203: The Value of Testimony and Confessions Concerning the Holocaust

“To deny that Jews had been maliciously killed en masse by Germany in a tribunal whose very existence was based upon the intent to establish without doubt that Jews had been killed was as fatal to the defendant in 1946 as it would have been to an accused medieval heretic who before his inquisitors guaranteed his condemnation on whatever charge by throwing in for the hell of it a denial of the existence of the Trinity and the Divinity of Jesus.”[1]

1. Introduction

In the debate about the Holocaust one of the main arguments of popular opinion is that there are a great many statements of eyewitnesses to document the National Socialist mass extermination, and that especially the many confessions of perpetrators among the SS are irrefutable proof of the existence of a program of deliberate extermination of the Jews in the Third Reich.[2] For this reason, it is claimed, the lack of documentary and material evidence is irrelevant.[3]

First of all, it is incorrect to say that there is no material evidence. The present work is a compendium of such material evidence, which, however, all goes to refute certain aspects of the Holocaust as these are related by witnesses and maintained accordingly by the courts and by academia. The justice system as well as academics of the establishment ignore this material evidence; nevertheless, the question arises as to how eyewitness testimony is to be evaluated.

It is important to note that neither objective historians nor jurists may uncritically accept everything that someone recounts as being the plain truth, but must establish the value of such reports. The first step in this process is to fit eyewitness testimony properly into the hierarchy of the various types of evidence. Then one must consider how the individual testimony came to be – for example, whether there were manipulative factors that may have impinged on the witness and influenced his testimony.

Since most of the eyewitness statements concerning the Holocaust were made in the course of preliminary legal proceedings and of trials, we shall first clarify the value accorded to eyewitness testimony in court.

2. The Value of Eyewitness Evidence in General

In academia as well as in the justice system of a state under the rule of law, there is a hierarchy of evidence reflecting the evidential value. In this hierarchy, material and documentary evidence is always superior to eyewitness testimony.[4] Thus, academia as well as the justice system regard eyewitness testimony as the least reliable form of evidence, since human memory is imperfect and easily manipulated.[5] According to Rolf Bender, a German expert on the evaluation of evidence, its unreliable nature renders eyewitness testimony merely circumstantial evidence, in other words, not direct evidence.[6]

What standards must be met for eyewitness testimony to be usable in court?[7]

1. The witness must be credible.

While making no claims to completeness, the following lists a few criteria for determining credibility:

1. Emotional involvement. If witnesses are emotionally too involved in the cases under investigation, this may distort the testimony in one direction or the other, without this necessarily being a conscious process.
2. Veracity. If it turns out that a witness is not overly concerned about truthfulness, this casts doubts upon his further credibility.
3. Testimony under coercion. The frankness of testimony may be limited if a witness is subjected to direct or indirect pressure that makes him deem it advisable to configure his testimony accordingly.
4. Third-party influence. A person’s memory is easy to manipulate. Events reported by acquaintances or in the media can easily become assimilated as ‘personal experience’. Thus, if a witness has been exposed intensively to one-sided accounts of the trial substance prior to testifying, this can very well affect his testimony to reflect these impressions.
5. Temporal distance from the events to be attested to. It is generally known that the reliability of eyewitness testimony diminishes greatly after only a few days, and after several months has been so severely influenced and altered by the replacement of forgotten details with subsequent impressions that it retains hardly any value as evidence.[8]

2. Testimony must be plausible.

1. Internal consistency. Testimony must be free of contradictions and in accordance with the rules of logic.
2. Correctness of historical context. Testimony must fit into the historical context established conclusively by higher forms of evidence (documents, material evidence).
3. Technical and scientific reality. Testimony must report such matters as can be reconciled with the laws of nature and with what was technically possible at the time in question.

While the issues listed under 2. are easily verified, the circumstances listed under 1. are often difficult or impossible to determine and thus involve the greatest effort for the least return. One must keep in mind that every witness experienced a certain event differently, from a purely subjective and personal point of view. He or she internalized it differently, depending on his/her physical and psychological state. He/she will ultimately recount the experience in a strictly subjective manner depending on his/her abilities and on the occasion at hand. So even if two witnesses are completely impartial and credible and their statements are plausible, they nevertheless may not report the same thing.[9]

The testimony of parties in dispute before the Court – i.e., the statements of the prosecution and the defense – must naturally be considered in an especially critical light since each party has a vested interest in incriminating its opponent and exonerating itself.[10] But even impartial witnesses are often very far removed from the objective truth, and the fact that (although this has been well known for centuries) eyewitness testimony is still accorded disproportionately great significance in court even today, has repeatedly drawn sharp criticism from qualified sources[11] and has frequently resulted in gross miscarriages of justice.

From a judicial point of view, confessions – both in and out of court – are considered to be circumstantial evidence, since past experience has shown that a large part of all confessions are false. False confessions may be made in order to

• cover for a third party;
• bask in the limelight of a crime;
• put a stop to grueling interrogation;
• gain a mitigated sentence by exhibiting remorse and repentance;
• as a result of psychological disorders; etc…

In the Federal Republic of Germany as well, miscarriages of justice unfortunately occur time and again as a result of false confessions.[12] The same goes accordingly for self-incriminating testimony which need not always be true. It is all the more surprising, therefore, that the otherwise knowledgeable R. Bender would categorize a self-incriminating witness as being generally truthful.[13]

3. Forms of Evidence in Holocaust Studies

3.1. Material and Documentary Evidence

In orthodox Holocaust studies material evidence is practically nonexistent:

• To date, not a single mass grave has been searched for, found, exhumed or examined relative to this subject complex.[14]
• Not one of the allegedly numerous and giant burning sites has been looked for, located, dug up or examined.
• In no case were the alleged murder weapons sought and found, i.e., examined forensically by international committees or by courts under the rule of law.

It is thus not surprising that Rückerl dispenses with any mention of material evidence and instead declares documentary evidence as the best and most important form of evidence even without any material evidence with respect to the authenticity and correctness of the documents themselves.[15]

Otherwise, only Revisionists have presented material evidence, as other authors will do in the following.

It is always surprising to see how aggressively the historians of the establishment respond to any objection that a document, which allegedly proves the Holocaust, might be forged or falsified, irrelevant, or might have been misinterpreted. On this point our contemporary historians exhibit the same aversion to detailed document criticism[16] as they also cherish where material evidence is concerned. After all, document criticism is nothing more nor less than the expert assessment of a document. In other words, it is the furnishing of material evidence regarding the authenticity and factual correctness of a document.

3.2. Eyewitness Evidence in the Orthodox View of the Holocaust

3.2.1. Media Statements as Evidence for Historiography?

Part of the testimony or statements regarding the Holocaust came in the form of written declarations or, more recently, as radio and television programs. In both cases it is easy to assess these statements in terms of the points listed under 2, but there is usually no opportunity to speak with the witness personally in order to learn more details and to establish his credibility and the plausibility of his testimony, for example by means of cross-examination. Critiques of the statements published in the various media are both numerous and extensive,[17] and a more comprehensive work was presented recently.[18] However, these witnesses usually evade the requests of critical contemporaries to make themselves available to cross-examination.[19] And while radio and television regularly present new witnesses, they never ask them any critical questions, and deny interested researchers and lawyers access to these witnesses by keeping their address or even their entire identity secret. But these paper- and celluloid-witnesses can only be accorded evidential value once their statements have stood up to critical examination. In the following chapter, Robert Faurisson reports about the first two of such a critical examination of this kind of witness to date. In this section, therefore, we will focus primarily on statements made in court, particularly since the supposed justness of the German justice system prompts the public to accord these a greater significance.

3.2.2. Court Testimony as Evidence for Historiography?

The very critical view, at least theoretically, taken by courts of witness and party testimony is based on the understanding of human nature gained in the course of centuries by many jurists. It should be accepted as a valid guideline by historians as well, even if the methods used to determine truth in scientific pursuits are necessarily different than those employed in court. For example, while a Court must reach an absolute decision regarding what is true and what is false, and must do so within a limited period of time, science cannot, indeed may not reach a conclusive and final verdict if it wants to remain true to its maxim of openness in every respect. Whereas in a court case the close relation of the proceedings to a human fate causes emotion to exert a strong and distorting influence on the process by which the verdict is reached, this influence usually is, or should be, minor in scientific pursuits.

When we discuss in the following the witness testimony and confessions that represent almost the entirety of the foundation on which the structure of the Holocaust rests, we must bear in mind that for the most part these statements were made in the course of trials or at least for the purpose of incriminating or exonerating someone before a court or the public. Practically no eyewitness accounts exist that were made outside a courtroom situation and free of emotion. The subject matter itself and the emotions with which it is charged have seen to that. The truth of testimony and confessions must therefore be carefully examined before the court by qualified experts – something that regularly does not happen in the so-called “NSG trials“.[20] And all the more we must ask to what extent such testimony can serve the cause of a science dependent for its closest possible approach to the truth on reports not tainted by emotion. It is already a very questionable procedure to try to ‘write history’ through eyewitness testimony in court and through the verdicts based thereon, even if both were the result of trials conducted strictly under the rule of law. The procedure becomes all the more suspect when those who ‘write the history’ draw on eyewitness testimony as evidence even when this testimony was rejected by the ruling court as lacking credibility.[21]

The science of historiography is thus faced with the dilemma that it has only these at least partially questionable statements to rely on, and must therefore make do with them. But then it is all the more important for this science to consider the circumstances under which these statements came about, for their value depends not least of all on how fairly the prosecution, the defense and the Court, but also the media and the general public were disposed towards the witnesses and the accused.

3.2.3. An Expert Opinion about the Value of Testimony Regarding the Holocaust

There is currently no topic of human history that is treated more emotionally and one-sidedly in public than the Holocaust. It represents the central taboo of western civilization, and to question it is the epitome of heresy, and punishable by imprisonment in many western democracies.

Given this state of affairs, the expert on the evaluation of eyewitness testimony, Professor Elisabeth Loftus, pointed out in 1991 that, for many different reasons, testimony pertaining to actual (or merely alleged) National Socialist atrocities, witnessed in a particularly high stage of emotion, is less reliable than almost any other testimony. Elaborating, she observes:

1. The time elapsed since the end of World War II has contributed to an inevitable fading of recollections.
2. In trials of alleged National Socialist criminals pre-trial publicity has meant that witnesses had generally known the identity of the defendants and the crimes they were charged with already before the trial.
3. Prosecutors have asked witnesses leading questions, such as whether they could recognize the accused as the perpetrator. Witnesses have rarely been called on to identify the accused from a number of unknown people.
4. It is fairly certain that witnesses have discussed identifications among themselves, which facilitated subsequent ‘identifications’ by other witnesses.
5. Photos of defendants have been exhibited repeatedly, each additional showing of the pictures making witnesses more familiar with the face of the accused, and thus increasingly certain.
6. The extremely emotional nature of these cases further increases the risk of a distortion of memory, since the accused to be identified by the witnesses were more than alleged tool of the National Socialists – they were devils incarnates: said to have tortured, maimed and mass-murdered prisoners. They were allegedly responsible for the murder of the witnesses’ mothers, fathers, brothers, sisters, wives and children.[22]
7. Professor Loftus, herself Jewish, uses her own experience to describe how a false sense of loyalty to her heritage and her people and “race“, as she puts it, prevented her from taking a stand against the obviously false testimony of her fellow Jews. It is safe to assume that this is a widespread, common reflex among Jews.[23]

However, she omits three further factors that can contribute additionally to the massive distortion of memory where the Holocaust is concerned:

1. Accounts of witnesses’ personal experiences have always – and not only during criminal trials – been widely disseminated by word of mouth, print and broadcast media, and particularly among the witnesses themselves through personal correspondence and all sorts of relief organizations.
2. Since at least the late 1970s the topic of the Holocaust has been ever-present in the mass media, and in an extremely one-sided manner, so that memories inevitably become standardized.
3. Where the Holocaust is concerned, it is not only unforgivable but at times even a criminal offense not to know, not to admit, or perhaps only to doubt, certain things. There is thus a very strong social (or even legal) pressure on witnesses in particular to recall certain ‘facts’ and to repress others.

