“Shortly after 9:00 a.m. on May 27, 1947, the first of forty-nine men condemned to death for war crimes at Mauthausen concentration camp mounted the gallows in the courtyard of Landsberg Prison near Munich.”
So begins Tomaz Jardim’s fine book on the workings of U.S. military justice in a single Nazi concentration camp in the immediate aftermath of the Second World War. Jardim, an associate professor of history at Ryerson University in Toronto, has relied on newly declassified primary sources—trial transcripts, interviews with some of the surviving participants, investigators’ reports and at least one memoir—to tell a previously unknown story. He has intricately structured his book on two levels: the first, a powerful account of a problematic war crimes trial hastily put in place by the U.S. military; the second, a cautionary tale concerning the nature of justice itself.
Mauthausen, located just 20 kilometres from Hitler’s boyhood home in Linz, was the largest, most murderous Nazi penal institution in Austria. Following the Anschluss in March 1938, SS leader Heinrich Himmler chose the site as a practical (and profitable) location for a camp where the stone needed by Hitler to develop his grandiose architectural plans might be quarried by slave labour. The camp was also designated as an execution locale for enemies of the Reich.
For the next seven years, Soviet prisoners of war and political prisoners from Germany, Spain, Poland, Czechoslovakia, Belgium, Luxembourg, the Netherlands and France arrived at the site. Massive overcrowding spread disease, exacerbated by starvation and twelve-hour days in the quarries. The solution to a weakened work force was extermination. In May 1940, the first of three crematoria was installed in the camp. The following year, half of the 15,900 inmates died.
Most of the killings took place in a two-storey building that housed the execution chamber, the gallows and the crematoria. Always interested in manipulating compliance through the use of euphemism, the camp SS leaders murdered some of their victims in front of a “photo gallery,” where prisoners posed in front of a mock camera that fired bullets. In the “hanging room” next door, a collapsible stool could facilitate 30 executions an hour. In 1942, when these methods proved insufficient, a gas van and a gas chamber were added to the lethal mix.
Starting in 1944, tens of thousands of Jewish prisoners were transferred from Auschwitz to work in armaments production. The Jews were subjected to the worst conditions; the life expectancy of a new arrival was no more than a few weeks. Death rates peaked as the war drew to an end, and by the time 22 soldiers from the U.S. Eleventh Armored Division arrived in Mauthausen on May 6, 1945, at least 100,000 of the 197,464 people who had passed through the camp had died within its precincts.
The first liberation of a Nazi camp in Germany had taken place just weeks earlier, so the Americans who entered Mauthausen had little psychological preparation for what they were about to encounter. “Ghost-like” prisoners greeted them. Heaps of dead and dying people lay sprawled about the grounds. Most of the SS guards had escaped.
Surprisingly, given their condition, the survivors had already set up an improvised system of governance that helped bring order and security to a desperate situation; for example, they had forbidden revenge attacks on the inmate kapos who had assisted the SS in return for special privileges.
In a unique collaboration that would continue throughout the period of the investigation and the trial, the Americans and the camp survivors began the difficult task of organizing food and sanitary facilities, taking care of the sick and burying the dead. Former inmates worked as translators, clerks, personal assistants and interrogators. They wrote histories of the camp, identified perpetrators for arrest and helped choose defendants for the prosecution. Critically important evidence was uncovered in the SS “death books,” which had been hidden during the last chaotic days by a courageous inmate whose job it was to keep the records updated. The death books pointed directly to mass murder; for example, on March 19, 1945, 275 Jewish prisoners were listed to have died of “heart failure” between 1:15 a.m. and 4:30 p.m. Furthermore, they died one after the other in alphabetical order: from Ackerman to Zyskind.
The post-war Nuremberg trials, in which 22 of the top Nazis were judged by the victorious Allies, have been widely studied, and for good reason. Nuremberg created a new category of law called “crimes against humanity” in a bold attempt to codify language for crimes of unprecedented magnitude. But the trials almost did not happen. In 1942, when rumoured reports of Nazi atrocities first filtered into the West, the initial desire of both the British and the Americans was crass retribution—the summary execution of the leading Nazis—while the French and the Soviets preferred trials. (Stalin almost certainly hoped to continue his political show trials.)
