The Right Wrong Man by Lawrence Douglas

Author:Lawrence Douglas [Douglas, Lawrence]
Language: eng
Format: epub
ISBN: 9780691125701
Publisher: PrincetonUP
Published: 2015-07-15T05:00:00+00:00

6.1. Kurt “Lalka” Franz, the baby-faced SS sociopath. Courtesy of Yad Vashem.

Ivan was the ultimate Exzesstäter, a beast whose cruelty and zeal for murder far exceeded what was required by the policy of extermination. In reserving the category of perpetrator to such excess killers, German jurisprudence contributed to a distorted image of the SS man as a brutal psychopath, prompted by an unnatural joy in killing—an image that popular culture was more than happy to run with.

Whether all this followed perforce from the court’s fateful ruling in the Staschinsky case can be debated. Kerstin Freudiger, a German scholar, has argued that the Staschinsky decision never explicitly limited the category of perpetrators to those who had engaged in excess killing.126 Rather, she argues, the ruling left it to lower courts to fill in what objective acts revealed the requisite internal attitude of the perpetrator, and it was the lower courts that subsequently framed the standard of “excess killings.” Whatever we make of this argument, two things remain clear. First, German courts carved out a special jurisprudence for Nazi crimes that differed quite dramatically from its ordinary treatment of murder. As far back as 1956, the BGH appeared to repudiate the Bathtub precedent, holding that “he who kills a person with his own hand is a perpetrator even when he acts … in the interest of another.”127 By this token, the Staschinsky decision did less to restore the subjective Bathtub standard than it carved out its special application in cases involving state-sponsored criminality. In cases involving “normal criminality,” the court continued to apply the more objective standard from 1956.128 Keeping in mind Jaspers’ concept of the Verbrecherstaat, we can say that German courts recognized the unusual juridical problems posed by state-sponsored crimes, but did so by treating participants in genocide with a leniency that was conspicuously denied to those who participated in “ordinary” acts of murder.

Second, and more crucially, this jurisprudence effected something of a double shift. Because the category of perpetrator came to be reserved for a select group of sadistic excess killers like Ivan Grozny, courts treated persons nonetheless deeply implicated in hands-on killing—those who shot Jews in mass graves or pushed them into gas chambers—as mere accessories. The category of accessory was thus filled with persons who had played an active and demonstrable role in acts of killing—persons, that is, who otherwise might have been treated as perpetrators. As a consequence, those whom we might have expected to be treated as accessories—such as ordinary members of killing units or guards at death camps—were treated as guilty of nothing at all. In cases involving these persons, evidence of an Einzeltat—an individual act of killing (assumed to be required for a successful prosecution after the 1969 appellate holding in the Auschwitz proceeding)—was difficult to come by. In these cases, the very efficiency of the murderous operations guaranteed few survivors, and fellow travelers were rarely willing to testify against their former colleagues in extermination. And so while the vast majority of deeply

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