If one considers all these factors and combines them with studies on the manipulability of human memory, such as the one recently published by Prof. Loftus in a leading scientific journal,[24] then one cannot help but conclude that there is in fact no eye witness testimony less reliable than those on the Holocaust. If in normal scientific and legal proceedings one accepts as a rule that eyewitness testimony is the least reliable kind of evidence, then insofar as the Holocaust is concerned it is necessary to observe that here the eyewitness testimony may only serve to flesh out the framework of historical events as established by documentary evidence, and perhaps to give clues to events whose occurrence has yet to be proven by documents or material evidence. But anyone who relies chiefly on eyewitness testimony and assigns it a greater value as evidence than documentary or even material evidence cannot seriously claim to adhere to the scientific method in his work. Thus, the present volume pays particular attention to the critical analysis of many claims made by witnesses.

3.3. Methods of Obtaining Testimony

3.3.1. Allied Post-War Trials

In order to assess the value of eyewitness testimony and confessions relating to the Holocaust, one must first examine the conditions prevailing in the Allied post-war trials in Nuremberg and elsewhere. For it is the verdicts handed down in these trials which recorded, in sketchy outlines, the accounts of the Holocaust given by eyewitness testimony and putative confessions. These Allied trials may be roughly divided into two types, namely those carried out by the respective occupying powers as these saw fit, and those carried out with at least initial co-operation between the victorious powers within the framework of the International Military Tribunal (IMT) in Nuremberg.[25]

3.3.1.1. American Trials

Immediately after the end of the war the Americans placed all Germans who held leading positions in the Party, the state or the economy under “automatic arrest” without trial.[26] In this way hundreds of thousands ended up in prison camps consisting in the main only of fenced-in meadows. Shortly after the end of the war all German prisoners were stripped of their status as prisoners-of-war.[27] The Allies considered civilian internees to have no rights whatsoever; particularly in the American and French spheres of influence, these prisoners lived mostly in burrows in the ground, received insufficient food, were denied all medical assistance, and neither the International Red Cross nor other organizations nor even private individuals were allowed to help. In this way the prisoners in the American run camps died like flies by the hundreds of thousands.[28]

Military Government Ordinance No. 1 required every German, on pain of lifetime imprisonment, to give the Allies any and all information they required.[29] Thus German witnesses could be forced to give evidence by imprisoning them for years, subjecting them to hours of interrogation, or threatening to hand them over to the Russians.[30] A separate department, “Special Project“, was responsible for obtaining incriminating evidence against reluctant witnesses. The material obtained in this way was used to bend the witnesses to the Allies’ will, since this information was used to threaten them with prosecution if they refused to give incriminating evidence against others.[31]

This fact alone shows that after the war every German was practically outlawed and became fair game for persecution, and found himself unexpectedly in a situation where he would give the Allies any information they sought – even if such information was false – rather than suffer the blows of arbitrary despotism looming over him at every turn.

In the American Occupation Zone, trials against various defendants were conducted under the United States’ or U.S. Army’s sovereignty in Dachau, Ludwigsburg, Darmstadt and Salzburg.[32] These trials fell roughly into three categories:

• crimes in concentration camps (including the cases of euthanasia);
• murders of bailed-out Allied plane crews;
• the alleged war crime of Malmedy at the Ardennes Offensive.

Preparation for these trials included the interrogation of suspects and witnesses in various camps and prisons known as torture chambers today, such as Ebensee, Freising, Oberursel, Zuffenhausen and Schwäbisch Hall.[33] Rückerl comments succinctly:

“Even the Americans themselves soon objected to the way in which some American military tribunals conducted their trials, particularly to the fact that what was repeatedly used as evidence in these trials were confessions of the accused which had been obtained in preliminary hearings, sometimes under the worst possible physical and psychological pressure.”[34]

In fact, until 1949 there were several American investigating committees which looked into a part of those accusations that had been brought by German and also by American defense attorneys, particularly by R. Aschenauer, G. Froeschmann and W. M. Everett.[32][35][36] However, these committees – whose reports were published only in part, and not until public pressure had been brought to bear[37] – were accused by the American side of being merely symbolic fig-leaves for the Army and for politics alike, since they had served merely to cover up the true extent of the scandal.[38] For example, the National Council for Prevention of War commented on the conclusions of the Baldwin Commission, which exonerated the Army from grave misdemeanors, as follows:

“The Commission concluded its report with recommendations for reform of future proceedings of this sort – but these recommendations give the lie to all the excuses and exonerations making up the greatest part of the report. In effect, the bottom line stated, ‘Even if you didn’t do it, we don’t want you to do it again’ […].”[39]

Senator J. McCarthy, who had been sent by the American Senate to act as an observer, turned out to be especially committed. Protesting against the collaboration between the members of the investigating committee and the American Army in their efforts to cover up the scandal, he resigned his function as observer after only two weeks and gave a moving address to the U.S. Senate.[40] The manner in which the Americans extorted confessions from accused persons, or statements from reluctant witnesses subjected to automatic arrest both in the prisons for those awaiting trial as well as during the main hearing in Dachau, left clearly visible marks: the methods used were:

• skin burns
• destruction of the bed of the (finger-, i.e., toe-)nails with burning matches
• torn-out fingernails
• knocked-in teeth
• broken jaws
• crushed testicles
• wounds of all kinds due to beatings with clubs
• brass knuckles and kicks
• being locked up naked in cold, damp and dark rooms for several days
• imprisonment in hot rooms with nothing to drink
• mock trials
• mock convictions
• mock executions
• bogus clergymen, and many more.[41]^,[42]

According to Joachim Peiper, principal defendant in the Malmedy Trial, what was even worse than these so-called third-degree interrogation methods was the feeling of being completely at the mercy of others while being totally cut off from the outside world and one’s fellow prisoners. Another method the Americans used, which was often successful, was to play the prisoners off against each other with threats and promises in order to obtain false incriminating statements. This would help to break the prisoners’ resistance, which had its roots in the solidarity among them (second-degree interrogations).[43]

The protocols of these interrogations, which lasted for hours and even days, were cut-and-pasted into so-called affidavits by the prosecution; those parts which exonerated the accused were deleted, and contents were frequently distorted by re-wording.[44] Aside from these dubious affidavits, anything and everything was admissible as evidence, including, for example, un-notarized copies of documents as well as third-hand statements (hearsay).[45] In one case even the unfinished, unsigned affidavit of one accused whom all the abuse had driven to suicide was used as evidence![46] And Order SOP No. 4 promised that any accused who offered to give State’s evidence to incriminate others would be set free.[47] The effects of this regulation was demonstrated by Lautern, who described two cases in which the accused bought their freedom with false statements incriminating third parties.[48]

Up to the start of the trials the accused had no legal representation whatsoever, and even during the trials the defense attorneys rarely provided effective support, since these defense counsels (appointed by the Court) in many cases were themselves citizens of the victorious powers, usually with a poor command of the German language. They showed little interest in defending their clients and sometimes even acted blatantly as prosecutors, going so far as to threaten the defendants and to persuade them to make false confessions of guilt.[49] But even if, like American attorney W. M. Everett for example, they were willing to carry out their duties as defense counsels, the prosecution and the Court made this almost impossible for them: the defense was reluctantly given only partial access to pertinent documents, and conversations with the accused were not possible until just before and sometimes not even until after the trials had begun, and only ever under Allied supervision. Frequently it was not until just before the trial that the defense was informed of the charges, which tended to be sweeping and general in nature.[50] Motions to hear witnesses for the defense, or to contest evidence such as extorted statements, were usually refused.[51] And this was fully in accordance with the regulations of the American Occupation Power; Article 7 of Ordinance Number 7 of the Military Government for the American Zone states, with respect to the charter of certain military tribunals:

“The Tribunals shall not be bound by technical rules of evidence […] The tribunal shall afford the opposing party such opportunity to question the […] probative value of such evidence as in the opinion of the tribunal the ends of justice require.”[52]

It was left to the Court to decide what was necessary. In other words, the protocol was purely arbitrary.

It is an interesting matter to determine how the incriminating statements, especially those made by former inmates of the concentration camps, are to be evaluated. The prosecution used a special technique to obtain these statements – so-called “stage shows” or “revues“.[53] For this purpose the prosecution gathered up former concentration camp inmates and put them into an auditorium. The accused were placed on a well-lit stage while the former inmates sat in the darkened room and could bring any and all conceivable accusations against the accused, accompanied at times by furious yelling and the most vile curses. In those cases where, contrary to expectation, no charges were made against an accused, or when those accusations that were made seemed insufficient, the prosecution helped matters along by persuading and sometimes even threatening the witnesses.[54] If this shameful tactic still did not suffice to obtain incriminating statements, the prosecution nevertheless did not shy away from a trial; exonerating statements were simply destroyed by the prosecution.[55] These stage-shows continued until an American officer donned an SS uniform and appeared on the stage before the howling witnesses, who promptly incriminated him as a concentration camp thug.[56]

Defense witnesses from the concentration camps were withheld, threatened, sometimes even arrested and abused by the prosecution.[57] Many former concentration camp inmates threatened their one-time fellow sufferers with reprisals against their families or even with incriminating statements and indictments against them if they failed to give sufficiently incriminating testimony or statements against third parties. Even threats of murder are documented to have been made against fellow prisoners.[58] The VVN (Vereinigung der Verfolgten des Naziregimes = Organization of Persons Persecuted by the Nazi Regime),[59] the organization that decided which former inmates living in the starving Germany of those days would receive food rations, housing authorization etc., used its power to pressure many former fellow prisoners into not taking the stand as defense witnesses. It even expressly forbade the former fellow prisoners to give exonerating testimony.[60]

Those witnesses who were willing to give incriminating evidence were conspicuous by virtue of their frequent appearance, sometimes in groups, at various trials where they could expect to receive considerable compensation, both financial and in goods. In many cases these “professional witnesses“, who openly coordinated their testimony amongst themselves, were criminal ex-convicts who had been promised exemption from punishment in return for their cooperation.[61] Judges G. Simpson and E. L. van Roden, whom the U. S. Army had appointed as investigating commission, are said to have used the term “scum of humanity” in this context.[62] Even when such or other witnesses were found to have perjured themselves, they were never prosecuted.[63] On the contrary: only if a witness told the Court of the methods with which his testimony had come about, and thus rescinded his statements – only then did the prosecution take steps against him.[64]

In principle, the trials in Dachau were all the same, regardless of whether they dealt with crimes in the concentration camps, with murders of airmen, or with the Malmedy Case. F. Oscar correctly points out[65] that torture was worse in the Malmedy Case due to the dearth of ‘witnesses’, while the superfluity of ‘witnesses’ in the concentration camp cases resulted in “stage shows” instead. In the euthanasia and physicians cases the method of choice was the confiscation of exonerating documents and the suppression of exculpatory statements.[66] Freda Utley stated[67] that the concentration camp cases were even worse than the Malmedy Case, which was already unparalleled.[68]

What must one think of historians who, like Thomas A. Schwartz, claimed as late as 1990 and in Germany’s foremost periodical on contemporary history, that the American trials had been conducted in accordance with the stipulations of the Geneva Convention; that the main problem with these trials had merely been the lack of opportunity for appeal and the uncertain future treatment of the convicted; that the cases of Ilse Koch⁶³ and Malmedy were the only ones of particular significance; and that the committee appointed by the U.S. Senate had exonerated the American occupation authorities from the more serious charges?[69] One must think that Schwartz was either extremely ignorant or extremely perverse!

3.3.1.2. British Trials

In the first post-war years the British, on the whole, acted no differently than the Americans. According to Aschenauer, the main features of the American post-war trials also characterized those British trials taking place in Werl,[70] where leading officers of the Wehrmacht as well as concentration camp guards from Auschwitz, Bergen-Belsen and Natzweiler were tried.[71] One fundamental difference, however, was that no investigating commissions were introduced during or after these trials, so that the internal proceedings of, for example, the British interrogation camps and prisons – most notably Minden,[72] Bad Nenndorf[73] and Hameln – remained sub-surface.