Eventually, the four Great Powers agreed that revenge killings might not look well in the history books. Robert H. Jackson, the future chief prosecutor for the tribunal, put the legal claim best when he insisted that the Allies ought not to follow the example of Hitler in denying fair trials to their enemies. He prevailed and the Nazis in the dock were well protected.
From the day it opened its doors on November 20, 1945, the Nuremberg Tribunal was well attended by the world media, which should not surprise us given the notoriety of the defendants. By contrast, the Mauthausen trial, which opened on March 29, 1946, was largely ignored. The criminals being prosecuted by the U.S. military were unknown men whose deeds and fates were of less interest to the international community. Furthermore, unlike Nuremberg, the military prosecutors were in a hurry; William Denson, the chief prosecutor of the Mauthausen trial, was given only twelve weeks to build a case against 61 putative perpetrators. The group trial lasted only 36 days, and the judges spent an average of only four hours deciding upon the life or death of each individual. There was no appeal, although the army (not an outside body) did review sentences.
Under pressure to expedite proceedings, Denson came up with a template, starting with his first war crimes trial, which opened at Dachau in November 1945. This so-called “parent trial” became a blueprint for the Mauthausen trial that followed in its wake.
Jardim expresses concern about the inadequate procedures that characterized both trials. To start with, the only legal precedents and written law available to the military prosecutors were the 19th- and early 20th-century laws of war—in particular, the Geneva and Hague Conventions. (The new international humanitarian law being created at the Nuremberg Tribunal was not yet accessible.) While the laws of war did provide grounds with which to try war criminals, including explicit directives regarding the treatment of prisoners, they offered little direction with regard to due process.
Because military commission rules were historically slack compared to U.S. domestic law (and exceptionally lax compared to the procedures that governed the Nuremberg Tribunal), Denson was able to achieve a 100 percent rate of conviction in his first case at Dachau. As in the later Mauthausen trial, pragmatism and efficiency took precedence over fairness. There was certain evidence of criminality, but a large proportion was circumstantial and hearsay evidence was ruled to be admissible, especially when testified to by former camp inmates. Few among the trial personnel, including the judges, had previous courtroom experience of any significance, and their ignorance occasionally showed in the questions they asked. Worse still, interrogation strategies were left to the discretion of the interrogator, which led to post-trial complaints from defence counsel. Eventually, three U.S. investigative commissions were created; one of these concluded that hooded prisoners had been brought before fake judges in order to obtain confessions and that certain interrogators had threatened to harm the families of the accused. (This did not stop one former interrogator from bragging about his methods many decades later.)
The most egregious of Denson’s strategies was his invocation of guilt by association. Anyone who had worked in the Mauthausen camp, he asserted, had participated in a “common design” to commit war crimes, on the grounds that everyone there knew what was happening. This prosecutorial claim made the role of the defence counsel difficult, to say the least. It also tended to flatten the particularity of the charges against individual defendants.
Denson’s success rate at the end of the Mauthausen trial matched that of his earlier Dachau trial. Each and every defendant was found guilty as charged. Only twelve among the 61 escaped the death sentence.
The mass hangings of Mauthausen perpetrators at Landsberg prison in May 1947 were the largest in American history, but the zealous pursuit of Nazi war criminals did not last. The Cold War was emerging and the new state of West Germany was a needed ally against the Soviet Union. As American priorities shifted, politics corroded the military trials. Convicted criminals were released, including Mauthausen perpetrators who had evaded the first swing of the hangman’s noose. They were hailed as returning heroes by their communities. Scandals eroded the public perception of the courts, starting with the notorious case of Ilse Koch, who had been sentenced to life imprisonment in 1947 for grossly abusing inmates. When her sentence was reduced to only four years in 1948, even American government officials were shocked. In Germany, public opinion increasingly viewed the U.S. courts as victors’ justice, with no redeeming qualities. The trials had been intended to counter the moral collapse of Germany by demonstrating the fine workings of democracy—a goal that similarly fell into disrepute.
