Part I

To properly answer this question, one first has to look at the whole complex and at times convoluted process of postwar justice for Nazi crimes. Although popular memory has enfolded war crimes trials into the International Military Tribunal (IMT) held at Nuremberg, the reality was that there were multiple trials and tribunals conducted under different legal systems and circumstances. Inter-allied tensions, the unprecedented legal nature of the proceedings, and the costs of the tribunals led to an unofficial suspension of tribunals based upon international cooperation and instead each of the four occupying Allied powers conducted their own tribunals. Some of these tribunals, such as the US-led Nuremberg Military Tribunals (NMT) became increasingly connected to the Cold War German politics with OMGUS scaling back on its initial plans to root out Nazi supporters in industry and among other German elite groups. The Americans initially envisioned the NMT as a somewhat larger process, but the prosecution encountered a degree of pushback both from OMGUS and among what was the nascent FRG political establishment. Although the NMT did hand out capital punishment for direct war crimes (eg command of an Einsatzgruppe), its sentences were much more mild for other war crimes and there was a strong movement in the Western zone to grant clemency to those convicted. By the same token, one of the aim's of the Polish government's Supreme National Tribunal (NTN) was to shore up the postwar communist government's internationals and domestic legitimacy by bringing German defendants swift, but open, justice. The Polish government filmed and publicized NTN tribunals, which included such figures as Arthur Greiser, Rudolf Höss, and Amon Göth as well as the Majdenak trials, and its use of capital punishment for German offenders met with a degree of domestic approval in Polish public opinion. Although there were serious concerns about meeting out justice in both the NMT and NTN, they are emblematic of how the intersection of political concerns could lead to slightly divergent outcomes with the tribunal process.

It is useful to contrast the wider Polish public approval of the use of capital punishment to the German and American responses to executions in the American zone. OMGUS surveys of the IMT showed that while a fair number of Germans in the US zone believed the tribunals were a form of victor's justice, a good number of Germans did not mind if the "Golden Pheasants" of the NSDAP elite were at the receiving end of punishment. German public apprehension ticked up when the tribunals encroached upon allegedly non-political institutions like the military or private business. PR efforts by various firms during the Krupp trial played on the anticommunist and patriotic sentiments of the accused, as well as noting that the break-up of these industrial concerns was contrary to laws respecting private property (a charge that found particular resonance with High Commissioner McCloy). The American prosecution of various camp guards and other low- and mid-level Nazi functionaries, known collectively as the Dachau Trials, opened up the American military government to charges of victor's justice. Unlike the NMT, the Dachau Trials made liberal use of capital punishment and were conducted on a very collapsed timeframe. Both the Western zone's press and political establishment were quite critical of the Dachau Trials' use of nulla poena sine lege (no punishment without prior law) and questionable methods of interrogation. This criticism did filter across the Atlantic. A Senate investigation of the Dachau Trials in March 1949 was quite critical of the whole affair, with Senator Joseph McCarthy condemning the "Gestapo tactics" of the investigators and used the Dachau Trials as part of his larger attack upon the Truman administration.

It was in this context that framed the West German legal approach to Nazi war crimes. Adenauer saw the FRG's takeover of the prosecution process as yet another sign of Germany's resumption of national sovereignty and the Adenauer government spearheaded a massive clemency program for offenders sentenced to jail time by the tribunals. The FRG's assumption of responsibility for prosecuting Nazi war crimes was a sign that it had rejoined the family of nations and had learned the lessons of the past. In contrast to the Soviet bloc and the GDR, the FRG's Basic Law had outlawed the death penalty. Additionally, Article 96 of Basic Law incorporated the various UN provisions on the punishment of genocide and war crimes. By 1955, the FRG had full responsibility from the Allied High Commission (minus the Soviets- the GDR is a special case here with a different legal trajectory) to prosecute Nazi offenders.

The German courts were institutionally ill-prepared to handle this task for a number of reasons. Firstly, a good number of FRG jurists were co-opted or active during the Third Reich. While this likely did not impact the subsequent prosecutions, it did put a damper upon actual investigations of Nazi war crimes. The Adenauer's "amnesty fever" as well as the first fruits of economic recovery proved to be a disincentive to poke around the past. Additionally, the GDR and Soviet's charge that the FRG's leadership consisted of adherents of the NSDAP also discouraged investigations lest it give this propaganda point some validity. But arguably the greatest impediment for FRG prosecutions was Basic Law itself. The German jurisprudence stressed that Basic Law's conventions on genocide and war crimes were in reference to future actions and the Article 103 of the constitution' ruled out ex post hoc application of the law applied to Nazi criminals as well. This meant that defendants could not be charged with the rather plastic charges that typified the occupation era tribunals. Instead, FRG prosecutors had to rely upon existing criminal codes to prosecute Nazi offenders.

This reliance upon criminal law hamstrung prosecution in two interconnected ways. Firstly, German law's statute on limitations for offenses similar to assault made some acts like the torture of concentration camp inmates less likely to be tried in court. This restricted prosecutors to seek out cases that it could prove that were still viable in the German courtroom. This led to the second overarching problem for the prosecution. The one criminal charge that fit the accused best and did not have a statute of limitations was murder. But homicide charges in Germany differ somewhat than in Anglo-American practice. German jurisprudence at the time inherited Section 211 of the 1871 Code's fine distinction between Mord (murder) and Totschlag (manslaughter). In order to prove Mord, a prosecutor had to prove benefit, motive, and intent, such as bloodthirstiness. Being an accomplice to homicide, even if one committed the actual deed, usually meant a charge of Totschlag. The now cliched German defense "I was only following orders" makes more sense in this legal framework; such a defense shifted blame for Mord upwards and this was one of the legal stratagems employed by the defendants of the trials of the 1960s. Since the statute of limitations for Totschlag was 15 years, this strategy made a great deal of sense after 1960.

FRG prosecutors to their credit did try to adjust to fitting war crimes into existing law. The defendants often claimed that they were operating under duress or fear that failure to obey orders would lead to punishment from above, and this was a claim that the prosecution had difficulty in deflating. The prosecution often had to use the legal norms of the Third Reich to prove that the defendants exceeded these norms. The Belzac trial of 1963-65 fell apart for much of these reasons, with only one prosecution, Josef Oberhauser, and seven acquittals. One solution to this problem was to seek out survivor testimony that showcased the cruelty of the accused, giving a window into the mentality to justify a Mord charge. But such testimony was often problematic and in the 1960s trials, the burden of proof was on the prosecution to prove this mentality. Experience with these cases and their public notoriety led to shifts in courtroom procedures and in federal law such as the ending of statute of limitations for the prosecution of Nazi crimes. The burden of proof has also shifted in which it is now contingent on the defense proving acting under duress rather than the prosecution.