From two examples, however, it becomes clear that interrogation methods of second and third degree were the rule there as well. The first example is the torture of the former Commandant of Auschwitz, Rudolf Höß, in the prison of Minden. This torture was not only mentioned by Höß himself in his autobiography,[74] but has also been confirmed by one of his torturers[75] who, rather as an aside, also mentioned the torture of Hans Frank in Minden.[76] And further, in his testimony before the International Military Tribunal (IMT), Oswald Pohl reported that similar methods were used in Bad Nenndorf and that this was how his own affidavit had been obtained.[77] The example of Höß is especially important since his statement was used at the IMT as the confession of a perpetrator, to prove the mass murder of the Jews (see 3.3.1.5). In 2001, Patricia Meehan revealed some ugly features of the network of secret “Direct Interrogation Centres” the British had set up in their occupational zone of Germany. Those centers are indeed best characterized as torture chambers to receive ‘evidence’ for the upcoming trials.[78]

3.3.1.3. French Trials

We know comparatively little about the French trials of the camp staff of the concentration camps Neue Bremme and Natzweiler.[79] However, judging from the French conduct towards German civilians under “automatic arrest“[80] as well as towards the population of the occupied territories[81] – which was just as bad as, if not worse than, the conduct of the Americans – one may conclude that the French were equal to the Americans in every way.

3.3.1.4. Soviet-Russian Trials

The trials in the Soviet Occupation Zone can be considered as part of the continuation of the war crimes tribunals that had been held in the Soviet Union ever since the outbreak of hostilities in 1941. In 1950, an official report confirmed that these war crimes trials were a violation of international law.[82] Maurach reports that the preliminary hearings were characterized by continuous, i.e., non-stop interrogations, physical abuse of all kinds, distorted protocols, playing prisoners off against each other, forced denunciation of others, etc; and the main hearings by summary mass trials before special courts governed by arbitrary rules of procedure.[83] There is a general consensus of opinion regarding these procedures, and even the Federal German Ministry of Justice has commented to this effect.[84] In a recent publication by a renowned Russian historian and based on original Russian archives, these early German expert reports were confirmed.[85] The same goes for comparable trials held by the Soviet satellite states in the first few years following the war. Buszko, for example, reports that in Poland, just as with the IMT, a special court was set up whose verdicts were incontestable.[86] Further, the Federal Ministry of Justice has described the early trials in the German Democratic Republic as arbitrary trials[87] whose darkest chapter, the so-called Waldheim Trials, was recently set out in detail by Eisert.[88]

3.3.1.5. The International Military Tribunal and its Successor Tribunals

The actual International Military Tribunal consisted of prosecutors and judges from the four Allies Powers – hardly an objective tribunal. It brought 22 of the most important figures from the Third Reich to trial. This Tribunal was followed by twelve further trials of various offices and functions – for example the Reich Government, the Wehrmacht Supreme Command, and the SS Economic-Administrative Main Office – and of professional groups, such as lawyers, and chemical and steel workers. These trials, however, were conducted exclusively by the Americans, since by then the other victorious powers had lost interest.[89]

The London Agreement, which defined the legal framework of the International Military Tribunal (IMT),[90] decreed in its Article 3 that the Tribunal cannot be challenged, and in Article 26 it categorically ruled out any contestability of its verdicts. In accordance with Article 13, the Court also determined its own rules of procedure. These points alone already suffice to strip this tribunal of any legality. Three articles pertaining to the rights of the Court are particularly significant. Article 18, for example, determined that the Court should

“confine the Trial strictly to an expeditious hearing of the issues raised by the charges [sic]“

and that it could refuse any and all questions and explanations it deemed unnecessary or irrelevant. Article 19 states verbatim:

“The Tribunal shall not be bound by technical rules of evidence. It shall adopt and apply to the greatest possible extent expeditious and nontechnical procedure, and shall admit any evidence which it deems to have probative value”

And Article 21 – the effect of this article still today gives the cloak of respectability to anti-scientific legal conclusions:

“The Tribunal shall not require proof of facts of common knowledge but shall take judicial notice thereof […]“

According to the London Agreement, these “facts of common knowledge” included anything which any office or commission from any Allied nation claimed in documents, files, reports and protocols. Thus, all ‘evidence’ produced in the trials discussed in 3.3.1.1 to 3.3.1.4 was deemed to be a matter of fact needing no further substantiation. The IMT categorized the SS and the Waffen-SS, for example, as criminal organizations primarily on the basis of the ‘evidence’ produced in the Dachau Trials.[91]

In the time leading up to the trial, the Soviets bluntly stated that they wished to execute the accused without a trial or at most after a summary show-trial, since their guilt was self-evident anyhow.[92] While some voices were raised in agreement on the side of the western Allies,[93] the understanding that only a ‘real’ trial could be effective did predominate.[94] The fact that chief prosecutor R. Jackson stated in one of his addresses that this military tribunal was only a continuation of the war against Germany by other means, and that said tribunal was not bound by any limiting conditions imposed by legal systems coming down to modern times through tradition, should instill in any researcher a healthy dose of skepticism regarding the conditions providing the framework of this trial.[95]

Irving described the early investigations of the IMT prosecution as a private event put on by the American Secret Service OSS [Office of Strategic Services], until R. Jackson reduced this influence.[96] Von Knieriem gives a very detailed account of the consequences ensuing from the fact that the prosecution had unlimited access to the entire executive apparatus of all occupation authorities – permitting, for example, their arrest of any witness they chose, the confiscation of all documents and files of the Third Reich, as well as access to the files of the victors – while the defense was completely without means and influence.[97] Since the IMT was conducted in the style of Anglo-Saxon trials, in which – unlike in German trials – the prosecution is not obliged to ascertain and submit any evidence that would serve to exonerate the accused but rather strives to prove the guilt of the accused in a one-sided manner, this unequal ‘arsenal’ of prosecution and defense could not but result in grave miscarriages of justice.[98] Even the Presiding Judges – provided they had been willing to equalize the situation – could not have helped the defense to improve its situation very much, for these judges were merely de facto guests of the prosecution, which latter decided all material and personnel matters in Court.[99] The judges had no authority to issue directives, neither to the Occupation Powers nor to the prosecution – not even with regard to the obtainment or hearing of evidence.[100]

In many and sweeping respects the conduct of the IMT was shockingly similar to that of the trials described previously in Section 3.3.1.1. Von Knieriem and many others recount threats of all kinds, of psychological torture,[101] of non-stop interrogation[102] and of confiscation of the property[103] of defendants as well as of coerced witnesses. Intimidation, imprisonment, legal prosecution and other means of coercion was applied to witnesses for the defense;[104] distorted affidavits,[105] documents[106] and synchronized translations;[107] arbitrary refusal to hear evidence,[108] confiscation of documents[109] and the refusal to grant the defense access to documents;[110] as well as to the systematic obstruction of the defense by the prosecution[111] such as, for example, making it impossible for the defense to travel abroad in order to locate defense witnesses,[112] or censoring their mail.[113] We know of professional witnesses who had been interned in concentration camps for severe crimes.[114] Last but not least, we know of verdicts flying crassly in the face of what the evidence demanded,[115] and justified with “arguments unrivalled in their crudity.“[116]

When the American attorney E. J. Caroll was prevented from acting as defense counsel in the Krupp case, he sent a letter of protest to General Clay criticizing the IMT trials for, among other things, lengthy and inhumane detention awaiting trial; the withholding of documents by the prosecution and the Court, hearsay evidence, the random nature of documentary evidence, the suppression of witnesses for the defense, and the mandatory presence of members of the prosecution at any discussions held with witnesses; the disappearance of exonerating evidence; the confiscation of property; testimony under duress; and the intimidation of witnesses.[117]

Irving calls the manner in which the IMT prosecution conducted interrogations “Gestapo methods“.[118] The prisoners, cut off as they were from the rest of the world and suffering from hunger and cold, were not granted any medical care for injuries they had sustained through abuse by their captors,[119] and even their defense counsels ran the risk of being arrested if they insisted on the rights they might have expected in legal trials – as it happened, for example, to the defense counsel of von Neurath,[120] or to all the defense attorneys in the Krupp Trial.[121] As far as the incriminating testimony provided by former inmates is concerned, Aschenauer detects significant parallels between the concentration camp trials conducted by the USA in Dachau on the one hand, and the trial of the SS Economic-Administrative Main Office in Nuremberg on the other, since in both cases the testimony was provided by the same criminal “professional witnesses“.[122] And of course the VVN’s threats and intimidation of former fellow inmates to prevent exonerating testimony were also not lacking in the IMT trials.[123]

Opinions regarding abuse and torture during the IMT trials are divided. Whereas Irving acknowledges them in the form of constant harassment and minor maltreatment,[124] von Knieriem assumes that “apparently” there were none.[125] We do know, however, of the severe abuse of J. Streicher, which he described during his interrogation before the IMT.[126] His account about having been tortured was stricken from the protocol at the request of the prosecution.[127] Lautern reports the torture of SS-Gruppenführer Petri,[128] and in his last records O. Pohl told of the maltreatment of Standartenführer Maurer.[129] Mark Weber details a number of additional cases of abuse.[130] This suggests that the main defendants who received much public attention suffered only a lesser degree of physical abuse, while those who received less publicity also risked abuse in Nuremberg if they were not quick enough to cooperate.

The investigating committees mentioned in Section 3.3.1.1. resulted in the revision of some of the verdicts handed down by the IMT and its successor tribunals. In these cases the German Federal government insisted on greater leniency – the result of rearmament following the Korea crisis.[131]

3.3.1.6. The Consequences of Allied Post-War Trials

The American trials in Dachau and the similar trials conducted by the other Allies allegedly proved the atrocities committed in the concentration camps and in eastern Europe. The SS and Waffen-SS have been deemed criminal organizations ever since, even if for example the German courts do not treat their members as criminals, but this may be only due to the necessity to avoid illegal retroactive application of new laws. The IMT itself reinforced this assessment through the repeated presentation of ‘evidence’ largely obtained in the aforementioned trials.

The best summary of the consequences of the evidence presented to the IMT may be found in the memoirs of H. Fritzsche. All the main defendants of Nuremberg insisted that prior to the IMT proceedings they had not known of any mass murder of the Jews.[132] After the screening of a dubious film about the concentration camp Dachau and other camps had achieved the desired psychological effect, but had failed to convince completely, the testimonies of R. Höß and O. Ohlendorf finally persuaded most of the accused to accept the mass murder as fact.[133] The murder of the Jews, which was ultimately accepted as proven by most of the accused, affected the defense and the accused and even the fate of the entire nation like a paralyzing curse, since now no one dared still object.[134] Nevertheless the accused were left with the impression that the investigative requirements had not been met:

“The incomprehensible was proven in a makeshift sort of way, but it was by no means investigated.”[135]

The fact that the publication Vierteljahrshefte für Zeitgeschichte regards the IMT as a fair trial sincerely striving for justice, whose only fault was to be found in its legal foundation, will not surprise anyone familiar with the leftist, partial Institut für Zeitgeschichte, the body publishing that periodical.[136]

3.3.2. Trials ‘Under the Rule of Law’

The basic treaty establishing the partial sovereignty of the Federal Republic of Germany decreed that the verdicts of the IMT were final and binding for all official and judicial authorities of the Federal Republic.[137] The establishment considers this a handicap, since due to the demands of the Korea Crisis the United States released most of those they had convicted in their post-war trials in fairly short order, with the German justice system missing out on the pleasure of re-charging them even in light of new evidence.[138] But one might also consider the decree to be a handicap in the sense that, through Article 7 of the Treaty, the Allies effectively placed the view of history resulting from their post-war judicial conclusions and verdicts beyond revision even for German courts.

Regarding the significance of witness testimony to the verdicts in trials particularly in the Federal Republic of Germany and Israel, it must first be pointed out that the view of history as the IMT established it with regard to the Holocaust is generally considered to be self-evident and true today. The question of how great a role the transition treaty played in this remains open. Thus, motions to take evidence – particularly material evidence regarding the refutation or even the examination of this ‘truth’, or to question its self-evidence – are refused sight-unseen by the Courts, especially in Germany. These motions to hear evidence are dismissed as mere tactics intended to delay the trial.[139] Anyone who nevertheless insists publicly on his dissenting claims, i.e., beliefs in, or points out technical and scientific counter-arguments, soon finds himself the object of prosecution for slander of the Jews, disparagement of the memory of persons deceased, hate-mongering, or incitement to hatred.[140] Since 1985 this is even considered an offense so grave that proceedings are brought directly by the Public Prosecutors’ Departments even without a prior report or complaint by someone considering himself slandered.[141] The only thing anyone will achieve by speaking out in court against the self-evident ‘truth’ will be to receive an all the more severe sentence for stubborn lying and lack of repentance, and his arguments will be ignored. This insurmountable and blindly dogmatic persecution of dissenting viewpoints hobbles any and all research deviating in content from the officially sanctioned view.[142]But let us take a look at some examples afforded by Israel and the Federal Republic of Germany, to see in what sort of setting the trials of supposed violent National Socialist criminals took and continues to take place in countries calling themselves modern western-styled democracies under the rule of law.