In 1949, Washington established a Senate investigative subcommittee. Ironically, one of the shrillest voices of reproof was that of Senator Joseph McCarthy, who proclaimed that the trial investigators had used “Gestapo techniques.”
The ideological shift away from trying war criminals and toward Cold War rivalries upturned Allied planning for post-war Europe in other ways; for example, as late as 1983 it was confirmed that the United States had employed Nazi war criminal Klaus Barbie as an anti-communist agent almost immediately after the war, protected him from the French (he had carried out his “duties” in France), then arranged for his escape via one of the notorious “rat lines” out of Europe. Naturally, his case was not unique.
If the loose standards of the U.S. military trials contributed to a perception of injustice, the Nuremberg trials fared better. They too were called victors’ justice, which they were, but the proven responsibility of the high-level Nazis, and the fact that their trials were seen to be conducted according to high standards of due process, created a positive legacy that most Germans eventually came to accept. It is no small thing that a reunited Germany was in the vanguard when “Nuremberg’s baby,” the International Criminal Court, was finally agreed to by the world community in the 1990s, a half-century after the Nazi era. As the late historian Tony Judt pointed out in his magisterial work, Postwar, contemporary Germany has grown not less, but more, conscious of its wartime past.
Tomaz Jardim questions the efficiency-driven procedures of the U.S military commissions because they led to abuses. On the other hand he notes that the Mauthausen trial left detailed records of what took place in that camp, knowledge that might never otherwise have come to light. He also argues that the “expedient justice” of the trial prevented perpetrators from slipping back into European society after the American occupation came to an end. Finally, he draws close attention to the unique involvement of the victims themselves in the trial process, beginning at the investigative stage. He tentatively wonders whether this close connection might have resulted in a “measure” of justice.
Some of these “on the other hand” arguments are unconvincing. As Jardim himself indicates, many perpetrators did indeed slip back into society as the U.S. emptied its prisons for strategic reasons. His victim-participation argument is more compelling, for it is true that throughout the history of international criminal justice, the victims of major international crimes have been allowed little engagement. On a personal note, I travelled to Bosnia some years ago to explore just this question: how did the victims of the Yugoslav wars of the 1990s respond to the trials of perpetrators that were taking place thousands of kilometres away at the International Criminal Tribunal for the former Yugoslavia in The Hague? Most, it turned out, felt distanced and removed from the process being carried out in their names. It was not until the emergence of the International Criminal Court that the victims of massive crimes against humanity and major war crimes were at last provided statutory rights.
As part of his critical subtext on the conflict between the need for efficiency and the nature of justice, Jardim seems to be asking whether a “measure” of justice can suffice. My own guess is that a measure can sometimes suffice, as in a well-run truth and reconciliation commission, which includes confession (and hopefully remorse) on the part of the perpetrators; or in the measure of justice embodied in a sincere government apology to the victims of a major international crime. France’s 1995 apology to its Jewish population for the Vichy regime’s wartime deportations is an example of the latter. And in the case of Mauthausen, one may assume that the victims’ active participation in the trial of their oppressors did offer them a high degree of satisfaction. But this measure of justice pales into insignificance when viewed alongside the fatal flaws of the trial itself. A prosecution premised upon guilt by association is simply and patently unjust. Nothing can erase that bottom line.
The author alludes briefly to the recent U.S. military commission courts at Guantanamo Bay as a contemporary example of compromising “legal ideals” in the pursuit of justice; and he is clearly right to bring the issue into the present. As in the immediate post-war period, the standards of military commission tribunals continue to be lower than those of the U.S. federal civilian courts and of the international criminal courts operating in the world (although the former were improved somewhat in 2009). I would, however, take respectful issue with Jardim’s wording. The laws that were, and are, compromised by military commissions are not “ideals,” as he puts it, but the standard operative rules of due process that guarantee the rights of the accused.
One of the many appealing aspects of this interesting book is Tomaz Jardim’s willingness to question the meaning and substance of justice under difficult circumstances. I suspect I will not be the only reader to admire his readiness to create a welcome “thinking space” for others to ponder the same question.