tu te posais.
En accord avec les règles académiques qui régissent ce genre de message voici la citation bibliographique complète, cependant:
Rebecca Elizabeth Whittmann, "The Wheels of Justice Turn Slowly: The Pretrial Investigations of the Frankfurt Auschwitz Trial, 1963-1965",
Central European History, vol. 35 (sept. 2002), no. 3, pp 345-378.
Et voici la conclusion (p. 376-377)
In retrospect, does the period between 1945 and 1963 represent a shameful period of silence in the West German criminal justice system? Is Hannah Arendt accurate in her contention? One could argue that the scant amount of information and scholarship surfacing in Germany during this period had to do with a general public focus on reconstruction and obtaining simple necessities as well as a lack of documentary information. Many public prosecutor’s offices throughout the country had other priorities that included implementing an unbending, just and democratic justice system that was the antithesis of the Nazi system, where arbitrary changes to the law were constantly made. Prosecutors had not yet fully recognized the scope of the crime structure and the possibilities for prosecution in their own districts. Additionally, during and immediatelyafter the Nuremberg trials, the Allies did not permit the West German courts to try Nazi criminals, and the new ministry of Justice chose not to adopt international criminal codes. Perhaps most importantly, the limitations of the German criminal code — the distinction between perpetrating and aiding and abetting murder, as well as the subjective motivation definitions in the murder statute— made prosecution most difficult and required the prosecutors to make painstaking efforts to gather huge amounts of specific evidence against each possible suspect.This in turn led to another delay in prosecution,whereby logistics and evidence gathering, along with a rapidly expanding perpetrator list, extended the pretrial time period immeasurably. Hannah Arendt contended that the dismal record of investigation of Nazi criminals was the direct result of indifference and even distaste for such prosecutions, and only the Eichmann capture in 1960 acted as an impetus to turn the wheels of justice in Germany (and for all the wrong reasons).
This interpretation reflects a certain level of ignorance of the largely confidential investigations already going on in Germany long before the Eichmann trial. A particularly good example of this is the case of Richard Baer, arrested coincidentally after the beginning of the Eichmann prosecution. Arendt saw this as a clear indication that “Eichmann’s capture would trigger the first serious effort(s) made by Germany to bring to trial at least those who were directly implicated in murder. (74)
It may be correct that the Eichmann investigation uncovered new
evidence about uninvestigated perpetrators who belonged to Eichmann’s commando, of which Baer was a member. It may also be true that there were indeed many local courts uninterested in moving quickly to prosecute and punish Nazi criminals, as many judges and lawyers worried about their own culpability as former members of the Nazi Party. However, the argument that the entire West German justice system was infected with a malaise regarding Nazi crimes is too simplistic. Generalizations about all Nazi trials are impossible as they were run by individual district courts and priorities and motivations varied from state to state.
The dedication and thoroughness of the public prosecutor’s office of Hesse in the Auschwitz trial attests to this. In order to understand the outcome of the
trial and the rather disappointing results of most German trials involving Holocaust defendants,we must understand and emphasize the limitations of the criminal code of 1871— and that way that the law were interpreted — as
the main barrier to effective justice. The prosecution not only had to investigate the accused themselves but they also had to determine the reliability of the sources bringing complaints. Furthermore, they also wanted to conduct a manageable trial without too many defendants, so that the proceedings would not become disjointed. This meant that the prosecution often had to relegate suspects to separate files in order to be tried at a later date.The prosecution wanted to have defendants on the stand who could most easily be convicted. And finally,many suspects could not be found,had already been tried and sometimes executed, or had died of natural causes.
I asked earlier in this article if Fritz Bauer’s noble goals were tenable in this courtroom setting. I believe that Bauer’s hope to “teach lessons” and create a warning for the future was and is impossible in a trial, insofar as the emphasis in the courtroom could only be on crimes committed without an order from above, and the judgment reflected this with light sentences for all but the most sadistic killers. (75) The national penal laws as they were defined at the time did not make room for larger questions and issues
of greater significance, most especially state-ordered genocide. The legal representatives in the courtroom were bound by the criminal code and all of its exigencies. These obstacles faced by Fritz Bauer and his team were the main causes of delay in setting the Auschwitz trial into motion. As an historical document, however, and as a testament to the dedication and perseverance of the prosecutors in Hesse, the pretrial investigations of the Auschwitz trial are an invaluable source for understanding the complex process involved in trying Nazi crimes in postwar West Germany under the national penal code, and ultimately, for teaching future lessons about the difficulties of confronting the Nazi past through the judicial system.
NOTES
(74): Arendt, Eichmann in Jerusalem, 14.
(75): There is some debate about the possibility of teaching historical lessons through trials: most recently,Mark Osiel argued that the Auschwitz trial did teach lasting lessons and that the German public consumed the information they received about the trial with great interest and introspection.He argues that in fact, the Auschwitz trial and other large, public trials caused Germans to change forever their attitude toward the past. I contend,however, that while the Auschwitz trial certainly did expose the German public to information about Auschwitz that had never been brought to light, the lessons they learned about the Nazi past were distorted by the legal limitations; in the end, the mild sentences that most of the defendants received indicated to Germans that the majority of guards at Auschwitz were decent men and reluctant killers, and only those who behaved sadistically
and carried out murder on their own initiative were punished as perpetrators. Germans condemned the actions of the few sadistic “excess perpetrators,” praised the judgment in which those particular defendants were convicted of perpetrating murder, and distanced themselves from the monsters on the stand. The rest, the ordinary men who had much more resemblance to the
general populace and did not pose any threat outside of the camp setting, were slapped on the wrist with mild sentences and quickly reintegrated into society. See my article “Indicting Auschwitz? The Paradox of the Frankfurt Auschwitz Trial,” in German History, forthcoming; also,Mark Osiel, Mass
Atrocity, Collective Memory, and the Law (New Brunswick NJ, 1997), 192–96.