3.3.2.1. The Investigations

The dubious starting point of many investigations – whether shortly after the war, or sometimes even today – are conclusions that were drawn in the course of Allied post-war trials, in judicial opinions, in witness statements, confessions of perpetrators, or other documents at the disposal of the investigating bodies.[143][144][145] It is also cause for concern to consider how the rules of procedure were circumvented in order to facilitate the prosecution of Germans who were merely suspected of having committed crimes. Until 1951, the German justice system was permitted by the laws of the Allied Control Council to deal only with crimes committed by Germans against other Germans or stateless persons.[146] But even after partial sovereignty had been attained in 1955, certain circles were not satisfied with the scope of the German justice system’s investigative activities and results. Rückerl explains this dissatisfying condition with the fact that under existing laws, Public Prosecutors’ Offices can take action only when a supposed criminal is resident in their region or when the crime was committed in their sphere of responsibility. Since the putative National Socialist crimes are predominantly said to have been committed abroad and frequently by person or persons unknown, there was no investigation at all in many cases.[147]

In 1958, in order to get around this obstacle, the Ministers of Justice of the Federal German states established the Zentrale Stelle der Landesjustizverwaltungen zur Aufklärung nationalsozialistischer Verbrechen [State Administration of Justice, Central Office for Investigation of National Socialist Crimes] in Ludwigsburg, to circumvent the above regulations and conduct worldwide researches in the form of preliminary investigations to determine where which crimes might have been committed in the name of Germany, and by whom – an act that is unique in the history of law and justice.[148] To this day this Central Office continues to draw on all possible sources (archives, witness statements, court documents, books, accounts of personal experience, movies, press releases) to obtain information on crimes supposedly committed abroad by Germans under the National Socialist regime. When the Central Office believes that sufficient evidence has been found against certain suspects, it passes its findings on to the appropriate Public Prosecutors’ Offices which then proceed to initiate the standard investigations.

After refusing for years to examine and make use of the archives of the Eastern Bloc,[149] the Federal German government finally overcame its reluctance in the wake of the 1964 Auschwitz Trial, and appealed to all nations of the world to make as much documentation about National Socialist crimes available to Germany as possible. Some parties even demanded that a European Legal Commission should be set up expressly and exclusively to prosecute supposed National Socialist criminals.[150] This appeal by West Germany caused East Germany, for example, to declare that it had sufficient incriminating material in its archives to prosecute hundreds of thousands.[151] Aside from these eastern European sources, the western archives (including especially those in Israel) as well as the standard Holocaust literature and inmates’ organizations are the chief sources of the material collected by the Head Office.[152] S. Wiesenthal[153] and H. Langbein, a former inmate, have been particularly assiduous in providing material. The Schwurgericht [jury court] of Frankfurt even certified to the latter that he had played an especially important part in the preparations for the Auschwitz Trial and its execution,[154] and on the occasion of Langbein’s presence at the examination of a witness the Public Prosecutor went so far as to thank him openly for his assistance.[155]

But what is of key importance is the fact that, as has been proven now in five separate cases, the Central Office or the Public Prosecutors’ Offices compiled so-called Criminals’ Dossiers which they made available to all potential witnesses, as well as to domestic and foreign investigative bodies, for the purpose of further dissemination to witnesses. In these Dossiers all supposed perpetrators are listed along with their photographs both of today and from National Socialist times, and a description of the crimes imputed to them – as well as such crimes which may have taken place but for which witnesses and clues to the identity of the perpetrators are still lacking. The witnesses are then asked to treat the issue as a matter of confidence but to assign the criminals to the crimes and to add other crimes which may be missing from the Dossier.[156] It is clear that under such circumstances the memory of these witnesses was ‘refreshed’, i.e., distorted. Thus, subsequent testimonies and especially the identifications of the alleged perpetrators in court are a farce.[157] And finally, Rückerl[158] and Henkys[159] report that due to new findings that had come to the attention of the investigating authorities, or due to discrepancies between witness testimony and the beliefs of the investigating authorities, the witnesses were questioned over and over again. It would not be surprising if this fact by itself already resulted in a sort of ‘streamlining’ of testimony. In this context Rückerl points to cases of manipulation of witnesses by investigating authorities as well as by private records centers – while of course considering these cases to be exceptions to the rule.[160] The frequently very difficult investigations resulted in the accused persons being detained, awaiting trial, for three to five years and sometimes even longer, which can contribute to the emotional attrition of the accused and which the European Court is not alone in condemning as a violation of human rights.[161]

It must be noted that both Rückerl[162] and Henkys[163] considered it a necessity that politically particularly reliable personnel were employed for the first few decades of these special investigations, since many employees and officials might have been biased due to their own activities during National Socialist times. It is safe to assume that only such persons were employed as had never even dreamed of doubting the reality of the alleged crimes to be investigated. Given such eager, ideologically persuaded and trained personnel, it is quite within the realm of the possible that witnesses who were reluctant to testify were threatened in the course of preliminary investigations in order to obtain the desired testimony. Lichtenstein describes the results of a second-degree interrogation, which he expressly states is necessary in order to force reluctant witnesses to talk:

“The witness [Barth[164]] hesitates, […] suffers or fakes a nervous breakdown. […] Before leaving the witness stand he takes back his claim that the police officer who had interrogated him had ‘blackmailed’ him into telling what had happened at that time. He now states rather lamely that the officer had ‘been rather tough with him’, which is certainly necessary with witnesses of this sort. [sic!]“[165]

All in all, the Central Office seems to regard itself more as an institute for historical research operating with unconventional methods than as an office for criminal prosecution: Rückerl, in any case, considers its findings historical facts.[166] Steinbach even suggests that in the future, after the end of the NSG trials, the Central Office ought to be turned into an institute for historical research,[167] which apparently is the plan of German politicians, too.[168]

An interview with a former SS-man, however, revealed that probably not even this task of historical research is performed properly. According to this interview it seems that the members of the Central Office never try to find out what really happened, but are only interested in information about crimes and alleged criminals.[169] This procedure must inflate the crimes and can only hide the truth.

3.3.2.2. Judges and Prosecuting Attorneys

For the alleged major crime categories of the Third Reich (Einsatzgruppen, concentration camps and other camps), the trials of individual persons were supplemented by a mammoth trial conducted at a central location, to which dozens of accused and sometimes hundreds of witnesses were summoned.[170] Although this was a financial and technical necessity, it was nevertheless inevitable that the question of the individual guilt of each defendant would perforce be drowned out. In the face of such a deluge of evidence and information, neither the defense nor the prosecution, neither judge nor jury can keep track of everything for years on end.[171]

Even though there has been much emphasis on the point that it cannot be the task of the Court to dabble in historiography, Rückerl stresses that particularly the trials concerned with the alleged National Socialist extermination camps are of historical relevance and that the elucidation of historical events frequently took center-stage in those trials.[172] No secret is made of the fact that the ‘historical’ findings of these investigations make up the chief pillars on which contemporary historiography has based its research.[173] Steinbach even states that it is unique in the history of historiography for this area of inquiry to have been left up to non-historians, i.e., prosecuting attorneys and judges, and that this chapter is therefore the best-researched in German history.[174]

And indeed the courts are superior to historians in one respect, namely in the obtainment of witness testimony. Rückerl notes correctly that unlike historians, investigators and judges in criminal trials are able, thanks to the apparatus of state, to obtain a great many statements from witnesses and to probe them for the truth by means of questioning, i.e., interrogation.[175] But whether these statements, on which such fateful decisions hinge, are true – this is something that is far more difficult to determine. Bader and Henkys suggest that this would be possible only if the Court were allowed to exert physical force, which is prohibited in a state under the rule of law.[176] It is rather amazing to find that in our times there actually are German adults who believe that force can ascertain the truth. Tuchel limits the historical usability of legal findings to those that are based on good and complete legal research.[177] But who assesses quality and completeness, and by which criteria?

The most prominent example of the NSG trials is the Auschwitz Trial in Frankfurt. Contrary to the claims of the then Presiding Judge, this trial is generally regarded as the epitome of historical trials.[178] Thus it is not surprising that the only expert reports which the Court commissioned to elucidate the issue were historical reports about the National Socialist regime in general and about the persecution of the Jews in particular,[179] but no criminological reports about the evidence for the supposed and alleged deeds of the defendants.[180] How two-faced, therefore, of the Federal Supreme Court to have quashed the acquittal resulting from one particular NSG trial – giving for its decision the reason that the Court allegedly had done nothing to determine whether the crime had even taken place![181] But this is precisely what the courts entrusted with the NSG trials never do in the only reliable way available, namely non-historical, i.e., technical, scientific, and forensic expert reports. Yet the Federal Supreme Court clearly is not bothered by this when the result is a conviction rather than an acquittal.

Another element for concern is the fact that in these large-scale, well-publicized NSG trials, both the prosecution and the witnesses produced a show-trial-style, graphic overall impression of the alleged horrors of the Holocaust.[182] This contributed nothing to the establishment of truth regarding the charges brought against the accused, instead it added to the Court bias against them. Rückerl explains that graphic presentation of the gruesome context within which the alleged crime was committed serves to increase the severity of the sentence.[183] Bader comments:

“Trials which are conducted in order to furnish evidence for historians are evil trials and represent a sinister approach to show-trials.”[184]

The Court’s value judgment of the evidence is also significant. Rückerl reports that it is practically impossible to find a suspect guilty on the sole basis of documentary evidence, so that especially with the increasing time span separating fact from trial it is almost always necessary to fall back on witness testimony even though its unreliable nature is clear, and particularly so in these NSG trials.[185] He states further that the conviction of an accused on the strength of the testimony of only one witness is questionable due to the possibility of error on the part of the witness, but that several witnesses, all giving incriminating testimony, would convince the Court.[186] This is reminiscent of the trial technique sometimes used in ancient times, where it was the number of witnesses rather than the quality of the evidence they gave that decided someone’s guilt or innocence.[187] It is a particular point for concern that the courts, due to their lack of proper evidence, are increasingly accepting hearsay testimony,[188] even though it is generally acknowledged that this type of evidence is worthless and that it is extremely dangerous to rely on it, since doing so practically ensures a miscarriage of justice.[189]

The external conditions surrounding such trials also violated the judicial standards of a state under the rule of law. For example, Laternser criticizes filming and photographing in the courtroom, which was (unlawfully) permitted during the Auschwitz Trial and resulted in the defendants being besieged much like lions in a zoo.[190] During their statements the defense or the defendants were subjected to insults and even threats from courtroom spectators without any intervention from the Court;[191] that the accused were subjected to insults from the prosecutors and witnesses and even to disparagement by the judges;[192] that the prosecution participated in an exhibit held in the Paulskirche [Church of St. Paul, an important national memorial of Germany] during the trial and at which the accused were ‘convicted’, complete with their photos, life history and details of their alleged crimes.[193]

Prosecutor Helge Grabitz reports that in the face of the horrible events described by the witnesses it was next to impossible for judges and prosecutors alike to remain objective and that they sometimes even declared themselves to be biased since they felt rage, shame or despair.[194] This bias – or “interest“, as it is called – became particularly evident when the Jury Court of Frankfurt in charge with the Auschwitz case visited the site of the alleged crime. Grabitz comments:

“When the trial moves out of the courtroom and to the site of the crime, a profound sense of consternation predominates.”[195]

This is vividly reminiscent of those Auschwitz pilgrims who shuffle through the camp with heads bowed, who pray before a hot-air delousing chamber, in which the prisoners’ clothes were fumigated, in memory of the victims they, albeit mistakenly, believe to have been murdered therein. To truly honor the dead, a cursory attempt to find out to which use these buildings and facilities were really put should be done. Instead of explaining the true purpose for all buildings and camp centers by the experts, the courts used these opportunities only in order to increase their dismay.

