In Primo Levi’s Survival in Auschwitz, the author-inmate asks a camp guard a simple question: ‘Why?’ The guard replies: ‘There is no why here.’ I was reminded of this exchange reading Tobias Buck’s lucid account of the trial of the former Stutthof camp guard Bruno Dey in a Hamburg court in 2020. In a courtroom, ‘why’ is ubiquitous. A trial is an interrogative process to elicit the truth about the innocence or guilt of an individual. Buck comments on the ‘forensic curiosity’ of Anne Meier-Göring, the presiding judge, who patiently struggled to elicit why and how Dey had taken part in the Nazi genocide: ‘why [he] had climbed up the watchtower, what made [him] stay there’. Buck asserts that the trial raised questions ‘profoundly relevant to all nations’: how could this happen? Who is guilty? The deeper question is whether the Dey trial is testimony to judicial success – or failure.
Buck begins with an unsettling spectacle. A 93-year-old man is wheelchaired into a grand and ornate courtroom in Hamburg. He conceals his face behind a red folder from a mob of reporters and photographers. The man, Bruno Dey, was joining the macabre parade of alleged Nazi perpetrators hauled from armchairs in care or family homes to face belated justice before German courts: he followed in the footsteps of Irmgard Furchner, 96, a shorthand typist at Stutthof, Oskar Gröning, 93, the so-called ‘accountant of Auschwitz’ and Johann Rehbogen, 93, whose case was dropped because he was judged to be ‘permanently unfit for trial’.
As Buck acknowledges, German memory culture wobbles on an unstable foundation of chronic judicial failure: a reluctance to punish. The creation of the Federal Republic of West Germany in 1949 provoked widespread calls – both public and political – to draw a line under the shame and guilt of the past as if the Nazi period and its crimes had been an outbreak of a ‘childhood infectious disease’. Buck crisply explains the legal hurdles that thwarted prosecution of alleged German perpetrators in West German courts. In 1958, for example, at the Ulm ‘Einsatzkommando trial’ – the first major proceeding under West German law – the court found the former SS officer Bernhard Fischer-Schweder guilty as an accessory on the grounds that he and the other accused had not committed egregious acts of mass killing ‘as their own’ but in support of someone else’s crime. Later prosecutions were frequently fouled by legal sophistry. Most significantly, German law insisted that prosecutors prove that anyone accused of ‘National Socialist’ crimes was directly implicated: it had to be proved that the accused had killed people themselves, usually with excess brutality. But Treblinka, Sobibór and Auschwitz-Birkenau were factories of killing where murder was anonymous and so this fundamental requirement of German law meant that many perpetrators of the most heinous crimes lived out their lives in comfort and security cocooned by German law.
Then in 2009 that legalised security was shattered. Thomas Walther, the new head of the Zentrale Stelle (Central Office for the Investigation of National Socialist Crimes) and his colleague Kirsten Goetze took on the prosecution of John Demjanjuk and overturned the restrictive legal doctrines governing the prosecution of alleged Holocaust perpetrators. Demjanjuk had already been prosecuted by an Israeli court but his conviction was overturned when new evidence raised questions about his identity. Now it was the Germans’ turn. Walther took a radical new direction: since no innocent work was ever done inside extermination camps, anyone who kept the system working could be adjudged an accessory to murder. The prosecutors would be obligated to prove only that Demjanjuk had served as a guard at Sobibór and, therefore, participated in the killing process. And so, Demjanjuk was found guilty as an accessory to murder in 28,060 cases. He was released pending an appeal but died ten months after his conviction. Nevertheless, German legal scholars acknowledge that the case had led to a ‘paradigm change’ in German law. Investigators at Zentrale Stelle reopened their files and in 2016 they found a document confirming the signed receipt of an SS uniform on 8 August 1944: the researchers had found Bruno Dey.
Rather than asking whether it is ‘right’ to prosecute elderly alleged perpetrators like Dey or ‘the bookkeeper of Auschwitz’, or speculating abstractly about what we might or might not have done in their place, the harder question is what purpose do such trials serve? Instead of being punitive, a trial like this one may deposit additional layers of knowledge. But should trials be repurposed as history lessons?
In any case, trials such as Dey’s may provide poor history lessons. As Buck observes, testimony by survivors is ‘sacrosanct’ but the Dey trial inadvertently exposed the fragility of such evidence. On the seventh day of the trial, Moshe Peter Loth was called to testify. He had, he told the court, no recollection of Stutthof but told the story of his grandmother who was, he claimed, murdered in the camp gas chamber and his own traumatic separation from his Jewish mother who was also imprisoned at the camp. Loth frequently broke down. In a final gesture, he requested permission to approach Dey: ‘Pay attention’, he said to the court. ‘I will embrace him and forgive him.’ It was a moment of high theatre, but as the German news magazine Der Spiegel discovered: ‘It was too good to be true.’ As the reporter delicately put it: ‘Loth, one has to assume, is apparently mistaken.’ Both his mother and grandmother were Protestants not Jews; neither had died in the camp. It was a journalist, not the court, that exposed the flimsiness of Loth’s testimony.
The Dey trial – found guilty, he was given a two-year suspended sentence – and others like it are testimony to the failure of German justice to successfully prosecute perpetrators. Those elderly men in wheelchairs paraded in German courtrooms in the new century provide a feeble response to decades of reluctance to acknowledge and punish.
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Final Verdict: A Holocaust Trial in the Twenty-first Century
Tobias Buck
Weidenfeld & Nicolson, 336pp, £25
Buy from bookshop.org (affiliate link)
Christopher Hale is the author of Deception: How the Nazis Tricked the Last Jews of Europe (The History Press, 2019).