If Laternser is correct, then it is also a point for concern that the prosecution in the Auschwitz Trial failed to comply with its duty (§160 of the Code of Criminal Procedure) to also search for evidence that would exonerate the accused.[196] Chief prosecutor Grabitz’s comment regarding the responsibility of the prosecution in cases where a defendant plays down or denies the crimes he is charged with is rather revealing in this instance:

“It is the task of the prosecution to refute these claims of the accused by bringing convincing evidence, especially eyewitness testimony.”[197]

Despite claims to the contrary, most of the prosecutors were indeed concerned solely with incriminating the accused. Thus, these trials came to be more and more like Anglo-Saxon trials, in which the prosecution concerns itself only with proving guilt, and not with attempting to establish innocence.

The means available to investigative authorities (described in Section 3.3.2.1.) to conduct investigative proceedings against future accused for many years and with the support of several hundreds of experts, all the governments in question, and any and all archives they may need,[198] result in an inequality of resources between prosecution and defense that is similar in scope to that characterizing the Allied post-war trials. Arendt ascertained this inequality of resources, analogous to the IMT, for the Eichmann Trial in Jerusalem.[199]

Once someone accused of NSG crimes has been convicted, he has next to no chance to prove his innocence through an appeal or a retrial. Whereas retrials were not uncommon shortly after the war, they are almost always refused today.[200] Oppitz suggests that the reason for this is that courts today regard eyewitness testimony in a much more critical light than they did right after the war, which means that miscarriages of justice have become far less likely.[201] We shall see to which extent this is in fact so.

3.3.2.3. Defense Counsels

Trial reports written by defense counsels in NSG trials are few and far between, since those few counsels who are willing to assume the defense in such trials tend to be more than fed up with the trouble they incur through their involvement with the trial per se. As a rule they therefore avoid the further trouble that would be theirs in the event of a publication. Also, for a self-employed lawyer it is very difficult to come up with the time and money necessary to write a book, not to mention that it is next to impossible to find a publisher for such a book. H. Laternser, who was himself convinced that the Holocaust story is fundamentally correct,[202] is the only attorney to date to publish a detailed account of this kind. Since the trial in question drew a great deal of public interest, it was even possible to find an establishment publisher for the book. Laternser’s expositions also hold true more or less for all other NSG trials, whose general conditions have been discussed in less mainstream publications.[203] Laternser, who already served as defense counsel during the IMT trials, describes the atmosphere pervading the Auschwitz Trial in Frankfurt as follows:

“In the major international criminal trials in which I participated, there was never as much tension as in the Auschwitz Trial – not even at the International Military Tribunal in Nuremberg.”[204]

One point of criticism of this trial which he cites from the perspective of the defense is that hardly any prosecutors and members of the press were present during the summation of the defense. In other words, there was no interest in a balanced view of the matter.[205] He further criticizes that the defense was severely restricted in its questioning of witnesses and that their motions to hear evidence were suppressed, not granted, or refused without reason.[206] The defense was also not granted access to the audio-taped records of witness testimony.[207] Reviewing and summarizing the many eyewitness statements was thus quite impossible for the defense. The fact that even this judicial straitjacket was not tight enough for some is revealed by Rückerl, who complains that the trials took too long, allegedly because of the ever-increasing deluge of evidence introduced by the defense,[208] and Lichtenstein claims, in the same vein, that the defense did not have sufficient restrictions put on it.[209]

A telling factor was the reaction of the Court and the public in the case where an attorney dared approach the witnesses whom the prosecution authorities had located, and questioned these witnesses prior to the trial without identifying himself as defense counsel. In Court it later turned out that the statements of these witnesses, which had been inconsistent and contradictory before the trial, were now brought into mutual accord and had been purged of their most unbelievable elements.[210] The public condemned the attorney in question for his investigations, and the chief witness nations, Poland and Israel, banned him from entering their respective countries in the future.[211]

It is further food for thought that defense attorneys in NSG trials are exposed to public attacks which at times go as far as physical assault and professional disciplinary hearings or even criminal prosecution, should they ask for or try to present evidence that challenges the self-evidentness of the Holocaust.[212]

Thus it is not surprising that many defense counsels, appointed to the case by the Court, take themselves to their task with great reluctance originating with ideological reservations or with fear of harm to their reputation, and prefer to cooperate with the judge or even with the prosecution rather than represent their clients effectively, and even consider resigning their appointment under the pressure of media campaigns.[213] This resulted in the failure of any joint strategy on the part of the various defense attorneys, who instead even turned on each other at times.[214] In one case it has been proven that this went so far as to prompt one such appointed defense attorney to advise his client to try to obtain leniency from the Court by making false confessions of guilt, which the defendant did in fact proceed to do.[215] Similar strategies are recommended to the defense by third parties, as the defendants’ insistence on their innocence, which no one is willing to believe, seems pathetic and cowardly to the public.[216]

In reading Laternser’s trial documentation one notices that he never comments critically on the fact that no material evidence was ever brought with regard to victims, murder weapons or the site of the crime, and that eyewitness testimony was also not subjected to any expert critical analysis. In this respect Laternser follows in the traditional footsteps of other defense counsels of the IMT and the Federal German trials, none of whom harbored any doubts as to the factuality of the various Holocaust stories until just recently. It thus never so much as occurred to them to demand proof of the crime prior to negotiations about the guilt of the accused, as is the standard course of procedure in any court case relating to normal murders and even to trivialities such as traffic accidents. Laternser also fails to critically address the practice of keeping the accused in custody for many years, sometimes for more than five years in detention awaiting trial, thus subjecting them to psychological attrition that persuades almost any accused person to cooperate with the Court and the prosecution to some extent if only doing so will serve to make his own fate more bearable.

And finally, as an aside it should be noted that Eichmann’s defense counsel was not permitted to speak with his client privately, and that he was not granted access to the transcripts of Eichmann’s interrogations[217] – once again, methods reminiscent of the International Military Tribunal.

3.3.2.4. Witnesses

3.3.2.4.1. Witnesses for the Prosecution

Rückerl, Henkys and Langbein[218] are well aware that eyewitness testimony is unreliable not only due to the natural forgetting process and to bias, but also because things heard or seen in the reports of third parties or in the media frequently become internalized and regarded as personal experiences. It is almost impossible for courts to differentiate between personal and second-hand experiences in eyewitness testimony.

On the one hand, Rückerl and Henkys[218] write that the misery of camp life dulled the inmates’ ability to absorb the events around them, which explains faulty testimony and makes it not only excusable, but in fact even more credible than it would otherwise have been.[219] On the other hand they suggest that particularly horrible and thus indelibly impressive events may be retained unchanged in an inmate’s memory like a photograph for 30 years and more, thus making highly detailed eyewitness testimony credible.[220] Even if this theory should be correct, the question remains: how is a court to differentiate between photographically precise memories and testimony that has been unconsciously warped by time and external influences?

Elisabeth Loftus takes the opposite position, particularly in the context of Holocaust witnesses: of all the categories of witnesses, she says, these are the most unbelievable, due to the world-wide media exploitation and the emotionally highly charged mood characterizing the topic of the Holocaust.[221] Admittedly, she has held this view only since attending the Demjanjuk Trial in Jerusalem, where the scales fell from her eyes. In the end, this trial produced a verdict of not guilty, since the unreliable nature of all the witnesses for the prosecution had become too apparent[222] – and this included witnesses who had given similar testimony two decades earlier in two Treblinka trials in Germany, where they had been deemed credible and had helped to decide the outcomes of these trials.[223]

In many German trials experts on the credibility of witnesses had concluded that, on the whole, said credibility was intact even after 30 years, at least where the heart of the testimony was concerned. Oppitz believes that in the future, motions to examine credibility should be refused on grounds of self-evidence.[224] Since Rückerl feels that only vagueness and inconsistency are the hallmarks of quality in eyewitness testimony,[225] it is not surprising that there is a general tendency to demand that the scrutiny of incriminating eyewitness testimony pertaining to the Holocaust be condemned as reprehensible practice.[226] It has also been noted that in the face of the paralyzing horror which witnesses for the prosecution bring to vivid life in the courtroom, the Courts themselves appear to lose all their critical faculties where this testimony is concerned, and are prepared to regard the witnesses strictly as innocent, guileless and defenseless victims, even in the courtroom,[227] and there are even those who deem such stunned horror on the part of the Court and the public to be a necessity without which the suffering of the victims cannot be properly appreciated.[228] Grabitz explains that where “victim witnesses” are concerned, one must be especially empathic, understanding, and restrained in one’s questions,[229] a sentiment which culminates in her comment:

“As a human being one simply wants to take this witness into one’s arms and to weep with him.”[230]

But it did not take the Demjanjuk show trial to show that some of these witnesses are up to no good. Oppitz[231] demonstrated with a number of examples that even in the German courts there are both professional and vengeful witnesses which, however, are only rarely condemned for perjury, or which – as one may well suppose, in light of the German Courts’ uncritical and credulous attitude towards Holocaust witnesses for the prosecution – were not even recognized as perjurers. Particularly dramatic cases include those where the defendants are accused by witnesses of having murdered certain persons who later turn out to be still alive, to never have existed in first place, or to have died long before the time of the NS regime.[232]

With reference to the Auschwitz Trial, Laternser reports something that goes for all NSG trials on the whole: foreign witnesses departed again immediately after testifying, making it impossible to call them to account later when it turned out that they had committed perjury. Neither the judges nor the prosecutors took any steps to examine or test the statements of witnesses for the prosecution. Any and all attempts by the defense to do so were “nipped in the bud“,[233] since it would be wrong to persecute the victims of yesterday all over again today.[234] Lichtenstein gives an outraged account of one exceptional case where the prosecution as well as the Court condemned the eyewitness statements as fairy-tales.[235]

Grabitz distinguishes between three categories of Jewish witnesses:[236]

1. Objective, matter-of-fact witnesses. According to Grabitz these stand out for their detailed testimony regarding the character and conduct of those participating in the crime/s. Further, they often cite the memory of the sacrifices of their family or their people as their reason for feeling obliged to testify. What Grabitz fails to see here is that even an apparently unemotional, discriminating statement need not be true, and that the remembrance of the sacrifices of family and coreligionists is by no means a motivation inherently proof against a desire for vengeance.
2. Jewish witnesses striving for objectivity and matter-of-factness. Grabitz includes in this category those witnesses whose dreadful experiences make it difficult for them to maintain their composure; characteristics include crying fits and nervous breakdowns, but also bursts of invective expressed during or after testimony. In other words, Grabitz excuses the at times unobjective accounts of those witnesses on the grounds of the awful nature of their experiences. But what if the awful experiences attested to are not true? How is one to examine such testimony if the sympathy that the testimony inspires for these witnesses prohibits any questioning of their statements?
3. Witnesses characterized by hatred. According to Grabitz these project injustices they suffered onto innocent persons because they can no longer incriminate the actual guilty party, or magnify the guilt of someone present at the crime or injustice. By now it has been shown time and again that these “hate witnesses” are capable of the total fabrication of the crimes they allege, but this fact does not occur to Grabitz.

Public prosecutor Grabitz is probably in accord with most prosecutors, and with judges as well, when she states that her witness categories are a) credible, and thus not to be cross-examined, b) unreliable in parts, but also not to be cross-examined due to the witnesses’ horrible experiences (which of course cannot but be true), and c) factually correct, but distorted with respect to the perpetrators. In other words, she sees no reason whatsoever to doubt the credibility of Jewish witnesses ndash;

“[…of] these witnesses, who want to testify in order to bring the truth to light – why else would they have voluntarily come from abroad […].”[237]

The height of naïveté, surely, by this prosecutor allegedly seeking truth!

The free rein that as a rule was granted the witnesses for the prosecution, and frequently not even restricted by the defense counsels,[238] no doubt did not contribute to the veracity of these witnesses. What makes matters worse is that in German criminal proceedings the taking of verbatim transcripts is not required, meaning that the Court does not record eyewitness testimony exactly as it is given, neither in written form nor taped.[239] Until the end of the seventies the German Courts rather took a protocol of results, in which only the essential results of the trial were summarized. Accounts of witnesses as well as statements of defendants, lawyers and judges therefore cannot be reconstructed precisely if later evidence produces contradictions. At the end of the seventies even the duty to prepare a protocol of results was lifted for all higher Courts (District and Provincial High Courts). They only prepare pro forma protocols since. Regarding the statements of defendants and witnesses one can read therein only something like: “The witness made statements about the matter“, or: “The defendant filed a declaration“. Nothing occurs in those protocols about the content of the statements and declarations. Since trials against alleged NSG criminals are being held in higher instances right from their start because of the gravity of the alleged crime (which denies the defendants a second instance with a hearing of evidences), this leads to a situation where the Courts have absolutely free hand regarding the ‘interpretation’ of the statements of witnesses and defendants. This situation throws the gates wide open for untruths on the part of witnesses, but also for interpretations of statements against their actual wording by the Courts.[240] The media as well only publicize select portions of testimony, whose value as evidence is suspect from the start.[241]

In several instances Oppitz and Rückerl have noted the influencing or prejudicing of witnesses by inmate organizations such as the covertly Communist VVN, the “Organization of Persons Persecuted by the Nazi Regime“.[242] But what is considerably more serious than the aforementioned manipulation by the investigative authorities is the way in which the witnesses coming to the Federal Republic of Germany from the Eastern Bloc nations were checked out for their reliability and even put under massive pressure, both by eastern secret service organizations as well as by Ministries of Justice and of the Interior, and even during the trials by Embassies and Consulates. They were even escorted into the courtroom by public servants. Reliable Communists and such witnesses as were willing to incriminate the accused were usually the only ones to be granted permission to leave the eastern states.[243] B. Naumann called this modus operandi of the Eastern Bloc nations “inquisition“,[244] and Langbein rejoiced that in spite of this discovery the German courts still did not question the credibility of these witnesses.[245] Further, Laternser reports that the witnesses for the Auschwitz Trial were able, even before the trial began, to tell their stories in the media or even in Witness Information Pamphlets published especially for this occasion, so that impartial and objective testimony became quite an impossibility. As well, the witnesses were monitored by many different organizations and persons, which also renders their prejudicing very likely.[246] As an aside, it should be pointed out that many witnesses travelled from one trial to the next, pocketing outrageously high witness fees as they went.[247]

The influence of the constant barrage of Holocaust stories on European, American and Israeli witnesses is demonstrated by Rückerl on the basis of Australian witnesses. Whereas western witnesses can almost always make definite statements on certain complexes of the matter at issue, investigators in Australia usually come away empty-handed. Nobody can quite remember anything any more there.[248]

Of course, there is another component to some ‘eye witness accounts’, and that is political propaganda. It is well known that many communists and socialists were incarcerated in German concentration camps. It is more than likely that these persons co-operated with external underground movements as well as with the Soviets in what is today generally acknowledged as atrocity propaganda. For example, the famous Auschwitz inmates Ota Krauss and Erich Schön-Kulka,[249] Rudolf Vrba and Alfred Wetzler,[250] Filip Müller[251] and Stanislaw Jankowski[252] all were members of the so-called camp partisans of Auschwitz who were involved in what they themselves called “making propaganda.”[253] The communist Bruno Baum even declared:

“The whole propaganda which started about Auschwitz abroad was initiated by us with the help of our Polish comrades.”[254]

“It is no exaggeration when I say that the majority of all Auschwitz propaganda, which was spread at that time all over the world, was written by ourselves in the camp.”[255]

“We carried out this propaganda in [for] the world public until our very last day of presence in Auschwitz.”[256]

The most striking admission of being a preposterous liar is perhaps that by famous Jewish Auschwitz ‘survivor’ Rudolf Vrba to his fellow-Jew and fellow-‘survivor’ Georg Klein. Asked if everything is true that Vrba had said about Auschwitz during an interview made for Claude Lanzmann’s movie Shoah, Vrba answered with a sardonic smile on his face:[257]

“I do not know. I was just an actor and I recited my text.”

These admissions of blatant lies are rare.[258] If one does not wish to accuse all witnesses of lying, but would rather give them the benefit of the doubt, then one must perforce seek other explanations. Many approaches to explanations have already been made, some of whom are discussed here briefly.

Gringauz was the first who described the Jewish perception and description of their persecution as biased:

“The hyper-historical complex may be described as judeocentric, lococentric and egocentric. It concentrates historical relevance on Jewish problems of local events under the aspect of personal experience. This is the reason why most of the memoirs and reports are full of preposterous verbosity, graphomanic exaggerations, dramatic effects, overestimated self-inflation, dilettante philosophizing, would-be lyricism, unchecked rumorism, bias, partisan attacks and apologies.”[259]

The question whether it is possible that events which someone has not personally experienced, or not experienced in the degree claimed, may be ‘remembered’ ex post facto so intensively that this affects a person’s psyche – in other words, that people experience the horror retroactively after actually having heard about it only through the media or through third parties, was answered recently. This question became especially relevant after the Demjanjuk Trial in Jerusalem when it turned out that not only the witnesses themselves were not credible, but that the deluge of forged documents and false testimony were also shaking the very core and foundation of their testimony as a whole.[8],[222] As already mentioned, Elisabeth Loftus, the Jewish-American specialist on eyewitness testimony, recently published a book in which she describes the mechanisms by which most human brains produce ‘memories’ of events they actually never experienced, especially in situations of heavy emotional stress.[260]

Otto Humm described in an recent article how typhoid fever, an epidemic which raged in many German concentration camps and claimed ten thousands of lives, leads to a psychotic behavior of the patient who has extremely terrible hallucinations. If not treated appropriately, these hallucinations may be believed by the recovered patient as real events. [261]

Hans Pedersen offers a more psychological explanation based on a case in Denmark at the beginning of 19^th century, where a young Jewish girl exhibited bizarre personal phenomena by injuring herself and simulating handicaps in order to attract public attention and a higher social status. She tricked all of her guardians and curiosity seekers, including most renowned physicians who were brought in to explain her baffling physical conditions. Most stunning in this case was not the behavior of the the young lady, a quite common kind of behavior in disturbed adolescents, but the incapability of the ‘experts’ to recognize the obvious signs of deceit as such because of their will to believe in the innocence of the girl and in the reality of the physiological miracles she apparently performed.[262]

Howard F. Stein appointed out another possible explanation when he recognized that the Holocaust has become a central focus of modern Jewish identity, and that the majority of the Jewish people lose themselves in identity-creating group fantasies of martyrdom.[263] And what is more: the Jewish side even demands the constant and ever-increasing “traumatization” of particularly the young Jewish generation by means of the deeply affective re-experiencing of all real and supposed Holocaust atrocities, intended to achieve their “almost physical identification” and solidarity with their people.[264] Thus, the Holocaust is considered today to be the core of the “civil religion” of at least the Israelis, if not of all Jews.[265]

Of course these almost pathological fixations of many Jews to the Holocaust led to massive criticism even from the Jewish side.[266] Even one of the most popular Holocaust authors, the Nobel Peace prize-winner Elie Wiesel, recently admonished not to let the Holocaust be a central point of reference for the Jewish identity. Under the title “Do not get obsessed with the Holocaust” he is quoted as follows:

“The Holocaust has become too much of a central point in Jewish history. We need to move on. There is a Jewish tendency to dwell on tragedy. But Jewish history does not finish there.”[267]

A conference of Ukrainian and Polish physicians in American exile, held in January 1993 towards the end of the Demjanjuk Trial, concluded that many Jews have forgotten their true and sometimes just as horrible experiences in the concentration camps, and are increasingly replacing them with group fantasies of martyrdom and with horror fairy-tales as spread by the media, which latter accounts are circulated with particular vigor in the Jewish communities due to their identity-building effect. Such phenomena have already been described in relevant medical literature and are known as Holocaust Survivor Syndrome.[268]

Finally, greed and political power may be seen as another driving force behind the tendency to invent, exaggerate, and distort events when it comes to the Holocaust, as Jewish-American scholar Norman G. Finkelstein pointed in 2000.[269]

3.3.2.4.2. Witnesses for the Defense

How different, in comparison, is the Courts’ treatment of witnesses for the defense! The most devastating example is that of G. Weise, for whose trial a great number of witnesses for the defense appeared, i.e., were suggested to the Court. However, they were either not summoned by the Court, or their testimony was construed as incriminatory (contrary to its actual content) or simply declared irrelevant on the grounds that only incriminating testimony could clear up the facts of the crime. Anyone who knew nothing of the alleged crime had simply been in the wrong place at the wrong time.[270] In the end Weise was convicted on the basis of one witness for the prosecution, while the more than ten defense witnesses were utterly disregarded. Rieger reports that another Court scornfully dismissed two defense witnesses with the comment that it was a mystery why these witnesses would lie.[271] Burg reports that as defense witness he was regularly threatened and even physically assaulted.[272]

German defense witnesses who were not confined to concentration camps and ghettos at the time in question are on principle treated with distrust by the courts. If they cannot remember the atrocities alleged by witnesses for the prosecution, or if they should even dispute them (which is generally the case),[273] they are declared unreliable and are therefore not sworn in.[274] Prosecutor Grabitz expresses revulsion and loathing for such witnesses, as for the accused who testify in a similar vein and whom she would like nothing better than to slap resoundingly in the face.[275] Rückerl even insinuates perjury,[276] and in fact some witnesses have been prosecuted to this effect.[277] Lichtenstein reports a case where such “ignorant” witnesses were charged en masse with lying and perjury and where threats of arrest, and actual arrests, were repeatedly made.[278] He quotes the judge’s response to one witness who avowed that he was telling the plain and simple truth:

“You will be punished for this truth, I promise you.”[279]

In the Auschwitz Trial, witness Bernhard Walter, whose testimony was not to the prosecution’s liking, was placed under arrest until he had revised his statements.[280] It is clear that such actions by the Court cannot but have intimidated witnesses. But Lichtenstein merely fumes that despite all this some witnesses were still so insolent as to continue to deny everything.[281] German defense witnesses for the ‘criminal side’ who were willing to testify for Adolf Eichmann in the Jerusalem trial were always threatened with arrest by the prosecution, so that they stayed away from the proceedings.[282]

The dilemma of the German witnesses who had been ‘outside the camps or ghetto fences’ is demonstrated by H. Galinski, who demands that all members of the concentration camp guard staffs should be summarily punished for having been members of a terrorist organization.[283] Rückerl explains that the only reason why this demand cannot be met is that at the time of the Third Reich the legal concept of a terrorist organization did not yet exist, and today’s laws cannot be applied retroactively.[284] Nevertheless he and many others conclude that anyone from the Third Reich who had any contact whatsoever with the alleged events always has one foot in prison,[285] since the witnesses who are frequently motivated by hatred often regard any such person as a criminal merely because of the position he held at the time.[286] Langbein devotes an entire chapter to the opinion, expressed by many inmates, that all SS-men were devils incarnate,[287] and he even admits that each and every Holocaust survivor is a perpetual accuser of all Germans.[288] It is thus easy to understand that only a very few defense witnesses from the ranks of the SS, SD, Wehrmacht and Police have the stomach for giving unreserved, candid testimony, since any witness for the prosecution can fashion a noose out of it for them with their considerable talent for coming up with all sorts of incriminations. The show trial character of these anti-German and anti-Germany trials is pregnantly obvious to thoughtful onlookers.

And if defense witnesses should get carried away and presume to claim that they know nothing of gas chambers, and perhaps even dare to dispute their existence, then the least that will happen to them is that they are declared unreliable. Even the judge himself may become abusive.[289] But how the judges change their tune in those exceptional cases where a former SS-man ‘confesses’:

“A valuable witness, one of the few who confirm at least some of what everyone knows anyhow.”[290]

Indeed, the author has hit the nail on the head! Since everything is “judicially noticed” and considered self-evident anyhow, it would be much easier to dispense with all the laborious proceedings and simply hand down the verdict as soon as the witnesses for the prosecution have had their say as in typical show trials.

The courts frequently conclude from these circumstances that witnesses for the defense cannot contribute anything of value to an investigation anyhow, and thus disregard their testimony or even dispense with summoning them in the first place.[291]

Finally, it should be mentioned that many former inmates who, during interrogations by the police or state attorneys prior to the actual trials, made exonerating statements about purported historical events in general or certain defendants in particular, were simply never summoned by the courts as witnesses. The transcripts of these pre-trial interrogations are not accessible to the public. Only recently, I managed to receive a complete set of photocopies of these investigation files leading to the infamous Frankfurt Auschwitz trial by means not to be described here (and Jürgen Graf managed to receive a copy of the investigation files of the Majdanek trial). These documents are currently analyzed, results of which will be published step by step. A preliminary study has already revealed that the German authorities have been – and probably still are – engaged in the suppression of exonerating evidence on a massive scale.

3.3.2.5. The Defendants

While the situation of witnesses from the SS and similar backgrounds is critical, that of the accused can only be described as hopeless. They are the target of the unbridled hatred and malice of the witnesses for the prosecution as well as of the media.[292] It borders on the miraculous that in light of the conditions pointed out here, by far the majority of the accused do in fact dispute any participation in the alleged crimes. On the other hand, they do not as a rule dispute the crimes per se; in view of the “self-evidence” of these matters, any such attempt would only serve to diminish their credibility in the eyes of the Court anyway. The accused frequently express dismay and disgust at the crimes alleged. Jäger[293] comments that these exclamations might be prompted by tactical considerations, and by a change of heart brought about by later influences from outside, and can thus hardly be regarded as evidence for an awareness of guilt at the time in question – and we would like to add here that for the same reasons they can also not be taken as evidence for the crime itself, particularly since the often ambiguous statements of the alleged perpetrators, as recorded in contemporaneous diaries, letters, speeches etc.,[294] almost never suggest any awareness of guilt.

Frequently, however, the accused do not speak out against the allegations made against them, or cannot remember. They merely attempt to dispute any participation in the crime, and to shift the blame onto third parties – mostly unknown, dead or missing comrades.[295] Statements made by the accused in their own defense are interpreted by the Court and the prosecution as lies intended to serve as cover,[296] which is often the case since many defendants will try any and all possible and impossible tricks in order to distance themselves from the place and time of the alleged crime, which of course they do not always succeed in doing. But these tactics, often doomed to failure, are easy to understand, since the accused are given next to no chance to disprove the crime itself. Thrust into the helpless defensive in this way, the accused fall silent at many of the charges brought against them. A statement of the Presiding Judge at the Auschwitz Trial in Frankfurt is significant:

“We would have come a good bit closer to the truth if you had not persisted in hiding behind such a wall of silence.”[297]

But which truth did the judge want to hear? Some of the accused did not admit even a certain measure of guilt until after they had suffered dramatic heart attacks, nervous breakdowns and hysterics.[298] Outrage at the boundless lies of the witnesses is a constant with all the defendants.[299]

Even after they have been convicted, and sentenced to many years or even a lifetime in prison, most of them continue to “obstinately” deny their guilt, which is absolutely unusual otherwise for criminals of this kind. Remorse, repentance and an awareness of guilt seem to be alien to them.[300] Even in those few cases where guilt is admitted, a strange dichotomy of perception occurs, where the alleged criminals are not truly penitent and ready to atone from the heart, but continue to seek to place part of the blame elsewhere, to invent justifications for the acts in question, and to complain of injustices done to them. Sereny[301] and Draber[302] speak of the existence of two different levels of conscience and consciousness and even of self-alienation and disturbances of consciousness.

A particularly devastating example is that of Oswald Kaduk, one of the accused in the Auschwitz Trial, a very simple soul. He was badgered so dreadfully that he suffered a nervous breakdown,[303] attempted during his trial to refute even testimony in his favor,[304] and ultimately said with resignation,

“Well, I’m a murderer, no one will believe me anyway.”[305]

Anyone who would like to recreate for himself Kaduk’s complete mental confusion is referred to Demant’s interviews with him and two other convicts of the Auschwitz Trial.[299] Anyone who reads them attentively will all but trip over this scandalous travesty of justice.

Considering these circumstances it is utter mockery for Langbein to claim:

“There is nothing to keep them [the accused] from dismissing or disproving exaggerated allegations.”[306]

The last straw is provided by Oppitz, who criticizes that after their release from prison some of those who had been convicted of NS crimes are monitored with an eye to their political activity – an unlawful and no doubt unparalleled act of police-state surveillance.[307] Clearly our state desires to ensure that these people do not become active as Revisionists. The same is true for prisoners who were released on parole: They do not dare to get in contact with independent researchers and do not want to talk about the events half a century ago since they are threatened to be imprisoned immediately if they show some kind of revisionist behavior. Thus for example Kurt Franz, former camp commander of Treblinka concentration camp, who was released on parole in 1994, refuses to speak about the past since he fears to get imprisoned again.[308] He should not have any reason to do so if everything German Courts have stated in their verdicts about Treblinka is correct.[309]

In view of the glaring discrepancy between the gruesomeness of the alleged crimes and the good and decent harmlessness of the accused, Helge Grabitz[310] seconds Hannah Arendt[182] in her observations on the commonplace face of evil. It even occurs to her that the reason for the stubborn denials of the accused, and for the contrast between the crimes and the alleged criminals, just might be that the crimes in fact never actually took place – but she immediately rejects this “seductive” idea as cynically flying in the face of the evidence.[311]

3.3.2.6. Public Reaction

The circumstances and conditions of the NSG trials regarding the drawing-up of historical summaries of the alleged National Socialist atrocities, pointed out in Section 3.3.2.2., already suggest that these proceedings exhibit strongly their show-trial nature. Admissions to the effect that the NSG trials are of importance first and foremost to the cause of public education, i.e., opinion-leading are numerous. For example, the public prosecutor at the Auschwitz Trial, Fritz Bauer, admitted this truth,[312] as did B. Naumann, the FAZ correspondent at this trial. The latter wrote that the Auschwitz Trial was of “ethical, socially educational significance.“[313] And H. Langbein, the éminence grise behind the trial scene, commented:

“The special element in these criminal trials is their political impact.”[314]

A. Rückerl wrote that the ‘clearing-up’ of National Socialist crimes was

“of an overall public and historical relevance that went far beyond the criminal prosecution per se”,

and:

“The combined results of historical research and criminal investigation lend themselves to impressing upon the man on the street such matters as he ought to bear well in mind, in his own interest – regardless of how unpleasant this may be for him.”[315]

With thematic consistency, Scheffler suggests that the NSG trials ought to be a permanent focus of public life since they deal with an issue of our society’s very existence,[316] and according to Steinbach the NSG trials provide an important contribution to the shaping of German identity.[317]

The logical consequence of all this is that, for educational reasons, entire school classes and armed forces units are regularly taken to observe such trials,[318] which are at times also attended by high dignitaries from Jewish organizations and Israel.[319] The unabashed Jewish admission that the trials against Eichmann and Demjanjuk in Israel, where both cases were the only really interesting matter for all of Israel’s media for many weeks, had been of the nature of show-trials, seems more honest than these German proceedings.[320]

Kröger points out the discrepancy between the will of the majority of the German people in the mid-1960s, which was to have an end to the NSG trials,[321] and the major print media’s almost unanimous support of their perpetuation,[322] which ensured that the reading public was steered in this “pedagogically desired” direction.[323] He also points out that the criticism directed at the courts by these print media is proportionally more severe, the more lenient the verdicts turn out – in other words, greater severity is demanded.[324] Bonhoeffer thus notes correctly that the German press reports in great detail particularly about the spectacular mass trials, even though there was next to no public demand for such information until the 1970s.[325] Lichtenstein[326] and Steinbach[327] note that a growing trend towards the rejection of the NSG trials in the late 1970s and early 1980s was suddenly followed by a drastic change in public opinion, induced – according to Steinbach – not only by the pedagogically trained younger generation but primarily by the television miniseries Holocaust.[328] The mission entrusted to the media – public education and opinion-steering – has been stressed by various sources.[329] The newspaper Neues Österreich shed new light on the quality of this type of media reporting when it commented on witness testimony in an NSG trial in the following way, which unfortunately is typical for our media:

“Whatever the accused cannot disprove did obviously take place, as incredible as it may sound.”[330]

In other words, the public consents to the practice that in NSG trials it is not the guilt of the accused that must be proven, but rather that the accused must prove his innocence of any and all conceivable accusations, in the tradition of the Inquisition of medieval times.

Abroad, the most remarkable reaction to the NSG trials was no doubt the international appeal of 1978, not to allow the National Socialist crimes to lapse under the statute of limitations;[331] this appeal, which came after the Federal German statute of limitations for murder had already been extended twice,[332] was made for the sole purpose that the prosecution of alleged National Socialist crimes might continue ‘til the end of time. In this context, Lichtenstein notes that during the 1979 debate about this statute, Simon Wiesenthal had had postcards of protest printed in many different languages and distributed with the request to mail these to the Federal German government.[333] Steinbach is quite right when he describes the German Bundestag debates on this statute[334] as some of the most remarkable moments of German parliamentarianism.[335]

Thus, even in 1997, more than 50 years after the end of the war and more than half a century since commission of the supposed crimes, NSG trials continue to be decided solely on the basis of witness testimony. Especially in the new post-reunification German states, people are being prosecuted who have practically already been convicted but who to date were not within reach of the authorities. Langbein predicted this development as early as 1965:

“It is therefore to be expected that, once extensive researches are conducted, many SS-men will yet be found in the German Democratic Republic who, while already proven guilty [sic!!!], could not be arrested in the Federal Republic of Germany or in Austria.”[336]

This perpetual witch hunt is made possible by revisions of laws which act retroactively to exacerbate the trial situation of any accused – in other words, according to Henkys, the process is based on an ex post facto (retroactive) law that violates human rights.[337]

It is also significant that the supposed National Socialist criminals are not allowed to rest in peace even after their deaths. Ever since the war the press has routinely spread rumors claiming that Hitler is still alive, or that his body has finally been found and autopsied; these rumors supplement the many reports and accounts surrounding the fates and final resting places of supposed National Socialist murderers.[338]

3.3.2.7. Summary

Even though experts agree that witness testimony loses almost all of its evidential value in the course of only a few years, persons are continuing to be convicted even decades after the supposed fact, on the basis of witness testimony that is clearly unreliable in every respect. Exonerating evidence may be suppressed,[339] and the media, whose role properly ought to be that of monitor, not only join in this game, but even demand that it be stepped up.

In other words, in trials dealing with certain types of crimes the crime itself is regarded as unshakeable fact, and this usually goes for the perpetrators as well, since every German employed in a concentration camp may be considered a criminal or an accomplice. Some witnesses even said this quite frankly, and demanded that punishment should be meted out for the very fact that someone had worked in a concentration camp. Anyone involved in a trial under these conditions – regardless whether he was a witness or a defendant – could not possibly dispute the crime as such, since doing so would have meant a more severe sentence for a defendant or, for a witness, criminal charges for incitement, slander or the like, or at the very least enormous social reprisals ensuring professional ruin or worse.

Under such anti-law circumstances, the most that any defendant could do was to try to minimize his role in the ‘crime’ and to deflect at least some of the attack by incriminating others. The incrimination of third parties is a sure way to make friends of the prosecution and the Court, which latter is always willing to make concessions in return for confessions and cooperation in the discovery of further putative criminals – a court technique that will induce false confessions if the crime per se is not open to debate.

In many countries in Europe even neutral researchers are not in a position today to approach Holocaust studies with the hypothesis that certain events did not take place. They too are condemned without any examination of their arguments, on the grounds of self-evidence of the opposite of their theses, and with that they are deprived of their social existence. In 1992 the Provincial High Court and Court of Appeal in Düsseldorf, seconding a decision of the Federal Constitutional Court, did decide that self-evidence may be reversed if completely new evidence, or such that is superior to past evidence, is presented, requiring a retrial of the matter at hand.[340]

But even new and extensive scientific material evidence, advanced in order to reverse the decree of self-evidence, has been refused by the courts. In this context the Federal German Supreme Court decided in 1993 that even the refusal of motions to examine self-evidence, as one defense counsel proposed to do in an appeal document,[341] is proper legal procedure due to the self-evidence of the Holocaust.[139] The Holocaust, therefore, is a judicially safeguarded view of history which this decision renders completely untouchable. This represents an inquisition in its purest and highest degree, and a gross violation of the human rights to academic freedom and the freedom of expression and opinion.

Unfortunately, until recently there were no attorneys who recognized this vicious circle that is so catastrophic for a state supposedly governed by justice, and no attorneys who demanded that the crime, the murder weapon and the victims, i.e., the evidence for these, as well as eyewitness testimony and documents, be examined with modern forensic methods before the question can be raised of who the murderer/s might have been. Such attorneys have stepped onto the scene only recently, but aside from slander and abuse, threats of prosecution and the aforementioned decision of the Federal Supreme Court – i.e., an exacerbation of the judicial situation – they too have been unable to achieve any changes.

In 1966 R. M. W. Kempner, then the deputy chief prosecutor at the IMT, claimed that with respect to legal procedure the Nuremberg Trial did not differ from the trials held before a German jury court or another kind of court.[342] In many respects we agree with him.

4. Parallels

There used to be a crime that was considered to be worse than any other; it was known as crimen atrox (atrocious crime). According to witness testimony this included the most horrific abuses and ways of murdering people and animals that the human mind can conceive of, and even included harm to and destruction of the environment. Not only was such a crime prosecuted directly by the public prosecutor as soon as it became known – the courts were even instructed not to observe the normal rules of procedure, since these were satanic crimes that could not be dealt with in the ordinary way. Even death could not keep the victims from being persecuted: their bodies were simply exhumed without much ado.

Whereas in the early days of the prosecution of such crimes the accused and sometimes even reluctant witnesses were subjected to brutish torture, such methods fell quite out of favor later on. Psychologically cunning methods of interrogation and protracted, trying imprisonment while awaiting trial replaced physical torture. And finally, the stories about these crimes, spread by all available media and already recorded in detail in official books and registers, ensured that everyone knew what the proceedings were all about. As a result witness statements regarding individual crimes often resembled each other so closely that outside observers could not but believe that the testimony of so many different persons who had nothing else in common simply had to be true somehow.

Many witnesses testified anonymously. Witnesses for the prosecution, who had to swear a holy oath to the Court regarding the veracity of their testimony, were usually highly rewarded for their services. As a rule their statements were never scrutinized, and the witnesses themselves were never cross-examined by the defense. Even if they were shown to have committed perjury, generally nothing happened to them. Even patently absurd and inconsistent, physically impossible claims were deemed credible.

Witnesses or defendants who denied the crime itself or their involvement in it were persecuted and punished all more severely for their stubborn lies, since obviously they were not willing to admit their satanic deeds, to repent and to renounce their satanic practices. In time, every accused realized that admitting guilt was his only hope for leniency from the Court, so that false confessions were made even in cases where torture was no longer practiced. The incrimination of third parties was a device commonly used in attempts to cooperate with the Court in order to obtain a more lenient sentence or even freedom.

Very rarely did the courts accept material evidence relating to the alleged crimes, and even in cases where it could be proven that the persons said to have been murdered were still alive, or had died of natural causes many years earlier, the courts were frequently unmoved. Later, even a clause providing for the self-evidence of the crime was introduced, which served to stonewall any counter-evidence from the start.

The defense attorney was not permitted to question the crimes themselves and had to accept the views of his time as his own if he did not wish to fall out of favor with the Court and the public. This could even result in his being accused of sympathizing with his client’s deeds and belonging to the latter’s criminal clique, which earned him a trial of his own. As well, the defendants were rarely granted access to the case files and could not speak with their clients in private.

This is an account of the conditions prevailing in the witch trials of medieval times, as researched and set out by Soldan in his classic Geschichte der Hexenprozesse (History of the Witch Trials).[343]

The similarities to the modern cases described herein are surely coincidental?

5. Conclusions

Under the conditions of the NSG trials set out in the preceding, the eyewitness testimony and confessions made in these trials can be accorded next to no evidential value. From a scientific point of view, and in this case in particular, eyewitness testimony can never suffice to document historical events, much less to prove them in a court of law.

Confessions and statements have been extorted from supposed perpetrators and participants by means of torture, threats of criminal charges, more severe punishment and prison terms, detriments to personal welfare and professional advancement, as well as by the complete hopelessness and helplessness imposed by the show trials as described. Similar means were also employed to manipulate witnesses for the prosecution, who in turn engaged in manipulation of their own. In these cases it was a matter of threats of violence as well as deliberate manipulation by the media, governmental, judicial and private institutions. What is more, the absolute free rein that was granted these witnesses, and the tendency to portray them belatedly as heroes of anti-Fascist resistance and to reinforce their thirst for vengeance, have resulted in this testimony being taken ad absurdum in its inconsistency and exaggeration. Some of the most glaring examples of such statements are listed at the end of this article.

The decisive prerequisite for these conditions is the worldwide climate of persecution and defamation to which anyone and everyone is subjected who may possibly have been in any way connected with alleged National Socialist crimes or who is suspected of doubting the truth of these. The allegedly unprecedented nature of these crimes induces an unparalleled moral blindness in ‘Nazi-hunters’ and in the guardians of the fundamental anti-Fascist consensus that prevails in politics, in the media and even among the broad masses, which suspends the rules of common sense and justice guided by the rule of law, so that the corresponding court cases call the medieval witch trials vividly to mind.

One proof of this attitude held by the majority of our fellow men and women is the fact that to date books such as the present volume have not been favored with rational arguments, but rather are countered with hysterical cries for the public prosecutor, even if those shrieking the loudest have never read the book in anything approaching its entirety or have not bothered to confirm the correctness of its contents by checking the source material. There simply are things nowadays that cannot be true because they are not allowed to be true.

In view of all the facts one is probably correct in the assumption that where the Holocaust is concerned our society is in a state of permanent mass suggestion fostered by the Holocaust Survivor Syndrome,[268] by the downright hysterical prosecution mania of all sorts of social groups right up to the upper echelons of especially, but not exclusively, the German Federal justice system,[344] directed at anyone holding a dissenting opinion, and of course by the never-ending traumatizing of coping and mourning rituals conducted in schools, politics and the media. Bender comments:

“Mass suggestion, frequently bordering on the hysterical, has an even stronger formative influence than the good example of so-called opinion leaders. Enhancing factors include: solemn rituals,[345] the incessant repetition of the same catch phrases,[346] emotionally stimulating signals (music, flags etc.).[347] […] What is more, mass suggestion lends itself more than almost any other phenomenon to the induction of downright extreme distortions of perception.”[348]

Taking into consideration all the circumstances involved in how testimony regarding the Holocaust comes about, suspicions may arise that the accusations made are not only not provable, but that in fact the opposite of the claims advanced by the established Holocaust story may be true. This is the only thing that could explain why the establishment saw and continues to see itself forced to resort to such unjust, even unlawful measures.

Meanwhile even contemporary historiography has concluded, painfully enough, that the eyewitness testimony is not reliable.[349] But contemporary historians have fashioned themselves a crutch: Nolte, for example, explains that while statements on the Holocaust might be exaggerated, it would be impossible to invent the like outright.[350] He is thus in agreement with many expert psychiatrists and psychologists who, according to Oppitz,[224] have affirmed repeatedly that there can really be no doubt about the factuality of the core of all the Holocaust testimony, which after all does always make the same or at least similar claims.

But who decides, and on the basis of what rules, where the rotten shell of eyewitness testimony ends and where its sound core begins?

How do these experts explain away the fact that all the horror stories circulated by the Allies in the First World War were pure invention: nuns’ breasts cut off, civilians nailed to barn doors, children’s hands chopped off, fallen soldiers processed into soap,[351] mass gassing of Serbs in gas chambers, etc.?[352]

How do they explain away that the following horror scenarios of the Second World War were nothing more than atrocity lies invented by the Allies and their confederates: conveyor-belt executions, conveyor-belt electrocutions, cremations in blast furnaces, murders by means of exposure to vacuum and steam,[353] puddles of pooling fat at open-air cremations, the smoke-filled black air resulting therefrom, mass graves squirting geysers of blood, soap from human fat, lampshades from human skin, shrunken heads from the bodies of inmates, etc.?[354]

Furthermore, it is a known fact today that the horror scenarios of mass gassings – allegedly carried out with Zyklon B or Diesel exhaust gas – in the concentration camps of the German Reich proper (e.g., Dachau, Sachsenhausen, Buchenwald, Bergen-Belsen) were nothing other than utter lies, invented or at least supported by Germany’s democratic western friends. What reasons can our historians come up with that would justify declaring as ‘uninventable’ sterling truth the identical or similar tales of mass gassings with Zyklon B or Diesel exhaust in the former Communist, dictatorial Eastern Bloc, which was certainly not very kindly disposed towards Germany?

And how, finally, do these experts explain away the inconsistencies which the present volume points out between the material evidence and eyewitness testimony in fundamental core aspects of the Holocaust?

It may be true that most witness statements contain a core of truth, but this core cannot be defined by assigning it in true democratic fashion to the weighted mean of overall testimony. The impossible remains impossible even if the vast majority of witnesses alleges the contrary.

6. Examples of Absurd Claims Regarding the Alleged National Socialist Genocide[355]

• child surviving six gassings in a gas chamber that never existed;[356]
• woman survived three gassings because Nazis kept running out of gas;[357]
• fairy tale of a bear and an eagle in a cage, eating one Jew per day;[358]
• mass graves expelling geysers of blood;[359]
• erupting and exploding mass graves;[360]
• soap production from human fat with imprint “RIF ” – ‘Reine Juden Seife’ (pure Jewish soap), solemn burial of soap;[361]
• the SS made sausage in the crematoria out of human flesh (‘RIW’– ‘Reine Juden Wurst’?);[362]
• lampshades, book covers, driving gloves for SS officers, saddles, riding breeches, house slippers, and ladies handbags of human skin;[363]
• pornographic pictures on canvasses made of human skin;[364]
• mummified human thumbs were used as light switches in the house of Ilse Koch, wife of KL commander Koch (Buchenwald);[365]
• production of shrunken heads from bodies of inmates;[366]
• acid or boiling-water baths to produce human skeletons;[367]
• muscles cut from the legs of executed inmates contracted so strongly that they made the buckets jump about;[368]
• an SS-father potshooting babies thrown into the air while 9-year old SS-daughter applauds and shrieks: “Papa, do it again; do it again, Papa!“[369]
• Jewish children used by Hitler-Youth for target practice;[370]
• wagons disappearing on an incline into the underground crematoria in Auschwitz (such facilities never existed);[371]
• forcing prisoners to lick stairs clean, and collect garbage with their lips;[372]
• injections into the eyes of inmates to change their eye color;[373]
• first artificially fertilize women at Auschwitz, then gas them;[374]
• torturing people in specially mass-produced “torture boxes” made by Krupp;[375]
• torturing people by shooting at them with wooden bullets to make them talk;[376]
• smacking people with special spanking machines;[377]
• killing by drinking a glass of liquid hydrogen cyanide (which, scientifically considered, evaporates quickly and would endanger those who pouring it into said glass);[378]
• killing people with poisoned soft drinks;[379]
• underground mass extermination in enormous rooms, by means of high voltage electricity;[380]
• blast 20,000 Jews into the twilight zone with atomic bombs;[381]
• killing in vacuum chamber, hot steam or chlorine gas;[382]
• mass murder in hot steam chamber;[383]
• mass murder by tree cutting: forcing people to climb trees, then cutting the trees down;[384]
• killing a boy by forcing him to eat sand;[385]
• gassing Soviet POWs in a quarry;[386]
• gas chambers on wheels in Treblinka, which dumped their victims directly into burning pits; delayed-action poison gas that allowed the victims to leave the gas chambers and walk to the mass graves by themselves;[387]
• rapid-construction portable gas chamber sheds;[388]
• beating people to death, then carrying out autopsies to see why they died;[389]
• introduction of Zyklon gas into the gas chambers of Auschwitz through shower heads or from steel bottles;[390]
• electrical conveyor-belt executions;[391]
• bashing people’s brains in with a pedal-driven brain-bashing machine while listening to the radio;[392]
• cremation of bodies in blast furnaces;[393]
• cremation of human bodies using no fuel at all;[394]
• skimming off boiling human fat from open-air cremation fires;[395]
• mass graves containing hundreds of thousands of bodies, removed without a trace within a few weeks; a true miracle of improvisation on the part of the Germans;[396]
• killing 840,000 Russian POWs at Sachsenhausen, and burning the bodies in 4 portable ovens;[397]
• removal of corpses by means of blasting, i.e., blowing them up;[398]
• SS bicycle races in the gas chamber of Birkenau;[399]
• out of pity for complete strangers – a Jewish mother and her child – an SS-man leaps into the gas chamber voluntarily at the last second in order to die with them;[400]
• blue haze after gassing with hydrogen cyanide (which is colorless);[401]
• singing of national anthems and the Communist International by the victims in the gas chamber; evidence of atrocity propaganda of Communist origin;[402]
• a twelve-year old boy giving an impressive and heroic speech in front of the other camp children before being ‘gassed’;[403]
• filling the mouths of victims with cement to prevent them from singing patriotic or communist songs.[404]

Notes: